Roberto Dianas v. State

Opinion issued June 30, 2011 In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00123-CR ——————————— Roberto Dianas, Appellant V. The State of Texas, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1246855 MEMORANDUM OPINION A jury convicted appellant Roberto Dianas of capital murder, and the trial court sentenced him to life imprisonment without parole. See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2), (a)(7)(A) (West 2011). Dianas brings three issues on appeal complaining that the trial court (1) erred by prohibiting him from viewing juror information, (2) erred by denying his motion to suppress his pretrial statement, and (3) abused its discretion by permitting a witness to testify as a ballistics expert despite an alleged lack of qualifications. We affirm the judgment of the trial court. Background Dianas was a member of the South Side Locos gang. He was indicted for the capital murder of two rival gang members, Pablo Cayax and Roberto Gonzalez, in a drive-by shooting. See Tex. Penal Code Ann. § 19.03(a)(7)(A) (providing that a person commits capital murder if he “murders more than one person during the same criminal transaction”). Marcos Velasco was also shot and injured, but he survived the shooting. Several days after the crime, Dianas was arrested and questioned at a police station. Lieutenant J. McGalin, the investigating officer, informed Dianas of his constitutional and statutory rights against self-incrimination. Dianas indicated that he understood his rights, stated that he wished to waive them, and gave a recorded statement. Before trial Dianas moved to suppress evidence of his recorded statement, arguing that he was intoxicated at the time it was made, and therefore he did not knowingly, intelligently, and voluntarily waive his rights. During the suppression hearing, Dianas’s brother testified that on the day of the arrest, Dianas was doing sheetrock and tile work with him and that Dianas was so intoxicated that he could not complete his work. McGalin testified that, based on his training and experience, Dianas was not intoxicated, did not appear confused or disoriented, did not have glassy eyes, and did not smell of any intoxicant. McGalin further testified that Dianas made sense and sounded logical in giving his statement. He also noted that Dianas was not deprived of any necessity, such as food or restroom breaks, was not promised anything in exchange for his statement, did not ask for a lawyer or to terminate the interview, and never stated that he was intoxicated or too intoxicated to continue with giving his statement. After watching the recorded statement and listening to the arguments of counsel, the trial court denied Dianas’s motion to suppress and specifically found: (1) the statement was made under voluntary conditions; (2) Dianas was not intoxicated; (3) the warnings were properly given; (4) Dianas understood the warnings; and (5) Dianas voluntarily waived his rights and freely and voluntarily gave his statement. At trial, during voir dire, the trial court became aware that Dianas was looking at the juror information sheet. The trial court asked Dianas’s attorneys to take the juror information sheets away from him, observing that the jury might be frightened to see a capital murder defendant looking at their personal identifying information, such as their addresses and phone numbers. Later, over Dianas’s objection, the trial court permitted the medical examiner to testify that the shots that killed Cayax were fired from more than two feet away. The medical examiner testified that she received training from the Harris County Medical Examiner’s Office on estimating the distance of gunshots. She explained about the evidence and factors she considers in assessing whether a shot was fired from close range or from a distance. She also testified that she had conducted at least 700 autopsies and that she has examined gunshot wounds and estimated distances every time she performed an autopsy on a victim of homicide or suicide who suffered gunshot wounds. The trial court overruled Dianas’s objection that the medical examiner was not qualified to give that opinion. The jury convicted Dianas of capital murder, the trial court assessed punishment at life in prison, and Dianas appealed. On appeal, he challenges the trial court’s actions removing the juror information from him during voir dire, denying his motion to suppress, and overruling his objection to the medical examiner’s qualifications to testify about the distance from which the shots were fired. Analysis I. Juror information In his first issue, Dianas contends that the trial court erred by prohibiting him from seeing information about the venire panel. During voir dire, the trial court asked to see counsel at the bench. Trial Court: I didn’t see it because your client is behind me. . . . He is looking at the jurors list. You need to take those away from him. Defense Counsel: Okay. Defense Co-counsel: I didn’t realize. Sorry, Your Honor. Trial court: Yeah. The rules don’t allow that. Defense Co-counsel: I just took that. Trial court: Be sure to just discreetly remove them. You can tell him so-and-so is a teacher or lives in the southwest part of town, but he is looking at their addresses and phone numbers; and it will scare the jurors to death because it is a capital case. Thank you. Dianas did not object to the trial court’s instruction to remove the juror information sheets from him. Because he failed to object, this issue is not preserved for appellate review. See Tex. R. App. P. 33.1(a); Saur v. State, 918 S.W.2d 64, 66 (Tex. App.