TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00087-CR
v.
The State of Texas, Appellee
NO. 971260, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
BACKGROUND
The sufficiency of the evidence is not challenged here, but a quick review of the testimony will help give context to the issues appealed, especially to the objections regarding testimony by Tony Moreno and Ana Guevara.
Hernandez and her husband, Robert Giral, were in the process of divorcing when he was killed. A series of incidents illustrated the tension between the two:
Officer David Knutson testified that he was dispatched to quell a family disturbance at Hernandez and Giral's residence in May 1996. Hernandez told Knutson she was upset with Giral and had been arguing with him because he wanted a divorce. She did not allege assault, so no arrests were made.
Rudy Esquivel testified that Hernandez paid him $50 to scare Giral by messing up Giral's truck. She was pleased with Esquivel's work on the truck, and asked him to beat up Giral or shoot him without killing him; he testified that she understood Giral might die from the gunshot, but did not care. Esquivel said he had seen a gun at Johnnie Espinosa's and Carlos Reynosa's house.
Alexi Martinez, a fortuneteller and friend of Giral's family, testified he had met with Hernandez several times to help guide her through her unhappiness with her marital troubles. She told him Giral's truck should be messed up, and was happy when it happened. She told Martinez she wanted Giral back, but that Giral should be beaten if he failed to come back. Martinez said he saw Hernandez talking to two men linked to the shooting.
Ana Guevara testified that Hernandez confronted her and Giral four days before he was murdered. Guevara was dancing with him at Palmer Auditorium when Hernandez pulled Guevara's hair. Hernandez later struck at Guevara, called Giral a son-of-a-bitch, and screamed at him, "I'm going to kill you for this."
Tony Moreno, testifying under immunity, testified that Johnnie Espinosa told him Hernandez wanted her husband killed. On December 3, 1996, the day of the killing, Hernandez picked up Moreno, Jose Medrano, and Reynosa. Hernandez and Reynosa decided to make the shooting appear like a robbery gone awry, using Espinosa's gun. Moreno said Hernandez phoned her husband to meet in Zilker Park, met him, and left her keys in the car. Moreno stayed near the car, heard two shots ring out, and then drove the killers away.
Austin police officer Arturo Canizales responded to the emergency call from Hernandez reporting her husband's murder. She said they met at Zilker Park to discuss their problems as they often did. She said several men tried to rob them, shot Giral, grabbed her hair, pushed her to the ground, and took her car. The officers quickly began to suspect Hernandez because cash was found on Giral's body (contrary to her claim of robbery), Hernandez's hair was not mussed and her clothes were clean (contrary to her claim of assault), she could not describe the assailants (contrary to her claim she saw them), she did not describe the car and could not give a license plate number, and she got frustrated with their questions at the scene of the crime.
There was also uncontroverted testimony regarding enmity between Hernandez and Giral's family.
Hernandez and others testified on her behalf. Hernandez denied participating in her husband's death. She also denied knowing Martinez or the killers. She also made out a money order to her husband on the day of the slaying to pay one-half the mortgage on the house. A security guard at Palmer Auditorium testified that there were no written reports of the alleged confrontation at the dance. Francisco Jacobi Duran testified that Hernandez approached him at the Mexican Consulate for assistance re-entering the United States after Giral's funeral in Mexico, thus indicating lack of interest in flight to avoid apprehension.
DISCUSSION AND HOLDINGS
Errors in criminal cases fall into three categories. We must reverse judgments based on violations of the constitution not subject to harmless error review; violations of the constitution subject to harmless error review also require reversal unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a). We must disregard any other error, defect, irregularity, or variance that does not affect substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when an error has 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).
By two points of error, Hernandez complains about the admission of testimony from Tony Moreno and Ana Guevara. She complains that Moreno should not have been allowed to testify regarding Espinosa's reporting of Hernandez's statements that she wanted her husband killed. She complains that Guevara's testimony regarding the confrontation at the dance was inadmissible evidence of an extraneous offense. We review the trial court's decision to admit evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1991) (op. on reh'g).
