Ricardo Garza Lopez v. State ( 2010 )

NUMBER 13-09-00585-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RICARDO GARZA LOPEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Ricardo Garza Lopez, guilty of capital murder, and
because the State did not seek the death penalty, the trial court assessed punishment
at life imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. See TEX. PENAL CODE ANN. §§ 12.31(a)(2), 19.03(a)(2) (Vernon Supp. 2010).
By eight issues, Lopez contends that: (1) the evidence is legally and factually
insufficient to support his capital murder conviction; (2) the ―trial court committed
reversible error by instructing the jury abstractly on the law of parties respecting [Texas
Penal Code section] 7.02(b), but not meaningfully including that abstract theory of
criminal responsibility in the subsequent application paragraph‖; (3) the ―trial court
committed reversible error by including an unsubstantiated and prejudicial comment on
the weight of the evidence in [the] application paragraph [of the jury charge] by simply
denominating, or characterizing, two unnamed persons as conspirators‖; (4) the trial
court erred by including four lesser-included offenses in the jury charge; (5) the trial
court abused its discretion in allowing hearsay testimony from several investigators; (6)
―the trial court abused its discretion in allowing . . . [Investigator Max] Cantu to testify
about an ultimate issue of fact for the jury‖; and (7) ―the trial court abused its discretion
in overruling [Lopez‘s] bolstering objection to . . . [Investigator] Fernando Tanguma.‖
We affirm.
I. BACKGROUND
On June 8, 2008, eighty-three-year-old Elena Ayala was shot as she rode in the
backseat of her daughter and son-in-law‘s black Chrysler 300.
Modesta Diaz testified that at 9:30 p.m., she and her husband, Jesus Mario Diaz,
picked up her mother, Ayala, of whom they were the primary caretakers, from the home
of Margarita Esparaza, one of Ayala‘s daughters. The trio proceeded to the Diazes‘s
residence with Jesus in the driver‘s seat, Modesta in the front passenger‘s side seat,
and Ayala in the back passenger‘s side seat. Around 9:50 p.m., Modesta noticed a
vehicle, which she later described as a ―van‖ or ―small Blazer‖ pass and ―cut[] in front‖ of
her family‘s Chrysler 300 as they drove on Depot Road near the Monte Cristo
2
intersection in Edinburg, Texas. The vehicle stopped, and Jesus honked. Modesta saw
a man ―with his face covered‖ exit the back passenger‘s side door of the vehicle with ―a
pistol‖ in his hand. Modesta told Jesus, ―Let‘s get out of here. Let‘s go speeding fast.
Let‘s get out of here.‖ Jesus reversed, accelerated backwards, and told Modesta ―to get
down on the floorboard.‖ Modesta then heard one gunshot. Jesus turned the Chrysler
around and drove away from the shooter, south towards McAllen, Texas. Modesta
testified that at the time of the shooting, she did not know why someone had shot at the
Chrysler.
Modesta testified that as they drove away, Ayala stated, ―I got shot.‖ Modesta
tried to calm her mother and told her that the sound was only ―a fire cracker,‖ but Ayala
protested, ―No, my daughter. It was a shot. I got hit.‖ Modesta turned on the Chrysler‘s
interior light, saw blood, and confirmed that Ayala had been shot. Modesta called 911.
According to Modesta, the 911 dispatcher ―told me . . . not to move—for me to stay
there. Well, we didn‘t want to stay there so we drove all the way to 10th [Street] and
[Highway] 107 at the Valero, and that‘s where we waited.‖ An ambulance arrived at the
Valero and transported Ayala to a nearby hospital where she was pronounced dead.
Norma Jean Farley, M.D., the chief forensic pathologist for both Hidalgo and
Cameron Counties, performed the autopsy on Ayala‘s body. Dr. Farley recalled that
Ayala‘s injuries were consistent with a ―perforating gun[]shot,‖ which she defined as a
gunshot that ―went through the body, and there was no bullet recovered.‖ Dr. Farley
observed that a bullet had travelled ―almost straight through‖ Ayala‘s torso—entering on
the left lateral side of Ayala‘s chest and exiting on the right—puncturing her abdomen,
3
diaphragm, stomach, and liver. Dr. Farley concluded that the cause of death was a
gunshot wound to Ayala‘s chest and abdomen.
