Guadalupe Hernandez v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Guadalupe Hernandez Appellant Vs. No. 11-00-00274-CR B Appeal from Nolan County State of Texas Appellee The jury convicted appellant of murder and assessed his punishment at confinement for life and a fine of $10,000. Appellant appeals. We affirm. The sufficiency of the evidence to support the conviction is not challenged. Brigido Daniel (Danny) Alcala described the murder. Alcala testified that he was asleep downstairs on a couch in the victim=s apartment. He heard appellant shouting, the sound of someone being slapped around, and the sound of the victim saying AUgh@ about three times. Alcala went upstairs to the victim=s bedroom and saw appellant on top of the victim beating her while he was having sex with her. Alcala stated that the victim had blood all over her face. The victim was not moving except for making sounds. Alcala went back downstairs because he was in total shock. He then heard appellant coming down the stairs. Appellant went to the kitchen and grabbed a knife, saying, AI will show that bitch.@ Appellant went back up the stairs. Then, Alcala stated that he heard the shower running upstairs. After the water stopped running in the shower, Alcala went up the stairs to the bathroom. He saw appellant dragging the victim back into the bedroom. Alcala testified that the victim was Atotally disfigured.@ Her face was Atotally@ swollen, she had bruises all over her face, and her eyes were swollen shut. The victim appeared to be unconscious. Alcala stated that appellant did not see him. Alcala hid in the bathroom. Blood was all over the shower stall and on the bathtub, and bloody water was all over the floor. Alcala went back downstairs. He was about to leave, but went to the kitchen because he could hear water running. Bloody water was dripping off the ceiling into the kitchen. Alcala turned around and saw appellant standing in the living room. Appellant had a Aglassy look in his eyes.@ Appellant told Alcala, AI f----d up (the victim).@ Alcala left the apartment. Dr. Jill Urban, a medical examiner for Dallas County, performed an autopsy on the victim=s body. Dr. Urban testified that the victim died as a result of blunt force injuries with strangulation as a possible component. The doctor stated that her findings were consistent with the victim being struck about the head and body with a person=s fist. Dr. Timothy Slider, a forensic biologist, testified that he performed a D.N.A. analysis on vaginal and anal swabs collected from the autopsy of the victim. He stated that sperm was observed in both the anal swab and vaginal swab. Dr. Slider testified that the D.N.A. profile from the anal and vaginal swabs was consistent with the D.N.A. profile of appellant. In his first point of error, appellant urges that the trial court violated TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(a) (Vernon Supp. 2001) by failing to grant his motion for mistrial following the introduction of an unadjudicated offense during the punishment phase of the trial. Jennifer Bentley was called by the State at the punishment phase to testify about a prior bad act committed against her by appellant. Bentley testified that, while she was at the park with some friends, including appellant, she went to the bathroom. Bentley referred to appellant in her testimony as ALapone.@ The record reflects the following: Q: Jennifer, who else came down to the bathroom where you were? A: Lapone. Q: I need you to answer loud enough for the jury to hear. Jennifer. A: Lapone. Q: Lapone? Jennifer, what did Lapone do when he came to the bathroom where you were? Jennifer, what happened when Lapone came to the bathroom where you were? A: He B He B He B Q: What did he do? A: He B He B Q: Jennifer, did he do something to you? Are you nodding AYes@? Did he force you to have sex with him? [DEFENSE COUNSEL]: Your Honor, we object to the leading nature of the question. THE COURT: Sustained. Q: Jennifer, what did he do to you? [DEFENSE COUNSEL]: Your Honor, we object to that. We ask you to ask the jury to disregard it for any purpose. THE COURT: Ladies and gentlemen, you will disregard the previous question for any purpose. [DEFENSE COUNSEL]: We would ask for a mistrial. THE COURT: Overruled. THE WITNESS: He made me B He made me B He B Q: Jennifer, can you tell the Jury what he did? A: He B He B [PROSECUTOR]: Judge, may I approach the witness? THE COURT: Yes. At this point, the trial court, outside the presence of the jury, concluded that the witness could not continue her testimony. The court then instructed the jury: Ladies and gentlemen of the Jury, the law provides that any witness tendered must be subject to cross examination in order for their testimony to be considered by the Jury in their deliberations. The witness, Jennifer Bentley, was tendered and testimony was tendered and I ruled that Mrs. Bentley is