Christina Rocha v. State

ACCEPTED 07-14-00265-cr SEVENTH COURT OF APPEALS AMARILLO, TEXAS 2/9/2015 8:50:25 AM Vivian Long, Clerk

NO. 07-14-00265-CR

IN THE COURT OF APPEALS FOR THE FILED IN SEVENTH DISTRICT OF TEXAS 7th COURT OF APPEALS AMARILLO, TEXAS AMARILLO, TEXAS 2/9/2015 8:50:25 AM ______________________________ VIVIAN LONG CLERK

CHRISTINA ROCHA, Appellant

v.

THE STATE OF TEXAS, Appellee

______________________________

ON APPEAL FROM COUNTY COURT NO. 2 BEXAR COUNTY, TEXAS CAUSE NO. 240655 ______________________________

BRIEF FOR THE STATE ______________________________

NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas

STEPHANIE A. LEWIS Assistant Criminal District Attorney Bexar County, Texas ORAL ARGUMENT WAIVED Paul Elizondo Tower 101 W. Nueva St., Ste. 526 San Antonio, Texas 78205 Phone: (210) 335-2110 Stephanie.Paulissen@bexar.org State Bar No. 24086675

Attorneys for the State of Texas

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.1(a), the parties to the suit are as follows: APPELLANT Christina Rocha

TRIAL JUDGE The Honorable Raymond Angelini 187th District Court

TRIAL PROSECUTORS Daryl Harris State Bar No. 24046028 Daniel Rodriguez State Bar No. 24051261 Assistant Criminal District Attorneys 101 W. Nueva St. San Antonio, Texas 78205

TRIAL DEFENSE ATTORNEYS Michael A. Baird State Bar No. 24078178 Shawn Sareen State Bar No. 24079274 1203 Buena Vista St. San Antonio, Texas 78207

APPELLATE STATE’S Stephanie A. Lewis ATTORNEY State Bar No. 24086675 Assistant Criminal District Attorney Paul Elizondo Tower 101 W. Nueva St., Ste. 526 San Antonio, Texas 78205 (210) 335-2110 Stephanie.Paulissen@bexar.org

APPELLATE DEFENSE Richard Langlois ATTORNEY State Bar No. 11922500 217 Arden Grove San Antonio, Texas 78215 (210) 215-0341

ii

TABLE OF CONTENTS Page(s)

Identity of Parties and Counsel ....................................................................................... ii Table of Contents ........................................................................................................... iii Index of Authorities ........................................................................................................ iv Brief for the State ........................................................................................................... 1 Statement of Facts .......................................................................................................... 1 Summary of the Argument ............................................................................................. 4 Argument ........................................................................................................................ 5

I. State’s Response to Appellant’s Sole Point of Error Appellant’s sole point of error that the trial court improperly instructed the jury on Texas Rule of Evidence 615 should be overruled because the trial court did not abuse its discretion, and this alleged error was harmless.. ................................................... 5

Argument & Authorities ................................................................................... 5 Prayer .............................................................................................................................. 10 Attorneys for the State .................................................................................................... 10 Certificate of Service ...................................................................................................... 11 iii

INDEX OF AUTHORITIES Cases

Brooks v. State, 323 S.W.3d 893, 904 (Tex. Crim. App. 2010). ................................ 8 Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007)....................................... 7 Hay v. State, 472 S.W.2d 157 (Tex. Crim. App. 1971).............................................. 6 Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995).................................... 8 Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008). ....................................... 6 Jones v. State, No. 03-03-00067-CR, 2003 Tex. App. LEXIS 10329 *1

(Tex. App.—Austin Dec. 11, 2003, pet. ref’d)................................... 8 Rodriguez v. State, 90 S.W.3d 340 (Tex. App.—El Paso 2001, pet. ref’d). .............. 6 Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)......................................... 7 Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002)............................................ 6-7 White v. State, 492 S.W.2d 281 (Tex. Crim. App. 1973). .......................................... 6 Statutes Tex. Code Crim. Proc. Ann. art. 36.13 (West 2013).................................................. 6 Tex. Code Crim. Proc. Ann. art. 38.04 (West 2013).................................................. 7 Tex. Code Crim. Proc. Ann. art. 38.05 (West 2013).................................................. 6 Tex. Penal Code Ann. § 22.02 (West 2013)............................................................... 1 Rules Tex. R. App. P. 38.1(a). ............................................................................................. ii Tex. R. App. P. 33.1. ................................................................................................. 6 Tex. R. App. P. 44.2(a)............................................................................................... 7 iv

