Manuel Jessie Mendez v. State

11th Court of Appeals Eastland, Texas Opinion Manuel Jessie Mendez Appellant Vs. No. 11-03-00062-CR -- Appeal from Palo Pinto County State of Texas Appellee Manuel Jessie Mendez pleaded guilty to the offense of aggravated robbery. A jury was empaneled to assess appellant=s punishment. The jury assessed appellant=s punishment at confinement for life and a $10,000 fine. We affirm. The record shows that on June 23, 2000, the victim, Alfred Baroso Trevino, left his home for a few minutes to get a drink at a nearby store. When he returned, Trevino went into his bedroom, and appellant was behind the door with a machete. Appellant attacked Trevino with the machete, seriously injuring him. Appellant took several items from Trevino=s house and put them in Trevino=s car. Because Trevino=s car was not in working condition, appellant left the scene on foot. Appellant was apprehended several days later. In his first point of error, appellant argues that the trial court erred in failing to grant his motion for mistrial based upon juror misconduct during voir dire. Veniremember Starr informed the court that another member of the jury panel, Veniremember Nunez, was talking about the case. Veniremember Starr said that Veniremember Nunez told the veniremembers on either side of him about Trevino=s injuries. Veniremember Starr stated to the court: Specifically what [Veniremember Nunez] said was, AWe used to play softball together and he=s not - - no longer ever going to be able to play because of the condition of his hand. He has no use. It took him months for him to be able to heal.@ The trial court called the veniremembers who were seated on either side of Veniremember Nunez. The trial court asked Veniremember Caldwell whether Veniremember Nunez had discussed the case with her. Veniremember Caldwell stated that she asked Veniremember Nunez if Trevino Awas attacked at Travis school.@ Veniremember Nunez told Veniremember Caldwell that the offense did not happen at the school. Veniremember Nunez also told Veniremember Caldwell that Trevino had a hand injury. Veniremember Caldwell said that Veniremember Nunez did not say anything about Trevino=s ability to play sports. Veniremember Caldwell said that Veniremember Nunez was just whispering. Veniremember Beals stated that he did not hear Veniremember Nunez discussing the case. When asked if he heard Veniremember Nunez talking to Veniremember Caldwell, Veniremember Beals responded: AI didn=t really pay too much attention.@ Veniremember Beals said that he did not hear Veniremember Nunez speaking. Veniremember Nunez was excused from the jury panel. The trial court has discretion in determining whether to grant a motion for mistrial based on allegations of juror misconduct. Granados v. State, 85 S.W.3d 217, 236 (Tex.Cr.App.2002). Where there is conflicting evidence on an issue of fact as to jury misconduct, the trial court determines the issue; and there is no abuse of discretion in overruling the motion for new trial. Thomas v. State, 699 S.W.2d 845, 854 (Tex.Cr.App.1985). The record shows that the trial court questioned Veniremembers Caldwell and Beals about the comments. Veniremember Beals stated that he did not hear Veniremember Nunez discussing the case. Veniremember Caldwell stated that any comments Veniremember Nunez made did not influence her in any way. Neither Veniremember Caldwell nor Veniremember Beals were seated on the jury. Appellant has not shown that the trial court abused its discretion in denying his motion for mistrial. Appellant=s first point of error is overruled. In his second point of error, appellant contends that the trial court erred in overruling his challenge of a prospective juror. During his voir dire examination, appellant=s counsel asked the panel: Is there anybody here that absolutely can=t accept the proposition that there are certain people who, because of what has occurred to them like the orphans from Romania, lose the ability - - maybe it=s an injury, an illness, lose the ability to control their behavior, not all the time, but in certain instances? Is there anybody that cannot accept that as a reasonable proposition? Appellant=s counsel questioned individual veniremembers about the above proposition. Veniremember Brown stated that she did not Abelieve [she] could accept the fact that you can=t control yourself to do something like that.@ Outside the presence of the other veniremembers, appellant=s counsel asked Veniremember Brown: A[Y]ou just flat stated to me that you...can=t consider the proposition or, I guess, excuse offered by the defendant in this at all.@ Veniremember Brown responded: A[W]e=re all accountable for what we do and I think we can control what we do if we want to bad enough.@ Veniremember Brown said that she could listen to what appellant had to say, but that she did not think she could believe it. Veniremember Brown said that she would wait and hear the evidence before making a determination as to appellant=s punishment. In denying appellant=s challenge for cause, the trial court found that: [T]he way I understand it, the question is whether they will consider the defendant=s sole contention or a - - his contention that he couldn=t help what he was doing. And I think that=s what was asked her. A juror doesn=t have to believe anybody=s... position -- or either the State=s or the defendant=s position. Now, whether she said now she could listen, but not whether she didn=t have to buy into anybody=s theory to be a good juror. Veniremember Brown was not seated on the jury. The record before us does not indicate whether appellant used a peremptory strike against Veniremember Brown. To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained‑of venireperson; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Cr.App.2002); Green v. State, 934 S.W.2d 92, 105 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1200 (1997). Appellant has not preserved his complaint for review. Moreover, we review the trial court=s denial of challenges for cause for abuse of discretion. Curry v. State, 910 S.W.2d 490, 493 (Tex.Cr.App.1995). When the record does not contain a clearly objectionable declaration by the veniremember or when the record demonstrates a vacillating or equivocal veniremember, we accord great deference to the trial court who had the better opportunity to see and hear the person. Rachal v. State, 917 S.W.2d 799, 814 (Tex.Cr.App.), cert. den=d, 519 U.S. 803 (1996); Garcia v. State, 887 S.W.2d 846, 854 (Tex.Cr.App.1994), cert. den=d, 514 U.S. 1005 (1995). Appellant has not shown that the trial court abused its discretion in denying his challenge for cause against Veniremember Brown. Appellant=s second point of error is overruled. In his third point of error, appellant complains that the trial court erred in Afailing to halt the trial and obtain a finding regarding appellant=s competency to stand trial.