Josue Francisco Vazquez v. State

Opinion issued November 3, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00863-CR __________ JOSUE F. VAZQUEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 263rd District Court Harris County, Texas Trial Court Cause No. 946315 MEMORANDUM OPINION A jury found appellant, Josue F. Vazquez, guilty of murder and assessed punishment at confinement for forty-five years. Appellant brings five points of error for our review. Appellant contends that the trial court erred in denying his motion for mistrial, improperly commenting on the evidence, and admitting hearsay testimony. He also contends that the evidence was legally and factually insufficient to support his conviction. We affirm. Facts Michelle Alaaedin, the common-law wife of the complainant, Gary Pruett, testified that on the night of April 15, 2003, she fell asleep at the trailer house of James Dunning, the complainant’s friend. She woke up around midnight, and found the complainant and Dunning drinking vodka at the kitchen table. She told the complainant that it was time to go, and the complainant drove Alaaedin to her house, which was nearby. After driving Alaaedin home, the complainant and Dunning returned to Dunning’s trailer. Alaaedin called the complainant, who remained at Dunning’s trailer, several times throughout the morning, and Dunning told her that he would be home shortly. Alaeedin called one final time at 5:35 a.m., and during this call she overheard the voice of Adrian Medina, who she knew to be a friend of appellant. She then heard the complainant state, “so what are you going to do, shoot me now,” and the phone went dead. Alaaedin called for emergency assistance, and then called Dunning’s trailer. Dunning answered and described what had happened. Alaaedin went to Dunning’s trailer, arriving there approximately twenty minutes after the phone went dead during her conversation with the complainant. She saw the complainant leaving the scene in an ambulance. Alaaedin testified that the complainant and Dunning used narcotics and drank alcohol and that the complainant and Dunning had bought narcotics on previous occasions from appellant and Medina. On the night before the shooting, Alaaedin saw appellant and Medina selling narcotics to Dunning. She noted that the complainant did not have a weapon and that she had never seen a weapon at Dunning’s trailer. During cross-examination, Alaaedin admitted that the complainant had a serious narcotics problem and that this created problems in their marriage. She also stated that Dunning was a narcotics user, that the complainant and Dunning used narcotics together, and that Dunning sold prescription drugs illegally. She admitted that she had heard that Dunning had supplied guns and ammunition to Medina and appellant and that Dunning had traded ammunition with Medina and appellant for narcotics. On re-direct, Alaaedin testified, over objection, that when she spoke with Dunning after calling for emergency assistance, Dunning told her that “[appellant] and Medina had just shot [the complainant] and [the complainant] wasn’t breathing.” Mario Delgadillo, a close friend of appellant and a friend of Medina, testified that after the shooting, appellant and Medina came to his house and told him that they had shot the complainant because he was “talking shit” and that they thought the complainant was dead. When Delgadillo spoke with appellant by phone a few days after the shooting, appellant stated that he and Medina were leaving town. When the police searched Delgadillo’s home, they found a case of bullets and car keys underneath some mattresses in Delgadillo’s bedroom. Delgadillo explained that these items were not his, that he did not know how they got underneath his mattresses, and that when appellant and Medina had been at his house on the morning after the shooting, appellant and Medina were alone in his bedroom for a few minutes. Delgadillo admitted that he had two criminal cases pending, but he denied making any deals with the State for providing testimony in this case. Harris County Sheriff’s Deputy Andres Blanco testified that he was the first officer to arrive at Dunning’s trailer following the shooting and he secured the scene. Blanco met Dunning, who he described as being “shaken up.” Harris County Sheriff’s Deputy Charles Patberg testified that when he arrived at the scene, Dunning told him what happened. Patberg noted that there were no other witnesses to the shooting. Dunning told Patberg, at the scene, that he and the complainant had been approached by unknown men wearing masks and that these men shot the complainant and fled the scene. Harris County Sheriff’s Deputy Randy Schield testified that he conducted an investigation at the scene, and, when he arrived, there was a car with a couple of bullet holes in it and its rear window shot out. He also noticed that a piece of the car’s emblem was missing. Schield located four shell casings around Dunning’s trailer. When he visited