No. 04-10-00809-CR

CHRISTINA ROCHA, § COURT OF APPEALS Appellant § § VS. § SEVENTH JUDICIAL DISTRICT § THE STATE OF TEXAS, § Appellee § AMARILLO, TEXAS

BRIEF FOR THE STATE

To the Honorable Seventh Court:

Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar County, Texas, and files this brief for the State. Appellant, Christina Rocha, was charged by Indictment with Aggravated Assault with a Deadly Weapon, pursuant to Section 22.02 of the Texas Penal Code (CR at 6). After hearing all the evidence, the jury found Appellant guilty, and she was sentenced to five (5) years of confinement in the Institution Division of the Texas Department of Criminal Justice (CR at 101–02). Appellant timely filed notice of appeal on the 18th day of June, 2014 (CR at 108).

STATEMENT OF FACTS

On October 19, 2012, Nancy Rodriguez, hereinafter called Complainant, was driving around San Antonio trying to find her husband, Jaime Rodriguez (3 RR at 32– 33). Complainant and her husband had planned to meet, so she went to pick him up at work (3 RR at 32–33). After she realized that her husband was not at work, she drove to the home of his mistress, Appellant Christina Rocha (3 RR at 33). When Complainant arrived, Appellant came out of her home, and the two women began to argue (3 RR at 66, 1 107, 141). That argument escalated into a physical fight (3 RR at 66, 107, 141). Mr. Rodriguez came out and separated the two women, and Complainant walked towards her car (3 RR at 67, 108, 142). Appellant went inside, returned with a four-and-a-quarter-inch serrated kitchen knife in her hand, and approached Complainant (3 RR at 25, 109, 143). As Appellant got closer, Complainant put her hands up in a defensive position, and Appellant stabbed Complainant on the upper left side of her body (3 RR at 70, 109, 144). Complainant staggered back towards her car and collapsed, and Appellant walked back inside her house as witnesses ran to Complainant’s aid (3 RR at 72, 110, 144).

In Appellant’s case-in-chief, one of her neighbors, Lillian Sifuentes, testified that Complainant pulled up to Appellant’s house, got out of her car, and began screaming threats at Appellant (3 RR at 159–60). After the fight, Ms. Sifuentes stated that Appellant went back inside her house, and Complainant ran towards the house and started banging on the door, continuing to threaten Appellant’s life (3 RR at 162). She also testified that Complainant opened the door to Appellant’s home (3 RR at 165). At that point, Ms. Sifuentes stated that she went inside her own home, so she did not see Appellant stab Complainant (3 RR at 166–67).

According to Ms. Sifuentes, she gave a written statement to Appellant’s first attorney, Al Acevedo (3 RR at 197). When the court and trial attorneys learned this information, the court instructed Appellant’s trial attorney, Michael Baird, to find that statement and tender it to the State’s attorneys (3 RR at 198). When the trial resumed the following day, Mr. Baird advised the court that he was unable to locate Ms. Sifuentes’ statement (4 RR at 21). The State moved to strike Ms. Sifuentes’ testimony pursuant to 2 Texas Rule of Evidence 615 (4 RR at 20). Instead of striking the testimony, the court decided to orally instruct the jury on what the law is, and that the defense attorneys do not have Ms. Sifuentes’ statement to produce to the State (4 RR at 21). When the court and the attorneys discussed this course of action, defense counsel replied, “No problem with that, Judge” (4 RR at 21). Specifically, the court instructed the jury:

“Ladies and Gentlemen, a situation has occurred concerning the last witness. The last witness testified that she made a written statement. Anytime a witness makes a written statement or report, the other side has to turn it over to them; as you noted what the prosecution did to the Defense. The Defense attorneys have said that there is no written statement. You’re to take that into consideration concerning this last witness’ testimony (4 RR at 23).”