unavailable for cross examination; therefore, all testimony, all that you saw, all that you heard, is stricken from the record. You are not to consider, allude to, or deliberate upon any of the things you saw or heard during the tendering of Mrs. Bentley. This is a finding of the court, and order of the Court, and during which time you will begin your deliberations that testimony, all that you saw and heard, legally does not exist and can=t be alluded to, commented upon or considered in your deliberations. Appellant argues that the prosecution was, effectively, allowed to introduce evidence of a prior unadjudicated offense (sexual assault) which was not proved beyond a reasonable doubt. See Article 37.07, section 3(a). Appellant made no objection to the trial court=s ruling regarding the witness nor did he move for a mistrial after Bentley was excused by the court. Appellant objected that the prosecutor=s question to the witness, ADid he force you to have sex with him,@ was leading. The trial court sustained the Aleading@ objection and instructed the jury not to consider the Aquestion for any purpose.@ The trial court overruled appellant=s motion for mistrial. Appellant=s objection at trial was that the question was leading. On appeal, appellant urges that the trial court erred in permitting the introduction of highly prejudicial evidence regarding unadjudicated offenses during the punishment phase in violation of AARTICLE 37.07 SECTION 3(a) OF THE TEXAS CODE OF CRIMINAL PROCEDURE.@ Appellant=s trial objection does not comport with the issue raised on appeal. Appellant has not preserved anything for appellate review. Knox v. State, 934 S.W.2d 678 (Tex.Cr.App.1996); see also Wooden v. State, 929 S.W.2d 77, 79 (Tex.App. - El Paso 1996, no pet=n). Appellant=s first point of error is overruled. Appellant urges in his second point that the trial court erred in failing to charge the jury on the burden of proof regarding extraneous-offense and bad-act evidence during the punishment phase. Appellant cites Huizar v. State, 12 S.W.3d 479 (Tex.Cr.App.2000), for the rule that the trial court must sua sponte instruct the jury on the burden of proof for evidence of extraneous offenses or bad acts admitted at punishment. Under this point, appellant refers to the alleged rape of Jennifer Bentley by appellant. We have held that there was no evidence of such rape. Therefore, Huizar is not applicable. We will, nevertheless, for purposes of this opinion, assume that error was committed and will analyze the assumed error (failure to give the proper burden of proof instruction) under the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985). See Huizar v. State, supra at 484-85. To constitute reversible error, a defendant must have suffered actual Aegregious= harm. Arline v. State, 721 S.W.2d 348, 351-52 (Tex.Cr.App.1986). The actual degree of harm must be: [A]ssayed 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. Almanza v. State, supra at 171. The evidence shows that appellant committed a very brutal murder. The State introduced evidence of prior convictions by way of judgments. The judgments revealed that appellant had been to the penitentiary. The trial court carefully instructed the jury that it was not to consider, allude to, or deliberate upon any of the things that it saw or heard during the tendering of Bentley. The prosecutor did not, in her argument to the jury, in any way refer to Bentley. We hold that the failure to instruct the jury on the reasonable-doubt standard during the punishment phase of trial was harmless under Almanza. The second point of error is overruled. In the third point of error, appellant asserts that the trial court abused its discretion in admitting an autopsy photograph of the victim. The State contends that the massive head injuries sustained by the victim were significant to the cause of death. The autopsy photograph depicted the victim=s skull, after the scalp had been pealed away, showing subscalpular hemorrhaging. The medical examiner testified that there was a significant injury that was not visible in any of the other photographs admitted into evidence. The medical examiner testified further that these injuries were significant to the cause of death. The autopsy photograph depicted, in the only way possible, the severe head trauma suffered by the victim. This was an issue before the jury and was significant to the cause of death. The trial court did not abuse its discretion in permitting the autopsy photograph to be introduced into evidence. Harris v. State, 624 S.W.2d 418 (Tex.App. - Eastland 1981), aff=d, 661 S.W.2d 106 (Tex.Cr.App.1983). The third point of error is overruled. The judgment of the trial court is affirmed. AUSTIN McCLOUD SENIOR JUSTICE October 25, 2001 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and McCall, J., and McCloud, S.J.[1] [1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.