Primavera Baltazar AKA Primavera Hurtado v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS PRIMAVERA BALTAZAR a/k/a ) PRIMAVERA HURTADO,                                  ) ) No. 08-02-00447-CR Appellant, ) ) Appeal from the v. ) ) 205th District Court THE STATE OF TEXAS,                                     ) ) of El Paso County, Texas Appellee. ) ) (TC# 20020D03775) ) O P I N I O N Appellant Primavera Baltazar a/k/a Primavera Hurtado appeals her conviction for the offense of capital murder. See Tex.Pen.Code Ann. ' 19.02(b)(1), 19.03(a)(3)(Vernon 2003 & Supp. 2004). The jury found Appellant guilty of the charged offense and she was sentenced to a mandatory term of life imprisonment. See Tex.Pen.Code Ann. ' 12.31(a)(Vernon 2003). In her sole issue on appeal, Appellant contends the trial court erred in its rulings on the use of leading questions under Texas Rule of Evidence 611(c) during Appellant=s case-in-chief, which unduly harmed her defense. We affirm. In January 2000, Mercedes Caballero, the victim, was found stabbed to death in her home. The victim was accused of having an affair with the husband of Appellant=s friend and codefendant, Ana Almaraz-Montti. Ms. Almaraz paid Appellant and Rafael Guillen $10,000 to kill Ms. Caballero. The State=s primary witness, Gabriela Barrios, was a witness to the arrangements and subsequent conversations where the Appellant described the murder. During Appellant=s case-in-chief, witnesses called to testify included: Detective Carlos Ortega; Maria Del Pilar Gonzalez; Detective Arturo Perez; Officer Rick Jordan; and Detective Arturo Ruiz, Jr. In her sole issue, Appellant contends the trial court erred in allowing the State to use leading questions to Aexamine@ Ms. Gonzalez and erred in refusing to allow Appellant to use leading questions during her Across-examination@ of the police officers and the detectives during her case-in-chief. Texas Rule of Evidence 611 governs the interrogation and presentation of witnesses at trial. See Tex.R.Evid. 611. Under this Rule, the trial court has reasonable discretion to control the mode and order of interrogating witnesses and presenting evidence in order to: (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time; and (3) to protect witnesses from harassment or undue embarrassment. See Tex.R.Evid. 611(a). A witness may be cross-examined on any matter relevant to any issue, including credibility. See Tex.R.Evid. 611(b). Except as may be necessary to develop the testimony of a witness, leading questions should not be used on direct examination. See Tex.R.Evid. 611(c). However, leading questions should be permitted on cross-examination. See id. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Id. A leading question is one which instructs the witness how to answer or puts words into the witness= mouth to be echoed back. Gab Business Serv., Inc. v. Moore, 829 S.W.2d 345, 351 (Tex.App.--Texarkana 1992, no writ). Permitting leading questions on direct examination is a matter within the sound discretion of the trial court. See Wyatt v. State, 23 S.W.3d 18, 28 (Tex.Crim.App. 2000). Unless Appellant was unduly prejudiced by virtue of such questions, no abuse of discretion can be shown. Id.; Hernandez v. State, 643 S.W.2d 397, 400 (Tex.Crim.App. 1982); see also Ballew v. State, 452 S.W.2d 460, 461 n.1 (Tex.Crim.App. 1970)(AThe matter of permitting the asking of leading questions rests in the sound discretion of the trial judge, and unless the defendant can show that he was unduly prejudiced by virtue of such questions, no reversal of his conviction can be had.@). Harm must also be shown with respect to a trial court=s refusal to permit Appellant to lead on cross-examination. See Craig v. State, 594 S.W.2d 91, 96 (Tex.Crim.App. 1980). Permitting Leading Questions by the State During Appellant=s case-in-chief, Maria Del Pilar Gonzalez, the sister of witness Gabriela Barrio, was called to testify. In her appellate brief, Appellant states that Ms. Gonzalez was called for the purpose of impeaching Ms. Barrio=s credibility. On direct examination, Ms. Gonzalez admitted that she had lied to the police in her written statement when she stated that Appellant had directly told her certain information about the murder. Ms. Gonzalez admitted that everything she knew about what had happened was based on what her sister had told her because she, Ms. Gonzalez, was not present. After these admissions, Appellant=s counsel asked to treat Ms. Gonzalez as an Aadverse witness@ in order to ask leading questions and the trial court granted the request. In her continued testimony, Ms. Gonzalez admitted that she did not tell police officers that she was just repeating what her sister had told her. Ms. Gonzalez also testified that in her statement she had stated that her sister had told her that she had taken Atwo men@ and Appellant to the airport, but now recalled her sister saying Athem,@ not Atwo men.@ In cross-examination, the trial court permitted the State prosecutor to ask leading questions. During this testimony, Ms. Gonzalez affirmed that she learned the details of the murder from Ms. Barrio who had heard it from Appellant and that Ms. Barrio had never told her there were Atwo guys.@ Ms. Gonzalez also affirmed that she received some benefits because Ms. Barrio had came forward and was willing to testify, which included being allowed to stay in the United States and having drug charges dismissed against her. On redirect, Ms. Gonzalez again confirmed that as a benefit she had criminal charges against her dismissed and was permitted to stay in the United States. Ms. Gonzalez again stated that she lied to the police because she was not present with Ms. Barrio and clarified that Ms. Barrio told her she took Athem@ to the airport. On appeal, Appellant argues that the trial court misinterpreted Rule 611(c) when it permitted the State to ask leading questions during its cross-examination because Ms. Gonzalez had been cooperating with the police and was a witness clearly aligned with the State. In support of her argument, Appellant points this Court to the reasoning in Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir. 1979) and Coronado v. Employees Nat=l Ins. Co., 577 S.W.2d 525 (Tex.Civ.App.