Hidalgo County crime scene specialist, Eduardo Aleman, testified that a bullet
entrance hole was found on the back driver‘s side of the Chrysler and that one bullet
was recovered from inside the vehicle. He also testified that one spent casing was
recovered at the scene of the shooting and that the evidence supported the theory that
only one shot was fired at the Diaz‘s Chrysler.
In August 2008, Texas Ranger Robert Matthews met with and questioned
Lopez‘s friend, Oziel Gutierrez, about the June 8 shooting. Gutierrez testified that he
gave a statement to Ranger Matthews that Lopez ―had come to my house
and . . . [Lopez] started talking to me about a murder that had taken place. And that he
was like—you know—somewhat involved, because he had loaned the gun to some
people . . . .‖ Gutierrez denied knowing the names of the people to whom Lopez lent
the gun, but stated that Lopez had lent them the gun ―[t]o steal some rims‖ for ―a
vehicle,‖ and Lopez drove a Chrysler 300.
On August 22, 2008, Ranger Matthews and Investigator Fernando Tanguma
went to Lopez‘s home. Lopez agreed to go to the Hidalgo County Sheriff‘s Office to
speak with the officers. While en route to the sheriff‘s office, the officer stopped at a
―mobile unit.‖1 Lopez told the officers that he planned to speak to an attorney before
giving a statement. At that point, the officers stopped questioning Lopez and decided to
continue to the sheriff‘s office. Investigator Tanguma testified that as they drove to the
sheriff‘s office, Lopez told him that ―he knew what I [Investigator Tanguma] was talking
about. He told me that it was a .40 caliber handgun. He told me that the gun was
1
Investigator Tanguma defined a ―mobile unit‖ as a ―portable‖ sheriff‘s office.
4
located underneath his house.‖2 The officers drove back to Lopez‘s residence, and
Lopez consented to the search of his house. Investigator Tanguma testified that Lopez
resided in a frame home that was lifted off the ground by blocks. Investigator Tanguma
recalled, ―[Lopez] pointed out where the gun was. . . . He walked to the corner of the
residence and pointed . . . he told me ‗If you stick your hand under there you can grab
the gun, and it‘s wrapped in a newspaper, and it‘s there in the corner.‘‖ Investigator
Tanguma complied and recovered the firearm.
Forensic firearms and tool-marks examiner, Richard Hitchcocks, conducted a
comparative analysis between the bullet, cartridge, and firearm recovered by police.
Based on his analysis, Hitchcocks opined that the cartridge recovered near the
intersection of Depot Road and Monte Cristo was fired from the firearm located under
Lopez‘s house. Hitchcocks was unable to conclusively determine whether the bullet
recovered from the Diaz‘s Chrysler was fired from the firearm found under Lopez‘s
home; however, he ―could not eliminate that firearm as the one that that bullet may have
been fired from.‖
At the conclusion of the trial, a jury convicted Lopez of capital murder and
punishment was assessed at life imprisonment in the Institutional Division of the Texas
Department of Criminal Justice. See id. Lopez filed a motion for new trial. A hearing
was held, and the motion was subsequently denied by the trial court. This appeal
ensued.
II. SUFFICIENCY OF THE EVIDENCE
2
On appeal, Lopez does not challenge the voluntariness of his statements to police.
5
By his first and second issues, Lopez contends that the evidence is legally and
factually insufficient to support the jury‘s verdict. Specifically, Lopez asserts that the
evidence is insufficient to support Lopez‘s conviction ―either as a principal and/or a party
and/or a conspirator‖ to capital murder.
A. Standard of Review
The Court of Criminal Appeals has recently held that there is ―no meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis
factual-sufficiency standard‖ and that the Jackson standard ―is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.‖ Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *8, *14
(Tex. Crim. App. Oct. 6, 2010) (plurality opinion). Accordingly, we review Lopez‘s
claims of evidentiary sufficiency under ―a rigorous and proper application‖ of the
Jackson standard of review. Id. at *11.
Under the Jackson standard, ―the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.‖ Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see Brooks, 2010 WL 3894613, at *5 (characterizing
the Jackson standard as: ―Considering all of the evidence in the light most favorable to
the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.‖).
