TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00612-CR
Oscar Ismael Sanchez, Jr., Appellant
v.
The State of Texas, Appellee
NO. 49,653, HONORABLE JOE CARROLL, JUDGE PRESIDING
BACKGROUND
Sanchez fired a shot that killed Carmen Shaw. He claimed that her death was wholly unintended, but the jury convicted him of felony murder.
Carmen Shaw and her husband, Mike Shaw, were out eating dinner at a restaurant with their daughter, Sabrina Shaw, and her boyfriend, Marcus Schoeffler. While they ate, Sanchez and his friend, Leonardo "Tweety" Casias, were looking to settle an old score with Schoeffler.
Sanchez and Tweety planned to scare Schoeffler with gunfire because Schoeffler had previously shot Tweety. Sanchez and Tweety started drinking and went looking for Schoeffler. They found his car outside the Shaw residence and waited in back of the house.
Schoeffler and the Shaws returned to the house in one vehicle. Schoeffler and Sabrina went to the house first and entered through a door in a breezeway. Tweety urged Sanchez to shoot Schoeffler, but Sanchez declined; he testified that his plan was to scare Schoeffler, not kill him. Sanchez said he did not see anyone else, and ran toward the house shooting with no particular aim, hitting the screen door in the breezeway six times. There were apparently three direct hits and three ricochets.
Carmen Shaw had followed her daughter to the house. She was killed by a ricocheting bullet that struck between her left eye and the bridge of her nose.
DISCUSSION
Sanchez complains about the admission of testimony, the jury charge and the State's jury argument. If the record reveals a constitutional error subject to harmless-error review, we must reverse 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 non-constitutional error that does not affect substantial rights. Tex. R. App. P. 44.2(b). We find no basis on which to reverse the judgment.
We will consider the issues pertaining to the admission of testimony first. By issue three, Sanchez complains that the district court erroneously allowed the State to disclose the substance of a witness's testimony to another witness despite the invocation of Texas Rule of Evidence 614 ("the witness-exclusion rule"). By issue four, Sanchez complains of the district court's allowing the State to ask a non-expert witness about inferences the jury could draw from police reports, thereby violating Texas Rule of Evidence 701.
We need not consider the merits of these complaints because any error in the admission of the evidence was harmless. In the exchange underlying issue three, the prosecutor was examining a witness who said that, on the evening of the murder, he saw Sanchez drive by the ninth-grade center where the witness was playing basketball. Sanchez complains about the court allowing the prosecutor to tell the witness, "I know from the testimony of Officer Gary Hall that this ninth grade center we are talking about is on Farm-to-Market Road 2410." The location of the ninth-grade center is not an element of the offense, it is not the location of the offense, nor does Sanchez contend it bears on any disputed fact or defensive issue. No harm resulted from the prosecutor's statement. The exchange underlying issue four is similarly unimportant. During the State's examination of a police detective, the following exchange occurred:
Q. Does State's Exhibit 11, his statement to you, indicate that he returned the green Nissan Maxima that belonged to his father at some point that evening home to his father's house before the shooting of Carmen Shaw? Or is that a reasonable inference from that statement, either one?
* * *
A. Yes, it does.
Sanchez contends that the statement speaks for itself and that the witness did not demonstrate his competence to speculate on the meaning of the statement. The detective's speculation was not harmful, however. In the statement, Sanchez admits going to the scene, intending to scare Schoeffler, and shooting a gun. How Sanchez was transported to and from the scene is not an element of the crime, and Sanchez has not alleged that his mode of transport is relevant to any disputed issue or defense. Neither asserted error affected Sanchez's substantial rights or contributed in any way to his conviction. Any error in admission of evidence regarding the transportation is harmless. We resolve issues three and four against Sanchez.
By issue two, Sanchez contends that the district court erred by submitting a jury charge that fatally diverged from the indictment. The indictment charged, in pertinent part that Sanchez
did then and there, commit and attempt to commit a felony, to wit: Deadly Conduct, and in the course of and in furtherance of the commission and attempt, and in the immediate flight from the commission and attempt, the said defendant knowingly, intentionally and recklessly committed and attempted to commit an act clearly dangerous to human life, to wit: firing a deadly weapon, to wit: a firearm at and in the direction of Marcus Schoeffler, that caused the death of an individual, Carmen Shaw . . . .