--El Paso 1979), aff=d, 596 S.W.2d 502 (Tex. 1979). However, we find these cases to be distinguishable. In Perkins, the Fifth Circuit Court held that the trial court erred in ruling that the plaintiff could not interrogate defendant=s employee, a witness identified with an adverse party, by leading questions in contradiction to Fed.R.Evid. 611(c). Perkins, 596 F.2d at 682. The Perkins Court nevertheless found that the plaintiff had failed to demonstrate he was so prejudiced by the ruling as to justify reversal. Id. In this case, Appellant was permitted to interrogate Ms. Gonzalez as an Aadverse party,@ therefore the Perkins holding is inapplicable as it does not address her complaint concerning the trial court permitting the State to lead Ms. Gonzalez during its cross-examination. In Coronado, the plaintiff asserted the trial court erred in allowing defendant=s counsel to lead a witness and erred in refusing to allow plaintiff=s counsel the right to lead adverse witnesses. Coronado, 577 S.W.2d at 531. In that case, this Court found that since the witness at issue was listed as a party to the suit at the time of trial, he was an adverse party whom the plaintiff should have been permitted to cross-examine. Id. Because there was no showing that the same witness was adverse to the defendant, this Court saw no reason why defendant=s counsel should have been permitted to ask leading questions. Id. However, no abuse of discretion was found because the facts sought to be established through the witness were placed in the record through proper questions. Id. In this case, Ms. Gonzalez was called by Appellant and it is clear that the State was permitted to ask leading questions pursuant to Tex.R.Evid. 611(b), not Tex.R.Evid. 611(c). Appellant has presented no authority nor any relevant case law to support her implicit contention that Ms. Gonzalez= status as an Aadverse witness@ necessarily prohibited the trial court from permitting the State to ask leading questions under Tex.R.Evid. 611(b). Moreover, in reviewing the record, we find that Appellant elicited the same substantive testimony from Ms. Gonzalez during her direct and redirect examination of the witness that she complains was introduced by the State through improper questioning. Appellant has failed to show how she was unduly prejudiced by the State=s leading questions, therefore no abuse of discretion by the trial court has been shown with respect to Ms. Gonzalez= testimony. We overrule Appellant=s Issue One as to this portion of her complaint on appeal. Appellant also complains of the trial court rulings, which prevented her from asking leading questions to witnesses Officer Rick Jordan, Detective Arturo Perez, and Detective Arturo Ruiz during her case-in-chief.[1] Specifically, she argues the trial court=s erroneous interpretation of Rule 611(c) crippled her attempt to impeach Ms. Barrio through police officer testimony and the court=s decision to treat the police officers as her witnesses ultimately caused her conviction. We must disagree. Although Officer Rick Jordan was a witness during the State=s case-in-chief, Appellant called Officer Jordan to testify as a witness after the State had rested and during her case-in-chief. Officer Jordan took photographs and videotape at the crime scene. On direct examination, Officer Jordan was asked to identify several photographs. Defense counsel asked Officer Jordan, ANow, Officer, Defendant=s Exhibit Number 22--I mean, State=s Exhibit 22, is a picture of some duct tape?@ After the State objected to the question as leading, defense counsel rephrased the question and Officer Jordan responded, AYes, sir. It is a picture of a roll of tape.@ Officer Jordan further testified that the roll of tape was manufactured by 3M and is commonly referred to as duct tape. Officer Jordan also identified photographs, which showed two other rolls of duct tape that were found in a red tool chest in the garage at the deceased=s house. Defense counsel then asked the following objected-to question, AAll right. So there was duct tape all over this house. Is that fair to say?@ Defense counsel then rephrased the question as AHow many rolls of duct tape did you see in that house?@ and Officer Jordan replied, AA total of three, sir.@ The photographs at issue were admitted into evidence at trial. There is nothing in the record to indicate that Appellant intended to call Officer Jordan as an adverse or hostile witness such that she could be permitted to ask leading questions during direct examination. Further, Appellant has failed to show any harm since the same evidence she sought to elicit from Officer Jordan was introduced through proper questioning. Appellant was not unduly prejudiced by the trial court rulings as to Officer Jordan=s testimony. Appellant called Detective Arturo Ruiz, Jr. to testify for the first time during her case-in-chief. In her brief, Appellant asserts that Detective Ruiz was called to establish that Ms. Caballero=s hand bag was on a counter top in the home and to contradict Ms. Barrio=s written statement and testimony that Ms. Caballero untied herself and attempted to drag herself to a phone. On direct examination, Detective Ruiz testified that he was assigned to oversee the crime scene at the time. Detective Ruiz stated that he found the keys to the car and to the house lying on the other side of a bag with the letters AS-A and U-S@ on it on top of a counter top. After Detective Ruiz had identified the bag in a photograph already in evidence, defense counsel asked, AYou can=t see that it=s a bag, hardly, in the photo.