―[T]he fact[-]finder‘s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be considered in the light
most favorable to the prosecution.‖ Jackson, 443 U.S. at 319 (emphasis in original);
6
see TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979) (―The jury, in all cases, is the
exclusive judge of facts proved and the weight to be given to the testimony . . . .‖);
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (―The jury is the
exclusive judge of the credibility of witnesses and of the weight to be given testimony,
and it is also the exclusive province of the jury to reconcile conflicts in the evidence.‖).
In the present case, the jury charge included general instructions on the concept
of criminal responsibility under the law of parties. See TEX. PENAL CODE ANN.
§ 7.02(a)(2) (Vernon 2003); id. § 7.02(b) (providing that a party is criminally responsible
for the conduct of another ―[i]f, in the attempt to carry out a conspiracy to commit one
felony, another felony is committed by one of the conspirators, all conspirators are guilty
of the felony actually committed, though having no intent to commit it, if the offense was
committed in furtherance of the unlawful purpose and was one that should have been
anticipated as a result of the carrying out of the conspiracy‖). The application paragraph
applied the law of the parties under section 7.02(a)(2), but did not apply the section
7.02(b) concept of criminal responsibility for the anticipated result of a conspiracy.
The sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394, 404
(Tex. Crim. App. 2000); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi
2002, pet. ref‘d). Because a hypothetically correct jury charge in this case would
authorize the jury to convict on either section 7.02(a)(2) or 7.02(b), we must determine
whether the evidence is sufficient under either of these alternative theories of liability.
See Garza Vega v. State, 267 S.W.3d 912, 915-16 (Tex. Crim. App. 2008).
B. Applicable Law
7
Under section 7.02(a)(2), ―[a] person is criminally responsible for an offense
committed by the conduct of another if . . . acting with intent to promote or assist the
commission of the offense he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense.‖ TEX. PENAL CODE ANN. § 7.02(a)(2). An act is
committed intentionally when it is the actor‘s conscious objective or desire to engage in
the conduct which causes the result. Id. § 6.03(a) (Vernon 2003). A person acts
knowingly when he knows that the conduct is reasonably certain to cause the result. Id.
§ 6.03(b). Intent may ―be inferred from circumstantial evidence[,] such as acts, words,
and the conduct of the appellant.‖ Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.
App. 2004); see also Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (stating
that a fact-finder may infer both knowledge and intent from the defendant‘s acts, words,
or conduct and from the nature of the wounds inflicted on the victim); Ledesma v. State,
677 S.W.2d 529, 531 (Tex. Crim. App. 1984) (noting that the requisite culpable mental
state may also be inferred from the surrounding circumstances).
A person may be found guilty of capital murder under the law of parties. Johnson
v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992) (en banc); see also Vega v.
State, No. 13-05-007-CR, 2010 WL 2966861, at *3 (Tex. App.–Corpus Christi July 29,
2010, pet. ref‘d) (mem. op. on remand, not designated for publication). A person
commits capital murder if he or she intentionally or knowingly causes the death of an
individual while in the course of committing or attempting to commit, among other
things, robbery. TEX. PENAL CODE ANN. §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(2). ―In
determining whether a defendant participated in an offense as a party, the fact[-]finder
may examine the events occurring before, during, and after the commission of the
8
offense and may rely on actions of the defendant that show an understanding and
common design to commit the offense.‖ Frank v. State, 183 S.W.3d 63, 73 (Tex. App.–
Fort Worth 2005, pet. ref‘d). Furthermore, ―[c]ircumstantial evidence may be used to
prove one is a party to an offense.‖ Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim.
App. 1985).
