Opinion issued June 3, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00289-CR
ERNESTO JAVIER ALVARADO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 751516
MEMORANDUM OPINION
A jury found appellant, Ernesto Javier Alvarado, guilty of murder and assessed punishment at 46 years in prison and a $10,000 fine. In two issues, appellant contends that the trial court erred in admitting hearsay testimony and in admitting evidence of appellant’s illegal alien status.
We affirm.
Background
In April 1997, Alfredo Hernandez lived with Guillermo Nava in Nava’s trailer home. Before moving in with Nava, Hernandez had lived with appellant in appellant’s nearby trailer. On April 24, 1997, Nava and Hernandez were at Nava’s trailer drinking beer and smoking crack cocaine. They were eventually joined by Nancy Ramirez.
Nava and Ramirez were sitting on the couch and Hernandez was in the kitchen when appellant walked into Nava’s trailer. Appellant proceeded to the kitchen and began arguing with Hernandez. Appellant pulled out a gun and he and Hernandez began struggling over the weapon. During the struggle, Hernandez tripped and fell. Hernandez was then shot by appellant as he attempted to get up. Hernandez stumbled around the trailer and was shot again by appellant. At trial, the medical examiner testified that both gunshots inflicted fatal wounds. Following the shooting, appellant left Nava’s trailer and drove away.
In a photo lineup in the days following the shooting, and again at trial, Nava and Ramirez each identified appellant as the person who had shot Hernandez. A gun holster was recovered from the scene that matched a holster that Ramirez had seen appellant wearing when he entered Nava’s trailer. Evidence was presented at trial that Hernandez was shot with either a .44 caliber Smith & Wesson or Taurus magnum. Testimony was presented that a few months preceding the shooting, appellant was in possession of such a gun.
Hearsay Testimony
In his first issue, appellant contends that the trial court erred in admitting hearsay testimony from Ramirez during the State’s case-in-chief.
Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The admissibility of hearsay evidence is a question for the trial court, reviewable under an abuse of discretion standard. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).
The testimony of which appellant complains is contained in the following exchange:
[Prosecutor:] But did you recognize his voice?
[Ramirez:] I recognized his voice, yes.
Q. And who all was arguing?
A. [Appellant] and Alfred [Hernandez].
Q. Do you recall what they were saying?
A. No.
Q. Do you recall what they were arguing about?
A. No, but I assumed what it was about.
Q. Is that what you had heard out on the street?
A. That’s what I had heard previously.
Q. What was it?
[Defense counsel:] Your Honor, I am going to object to speculation if she doesn’t know for a fact.
The Court: I will let her answer it.
[Defense counsel:] It would hearsay also what she heard on the street [sic].
The Court: Overruled. You may proceed. Answer it if you can.
[Prosecutor]: You can answer it.
A. I can answer as to what I thought the argument was about?
Q. Yes.
A. A transmission.
Q. And is that for a car?
A. I thought it was for a car.
Q. And was the defendant mad at Alfred [Hernandez] because of it?
A. Yes.
Q. Do you recall anything that they were saying in the kitchen?
A. No, no exact words.
In his appellate brief, appellant complains, “Ramirez was allowed to testify that she had heard ‘out on the street’ that appellant was mad at [Hernandez] over an auto transmission.” Even assuming that Ramirez’s testimony was inadmissible hearsay, the record does not show that appellant was harmed by the admission of such testimony.
The admission of a statement that is hearsay is non-constitutional error subject to a harm analysis under Rule of Appellate Procedure 44.2(b). Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Non-constitutional error “must be disregarded” unless it affected the defendant’s “substantial rights.” Tex. R. App. P. 44.2(b). A defendant’s substantial rights are affected “when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight influence on the verdict, the error is harmless. See Johnson, 967 S.W.2d at 417.