Appellant now argues to this Court that the this oral instruction constitutes reversible error. 3

SUMMARY OF THE ARGUMENT

Response to Appellant’s Sole Point of Error:

Appellant’s sole point of error that the trial court improperly instructed the jury on Texas Rule of Evidence 615 should be overruled because the trial court did not abuse its discretion, and this alleged error was harmless.

ARGUMENT

I. STATE’S RESPONSE TO APPELLANT’S SOLE POINT OF ERROR:

Appellant’s sole point of error that the trial court improperly instructed the jury on Texas Rule of Evidence 615 should be overruled because the trial court did not abuse its discretion, and this alleged error was harmless.

In Appellant’s sole point of error, he argues that the trial court improperly instructed the jury regarding Lillian Sifuentes’ testimony. This point of error is without merit.

Argument and Authorities i. Failure to Preserve Error

Appellant argues that the trial court abused its discretion when it orally instructed the jury that it may consider the absence of Lillian Sifuentes’ statement. However, Appellant waived her right to complain about this instruction on appeal when her defense counsel agreed to the instruction.

When Ms. Sifuentes stated on the witness stand that she gave a written statement to Appellant’s first defense attorney, the trial court adjourned and ordered Appellant’s attorney at that time, Mr. Michael Baird, to find the statement. Mr. Baird returned to court the next morning and advised that he could not locate any statement by Ms. Sifuentes (4 RR at 21). The court decided to advise the jury that Texas Rule of Evidence 615 exists, and that they could take that into consideration (4 RR at 22–23). In response to the court’s idea to give the instruction, Mr. Baird said, “[t]hat would be perfectly fine” (4 RR at 23). 5

A timely objection is required to preserve alleged errors made by the trial court. Tex. R. App. P. 33.1 (West 2013); Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008). Because Mr. Baird did not object to the court’s oral instruction, Appellant cannot complain about the instruction on appeal. ii. No Abuse of Discretion

Even if Appellant had preserved this issue for appellate review, the trial judge did not abuse his discretion in giving the jury this instruction. When reviewing a trial judge's decision to admit or exclude evidence, an appellate court must determine whether the judge's decision was an abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). Unless the decision was outside the “zone of reasonable disagreement,” an appellate court should uphold the ruling. Id.

A trial court has the discretion to give the jury oral instructions to remedy unique issues that may arise. See White v. State, 492 S.W.2d 281 (Tex. Crim. App. 1973); Hay v. State, 472 S.W.2d 157 (Tex. Crim. App. 1971); Rodriguez v. State, 90 S.W.3d 340, 370– 72 (Tex. App.—El Paso 2001, pet. ref’d). In handling such issues, the trial court shall not discuss or comment on the weight of the evidence or its bearing in the case. Tex. Code Crim. Proc. Ann. art. 38.05 (West 2013).

In this case, the court determined that the best course of action would be to apprise the jury of the law requiring written witness statements to be tendered to opposing counsel prior to cross-examination. It is within the court’s authority to instruct the jury on the existence of applicable law. See Tex. Code Crim. Proc. Ann. art. 36.13 (West 2013). 6 Therefore, the trial judge did not abuse his discretion in this case. See Torres, 71 S.W.3d at 760. iii. Any Error is Harmless

If this Court finds that the trial judge erred in instructing the jury regarding the existence of Texas Rule of Evidence 615(e), such error was harmless. Because the alleged error in the present case is not of federal constitutional origin, it must be subjected to a harm analysis. Tex. R. App. P. 44.2(a) (West 2013). Appellant did not object to the trial court’s instruction, so any alleged error is reversible only if the error was so egregiously harmful under the circumstances as to have denied Appellant a fair and impartial trial. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).

Charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). To determine if charge error was egregiously harmful, appellate courts examine the record as a whole, including the charge, the contested issues, the weight of the probative evidence, and the arguments of counsel. Id.