a nearby location on Longview Street, Schield located an additional seven casings, some glass fragments, and a piece of a car emblem matching the broken emblem on the car outside of Dunning’s trailer. Dunning testified that before the shooting he and the complainant drove in Dunning’s car to meet appellant and Medina at a nearby street to purchase narcotics. During the purchase, the complainant and appellant got into a fight, and appellant pointed a gun at the complainant’s head. The complainant dared appellant to shoot him. Dunning panicked, and hit the gas pedal of his car. Appellant and Medina shot at Dunning’s car, knocking out the car’s back window and putting holes in his car. Dunning and the complainant drove back to Dunning’s trailer, and the complainant called the police to report the shooting. The complainant then called appellant and Medina to tell them that they were “going down.” Dunning then went outside to sweep the glass out of his car, and he saw appellant and Medina approach. Medina pointed a gun at Dunning. The complainant came out of Dunning’s trailer, and repeated to appellant that appellant and Medina were “going down.” Appellant shot the complainant, and appellant and Medina told Dunning to say that he had not seen anything. Dunning went inside his trailer, heard more gun shots, and called for emergency assistance. Dunning stated that he did not initially tell the police the identity of the assailants because he was in shock and was fearful. Dunning acknowledged being a paranoid schizophrenic, but asserted that this condition did not affect his recollection of the events. Dunning admitted to receiving treatment and medication for his mental condition and that he suffered from hearing voices, seeing visions, and having hallucinations as a result of his medical condition. Dunning also conceded that, in exchange for his testimony, the State granted him full immunity for the information he disclosed in his testimony and that the State agreed not to contest a habeas petition filed by Dunning in a separate criminal case related to an aggravated robbery that he previously committed. Dunning also acknowledged that he had an extensive criminal history, had been a chronic alcoholic for most of his life, and that he used narcotics. Harris County Sheriff’s Deputy Brian McNabb testified that on the early morning of April 16, 2003, he met with the complainant, who had called to report a shooting. McNabb took a report of “deadly conduct” from the complainant. Robert Wilson, an employee of the Texas Department of Public Safety Crime Lab, testified that he compared the glass found at the scene with the glass found at the location on Longview Street, and that the glass found at both locations had many of the same properties and could have come from the same source, but that he could not be certain. James Johnson, a Harris County Sheriff’s Office homicide investigator, testified that appellant and Medina went to Mexico following the murder, that they had turned themselves in to the United States embassy in Mexico, and that he and another officer drove to Laredo, Texas in order to transfer appellant and Medina to Houston. Wayne Kuhlman, a Harris County Sheriff’s Office detective and the lead homicide investigator in this case, testified that he met with Dunning at the scene two to three hours after the murder. Kuhlman also testified that he met with Delgadillo, and that he found a set of keys at Delgadillo’s residence that he believed belonged to appellant. Legal and Factual Sufficiency In his fourth and fifth points of error, appellant argues that the evidence is legally and factually insufficient to support his conviction because the State’s witnesses “were not worthy of belief by a rational fact-finding body.” First, appellant attacks the credibility of Dunning’s testimony by noting that Dunning originally told the sheriff’s deputies that he could not identify the assailants. Appellant further notes that Dunning’s testimony was provided in exchange for the State’s promise of immunity and the State’s promise to remain neutral on a habeas petition filed in an unrelated criminal case. Appellant also points out that Dunning was a paranoid schizophrenic with a lengthy criminal record and a narcotics abuse problem. Second, appellant attacks the testimony of Delgadillo by noting that he was found to be in possession of ammunition and car keys linked to the murder of the complainant. Third, appellant attacks the testimony of Alaaedin by noting that she did not hear any actual gun shots during her phone conversation with the complainant. Appellant also notes that the State did not recover any weapons and that there was no “other forensic evidence directly linking appellant to either scene.” We review a challenge to the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In a legal sufficiency review, we may not substitute our own judgment for that of the fact finder. Id. We review a challenge to the factual sufficiency of the