Appellant contends that the testimony was highly prejudicial because it was the only evidence presented indicating that appellant had a motive to kill Hernandez. However, as pointed out by the State during both voir dire and closing argument, motive is not an essential element to sustain a murder conviction. Garcia v. State, 495 S.W.2d 257, 259 (Tex. Crim. App. 1973); see also Tex. Penal Code Ann. § 19.02 (Vernon 2003).
It is also of particular relevance that properly admitted evidence of guilt is a factor to be considered when performing a harm analysis under rule 44.2(b). Motilla v. State, 78 S.W.3d 352, 358 (Tex. Crim. App. 2002). Another relevant factor is “the character of the alleged error and how it might be considered in connection with other evidence in the case.” Id. at 359 (quoting Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).
Here, the impact of Ramirez’s testimony that appellant was angry with Hernandez regarding a transmission was relatively insignificant when considered in connection with the other evidence supporting appellant’s guilt. Ramirez’s complained-of testimony was admitted only after the jury had already heard the testimony of Nava identifying appellant as the person he saw shoot Hernandez. Ramirez also testified that she witnessed appellant shoot Hernandez. Both Ramirez and Nava testified that they knew appellant before the night of the offense. Ramirez and Nava each testified that they heard appellant and Hernandez arguing before the shooting. Nava stated that he saw appellant and Hernandez struggling. Evidence was also introduced that, when he entered Nava’s trailer, appellant was wearing a gun holster that was similar to the one recovered at the murder scene. Other evidence was presented that appellant owned a gun similar to the one used to kill Hernandez. Lastly, we note that the disputed testimony was not long in duration and was not emphasized by the State during closing argument.
Having reviewed the record as a whole, we cannot say that allowing Ramirez to give the complained-of testimony had a substantial and injurious effect on the jury’s verdict. Thus, any error in admitting the testimony was harmless.
We overrule appellant’s first point of error.
Lack of Notice for Extraneous Offense Admitted at Punishment
In his second point of error, appellant contends that the trial court erred in allowing the State to question appellant during punishment about his illegal-alien status because the State had not given notice under Code of Criminal Procedure article 37.07, section 3(g).
After a timely request by the defendant, the State must provide “reasonable notice . . . in advance of trial” of its intent to introduce extraneous-conduct evidence. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2004); Tex. R. Evid. 404(b). The trial court has broad discretion to admit or exclude extraneous-offense evidence. See Brooks v. State, 76 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (applying this standard to admission of extraneous-offense evidence over objection based on article 37.07, section 3(g)’s notice requirements).
At the punishment phase of the trial in this case, the prosecutor was allowed to ask, over appellant’s objection, if appellant entered the United States illegally. The prosecutor asked the question several times because appellant’s answers were contradictory. Appellant initially denied that he was an illegal alien, but then admitted that he was not in the United States legally.
Appellant acknowledges that his illegal-alien status constituted a penal offense, which was admissible at the punishment phase of trial under Code of Criminal Procedure article 37.07, section 3(a). See Infante v. State, 25 S.W.3d 725, 726-27 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). However, appellant complains that, despite his article 37.07, section 3(g) request, the State did not notify him that it intended to introduce evidence of his illegal-alien status. It is undisputed that the State failed to provide notice of its intent to introduce evidence of appellant’s immigration status even though appellant had requested notice as required by article 37.07, section 3(g).
Regardless of whether the admission of appellant’s testimony regarding his illegal alien-status was error, we hold such error was harmless.
Error in admitting evidence with insufficient notice under article 37.07, section 3(g) is non-constitutional error. Apolinar v. State, 106 S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.] 2003, pet. granted) (citing Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no pet.) (concluding that error in admitting extraneous-offense evidence over objection based on article 37.07, section 3(g)’s notice requirement is subject to rule-44.2(b) harmless-error analysis)). We must disregard any such error that does not affect a substantial right. Tex. R. App. P. 44.2(b). As discussed in the preceding section of this opinion, an error affects a defendant’s substantial rights when the error had a substantial and injurious effect or influence on the jury’s verdict. King, 953 S.W.2d at 271.