@ The State objected to the question as leading, defense counsel rephrased the question, and Detective Ruiz replied, A Yes. I am trying to describe it. It is like a hand-- a lady=s purse.@ Later in his testimony, Detective Ruiz was questioned about his recollection of drag marks in rooms at the crime scene and the location of telephones in the home. Detective Ruiz recalled seeing telephones in the kitchen and in the master bedroom. Detective Ruiz identified a photograph already in evidence as showing an overall view of the living room area where the victim was found. He stated that there were no drag marks around or in the living room area and he did not recall seeing any drag marks in the crime scene. Defense counsel then asked, AOkay. In order to get to any one of the other phones in either the master bedroom or the master bathroom, it would have had--.@ Following the State=s objection to leading, defense counsel rephrased the question, which was objected-to on different grounds. In his continued testimony, Detective Ruiz stated that there were no crawl marks in the hallway nor any drag marks near the pantry door. With respect to whether there was any evidence of the victim untying herself, defense counsel asked the following objected-to question, AWas there any indication that the victim had untied herself from the duct tape, maybe a curled piece of duct tape or whatever?@ Defense counsel rephrased the question, which the State then objected to on other grounds. The trial court, however, allowed a response and Detective Ruiz answered, AI personally didn=t observe any indication that the victim untied herself.@ Appellant did not call Detective Ruiz as an adverse or hostile witness and nothing in his testimony indicates that he should have been treated as such. Appellant has failed to show any harm by the State=s sustained objections to her leading Detective Ruiz=s testimony since Appellant elicited the same evidence through proper questioning. Therefore, Appellant was not unduly prejudiced by the trial court=s rulings concerning the testimony of Detective Ruiz. At trial, Appellant called Detective Arturo Perez, a witness during the State=s case-in-chief, to testify after the State had rested and during her case-in-chief. In her brief, Appellant asserts that Detective Perez was called in order to impeach Ms. Barrio and argues that the trial court=s erroneous rulings on leading questions prevented her from effectively examining the State=s own witness. Detective Perez has received training in taking statements from witnesses and took Ms. Barrio=s statement in this case. Detective Perez explained that he tries his best to type out the statement as close as possible to what the witness is saying to him. Witnesses are given an opportunity to review the statement before signing it and then any corrections are made. Detective Perez uses a computer in preparing statements and stated that is not hard to make a correction. Defense counsel then asked Detective Perez, AIt is not like having a typewriter, where you are going to say, Oh, man, you want me to go back and, you know, cross all that out and then make a correction, right?@ The State objected to the question, defense counsel rephrased the question, and Detective Perez testified that back in November 2000, he used the department=s RMS system, which is basically like a computer, and it can delete and erase. Later on during direct examination, defense counsel asked to treat Detective Perez as an adverse witness during questioning about details contained in Ms. Barrio=s statement. The trial court denied the request based on its reasoning that the witness was not offered as an adverse witness and there was no indication that he was adverse. In the testimony that followed, defense counsel rephrased questions which were objected to as leading and Detective Perez provided responses to these properly posed questions. During direct examination, Appellant elicited testimony from Detective Perez in which he stated he did not recall nor see in Ms. Barrio=s statement anything about any drive, any mention that Appellant was going to help Ms. Montii get even, anything about buying tape, any mention that the knife went in like butter when Ms. Caballero was killed, or anything about Ms. Caballero untying herself. Further, contrary to Ms. Barrio=s testimony, Detective Perez recalled telling Ms. Barrio to bring the gun to him. After reviewing Detective Perez=s testimony, we find the trial court did not abuse its discretion in denying Appellant=s request to treat Detective Perez as an adverse witness. By rephrasing the objected-to questions, Appellant introduced the evidence she sought to elicit from Detective Perez=s testimony, including testimony concerning inconsistencies between Ms. Barrio=s testimony and her statement as read into the record. Appellant fails to show any harm or that she was unduly prejudiced by the trial court=s rulings concerning leading questions posed to Officer Jordan or Detectives Ruiz and Perez. Under such circumstances, we cannot conclude the trial court abused its discretion in refusing to permit Appellant to ask leading questions during her examination of these witnesses. Issue One is overruled in its entirety. We affirm the trial court=s judgment. May 13, 2004 DAVID WELLINGTON CHEW, Justice Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish) [1] In her brief, Appellant also asserts that she was prevented from asking leading questions to Detective Carlos Ortega, yet she fails to provide any argument or citation to the record to leading questions she was barred from asking of this witness, therefore we find that she has waived any complaint with respect to the examination of Detective Ortega. See Tex.R.App.P. 38.1(h).