C. Analysis
Lopez argues that the evidence is insufficient to support his conviction because
the State failed to prove, beyond a reasonable doubt, that ―he harbored a specific intent
that a murder be committed,‖ because the evidence showed that ―murder was not part
of [his] plan‖ and, instead, was ―the result of something gone wrong.‖
Gutierrez testified Lopez ―had come to my house and . . . [Lopez] started talking
to me about a murder that had taken place. And that he was like—you know—
somewhat involved, because he had loaned the gun to some people . . . .‖ Gutierrez
also testified that Lopez loaned the gun to unidentified individuals ―[t]o steal some rims‖
for ―a vehicle,‖ and Lopez drove a Chrysler 300. There was evidence that on the night
of June 8, 2008, Ayala was shot as she rode in the backseat of a Chrysler 300. When
Lopez was later questioned about the June 8 shooting, he told investigators that he
―knew what [they were] talking about‖ and led them to a firearm wrapped in newspaper
and concealed under his home. There was evidence that a cartridge found at the scene
of the June 8 shooting was discharged from the firearm located under Lopez‘s home.
Lopez relies on Tippett v. State, to support his argument that the evidence is
insufficient to support his conviction. 41 S.W.3d 316, 324 (Tex. App.–Fort Worth 2001,
no pet.), disapproved of on other grounds by Hooper v. State, 214 S.W.3d 9, 15 (Tex.
9
Crim. App. 2007). In Tippett, the evidence was insufficient to support a capital murder
conviction under both sections 7.02(a)(2) and 7.02(b) where the evidence established
that the appellant and the alleged co-conspirator agreed only to rob the victim and there
was no evidence that the appellant knew that the alleged co-conspirator had a gun in
his possession during the commission of the underlying robbery. Id. at 324-25. The
present case is distinguishable because the evidence showed that Lopez asked two
unnamed individuals to commit robbery and provided them with a gun with the intent
that the gun be used in the commission of the offense. A jury may infer intent to kill
from the use of a deadly weapon. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim.
App. 1996); Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (holding
that if a deadly weapon is used in a deadly manner, the inference is almost conclusive
that the defendant intended to kill); Vega v. State, 198 S.W.3d 819, 825 (Tex. App.–
Corpus Christi 2006), vacated on other grounds, 267 S.W.3d 912 (Tex. Crim. App.
2008). Thus, the jury could have reasonably inferred that Lopez intended to promote or
assist in murder when he provided two unnamed individuals with a firearm and
instructed them to ―[t]o steal some rims‖ for ―a vehicle‖; see Vega, 198 S.W.3d at 825,
and the evidence was sufficient to support Lopez‘s conviction under section 7.02(a)(2).
See TEX. PENAL CODE ANN. § 7.02(a)(2). Viewing all of the evidence in the light most
favorable to the prosecution, we conclude that a rational juror could have found beyond
a reasonable doubt that Lopez was guilty of capital murder. See Jackson, 443 U.S. at
319; Brooks, 2010 WL 3894613, at *5. Accordingly, we overrule Lopez‘s first and
second issues.
III. CHARGE ERROR
10
By his third, fourth, and fifth issues, Lopez complains of charge error. When we
review a jury charge, we must first determine whether error exists. Middleton v. State,
125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we find error, we apply the appropriate
harm analysis depending on whether the error was preserved in the trial court. See
Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010) (stating that all jury-
charge errors are cognizable on appeal, but unobjected-to error is reviewed for
―egregious harm,‖ while objected-to error is reviewed for ―some harm‖); Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g).
A. Failure to Apply Texas Penal Code Section 7.02(b)
By his third issue, Lopez contends that the trial court erred by failing to apply the
theory of criminal liability found in Texas Penal Code section 7.02(b). See TEX. PENAL
CODE ANN. § 7.02(b). The State concedes that the trial court erred by failing to include
section 7.02(b) in the application paragraph of the charge, even though Lopez Failed to
object to the error at trial. Nevertheless, because he did not object to the omission of
section 7.02(b) at trial, Lopez now asserts that he was egregiously harmed by the trial
court‘s error. See Almanza, 686 S.W.2d at 171. Egregious harm will be found only if
the error deprived the defendant of a fair and impartial trial. Ex parte Smith, 309 S.W.3d
53, 63 (Tex. Crim. App. 2010) (citing Almanza, 686 S.W.2d at 171).
―The application paragraph of a jury charge is that which authorizes conviction,
and an abstract charge on a theory of law which is not applied to the facts is insufficient
to bring that theory before the jury.‖ Campbell v. State, 910 S.W.2d 475, 477 (Tex.
Crim. App. 1995) (citing Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App. 1991)).
