Affirmed and Memorandum Opinion filed May 27, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00414-CR
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RAUL REYES, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 905,558
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M E M O R A N D U M O P I N I O N
Appellant, Raul Reyes, and co-defendant, Raymond Ayala, were convicted of murder by a jury and sentenced to life in prison. In three issues, appellant contends (1) the evidence is insufficient to corroborate an accomplice witness=s testimony; (2) the trial court erred in admitting hearsay testimony; and (3) the trial court erred in admitting gang evidence during the punishment phase of trial. We affirm.
I. Factual Background
Appellant and several friends, including Chris Caldwell, were at Hullabaloo=s night club on February 26, 2002. The complainant, Joshua Mares, and his friend Hector Subia were also at the club. Appellant and Mares engaged in a verbal altercation which ended when one of appellant=s friends, Lewis Gonzales, hit Mares in the mouth. All of the men were asked to leave the club. As Mares and Subia drove away, appellant and his friends followed in three cars. One of appellant=s friends used an automatic weapon to shoot at Mares=s vehicle. They continued pursuing Mares and Subia until Mares and Subia were stopped by police and arrested.[1]
The following morning Mares was released from jail on bond. Appellant and Ayala waited outside the jail where Mares was being held and followed him to the neighborhood where Mares=s friends, Tammy Hernandez and Joseph Carrizales lived. They parked on a different street from the home and while Mares sat in his vehicle, Ayala ran up and shot him. When Mares crawled out of his vehicle, Ayala shot him in the head. Ayala then escaped in a white Ford Escort driven by appellant. Eddie Suarez, a friend of Mares, followed appellant and Ayala, until Gonzales intervened, allowing appellant and Ayala to escape. Suarez identified both appellant and Ayala in a photographic line-up and at trial.
II. Sufficiency of the Evidence
In appellant=s first issue, he contends the State failed to sufficiently corroborate the accomplice testimony of Chris Caldwell in accordance with article 38.14 of the Texas Code of Criminal Procedure.[2] Under article 38.14, a conviction cannot be based on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). The evidence is insufficient if it proves merely the commission of the offense. Cathey, 992 S.W.2d at 462. However, the corroborating evidence does not have to directly connect the defendant to the crime or be sufficient by itself to establish guilt; it must only tend to connect the defendant to the offense. Id.; Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). If the combined weight of all the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Gosch, 829 S.W.2d at 777. In reviewing this point, we must eliminate the accomplice testimony from consideration and then examine the testimony of other witnesses to ascertain if there is any inculpatory evidence that tends to connect the accused with the commission of the offense. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993).
1. Accomplice Testimony
Christopher Caldwell was with appellant, Gonzales, Owen Hanks, Justin Bush, and Domingo Valdez at Hullabaloo=s in the early morning hours of February 27, 2002. Caldwell testified that he watched as appellant and Mares argued at the club. After being asked to leave the club, the complainant and Subia yelled at appellant and his friends in the parking lot and then drove away. Caldwell heard five to eight gunshots from what sounded like an automatic weapon. Caldwell stated that Valdez shot Mares=s vehicle from his car with an SKS rifle. He was unsure whether appellant was in the car with Valdez at the time.
Appellant and his friends drove in the same direction as Mares, but did not follow on the same street. Hanks or Gonzales phoned Caldwell to tell him that Mares and Subia were stopped and arrested by the police. The group found Mares=s car in an impound lot; instead of further damaging the vehicle, they left the scene. Appellant monitored where Mares was being held.
The next morning, appellant and Ayala waited for Mares outside of the jail in a white Ford Escort. When Mares was released, appellant and Ayala followed him to a house in Channelview. Appellant waited in the car while Ayala, disguised with a white shirt around his head, fired at Mares as he sat in his car, shooting him in the chest. As Mares crawled out of the car, Ayala shot him in the head. Ayala then ran back to the white Escort driven by appellant and they left.
Caldwell further testified that Gonzales, driving a brown or gold truck, intervened when another vehicle tried to follow appellant and Ayala after the shooting. Later that day, appellant met with Caldwell, Hanks, and Gonzales at a bar. Appellant had the murder weapon in his possession. Hanks and Caldwell destroyed the gun and disposed of its parts.[3] Caldwell, appellant, and Ayala watched the news on television and laughed when the media reported inaccuracies, specifically the color of Gonzales=s truck, used to thwart Suarez=s efforts to follow appellant and Ayala.