Harm from a violation of the notice provision of article 37.07, section 3(g) is assessed against the statute’s intended purpose. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g); Ford v. State, 73 S.W.3d 923, 925-26 (Tex. Crim. App. 2002); Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no pet.). The lack of notice does not render the evidence inherently unreliable, but instead raises a question about the effect of procedural noncompliance. Roethel, 80 S.W.3d at 282. The purpose of article 37.07, section 3(g) is to avoid unfair surprise and to enable the defendant to prepare to answer the extraneous offense evidence. Nance v. State, 946 S.W.2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d).
In addressing the potential harm suffered by the defendant due to lack of notice, the appellate court analyzes how the deficient notice affected the defendant’s ability to prepare for the evidence. Roethel, 80 S.W.3d at 282. This analysis involves an examination of the record to determine whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial. Id. In determining whether the defendant was unable to prepare for trial, the appellate court looks to whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross-examination or mitigating evidence. Id.
Appellant complains that the lack of notice prevented him from questioning the venire panel related to issues of bias against illegal aliens and from preparing the jury for the possibility that appellant may be in this country illegally. Appellant further complains that the lack of notice resulted in appellant giving confused testimony, which damaged his credibility. When the prosecutor asked appellant whether he was in the United States legally, appellant initially responded affirmatively, but then, on further questioning stated that he was not here legally. Appellant argues that, had he been on notice that the State would question him on this issue, his counsel could have prepared him for such questioning. Appellant points out that during closing argument in the punishment phase, the prosecutor reminded the jury that appellant had initially not told the truth regarding his illegal alien status.
Our review of the record finds no indication of bad faith in the State’s failure to provide notice of the extraneous offense. To the contrary, at some point during trial, the State apparently informed the defense of its intent to ask appellant during the punishment phase whether he was in this country legally. The record contains a transcript of a hearing held after the jury retired to deliberate guilt-innocence at which defense counsel objected to the State asking appellant about his immigration status. The prosecutor stated that she had not given appellant the required article 37.07 notice because she was unaware whether appellant was or was not an illegal alien and would not know until she questioned him. Although the State did not meet the requirements of article 37.07, section 3(g), there is no indication from the record that the omission was intended to mislead appellant and prevent him from preparing a defense.
The record also shows that appellant was not surprised by the State’s inquiry into his immigration status. During the guilt-innocence phase, appellant testified on direct examination that he was living in El Salvador, which he referred to as “his country,” when Hernandez was killed in April 1997. Appellant further stated that he remained in El Salvador until he returned to the United States in May 2002. At that time, appellant testified, “Immigration grabbed me in Arizona, about half an hour from the border.” At that point, defense counsel should have reasonably anticipated that the State would inquire into appellant’s immigration status. Moreover, from that testimony alone, the jury could have surmised that appellant was in the United States illegally. Lastly, as mentioned above, the State apparently notified the defense that it intended to question appellant about his immigration status at some point before the punishment phase as indicated by the hearing held while the jury deliberated guilt-innocence.
Appellant also argues that harm is demonstrated by the fact that the jury assessed punishment at 46 years in prison despite the State’s request that appellant be sentenced to 40 years. However, the evidence presented by the State, particularly the eye-witness testimony of Nava and Ramirez and the forensic testimony of the medical examiner, showed that the offense in this case was a particularly violent and cold-blooded one. Even with that evidence before it, the jury assessed punishment at 46 years in prison, far less than the maximum prison time of 99 years or life. See Tex. Penal Code Ann. § 12.32 (Vernon 2003) (establishing punishment range of five to 99 years or life, plus maximum fine of $10,000).
Under the facts of this case and the applicable law, we conclude that the admission of the complained-of extraneous offense, if error, did not have a substantial and injurious effect or influence on the verdict. See King, 953 S.W.2d at 271.
We overrule appellant’s second point of error.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).