Thus, because the jury charge did not apply Texas Penal Code section 7.02(b) to the
11
facts of the present case, section 7.02(a)(2) was the only theory of criminal
responsibility for another‘s conduct that was properly before the jury. See id. We have
already held that the evidence is sufficient to support Lopez‘s conviction pursuant to
section 7.02(a)(2); thus, we cannot conclude that Lopez was egregiously harmed by the
trial court‘s failure to place section 7.02(b)—an alternative theory of liability—properly
before the jury. See Greene v. State, 240 S.W.3d 7, 15-16 (Tex. App.–Austin 2007, pet.
ref‘d). We overrule Lopez‘s third issue.
B. Comment on the Weight of the Evidence
By his fourth issue, Lopez contends that the trial court ―committed reversible
error by including an unsubstantiated and prejudicial comment on the weight of the
evidence‖ in the jury charge ―by simply denominating, or characterizing, two unnamed
persons as conspirators.‖ Specifically, Lopez complains of the following language:
If you find from the evidence beyond a reasonable doubt that on or about
JUNE 8, 2008, in Hidalgo County, Texas, JOHN DOE 1 and JOHN DOE
2 (hereinafter referred to as Conspirators) . . . .
(Emphasis added.) The charge then authorized the jury to find Lopez guilty of capital
murder if it found that he ―acted with intent to promote or assist the commission of the
offense by conspirators by encouraging, directing, aiding or attempting to aid
conspirators to commit the offense of robbery which resulted in the death of Elena
Ayala . . . .‖ At trial, Lopez did not object to the inclusion of the above language as a
comment on the weight of the evidence; therefore, we must determine whether the
charge was erroneous and, if so, whether that error caused egregious harm. See
Jennings, 302 S.W.3d at 311; Almanza, 686 S.W.2d at 171.
12
A charge that assumes the truth of a controverted issue is a comment on the
weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex.
Crim. App. 1986); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007) (providing
that a trial court shall deliver to the jury ―a written charge distinctly setting forth the law
applicable to the case; not expressing any opinion as to the weight of the evidence, not
summing up the testimony, discussing the facts or using any argument in his charge
calculated to arouse the sympathy or excite the passions of the jury‖). Lopez asserts
that the charge was erroneous because it authorized the jury ―to assess Appellant‘s
criminal culpability as a party and/or a conspirator with two persons who—if the
instruction in that regard were to be followed . . . —were conspirators.‖
Assuming, without deciding, that referring to the unnamed individuals as
―conspirators‖ was erroneous, such a reference did not cause Lopez egregious harm.
The application paragraph authorized the jury to find Lopez guilty of capital murder if it
found, beyond a reasonable doubt, that Lopez: (1) acted with intent to promote or
assist the commission of the offense; and (2) encouraged, directed, aided or attempted
to aid in the commission of the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2). Thus,
the usage of the term ―conspirators‖ to refer to the two unnamed individuals does not
necessarily implicate Lopez as a conspirator. Even if the jury believed that the two
unnamed individuals were ―conspirators,‖ in order to find Lopez guilty, the jury,
nevertheless, had to find that the elements of section 7.02(a)(2) were proven beyond a
reasonable doubt. See id. Under the facts of the present case, there is no indication
that the trial court‘s error, if any, in referring to the unnamed individuals as
13
―conspirators‖ caused Lopez egregious harm. See Almanza, 686 S.W.2d at 171. We
overrule Lopez‘s fourth issue.
C. Lesser-Included Offenses
By his fifth issue, Lopez asserts that the trial court reversibly erred in overruling
his objection to the jury charge‘s inclusion of murder, aggravated robbery, and robbery
as lesser-included offenses.3 The State asserts that, under the facts of the present
case, neither robbery nor aggravated robbery constitutes a lesser-included offense.
However, even assuming, without deciding, that the trial court erred by including these
offenses in the jury charge, we would not conclude that such error amounts to reversible
error because Lopez was not harmed. See id.
Texas law generally presumes that the jury follows the trial court‘s instructions in
the manner presented. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)
(citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Williams v. State,
937 S.W.2d 479, 490 (Tex. Crim. App. 1996); Waldo v. State, 746 S.W.2d 750, 753
(Tex. Crim. App. 1988); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)).