Sanchez complains of the instruction in the charge that, "A person commits the offense of Deadly Conduct if he knowingly discharges a firearm at or in the direction of: (1) one or more individuals; or (2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied." The court later charged the jury as follows in the application paragraph:
if you believe from the evidence beyond a reasonable doubt that . . . the Defendant OSCAR ISMAEL SANCHEZ, JR. did then and there commit, or attempt to commit a felony, to wit: Deadly Conduct, and in the course of, or in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, the said OSCAR ISMAEL SANCHEZ, JR., did knowingly or intentionally or recklessly commit or attempt to commit an act clearly dangerous to human life, to wit: firing a deadly weapon, to wit: a firearm, at or in the direction of Marcus Schoeffler, that caused the death of an individual, Carmen Shaw . . . .
Sanchez complains that the definition of deadly conduct allowed the jury to convict him for shooting at the house when the indictment allows conviction only for the deadly conduct of shooting toward a person. Comparison of the indictment and the application paragraph show that the charge tracks the indictment in how it discusses deadly conduct and other elements. In both the indictment and the charge, the manner of the commission of the felony of deadly conduct is nonspecific. In both the indictment and the charge, the limitation to firing at Schoeffler is included only in the "act clearly dangerous to human life" committed in furtherance of the deadly conduct, not the deadly conduct itself. The charge authorizes conviction on the same theories included in the indictment. We resolve issue two against Sanchez.
By issue one, Sanchez contends that the district court erred by failing to declare a mistrial when the prosecutor twice injected his personal observations of the crime scene into argument. The prosecutor had not testified, so those observations were not part of the record. After discussing how the trajectory of the bullets did not square with Sanchez's testimony regarding what he could see and where he was shooting, the following exchanges occurred:
(MR. CARROLL, THE PROSECUTOR): It's physically impossible for that to be
true. Yet, he wants you to believe it.
And that's because he don't like to look at what [he] did. You don't like to see what you did to this lady out of your senseless gang stupidity. Senseless gang.
I guess he should have some of the cops if I was there that night, if I saw this. He never asked that question. I saw it firsthand, folks, This is in my neighborhood, too.
MR. BARRERA: Objection, Your Honor. This is clearly outside of the record. He's not a witness.
MR. CARROLL: You opened it up.
MR. BARRERA: He's not giving testimony as to what he saw.
THE COURT: Sustained.
MR. BARRERA: I object. Excuse me, Judge. I ask the Court to instruct the jury to disregard the last comment of this prosecutor.
THE COURT: The jury will disregard the last remark.
MR. BARRERA: And we, furthermore, based upon it being totally outside the record, so inflammatory and prejudicial we ask for a mistrial.
THE COURT: Overruled.
MR. CARROLL: That's how I remember Carmen Shaw. That's a sad way to go out of this world. We all hope we die of natural causes. We certainly don't --This lady deserves a lot of justice in this courtroom today.
MR. BARRERA: Excuse me.
THE COURT: Yes, sir.
MR. BARRERA: I want the record to reflect, Your Honor, that he has demonstrated to the jury an exhibit marked State's Exhibit No. 44 and again has injected himself into this case as a witness by saying that's how he remembers Carmen Shaw. It is outside of the record. It's totally improper. We object to it.
THE COURT: Your objection is sustained.
MR. BARRERA: And, Your Honor, because he has not once but twice gone over that line, we ask the Court to instruct the jury to disregard that statement and that argument.
THE COURT: Yes, Ladies and gentlemen of the jury, you should disregard the remarks of the attorney regarding where he was or what he saw or where he lives or his neighborhood.
MR. BARRERA: And not withstanding the instruction of the Court to the jury to disregard because he has done it now twice, I must move this Court to grant a mistrial.
THE COURT: Overruled.
Proper jury argument includes only summation of the evidence presented, reasonable deductions therefrom, answer to argument of opposing counsel, or a plea for law enforcement. See Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). To constitute reversible error, jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence. Id. In most cases, an instruction to disregard will cure any error committed. Id.
