Jose Aranda v. State

NUMBER 13-03-302-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ JOSE ARANDA, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 117th District Court of Nueces County, Texas. __________________________________________________________________ MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Rodriguez Appellant, Jose Aranda, was tried before a jury and convicted on three counts of injury to a child, enhanced by a prior felony conviction. The jury assessed punishment, to run concurrently, at life imprisonment and a $5,000 fine on count one; twenty years imprisonment and a $5,000 fine on count two; and twenty years imprisonment and a $5,000 fine on count three. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). Appellant appeals his conviction by seven points of error. We affirm. I. FACTS As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. II. CHARACTER EVIDENCE AND EXTRANEOUS ACTS In his first three points of error, appellant contends that the trial court abused its discretion in admitting, during the guilt/innocence phase of trial, evidence of appellant’s character and evidence of extraneous crimes, wrongs, or acts. In support of these contentions, appellant references forty-six such instances, all of which ocurred during the testimony of Patricia Cole, the mother of appellant’s three children. The State asserts that appellant failed to preserve error on these issues and that the evidence was admissible. However, assuming without deciding that appellant preserved error, we conclude that there was either no error or error, if any, was harmless. The admissibility of evidence is within the discretion of the trial court and will not be overturned absent an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). This standard requires an appellate court to uphold a trial court’s admissibility decision when that decision is within the zone of reasonable disagreement. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). The evidence complained of by appellant can be grouped into the following categories: 1) evidence regarding the relationship between appellant and the children’s mother; 2) evidence regarding the relationship between appellant and the children; 3) evidence related to the charged offense; and 4) other various acts of appellant. We will address the admissibility of each category in turn. Prior to the testimony of Ms. Cole, the State requested that it be allowed to present evidence regarding extraneous acts. The evidence, according to the State, would be used for the purpose of rebutting defensive theories alluded to in defense counsel’s opening argument wherein defense counsel stated that appellant and Ms. Cole had a good relationship and that appellant treated the girls like princesses. The State argued that these statements opened the door to evidence of extraneous acts. The trial court determined that the evidence was admissible based on defense counsel’s representations in his opening statement as well as the testimony of other witnesses on cross-examination. The challenged evidence, about which appellant now complains, was then admitted through the testimony of Ms. Cole. After reviewing the record, we find that the trial court could have reasonably decided that defense counsel’s opening statement opened the door to the admission of extraneous evidence to rebut counsel’s defensive theory that appellant and Ms. Cole had a good relationship. See Powell, 63 S.W.3d at 438-40. It was therefore reasonable for the trial court to admit testimony provided by Ms. Cole regarding her relationship with appellant. Id. at 439. Because the trial court’s decision to admit evidence of extraneous acts in the first category is within the zone of reasonable disagreement, there was no abuse of discretion. Similarly, evidence regarding the relationship between appellant and his daughters was also admissible to rebut the defensive theory that he treated them like princesses. Moreover, evidence of the relationship between appellant and all three of his children was admissible under article 38.37 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2004-2005). Therefore, the trial court did not abuse its discretion in admitting evidence falling within the second category. The third category of evidence includes acts such as appellant selling food stamps and welfare benefits. We find this evidence to be indivisibly connected to the charged offense and necessary to the State’s case. See Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992). Therefore, the trial court did not abuse its discretion in admitting this evidence. See id. The fourth category includes testimony that the defendant: 1) scared his birth family; 2) punched out several windshields; 3) was dishonest and a thief; 4) sold drugs; and 5) sold rented goods. While the State argues that each of these acts was admissible for various reasons, we find that even if the evidence was deemed inadmissible, the error would be harmless in light of the other extraneous acts which were admissible and in light of the overwhelming evidence of appellant’s guilt. See Thrush v. State, 515 S.W.2d 122, 125-26 (Tex. Crim. App. 1974). Accordingly, appellant’s first three points of error are overruled. III. HEARSAY EVIDENCE By his fourth point of error, appellant contends that the trial court abused its discretion in admitting prejudicial hearsay evidence at the punishment phase of trial. Specifically, appellant complains of a gang intelligence form submitted as State’s Exhibit 79, the testimony of Officer Phillip Wagner concerning the contents of the form, and Officer Wagner’s testimony regarding appellant’s involvement in a gunfight and a separate assault. This Court agrees that the trial court erred in admitting