—San Antonio 1996, no writ) (holding that appellant waived issue pertaining to removal of juror information sheets by failing to object at trial). Dianas argues that the removal of the juror information sheets deprived him of a fair trial and therefore may be raised for the first time on appeal. The record indicates that his attorneys had access to the juror information sheets and that the trial court instructed counsel to give Dianas information about the jurors contained therein. Counsel did not contend that he could not communicate the information to his client. Nothing in the appellate record shows that Dianas was limited in the amount of input he could provide to his lawyers pertaining to voir dire so as to deprive him of an opportunity to participate in his own defense. We overrule Dianas’s first issue. II. Admissibility of recorded statement In his second issue, Dianas contends that the trial court erred by denying his motion to suppress and by admitting his recorded statement to police. Dianas argues that his waiver of his rights in making a statement to police was not knowing, voluntary, or intelligent because he was intoxicated. In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Blake v. State, 125 S.W.3d 717, 722 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to those facts. Carmouche, 10 S.W.3d at 327. The trial court is the sole judge of the credibility of the witnesses and decides the weight to give their testimony. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We must sustain the trial court’s ruling if it is reasonably supported by the record evidence and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000). A defendant’s statement may be used in evidence against him if the defendant made it freely and voluntarily and without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). However, no written statement made by an accused as a result of custodial interrogation may be admissible unless the accused “prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived” certain specified warnings against self-incrimination. Id. art. 38.22 § 2(a), (b) (West 2005). A defendant may claim that his statement was not freely and voluntarily made under several different theories: (1) general involuntariness; (2) failure to warn against self-incrimination; or (3) the deprivation of due process. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). A statement that is “involuntary” as a matter of constitutional law is also “involuntary” under Article 38.22 of the Code of Criminal Procedure, but the converse is not necessarily true. Id. “The determination of whether a confession is voluntary is based on an examination of the totality of circumstances surrounding its acquisition.” Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (quoting Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)). Intoxication is one of many factors considered in determining whether a confession is voluntary, but intoxication does not render a confession involuntary per se. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996); Paolilla v. State, No. 14-08-00963-CR, 2011 WL 2042761, at *7 (Tex. App.—Houston [14th Dist.] May 26, 2011, pet. filed). To render a confession involuntary, the intoxication must render the defendant incapable of making an independent, informed decision to make a statement. Jones, 944 S.W.2d at 651; Paolilla, 2011 WL 2042761, at *7. A statement may also be involuntary “if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.” See State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999) (quoting Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)). In this case, the trial court held a hearing and denied Dianas’s motion to suppress his custodial statement. The trial court made findings of fact and conclusions of law regarding the voluntariness of appellant’s recorded custodial statement, see Tex. Code Crim. Proc. Ann. art. 38.22, § 6, and it implicitly found Lt. McGalin’s testimony credible. The court explicitly found that (1) the statement was made under voluntary conditions; (2) Dianas was not intoxicated; (3) the warnings were properly given; and (4) Dianas understood the warnings. The trial court thus concluded that Dianas voluntarily waived his rights and freely and voluntarily gave his statement. The record supports the trial court’s findings and conclusions. It shows that Houston police officers lawfully arrested Dianas pursuant to a warrant and transported him to the police station. The record shows that Lt. McGalin advised Dianas of his rights and that he waived those rights. McGalin testified that Dianas was not promised anything in exchange for his statement, he was not deprived of any necessity (such as food or a restroom break), and he was not threatened. Dianas did not ask for an attorney or to terminate the interview. He did not tell the officers that he was intoxicated. Dianas does not argue that his is a case involving police coercion. Rather, he argues, essentially, that the trial court should have believed his brother, who testified that he was intoxicated, and disregarded McGalin’s testimony, which showed that he was not. Our standard of review requires nearly total deference to factual determinations that depend on credibility. See Carmouche, 10 S.W.3d at 327. We conclude the evidence adduced at the suppression hearing supports the trial court’s findings, and we hold that the trial court properly applied the law to those facts in denying Dianas’s motion to suppress. We overrule Dianas’s second issue. III. Expert qualifications of medical examiner In his third issue, Dianas contends that the trial court abused its discretion by overruling his objection to the medical examiner’s qualifications to testify about the distance from which gunshots that killed the complainants were fired. We review a trial court’s ruling on the admissibility of expert testimony for an abuse of discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court’s determination of the qualifications of a witness to testify as an expert is afforded great deference. Davis v. State, 313 S.W.3d 317, 350–51 (Tex. Crim. App. 2010); Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App. 2006). Such rulings will rarely be disturbed by an appellate court. Vela