Mario Antonio Bellard v. State ( 2009 )

Affirmed and Memorandum Opinion filed December 3, 2009

In The

Fourteenth Court of Appeals

NO. 14-08-00330-CR

Mario Antonio Bellard, Appellant

v.

The State of Texas, Appellee

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Court Cause No. 87647

MEMORANDUM OPINION

A jury convicted appellant Mario Antonio Bellard of murder, sentenced him to thirty years’ confinement in the Texas Department of Criminal Justice, and assessed a fine of $10,000.  In three issues, appellant asserts that the trial court reversibly erred by (a) improperly charging the jury on the definitions of “intentionally” and “knowingly” and (b) denying his federal and state constitutional right to compulsory process for the presence and testimony of a material witness.[1] We affirm.

I.  Background

In February 2002, Port Arthur Police Department (“PAPD”) Sergeant Frank Ramirez responded to a call at the Carver Terrace Apartments in north Jefferson County.  There, Ramirez discovered the body of the decedent, Nelson Ozane, lying face down on the ground, with spent shell casings nearby. During the PAPD investigation, officers first arrested Leon Davis as a suspect, based on an identification of Davis by Tremaine Lewis.  But after further investigation and Lewis’s recantation of his identification, charges against Davis were dropped, and he was released.  PAPD officers next focused their investigation on appellant based on his known involvement with the Wood Boys gang and several tips developed during their investigation.  Appellant agreed to accompany PAPD officers into the station for a voluntary interview.  Appellant executed a voluntary notarized written statement, in which he stated:

· He was a member of the Wood Boys gang.

· He knew about the shooting at the Carver Terrace Apartments.

· Albert Wilson from Beaumont wanted to join the Wood Boys gang, but was told he had to “earn his stripes” to join.  Wilson was told by several Wood Boys members that he could “earn his stripes” by shooting at “anybody from the West Side.”  Wilson agreed to do so.

· Wilson asked appellant if he could borrow his “heater,” which was a .380 caliber black semi-automatic gun.  Appellant gave the gun to Wilson.

· Appellant drove Wilson, D’Artagnan Arceneaux, and two others to the apartment complex and dropped Wilson off nearby.  Appellant parked and waited for Wilson’s return, but when Wilson did not return in ten or fifteen minutes, appellant moved his car to another location.

· After a short time had passed, appellant saw Wilson running down a nearby street and picked him up.  Wilson told appellant and the others in the vehicle that he had shot an individual several times.

Appellant, Arceneaux, and Wilson were later arrested and charged with the decedent’s murder.

            At appellant’s trial, the State relied on the theory that appellant was guilty of the decedent’s murder as a party.  Several PAPD officers testified regarding their investigation into the decedent’s murder.  Appellant’s statement, detailed above, was admitted into evidence.  A PAPD officer explained that during the PAPD investigation, officers discovered a .380 caliber handgun in a white van that appellant and his brother were known to drive.  A ballistics expert testified that the shell fragments and casings recovered from the murder scene and found in the decedent’s body were fired from that particular .380 caliber handgun.  The medical examiner testified that the decedent died from gunshot wounds.  

In addition, after reaching an agreement with the State, Arceneaux testified regarding both his and appellant’s involvement in the Wood Boys gang and the decedent’s murder.  Arceneaux’s description of the events surrounding the decedent’s murder was similar to appellant’s statement, although Arceneaux testified that he was driving the vehicle the evening that Wilson shot the decedent.  Additionally, Arceneaux admitted that he had pleaded guilty for his involvement with the decedent’s murder and that, as a result of his truthful testimony at appellant’s trial, his punishment would be capped at fifteen years’ confinement.  The State rested after Arceneaux’s testimony.

Appellant called Albert Wilson to the stand.  Wilson testified that he was also charged with the decedent’s murder, but that he was not involved and had no knowledge of the incident.  Wilson stated that he was not a member of the Wood Boys and that he did not drive to the Carver Terrace Apartments with appellant and Arceneaux on the night in question.  Wilson further testified that he had never seen the murder weapon and did not ask appellant for or receive the gun from appellant.  In addition, appellant presented the testimony of former PAPD detective Robert Whitesel.  Whitesel explained that the first suspect in the decedent’s murder was Leon Davis, who had been identified as the shooter by Tremaine Lewis.  On cross-examination, Whitesel testified that several inconsistencies were discovered in Lewis’s statement and that Lewis later admitted he made up his statement identifying Davis.  Whitesel also explained that the PAPD subsequently developed appellant, Wilson, and Arceneaux as suspects.   Appellant then called Lewis, who failed to appear.  After Lewis failed to appear, appellant moved for a continuance, which was denied by the trial court.  Appellant then rested his case.

After a brief rebuttal by the State, both sides rested and closed, and the trial court charged the jury.  The jury convicted appellant of murder, sentenced him to thirty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice, and assessed a fine of $10,000. 

II.  Issues Presented

In his first issue, appellant contends that the trial court erred by including improper definitions of “intentionally” and “knowingly” in the jury charge.  In his second and third issues, appellant asserts that the trial court denied his federal and state constitutional rights to compulsory process for the presence and testimony of a material witness.

III.  Analysis

A.        Charge Error

Appellant complains of the following definitions of “intentionally” and “knowingly” included in the abstract portion of the jury charge:

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

. . .

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding conduct when he is aware of the nature of his conduct or that the circumstances exist[].  A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the death.