We conclude that the district court did not err by refusing to declare a mistrial. Sanchez correctly objected and the district court correctly sustained his objections and instructed the jury to disregard the prosecutor's proclamations regarding "where he was or what he saw or where he lives or his neighborhood." Though highly improper, this unnecessary argument did not inject harmful new facts into the record. The only specific sight the prosecutor "testified" as to seeing was Carmen Shaw's lifeless body. There is ample evidence, including the photographic exhibit the prosecutor apparently brandished, that Mrs. Shaw was struck and killed by a bullet; because this evidence is not disputed, the prosecutor's statement that he personally saw her body at the scene does not tip the balance on any disputed issue. A mistrial, therefore, was not required and the district court did not err by denying the motion. We resolve issue one against Sanchez.
CONCLUSION
Having resolved all issues against Sanchez, we affirm the judgment of the district court.
Lee Yeakel, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: August 10, 2000
Do Not Publish
o be
true. Yet, he wants you to believe it.
And that's because he don't like to look at what [he] did. You don't like to see what you did to this lady out of your senseless gang stupidity. Senseless gang.
I guess he should have some of the cops if I was there that night, if I saw this. He never asked that question. I saw it firsthand, folks, This is in my neighborhood, too.
MR. BARRERA: Objection, Your Honor. This is clearly outside of the record. He's not a witness.
MR. CARROLL: You opened it up.
MR. BARRERA: He's not giving testimony as to what he saw.
THE COURT: Sustained.
MR. BARRERA: I object. Excuse me, Judge. I ask the Court to instruct the jury to disregard the last comment of this prosecutor.
THE COURT: The jury will disregard the last remark.
MR. BARRERA: And we, furthermore, based upon it being totally outside the record, so inflammatory and prejudicial we ask for a mistrial.
THE COURT: Overruled.
MR. CARROLL: That's how I remember Carmen Shaw. That's a sad way to go out of this world. We all hope we die of natural causes. We certainly don't --This lady deserves a lot of justice in this courtroom today.
MR. BARRERA: Excuse me.
THE COURT: Yes, sir.
MR. BARRERA: I want the record to reflect, Your Honor, that he has demonstrated to the jury an exhibit marked State's Exhibit No. 44 and again has injected himself into this case as a witness by saying that's how he remembers Carmen Shaw. It is outside of the record. It's totally improper. We object to it.
THE COURT: Your objection is sustained.
MR. BARRERA: And, Your Honor, because he has not once but twice gone over that line, we ask the Court to instruct the jury to disregard that statement and that argument.
THE COURT: Yes, Ladies and gentlemen of the jury, you should disregard the remarks of the attorney regarding where he was or what he saw or where he lives or his neighborhood.
MR. BARRERA: And not withstanding the instruction of the Court to the jury to disregard because he has done it now twice, I must move this Court to grant a mistrial.
THE COURT: Overruled.
Proper jury argument includes only summation of the evidence presented, reasonable deductions therefrom, answer to argument of opposing counsel, or a plea for law enforcement. See Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996). To constitute reversible error, jury argument must be extreme or manifestly improper, or inject new and harmful facts into evidence. Id. In most cases, an instruction to disregard will cure any error committed. Id.
We conclude that the district court did not err by refusing to declare a mistrial. Sanchez correctly objected and the district court correctly sustained his objections and instructed the jury to disregard the prosecutor's proclamations regarding "where he was or what he saw or where he lives or his neighborhood." Though highly improper, this unnecessary argument did not inject harmful new facts into the record. The only specific sight the prosecutor "testified" as to seeing was Carmen Shaw's lifeless body. There is ample evidence, including the photographic exhibit the prosecutor apparently brandished, that Mrs. Shaw was struck and killed by a bullet; because this evidence is not disputed, the prosecutor's statement that he personally saw her body at the scene does not tip the balance on any disputed issue. A mistrial, therefore, was not required and the district court did not err by denying the motion. We resolve issue one against Sanchez.
CONCLUSION
Having resolved all issues against Sanchez, we affirm the judgment of the district court.
Lee Yeakel, Justice
Before Justices Jones, Yeakel and Patterson
Affirmed
Filed: August 10