v. State, 209 S.W.3d 128, 136 (Tex. Crim. App. 2006); Rodgers, 205 S.W.3d at 528–29 n.9. As with other types of evidentiary rulings, we will uphold the trial court’s decision unless it lies outside the zone of reasonable disagreement. Layton, 280 S.W.3d at 240 (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Rule 702 of the Texas Rules of Evidence provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Tex. R. Evid. 702. The qualifications of an expert witness are distinct from the reliability and relevance of the opinion testimony and, therefore, they should be evaluated independently. Vela, 209 S.W.3d at 131. The evaluation of an expert’s qualifications entails a two-step inquiry: “[a] witness must first have a sufficient background in a particular field, but a trial judge must then determine whether that background ‘goes to the very matter on which [the witness] is to give an opinion.’” Id. (quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996)). To be qualified to give expert opinion testimony, the witness “must possess some additional knowledge or expertise beyond that possessed by the average person, but the gap need not necessarily be monumental.” Davis, 313 S.W.3d at 350. Luisa Florez was trained as a pathologist and completed medical school in Colombia. She attended the Tulane and Baylor medical schools, completed a neuropathology fellowship, and trained in forensics at the Harris County Medical Examiner’s Office. She testified that she had conducted approximately 700 autopsies in her career. She conducted the autopsies on the two complainants in this case, Cayax and Gonzalez. At trial, the prosecutor asked if she had an opinion as to what caused Cayax’s death. She testified that he died as the result of multiple penetrating gunshot wounds, and she characterized his death as a homicide. The prosecutor then asked, “Were these close range wounds or were they from a distance?” Florez replied that they were “farther than 2 feet away.” Dianas’s counsel objected “because I don’t think she has been proven to be an expert in ballistics.” The court did not rule on Dianas’s objection; instead the judge asked the prosecutor if he wanted to lay a predicate. Florez then testified that part of the training she received from the Harris County Medical Examiner’s Office was to determine if the shots were fired at close range or from a distance based on physical indications on the deceased’s body. She testified about her experience with gunshot wounds and estimating distances, including the methods she uses to make such determinations. With respect to Cayax’s wounds in particular, she explained: If a gun is fired in contact with the skin, it will leave marks on the skin. Soot deposition, which is the unburned, fired, and burned powder that deposits on the skin. This decedent didn’t have any soot on his skin, neither any gunshot powder residue on his clothing. If the wound is near, it’s not in contact, but it’s close, it will leave what we call stippling. Stippling are some abrasions like red, brown abrasions that are deposited around the wound. And this decedent did not have stippling on his skin or any other marking on his clothing. She also testified about other information that she uses to determine whether gunshots were fired from a distance or at close range. One is we take into account the police report, the pictures taken at the scene, and we relied on those to make also interpretation of our wounds. Because we examine the body as a whole, taking into account like the circumstances, and the pictures on this decedent are showing that they went through a car door and through a chair, and that’s why we, in one of the wounds, we collected like a piece of foam that is the filling of the chair. I wouldn’t have known that that was a piece of foam if I do not examine the pictures and talk to police. So, that’s why we always get in touch with police and reveal everything. When the bullet goes through what we call an intermediary target, that means there was something between the decedent and the bullet. The wound can be what we can call atypical. So, it’s not a perfectly round entrance wound with like a dry edge. As the bullet enters to a solid intermediary target, that bullet can fragment in pieces and create adjacent satellite little entrances around. And since the bullet is deformed, it’s not going to be a perfectly round entrance wound. Dianas’s counsel then restated his objection, arguing that he didn’t think the proper predicate had been laid for expert testimony in the area of ballistics, and the trial court overruled his objection. Florez later testified that Gonzalez also suffered gunshot wounds from a distance of more than two feet away. On cross-examination, Dianas’s counsel asked about her ballistics training, and she testified that she could not estimate the caliber of the bullets used or provide a more specific estimate of distance than to say the shots were fired from more than two feet away. The record shows that Florez was qualified by education, training, and experience in the field of forensic pathology and was qualified to opine about the impact of gunshot wounds on a deceased’s body. Florez testified that Cayax and Gonzalez were hit by gunshots fired from a distance of more than two feet, based on her observations and analysis of the impact of the gunshot wounds on their bodies. Thus, her qualifications and background went to the “very matter” on which she testified. See Vela, 209 S.W.3d at 131 (quoting Broders, 924 S.W.2d at 153). We hold that the trial court did not abuse its discretion in overruling Dianas’s objection to the medical examiner’s qualifications to testify that the complainants were shot from over two feet away. We overrule Dianas’s third issue. Conclusion We affirm the judgment of the trial court. Michael Massengale Justice Panel consists of Justices Jennings, Bland, and Massengale. Do not publish. Tex. R. App. P. 47.2(b).