Appellant argues that the court’s instruction discredited her defense, permitting the jurors to disregard Lillian Sifuentes’ testimony if they found that she was not credible. (Appellant’s Br. 19). It is well settled that jurors are the sole judges of facts, and of the weight to be given testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 2013). Resolution of conflicts in the evidence is within the exclusive province of the jury, and the jury may choose to believe all, some, or none of the testimony or evidence presented. 7 Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Therefore, with or without the court’s instruction, the jurors were permitted to believe or disbelieve Ms. Sifuentes’ testimony, and the appellate court cannot sit as a thirteenth juror and judge the credibility of witnesses. See id.; Brooks v. State, 323 S.W.3d 893, 904 (Tex. Crim. App. 2010).

The Third Court of Appeals has addressed the issue of oral instructions in Jones v. State, No. 03-03-00067-CR, 2003 Tex. App. LEXIS 10329 *1 (Tex. App.—Austin Dec. 11, 2003, pet. ref’d). In Jones, the jurors sent out a note to the court during deliberations stating that the presiding juror had reservations about the verdict. Id. at *20. After a bench conference, the court and the attorneys agreed that the court should orally instruct the jury that the verdict must be unanimous. Id. at *21. The defendant complained on appeal that the oral instruction caused egregious harm. Id. at *20. The Third Court of Appeals determined that the court’s oral instruction was harmless because it was not a comment on the evidence, and it echoed the instruction in the jury charge that a verdict must be unanimous. Id. at *25.

In the present case, after an examination of the record as a whole, this Court will find that any alleged error in giving this instruction was harmless. During trial, the State presented overwhelming evidence of guilt. The State called three lay witnesses who consistently testified that Appellant and Complainant got into an altercation, Appellant went inside her house while Complainant walked back towards her car, then Appellant returned with a knife and stabbed Complainant (3 RR at 70, 109, 144). Lillian Sifuentes testified for the defense that Complainant was banging on Appellant’s front door while 8 screaming threats at Appellant (3 RR at 162–65). However, on cross-examination, the prosecutor pointed out that there were various obstructions that would have blocked Sifuentes’ view of Appellant’s recessed front door (3 RR at 179).

In addition, Ms. Sifuentes’ testimony was the only evidence that raised the issue of self-defense. A self-defense instruction was included in the jury charge, and the jury was free to believe Ms. Sifuentes’ version of events. The jurors chose, however, to believe the several other lay witnesses who testified that Complainant was trying to leave the property when Appellant stabbed her. The trial court’s oral instruction, given in the context of the rest of the evidence, did not vitally affect Appellant’s self-defense theory. Therefore, it did not result in an unfair trial, and was not harmful error.

CONCLUSION

Appellant did not preserve this error for appellate review. Even so, the trial court did not abuse its discretion by giving the jury this oral instruction, and any alleged error was harmless. Therefore Appellant’s sole point of error should be overruled. 9

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that the judgment of the trial court should, in all things, be AFFIRMED.

Respectfully submitted,

Nicholas “Nico” LaHood Criminal District Attorney Bexar County, Texas

/s/ Stephanie A. Lewis______ Stephanie A. Lewis Assistant Criminal District Attorney Bexar County, Texas Paul Elizondo Tower 101 W. Nueva St., Ste. 526 San Antonio, Texas Phone: (210) 335-2110 Stephanie.Paulissen@bexar.org State Bar No. 24086675

Attorney for the State 10

CERTIFICATE OF SERVICE

I, Stephanie A. Lewis, Assistant Criminal District Attorney, hereby certify that a true and correct copy of the above and foregoing brief has been sent by electronic mail to Appellant’s attorney of record, Richard Langlois, on this 9th day of February, 2015.

CERTIFICATE OF COMPLIANCE

I, Stephanie A. Lewis, certify that the State’s brief is approximately 2,700 words.

_________________________________

Stephanie A. Lewis Assistant Criminal District Attorney

Richard Langlois 217 Arden Grove San Antonio, Texas 78215

Attorney for Appellant 11