@ During cross-examination, appellant stated that he could not feel his arms. The trial court called for a 15-minute recess. Although not recorded on the record, it appears from the record, during the recess, there was a physical confrontation resulting in appellant being restrained. The jury was excused for the day. The following day, appellant=s counsel requested a mistrial. Appellant=s counsel argued that appellant was Aprovoked@ into the outburst by the State to demonstrate appellant=s anger. Appellant=s counsel then stated: If the Court does not think it=s suitable for a mistrial, then, in the alternative, we=d ask for a recess and allow the sheriff to take this defendant to the nearest state hospital for an emergency evaluation as to his ability to continue. And that would take, like, two or three days, and the jury could be brought back. And that should, at that point, at least calm the air and calm the nerves of everybody concerned so that we could continue and conclude this case in an orderly manner with the kind of decorum that=s intended in the courtroom. TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 2 (Vernon 1979) provides in part: (b) If during the trial evidence of the defendant=s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial. Appellant requested a mistrial or, in the alternative, a recess for a few days to allow appellant to be examined at a state hospital to determine his competency to stand trial. On appeal, appellant argues that, pursuant to Article 46.02, section 2(b), the trial court should have held a hearing to determine his competency. An Article 46.02, section 2 competency inquiry is required only if the evidence brought to the trial court=s attention raises a bona fide doubt in the trial court=s mind about the defendant=s competency to stand trial. McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Cr.App.2003); Collier v. State, 959 S.W.2d 621 (Tex.Cr.App.1997), cert. den=d, 525 U.S. 929 (1998). Evidence is usually sufficient to create a bona fide doubt if it shows recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. McDaniel v. State, supra; Alcott v. State, 51 S.W.3d 596 (Tex.Cr.App.2001). When such a bona fide doubt does exist, the trial court must conduct an Article 46.02, section 2 competency inquiry to determine whether there is some evidence to support a finding of incompetency and, if so, to commence a competency hearing before a jury pursuant to TEX. CODE CRIM. PRO. ANN. art. 46.02, ' 4 (Vernon 1979 & Pamph. Supp. 2003). McDaniel v. State, supra. Thus: (1) if a competency issue is raised by the defendant, any party, or the court; and (2) evidence of incompetency is brought to the attention of the trial court by the defendant, any party, or the court; (3) of the type to raise a bona fide doubt in the judge=s mind regarding the defendant=s competency to stand trial; then (4) the judge must conduct a Section 2 Acompetency inquiry@ to determine if there is some evidence sufficient to support a finding of incompetence, and if there is, (5) the judge must impanel a jury for a Section 4 Acompetency hearing.@ McDaniel v. State, supra at 710-11. The requirements of each step must be fulfilled before moving on to the next. McDaniel v. State, supra. Prior to trial, appellant filed a motion for a psychiatric examination. Appellant was examined by a psychiatrist prior to pleading guilty. The psychiatrist determined that appellant had the ability to consult with his attorneys with a Areasonable degree of understanding@ and that he had a rational and factual understanding of the proceedings against him. At a pretrial hearing, appellant=s counsel stated that, based upon the psychiatrist=s evaluation, he believed that appellant was competent to stand trial. After the confrontation that occurred during the punishment phase of the trial, appellant=s counsel asked the trial court to have appellant examined Aunder emergency provisions of the mental health code.@ Appellant=s counsel stated: A I doubt that there would be very much difference in the evaluation that came back than those before, but at least it would give us that breather.@ The trial court noted that the jury did not observe any physical confrontation involving appellant. We find that there was no evidence brought to the trial court to raise a bona fide doubt as to appellant=s competency to stand trial. McDaniel v. State, supra. Appellant=s third point of error is overruled. In his fourth point of error, appellant contends that the trial court erred in failing to sustain his objection to inflammatory and prejudicial photographs. Appellant objected to the State=s offer of photographs of the crime scene and Trevino. The trial court admitted three pictures of Trevino which depict different views of his injuries. The trial court admitted several pictures of the inside of Trevino=s house, each showing a different view of the crime scene. TEX.R.EVID. 403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Hayes v. State, 85 S.W.3d 809 (Tex.Cr.App.2002); Montgomery v. State, 810 S.W.2d 372, 376 (Tex.Cr.App.1991). The trial court=s decision will not be disturbed on appeal unless it falls outside the zone of reasonable disagreement. Jones v. State, 944 S.W.2d 642, 651 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997). A court may consider many factors in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. Hayes v. State, supra. These factors include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or in black and white, whether they are close‑up, and whether the body depicted is clothed or naked. Hayes v. State, supra; Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Cr.App.2000). Appellant argues that the photographs were not relevant because the jury was only assessing punishment. We find that the photographs of the crime scene and Trevino were relevant in determining appellant=s punishment. Najar v. State, 74 S.W.3d 82 (Tex.App. - Waco 2002, no pet=n). The photographs were not unnecessarily gruesome, and there was not a large number of photographs admitted. Appellant has not shown that the trial court abused its discretion in admitting the photographs. Appellant=s fourth point of error is overruled. The judgment of the trial court is affirmed. TERRY McCALL JUSTICE October 2, 2003 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.