evidence by examining all of the evidence neutrally, not in the light most favorable to the verdict, and we will set aside the verdict only if the evidence is so weak that the verdict is clearly wrong or manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); see also Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because the jurors were in attendance when the testimony was delivered. Johnson, 23 S.W.3d at 8. A person commits the offense of murder if he intentionally or knowingly causes the death of another person or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of another person. Tex. Pen. Code Ann. § 19.02(b) (Vernon 2003). Here, Dunning testified that he saw appellant shoot the complainant. It is well established that the testimony of a single eyewitness is sufficient to support a conviction. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Furthermore, Delgadillo, a friend of appellant and Medina, testified that appellant and Medina confessed to shooting the complainant. Delgadillo also testified that appellant stated that appellant and Medina were leaving town, and an investigator with the Harris County Sheriff’s Office testified that appellant and Medina were found in Mexico following the shooting. Evidence of flight shows a consciousness of guilt of the crime for which the defendant is on trial. Bigby v. State, 892 S.W.2d 864, 884 (Tex. Crim. App. 1994). Alaaedin testified that when she spoke with the complainant during the early morning hours of April 16, she heard Medina’s voice in the background, indicating that Medina, the co-actor of appellant, was at the scene. While appellant challenges the credibility of the testimony of these witnesses, the jury, as the trier of fact, was the sole judge of their credibility and was free to accept or to reject all or part of their testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant committed the offense of murder. Thus, we hold that the evidence was legally sufficient to support appellant’s conviction. Additionally, viewing all of the evidence neutrally, we conclude that the evidence was not so weak that the verdict was clearly wrong or manifestly unjust and that the contrary evidence was not so strong that the standard of proof beyond a reasonable doubt could not have been met. Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction. We overrule appellant’s fourth and fifth points of error. Improper Question In his first point of error, appellant contends that the trial court erred in denying his motion for mistrial after the State asked a prejudicial question in front of the jury. During its direct-examination of Kuhlman, the lead homicide investigator, the State asked him whether Adrian Medina’s brother “let [Kuhlman] know about Adrian confessing the murder to him?” Appellant objected to this question on grounds of hearsay, and the trial court sustained appellant’s objection. Appellant then asked the trial court to instruct the jury “to disregard that last response.” After noting that Kulhman did not even answer the State’s question, the trial court instructed the jury to “disregard any answer that might have been forthcoming.” Appellant then asked that the jury be instructed to disregard the answer that was suggested in the question itself, and the trial court again stated that “the jury will disregard.” Appellant then made a request for a mistrial, which the trial court denied. We review a trial court’s denial of a motion for mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A trial court may declare a mistrial when an error occurs that is so prejudicial that the expenditure of further time and expense would be wasteful. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Generally, any error in asking an improper question is cured or rendered harmless by an instruction to disregard. Ransom v. State, 789 S.W.2d 572, 585 (Tex. Crim. App. 1989); Torres v. State, 92 S.W.3d 911, 918 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). A court will rarely reverse a conviction due to an inappropriate question asked during trial. Ransom v. State, 789 S.W.2d at 585. Appellant argues that the instruction to disregard did not cure the error because the question assumed that appellant’s co-actor confessed to the murder. The Court of Criminal Appeals addressed a similar argument in Ransom. Id. In Ransom, the State asked the defendant, who was charged with capital murder and who denied being involved in a conspiracy to rob and kill multiple persons, “Would it surprise you to know that they [appellant’s co-defendants] don’t agree with your version?” Id. The trial court sustained the defendant’s objection to the State’s question and instructed the jury to disregard the question, but denied the defendant’s motion for mistrial. Id. The Court of Criminal Appeals, noting that the co-defendants’ confessions were not actually admitted, held that the instruction to disregard was sufficient to cure any error. Id. at 586. Like the question asked by the State in