The jury charge instructed the jury to determine whether the evidence proved beyond a
reasonable doubt that Lopez was guilty of capital murder before considering whether he
was guilty of any of the lesser-included offenses included in the charge. Because the
jury found Lopez guilty of capital murder, we presume that it did not consider the other
offenses. See id. Thus, the trial court‘s error, if any, in the inclusion of the offenses of
murder, aggravated robbery, and robbery in the jury charge did not harm Lopez. See
Almanza, 686 S.W.2d at 171. We overrule Lopez‘s fifth issue.
IV. EVIDENTIARY RULINGS
3
The alleged lesser-included offenses were included in the jury charge at the State‘s request.
14
In his sixth, seventh, and eighth issues, Lopez urges that the trial court abused
its discretion by allowing the admission of certain evidence. We review a trial court‘s
evidentiary rulings under an abuse-of-discretion standard. Klein v. State, 273 S.W.2d
297, 304-05 (Tex. Crim. App. 2008). To constitute an abuse of discretion, the trial
court‘s decision must fall outside the zone of reasonable disagreement. Wead v. State,
129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
A. “Investigator Exception”
By his sixth issue, Lopez asserts that the trial court abused its discretion by
crafting an ―investigator exception‖ to the hearsay rules, ―which permitted [Investigators
Tanguma and Cantu, as well as Deputy Salvador Arguello (herein collectively referred
to as ―the investigators‖)] to tell jurors what they heard from other testifying and non-
testifying sources.‖ Additionally, Lopez complains that the trial court‘s admission of the
investigators‘ testimony violates the Confrontation Clause.4 See Crawford v.
Washington, 541 U.S. 36, 53-54 (2004).
1. Disputed Testimony
Specifically, Lopez complains of the admission of Deputy Arguello‘s testimony,
which follows in pertinent part:
[The State]: On August 18th, 2008, did you receive any
information that was relevant to this investigation?
[Deputy Arguello]: Yes.
4
The State urges that Lopez‘s sixth issue is multifarious and therefore presents nothing for
review. See Taylor v. State, 190 S.W.3d 758, 764 (Tex. App.–Corpus Christi 2006), rev’d on other
grounds, 233 S.W.3d 356 (Tex. Crim. App. 2007). Out of an abundance of caution, and because we may
elect to consider multifarious issues if we are able to determine, with reasonable certainty, the alleged
error about which the complaint is made, we elect to address Lopez‘s sixth issue. See Stults v. State, 23
S.W.3d 198, 205 (Tex. App.–Houston [14th Dist.] 2000, pet. ref‘d); see also Dilworth v. State, No. 13-07-
00520-CR, 2008 WL 5732155, at *3 n.3 (Tex. App.–Corpus Christi Dec. 4, 2008, pet. ref‘d) (mem. op.,
not designated for publication).
15
[The State]: Okay. Did that information that you received indicate
a potential suspect for this crime?
[Deputy Arguello]: Yes.
[The State]: Did you pass that information on to the investigating
officers?
[Deputy Arguello]: Yes.
[The State]: All right. Who was the potential witness that was
identified?
[Defense Counsel]: Your Honor, again, my objection is as to hearsay.
This is back door hearsay. This witness‘s
investigative techniques have not been challenged,
and I believe—
The Court: The objection is overruled.
[The State]: Deputy, did that information provide you with a name
for a potential suspect?
[Deputy Arguello]: Yes.
[The State]: All right. Who was that person?
[Deputy Arguello]: Ricardo, Ricardo Lopez.
Lopez also complains of the admission of the following testimony provided by
Investigator Tanguma:
[The State]: Now, sir, at this point did you have information
which—or let me put it this way: Did you
obtain information which led you to believe that
Ricardo Lopez was involved in this actual
case—the murder?
[Defense Counsel]: Objection, Your Honor. It calls for hearsay. It
is backdoor hearsay, that was previously
stated.
The Court: Overruled.
[The State]: You may answer, sir.
16
[Investigator Tanguma]: Yes, I did.
....
[The State]: Do you know what type of vehicle Mr. Lopez
wanted the rims for?
[Investigator Tanguma]: Yes, He‘s—
[Defense Counsel]: Objection, Your Honor. It calls for hearsay.