Moreno's testimony fell within exclusions to the hearsay definition. The remarks Moreno related in court were made by Espinosa, who made them while trying to recruit Moreno to help kill Giral. That Espinosa was not present at the murder or indicted is not dispositive of whether he was a conspirator; the critical issues are whether the statements were those of a co-conspirator made during the course and in furtherance of the conspiracy. See Tex. R. Evid. 801(e)(2)(E). Espinosa's attempts to lure Moreno into the conspiracy meet the requirements of the exception. Hernandez's statements to Espinosa were admissions of a party. Tex. R. Evid. 801(e)(2)(A). Moreno's testimony thus was not hearsay and the trial court did not err by admitting it. Further, any error in allowing the evidence was rendered harmless by the unchallenged admission of Esquivel's similar testimony that Hernandez solicited the young men to murder her husband. We overrule point one.
Hernandez tries to paint Guevara's testimony about the altercation at the dance as evidence of Hernandez's bad acts and inadmissible under Texas Rule of Evidence 404(b). Though that rule excludes evidence of other crimes, wrongs, or acts introduced to prove conformity with that character, the rule allows such evidence to show proof of motive, opportunity, or intent. See id. Hernandez argues that any relevance is outweighed by the chance of unfair prejudice. See Tex. R. Evid. 403. Though Guevara's testimony may recount a bad act (slapping Guevara), her testimony certainly also is relevant to illustrate Hernandez's state of mind and the nature of her relationship with Giral. The specific threat to kill her husband shows motive and intent. See Duke v. State 182 S.W.2d 808 (Tex. Crim. App. 1944). Such statements are admissible in a murder trial under Texas Code of Criminal Procedure article 38.36(a). We conclude the trial court did not err by admitting the testimony. We overrule point three.
Hernandez contends the trial court erred by failing to grant a mistrial based on the prosecutor's personal attack against defendant and her counsel. The prosecutor stated, "Now, I didn't get up and object every single time he misrepresented the evidence because then we'd never get out of here." The court sustained Hernandez's objection, instructed the jury to disregard the comment, but denied her request for a mistrial. We can reverse for improper prosecutorial argument only when the argument is extreme, manifestly improper, injects new or harmful facts into the case, or violates a mandatory statute and is too inflammatory to be cured by an instruction to disregard. Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991). We must examine the remark in light of the full record. Though the prosecutor's comment was improper, it was also isolated. The prompt instruction to disregard cured any error. See Shannon v. State, 942 S.W.2d 591, 597-98 (Tex. Crim. App. 1996). We overrule point two.
CONCLUSION
Having overruled the points of error, we affirm the conviction.
Bea Ann Smith, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: January 28, 1999
Do not publish
ate, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
By two points of error, Hernandez complains about the admission of testimony from Tony Moreno and Ana Guevara. She complains that Moreno should not have been allowed to testify regarding Espinosa's reporting of Hernandez's statements that she wanted her husband killed. She complains that Guevara's testimony regarding the confrontation at the dance was inadmissible evidence of an extraneous offense. We review the trial court's decision to admit evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex. Crim. App. 1991) (op. on reh'g).
Moreno's testimony fell within exclusions to the hearsay definition. The remarks Moreno related in court were made by Espinosa, who made them while trying to recruit Moreno to help kill Giral. That Espinosa was not present at the murder or indicted is not dispositive of whether he was a conspirator; the critical issues are whether the statements were those of a co-conspirator made during the course and in furtherance of the conspiracy. See Tex. R. Evid. 801(e)(2)(E). Espinosa's attempts to lure Moreno into the conspiracy meet the requirements of the exception. Hernandez's statements to Espinosa were admissions of a party. Tex. R. Evid. 801(e)(2)(A). Moreno's testimony thus was not hearsay and the trial court did not err by admitting it. Further, any error in allowing the evidence was rendered harmless by the unchallenged admission of Esquivel's similar testimony that Hernandez solicited the young men to murder her husband. We overrule point one.
Hernandez tries to paint Guevara's testimony about the altercation at the dance as evidence of Hernandez's bad acts and inadmissible under Texas Rule of Evidence 404(b). Though that rule excludes evidence of other crimes, wrongs, or acts introduced to prove conformity with that character, the rule allows such evidence to show proof of motive, opportunity, or intent. See id. Hernandez argues that any relevance is outweighed by the chance of unfair prejudice. See Tex. R. Evid. 403. Though Guevara's testimony may recount a bad act (slapping Guevara), her