Ransom, the question asked by the State in this case suggested that Medina, appellant’s alleged co-actor, may have confessed to the murder. However, appellant promptly objected, and the trial court sustained the objection and provided multiple instructions to disregard. Accordingly, we hold that the instruction to disregard was sufficient to cure any error and that the trial court did not abuse its discretion in denying appellant’s motion for mistrial. We overrule appellant’s first point of error. Commenting on the Evidence In his second point of error, appellant contends that the trial court erred in commenting on evidence during appellant’s cross-examination of Kuhlman. Appellant asked Kuhlman whether he knew that Dunning was a “chronic paranoid schizophrenic.” The State objected to this question on the grounds that it invaded the province of the jury. The trial court commented: I think you can ask him that without going into the whole litany of questions that have not really been substantiated by anything other than you making the comment or statement that the person is a, you know, schizophrenic or whatever. Appellant asserts that the trial court’s comments violated article 38.05 of the Texas Code of Criminal Procedure, which provides that “[i]n ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible.” Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). Appellant argues that the trial court’s comments conveyed to the jury that the trial court did not believe that there was any proof or evidence that Dunning was a schizophrenic, even though Dunning admitted that he suffered from this mental condition. The State does not contest that the comments were improper. Rather, the State argues that appellant suffered no harm as a result of the comments. Appellant objected to the trial court’s comments. Although the trial court initially overruled appellant’s objection, it apparently reconsidered its ruling and then sustained appellant’s objection. After the trial court sustained appellant’s objection to its comments, appellant neither requested an instruction to the jury to disregard the comments nor a mistrial. An instruction to disregard is generally sufficient to cure harm, if any, arising from improper comments made by a trial court. Marks v. State, 617 S.W.2d 250, 252 (Tex. Crim. App. 1981); Hicks v. State, 901 S.W.2d 614, 617 (Tex. App.—San Antonio 1995, pet. ref’d). Here, by sustaining appellant’s objection, the trial court provided appellant all the relief he requested. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985). Accordingly, we hold that appellant waived any error by failing to request an instruction to disregard the trial court’s comment. See Bush v. State, 762 S.W.2d 353, 355 (Tex. App.—Fort Worth 1988, no pet.). We overrule appellant’s second point of error. Hearsay In his third point of error, appellant contends that the trial court erred in permitting Alaaedin to testify, over objection, “concerning several hearsay statements.” Generally, hearsay is not admissible except as provided by statute or the rules of evidence. Tex. R. Evid. 802. Hearsay is generally defined as a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). We review a trial court’s determination on the admissibility of evidence under an abuse of discretion standard. Kubin v. State, 868 S.W.2d 394, 396 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). The complainant’s statement to Alaaedin First, appellant complains that Alaaedin was permitted to testify as to what she heard the complainant say during her phone conversation with him before he was shot. This testimony was offered during the following exchange: [State]: Did you hear Gary Pruett say anything? [Alaaedin]: Yeah. [State]: What did he say? [Appellant]: Object to what Gary said as hearsay, Your Honor. [State]: And, again, Your Honor, if they’re intending to bring up self-defense, then what he said goes to show what was his state of mind. [Court]: It’s overruled. [State]: What did you hear Gary Pruett say? [Alaaedin]: He said, so what are you going to do, shoot me now? Appellant notes that he did not testify, and thus did not raise the issue of self-defense, so the State’s suggestion that the testimony could be offered to show the complainant’s state of mind was misplaced. In response, the State argues that appellant failed to preserve error by failing to object each time the objectionable evidence was offered. See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). The State argues that appellant failed to preserve this issue for review because after the above exchange occurred, the State asked Alaaedin, “So, did you hear Gary say anything other than, are you going to shoot me now?,” and appellant did not object to this question. In regard to the State’s argument that appellant did not preserve his objection to Alaaedin’s testimony by failing to object to the State’s follow-up question, we note that this follow-up question did nothing more than incorporate the testimony just offered by Alaeedin, and admitted, over objection, by the trial court. Assuming, without deciding, that appellant preserved his objection, the trial court’s error, if any, in admitting the above testimony does not require reversal. The admission of a statement that is hearsay is non-constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). Tex. R. App. P. 44.2(b). Rule 44.2(b) requires us to disregard a non-constitutional error that does not affect a criminal defendant’s substantial rights. Id.; Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). We may not reverse a defendant’s conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. Garcia, 126 S.W.3d at 927; Bourque v. State, 156 S.W.3d 675, 677 (Tex. App.