....
The Court: The objection is overruled.
[Investigator Tanguma]: Yes, for a Chrysler 300.
Lopez also complains of the following exchange during Investigator Cantu‘s
testimony:
[The State]: How was it that Mr. Gutierrez‘s information and
statement helped you in the investigation, sir?
[Investigator Cantu]: Through the interview with Mr. Gutierrez, it was
learned—
[Defense Counsel]: Again, Your Honor, the objection as to
hearsay.
The Court: The objection is overruled.
[The State]: You may answer.
[Investigator Cantu]: Through the interview with Mr. Gutierrez, it was
learned that he had been a friend of the
defendant for sometime [sic]. The defendant
had confided in him—that he had provided a
weapon that was used to go steal some rims
for his vehicle, which was a 300 Chrysler,
identical—or similar to the one that the
deceased was riding in. It was learned that he
was feeling bad about providing that weapon,
and he had knowledge that the weapon that he
provided these individuals to steal these rims
17
had been used to shoot and kill this victim—the
deceased.
2. Preservation of Error
To preserve an issue for appellate review, a party must make a timely objection
or request to the trial court, sufficiently stating the specific grounds for the requested
ruling, unless apparent from the context, and obtain an adverse ruling. See TEX. R.
APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Trevino v.
State, 174 S.W.3d 925, 927 (Tex. App.–Corpus Christi 2005, pet. ref‘d). Moreover, the
objection or request at trial must comport with the complaint presented on appeal.
Wilson, 71 S.W.3d at 349. Even constitutional errors may be forfeited by failure to
object at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Trevino,
174 S.W.3d 927.
A review of the record demonstrates that Lopez objected to the disputed portions
of the investigators‘ testimonies on hearsay grounds. A party‘s hearsay objection does
not preserve error on a Confrontation Clause ground. See Reyna v. State, 168 S.W.3d
173, 179 (Tex. Crim. App. 2005); see also Nolen v. State, No. 13-08-00526-CR, 2009
WL 4051980, at *4 (Tex. App.–Corpus Christi Nov. 24, 2009, pet. ref‘d) (mem. op. on
reh‘g, not designated for publication). Accordingly, in reviewing Lopez‘s sixth issue, we
will only consider his hearsay arguments, as his Confrontation Clause arguments were
not preserved. See Reyna, 168 S.W.3d at 179; see also Nolen, 2009 WL 4051980, at
*4.
3. Analysis
Hearsay is a statement, other than one made by the declarant while testifying at
the trial, which is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d).
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Nevertheless, ―[p]olice officers may testify to explain how the investigation began and
how the defendant became a suspect.‖ Lee v. State, 29 S.W.3d 570, 577-78 (Tex.
App.–Dallas 2000, no pet.) (citing Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim.
App.1995); Short v. State, 995 S.W.2d 948, 954 (Tex. App.–Fort Worth 1999, pet. ref‘d);
Thornton v. State, 994 S.W.2d 845, 854 (Tex. App.–Fort Worth 1999, pet. ref‘d)); see
also Samora v. State, No. 13-09-00587-CR, 2010 WL 3279536, at *7 (Tex. App.–
Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for publication). ―An
officer‘s testimony is not hearsay when it is admitted, not for the truth, but to establish
the course of events and circumstances leading to the arrest.‖ Thornton, 994 S.W.2d at
854. The critical question is whether there is an inescapable conclusion that a piece of
evidence is being offered to prove statements made outside the courtroom. See
Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989).
The State‘s questions to the investigators were not designed to elicit hearsay
testimony; instead the questions allowed the investigators to comment on their
investigations and how Lopez became a suspect. See Dinkins, 894 S.W.2d at 347;
Lee, 29 S.W.3d at 577-78. Accordingly, the trial court did not abuse its discretion in
overruling Lopez‘s hearsay objections. Moreover, even if the complained-of portions of
the investigator‘s testimonies had been hearsay, any error in admitting them was
harmless because the testimonies were cumulative of Gutierrez‘s testimony. See
Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (providing that ―any error
in admitting [hearsay] evidence was harmless in light of other properly admitted
evidence proving the same fact‖). We overrule Lopez‘s sixth issue.