Murder is a “result of conduct” offense, meaning that the culpable mental state relates to the result of the conduct, i.e., causing the death.  Roberts v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008); Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) (en banc).  The State concedes that it was error for the jury charge to include “nature of conduct” definitions in the jury charge.  See, e.g., Medina v. State, 7 S.W.3d 633, 639–640 (Tex. Crim. App. 1999) (“We agree that it is error to define a knowing murder as to the nature of conduct alone.  The most accurate definition of knowingly would have referred to the result of conduct.”); Jones v. State, 951 S.W.2d 522, 525 (Tex. App.—Beaumont 1997, pet. ref’d) (concluding that charge defining “intentionally” or “knowingly” as relating to the nature of the conduct as well as the result of the conduct is error). 

But finding error in the jury charge begins, rather than ends, our inquiry.  See Jones, 951 S.W.2d at 525 (citing Cook v. State, 884 S.W.2d 485, 494 (Tex. Crim. App. 1994) (en banc)). Where, as here, no objection was made at trial, the error requires reversal only if it is so egregious and created such harm that the appellant has not had a fair and impartial trial.  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc) (op. on reh=g). The actual degree of harm must be assessed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id.  We consider the degree, if any, to which the culpable mental states, broadly defined in the abstract portion of the charge, were limited by the application portions of the jury charge. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Davis v. State, 967 S.W.2d 476, 479 (Tex. App.—Beaumont 1998, no pet.).

In this case, the application paragraph of the jury charge properly limited the culpable mental state to the result of appellant’s conduct:

Now if you believe from the evidence beyond a reasonable doubt that . . . the defendant MARIO ANTONIO BELLARD, either acting alone or as a party, as that term has been defined, did then and there intentionally or knowingly cause the death of an individual, namely:  NELSON OZANE, hereafter styled the Complainant, by shooting Complainant with a deadly weapon, to wit:  a firearm, you shall find the defendant guilty of the offense of MURDER.

(emphasis added).  “Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious.”  Medina, 7 S.W.3d at 640; see also Davis, 967 S.W.2d at 479; Jones, 951 S.W.2d at 525.  Thus, appellant was not denied a fair and impartial trial because the erroneous abstract definitions of “intentionally” and “knowingly” were appropriately limited in the application paragraph to the result of appellant’s conduct.  See Davis, 967 S.W.2d at 479; Jones, 951 S.W.2d at 525. We therefore overrule appellant’s first issue.   

B.        Compulsory Process of Witness

In his second and third issues, appellant complains that the trial court violated his state and federal constitutional rights to compulsory process by (a) instructing law enforcement officials to abandon their efforts to execute a Writ of Attachment, and (b) arbitrarily denying his request for a continuance to secure the presence of the witness subject to this writ.  The State responds that appellant failed to preserve this complaint because he did not object on this basis.  An accused’s right to compulsory process for obtaining witnesses is embodied in both federal and state law.  See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005); see also Washington v. Texas, 388 U.S. 14, 19 (1967).  But almost all error, even constitutional error, may be forfeited if a defendant fails to object.  Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); Hawkins v. State, 964 S.W.2d 767, 769–70 (Tex. App.—Beaumont 1998, pet. ref’d).

Here, a subpoena was issued for Tremaine Lewis; it was properly served and executed, with the return sent to the court.  Lewis, however, failed to appear as directed in the subpoena, and after his name was called at the courthouse door with no reply, the trial court issued a Writ of Attachment.  Law enforcement personnel unsuccessfully attempted to serve the writ:  the officer charged with serving the writ discovered that Lewis allegedly was located at his mother’s home, but was denied entry to the home when he attempted to serve the writ.  Lewis’s name was called at the courthouse door again, but he did not appear.  Appellant orally moved for a continuance: 

I would ask the Court for a continuance in an effort to attempt to locate [Lewis].  As the Court is aware, I know that the sheriff’s office has been diligently working on trying to locate him since yesterday afternoon, without success; but I still would ask the Court for a continuance in an effort to locate him.

The trial court denied the motion, and the defense rested without objection.[2]

The record reflects that appellant failed to object that the trial court’s actions deprived him of his right to compulsory process.  Thus, he has not preserved this complaint for our review.  See Tex. R. App. P. 33.1(a)(1)(A); Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006); Gonzalez v. State, 714 S.W.2d 19, 25 (Tex. App.—Houston [1st Dist.] 1985, no pet.) (supp. op. on reh’g) (concluding that the appellant waived his complaint regarding violation of his right to compulsory process by failing to object on that basis at trial).  Moreover,

[w]hile a guarantee of compulsory process for obtaining a witness means that the accused is entitled, as matter of right, to invoke the aid of the law to compel the personal attendance and actual presence of a witness at his trial when their presence is obtainable, nevertheless, it does not amount to guarantee of actual attendance of such witness, and the fact that despite all efforts being made the witness is still absent at the time of the trial, this absence does not show a denial of any constitutional right of the defendant.

Sigard v. State, 537 S.W.2d 736, 739 (Tex. Crim. App. 1976). Under these circumstances, we overrule appellant’s second and third issues.

IV. Conclusion

Having overruled each of appellant’s issues, we affirm the trial court’s judgment.

                                                                        /s/        Leslie B. Yates

                                                                                    Justice

Panel consists of Justices Yates, Anderson, and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).                                                                   

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[1] This case was transferred to this court from the Tenth Court of Appeals.  In cases transferred by the Supreme Court from one court of appeals to another, the transferee court must decide the case in accord with the precedent of the transferor court if the transferee court’s decision would have been inconsistent with the precedent of the transferor court.  See Tex. R. App. P. 41.3.

[2] No motion for new trial was filed raising this complaint.