—Dallas 2005, pet. ref’d). The improper admission of evidence is rendered harmless when other properly admitted evidence proves the same fact. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Bourque, 156 S.W.3d at 677. In conducting our review of the record as a whole, we note that Dunning testified that he saw appellant shoot the complainant. Furthermore, Delgadillo testified that appellant and Medina confessed to shooting the complainant. Delgadillo also testified that appellant stated that he and Medina were leaving town, and appellant and Medina were found in Mexico following the murder. Alaaedin testified that when she spoke with the complainant during the early morning hours of April 16, she heard the voice of appellant’s co-actor in the background, indicating that Medina was at the scene at or near the time of the shooting. Based on this evidence, and the other evidence discussed above in addressing appellant’s factual and legal sufficiency challenges, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. Dunning’s statement to Alaaedin Second, appellant complains that Alaaedin was permitted to testify as to what Dunning said in her phone conversation with him after the complainant was shot. This testimony was offered during the following exchange: [State]: When you got on the phone with James, did he – did he tell you as things were happening what was going on? [Alaaedin]: Yes. [State]: Like as he’s seeing it, he’s telling you, he’s describing what he sees. [Alaaedin]: Yes. [State]: And so what did he tell you? [Appellant]: Object to what – what James said as hearsay. [State]: I’m bringing under exception, present sense impression, if he’s describing what he sees. [Court]: It’s overruled. . . . [Alaaedin]: He said that Josue and Adrian had just shot Gary and that Gary wasn’t breathing.Appellant asserts that Alaaedin did not hear gun shots during her phone conversation with Dunning and that there is no other evidence establishing the time frame necessary for the admission of the statement under the present sense impression rule. The State argues that Dunning’s statement qualifies as an excited utterance or a present sense impression and thus is excepted from the rule barring hearsay. Alternatively, the State argues that the admission of the statement did not harm appellant because the evidence establishing appellant’s guilt was overwhelming. A “present sense impression” is defined as “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Tex. R. Evid. 803(1). The rationale for the present sense impression exception is: (1) the statement is safe from any error from the defect of memory of the declarant, and (2) there is little or no time for a calculated misstatement. Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992); Kubin, 868 S.W.2d at 396. The record establishes the following chronology of events: Alaaedin was speaking with the complainant when the phone went dead, Alaaedin called for emergency assistance, Alaeedin called Dunning’s trailer, and Dunning answered and explained what was happening. While the record does not reveal exactly how many minutes passed from the time the phone went dead to the time Alaaedin called back and spoke with Dunning to determine what was happening, the record does establish that Alaaedin got to Dunning’s trailer approximately twenty minutes after the phone went dead. The record further establishes that after speaking with Dunning on the telephone, and before getting to Dunning’s trailer, Alaaedin had a flat tire and had to find another friend to take her to Dunning’s trailer. Furthermore, Alaaedin testified that Dunning was describing what was happening “as he [was] seeing it.” Thus, there was evidence sufficient to support the trial court’s finding that Dunning made the statement at issue to Alaaedin while he was perceiving the events or conditions, or immediately thereafter, and that the statements qualified as a present sense impression under Rule 803(1). Accordingly, we hold that the trial court did not abuse its discretion in admitting Alaaedin’s testimony concerning Dunning’s statement. We overrule appellant’s third point of error. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Nuchia, Jennings, and Higley. Do not publish. Tex. R. App. P. 47.2(b).