B. Ultimate Issue of Fact
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In his seventh issue, Lopez asserts that ―the trial court abused its discretion in
allowing . . . [Investigator] Cantu to testify about an ultimate issue of fact for the jury.‖
During the State‘s direct examination of Investigator Cantu, the State asked whether he
was able to ―determine why this murder took place.‖ Lopez objected on the grounds
that the question ―invad[es] the province of the jury‖ and ―calls for an ultimate conclusion
of facts.‖ The trial court overruled the objections, and Investigator Cantu testified:
Through the investigation after reviewing the case itself, it was learned
that the defendant was attempting to get some rims for his vehicle. He
had provided a weapon to two unidentified individuals at this time who in
turn went out to get those rims for him. That weapon that he provided was
located at this residence, and was used—and was used to shoot—and
was the weapon that killed the victim.
―The doctrine which prohibited testimony that would invade the province of the
jury ‗is and has been long dead‘ as a proposition of law.‖ Mays v. State, 563 S.W.2d
260, 263 (Tex. Crim. App. 1978) (quoting Boyde v. State, 513 S.W.3d 588, 590 (Tex.
Crim. App. 1974) (citing Hopkins v. State, 480 S.W.2d 212, 220 (Tex. Crim. App.
1972))). However, ―[t]he repudiation of the ‗invasion of the province of the jury‘ rule
does not mean that an expert or non-expert witness may freely state his opinion in
regard to any fact in issue.‖ Hopkins, 480 S.W.2d at 220. Lopez asserts that the trial
court abused its discretion by overruling his objection and allowing Investigator Cantu
―to testify about an ultimate issue of fact for the jury (which was an opinion as to why
[the Diaz‘s] car was stopped).‖ We disagree.
Motive is not a required element in a criminal case. Bush v. State, 628 S.W.2d
441, 444 (Tex. Crim. App. 1982). And although ―evidence of motive is one kind of
evidence [that aids in] establishing proof of an alleged offense,‖ see Crane v. State, 786
S.W.2d 338, 349-50 (Tex. Crim. App. 1990), the evidence of motive within the
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complained-of statement is cumulative of evidence presented in the testimonies of
Gutierrez, Ranger Matthews, and Investigator Tanguma. Thus, error, if any, by the trial
court in allowing the admission of Investigator Cantu‘s testimony is harmless. See
Brooks, 990 S.W.2d at 287. Lopez‘s seventh issue is overruled.
C. Bolstering
By his eighth issue, Lopez contends that the trial court ―abused its discretion in
allowing the State . . . to bolster [Investigator] Tanguma‘s testimony by inquiring whether
he would lose his peace officer‘s license if he were to testify falsely.‖ During the State‘s
questioning of Investigator Tanguma, the following exchange occurred:
[State]: Investigator Tanguma[,] as a law enforcement
[sic] and an investigator with experience, do
you know that there is a penalty for perjury,
correct [sic]?
[Investigator Tanguma]: Yes, I do.
[Defense Counsel]: Objection, Your Honor. Again, bolstering the
witness.
The Court: The objection is overruled.
[State]: You may answer, sir.
[Investigator Tanguma]: Yes, ma‘am.
[State]: If you were to commit perjury on the stand,
would you lose your license as a peace officer?
[Investigator Tanguma]: Oh, yes, I would.
[State]: Thank you, sir. I‘ll pass the witness.
Lopez lodged an objection to the State‘s question on whether there was a
penalty for perjury. However, he did not object to the question of which he now
complains—whether Investigator Tanguma would lose his peace officer‘s license if he
21
were to testify falsely. Thus, Lopez failed to preserve this complaint. See TEX. R. APP.
P. 33.1(a). Even if we were to conclude that Lopez‘s objection to the State‘s first
question preserved a complaint as to the second question, Lopez fails to cite any
authority or advance any argument to support his contention that the trial court erred by
overruling his objection. As such, this issue is inadequately briefed. See TEX. R. APP.
P. 38.1(i) (providing that ―the brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.‖). We
overrule Lopez‘s eighth issue.
V. CONCLUSION
Having overruled all of Lopez‘s issues on appeal, we affirm the trial court‘s
judgment.
________________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
30th day of December, 2010.
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