the gang intelligence form into evidence as it constituted “matters observed by police officers and other law enforcement personnel” and was therefore not admissible as an exception to the hearsay rule. See Tex. R. Evid. 803(6) (business records exception) & 803(8)(B) (public records exception which does not include matters observed by police officers and other law enforcement personnel); Cole v. State, 839 S.W.2d 798, 804-06 (Tex. Crim. App. 1990) (holding that rule 803(6) may not serve as an alternative route for admissibility of records otherwise barred by the rule 803(8) exclusion of matters observed by police officers). However, we find this error to be harmless as the same information contained in State’s Exhibit 79 was subsequently introduced, without objection, during the testimony of Officer Wagner. See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999). Furthermore, we find no objection in the record as to Officer Wagner’s testimony regarding appellant’s involvement in a gunfight or an assault. See Tex. R. App. P. 33.1(a)(1)(A) (as prerequisite to presenting complaint for appellate review, record must show complaint was made to trial court by timely request, objection or motion that stated grounds for ruling sought). Thus, possible error, if any, related to the admission of this testimony has been waived. Appellant’s fourth point of error is overruled. IV. AUTOPSY PHOTOGRAPHS By his fifth point of error, appellant contends that the trial court erred in admitting into evidence five autopsy photographs of Dylan Aranda. Specifically, appellant complains that State’s Exhibits thirty-five through thirty-nine were unduly prejudicial and cumulative. We review a trial court’s decision to admit photographs into evidence under an abuse of discretion standard. See Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000). Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, by considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. We may consider many factors in determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice including: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color, whether they are close-up, and whether the body depicted is clothed or naked. Barnes v. State, 876 S.W.2d 316, 326 (Tex. Crim. App. 1994). We, however, are not limited by this list. Id. The availability of other means of proof and the circumstances unique to each individual case should also be considered. Id. The five exhibits complained of are color autopsy photos of Dylan, showing both the front and back of the body from different angles. Dylan is nude in the pictures. The photos depict the injuries suffered by the child and are not unnecessarily gruesome or cumulative. None of the photos reveal any injuries due to autopsy procedures. See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2004) (autopsy photos generally admissible unless they depict mutilation caused by autopsy itself). The exhibits were introduced into evidence during the testimony of the medical examiner and were used to aid him in explaining the cause of Dylan’s death, an issue which was contested at trial. In light of the photographs and the circumstances in which they were presented, we find that the danger of unfair prejudice is not substantially outweighed by the probative value of the photographs. Therefore, we hold that the trial court did not abuse its discretion in admitting the exhibits. Appellant’s fifth point of error is overruled. V. DUE PROCESS By his sixth point of error, appellant contends he was denied due process of law when the trial court ruled he could not present evidence that the jury improperly considered parole during deliberations. Appellant specifically complains that Texas Rule of Evidence 606(b) is an unconstitutional deprivation of due process under both the Texas and United States Constitutions. See U.S. Const. amends. V, XIV; Tex. Const. art. I, § 19; Tex. R. Evid. 606(b). However, Texas courts, including this Court, have consistently upheld rule 606(b) under both the Texas and federal Constitutions. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 374-75 (Tex. 2000); Glover v. State, 110 S.W.3d 549, 552 (Tex. App.–Waco 2003, pet. ref’d); Richardson v. State, 83 S.W.3d 332, 362 (Tex. App.–Corpus Christi 2002, pet. ref’d); Hines v. State, 3 S.W.3d 618, 622-23 (Tex. App.–Texarkana 1999, pet. ref’d). Therefore, appellant’s sixth point of error is overruled. VI. INEFFECTIVE ASSISTANCE OF COUNSEL In his final point of error, appellant contends he was denied effective assistance of counsel. Appellant complains of nine instances in which trial counsel’s representation fell below an objective standard of reasonableness. However, in applying the test for determining ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), we find that the record is silent as to the reasons counsel failed to act or perform in the manner urged by appellant. Accordingly, appellant has not rebutted the presumption that he was adequately represented and that these actions were part of trial counsel’s sound trial strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (“Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel’s conduct was reasonable and professional.”). Therefore, we conclude that appellant has not shown how his attorney’s representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 867. Appellant’s final point of error is overruled. We note that although appellant’s attempt at a direct appeal has been unsuccessful, he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim, such as ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001). V. CONCLUSION Accordingly, the judgment of the trial court is affirmed. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 18th day of November, 2004.