2. Non-accomplice Testimony
Our examination of the non-accomplice witness testimony reveals the following facts that sufficiently tend to connect appellant Mares=s murder: (1) appellant was involved in a verbal altercation with Mares the night before the murder; (2) Mares stated to various witnesses that after the altercation, appellant or his friends shot at Mares=s vehicle; (3) Ayala was not at Hullaballoo=s and was not involved in the altercation the night before the murder; (4) even after the altercation and Mares=s vehicle had been shot, appellant and his friends continued following Mares=s vehicle; (5) after being released from jail, Mares went to Carrizales=s home, not to his own residence; (6) Joel Rodriguez, Carrizales=s friend and witness to the murder, saw a white Ford Escort in the neighborhood behind Suarez immediately before the murder; (7) Carrizales saw a white Ford Escort immediately after the murder; (8) Suarez followed Ayala as he fled the murder scene and saw him get into a white Ford Escort; (9) Suarez was able to positively identify Ayala as the shooter and appellant as the driver of the Escort; (10) a white Ford Escort was registered to Diane Reyes who lived at the same address as appellant; (11) Reyes=s Ford Escort was reported stolen one hour after the murder and was subsequently found burned; (12) a brown or gold truck thwarted Suarez=s efforts to follow the white Ford Escort.
Proof that appellant was at or near the place where the crime occurred at or about the time it happened, along with evidence of other circumstances, can be sufficient corroboration to support a conviction. See Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992). The night before the murder, appellant and Mares were involved in an altercation that was unresolved because they were forced to leave the nightclub and Mares and Subia were arrested before appellant and his friends could confront them. After being released from jail, Mares went to Carrizales=s home and not his own. Therefore, it is likely that appellant and Ayala waited for Mares to leave jail and retrieve his car to determine his whereabouts. The non-accomplice testimony in this case established that appellant was involved in the circumstances surrounding the murder. All of this testimony sufficiently tends to connect appellant to the crime. Therefore, appellant=s first issue is overruled.
III. Admissibility of the Excited Utterance
In his second issue, appellant contends the trial court erred in permitting Harris County Sheriff=s Deputy Alberto Rivera=s testimony regarding Subia=s statements at the murder scene. Deputy Rivera testified as follows:
Q. [by the prosecutor]: Do you recall talking specifically to a person by the name of Hector Subia?
A. Yes, I did.
Q. And had you ever met Hector Subia before?
A. No.
Q. When you talked to Hector Subia, can you tell the ladies and gentlemen of the jury what his demeanor was?
A. He was excited. He was nervous. He was running around, basically yelling that his friend had just been shot.
Q. Was he upset then?
A. Yes, he was.
Q. And what did he tell you that he had observed or had transpired?
MR. ROACH [defense counsel]: Objection, hearsay.
THE COURT: It will be overruled.
* * * * *
Q . Yeah. Well, you said he was upset, he was excited, he was running around. And I=m asking you, what did he tell you?
A. He said that a male had shot his friend and B
Q. Did he tell you who?
A. He mentioned the name ABobo.@[4]
Q. And what else did he tell you?
MR. ROACH: Objection to hearsay, Your Honor.
THE COURT: That will be overruled.
Appellant first contends the trial court erred by immediately overruling his objection to Rivera=s testimony without requiring the State to assert an exception to the hearsay rule. Second, appellant contends Subia=s statements were not admissible as excited utterances.
We first consider whether the trial court erred in overruling appellant=s objection without first requiring the State to respond. We review the trial court=s admission or exclusion of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101B02 (Tex. Crim. App. 1996). If an opposing party raises an objection to hearsay testimony, the sponsoring party has the burden to show the testimony is admissible pursuant to an exception to the hearsay rule. Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994). However, even if the exception offered at trial does not apply, we will affirm if the evidence is admissible on any ground. See Kipp v. State, 876 S.W.2d 330, 337 (Tex. Crim. App. 1994). The trial court=s decision will be upheld as long as it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
Appellant relies on Patterson v. State to support his claim that the trial court erred when it did not require the State to respond to appellant=s hearsay objection. 980 S.W.2d 529, 533 (Tex. App.CBeaumont 1998, no pet.). In Patterson, the Beaumont Court of Appeals held that the State did not meet its burden of showing an exception to the hearsay rule when the trial court admitted the hearsay testimony without requiring the State to respond. Id. at 532B33. One concurring justice, however, disagreed with that conclusion. In a separate opinion, Justice Walker stated, Aabsent a specific request, or a mandatory statute or rule explicitly to the contrary, specific authority does not exist requiring the proponent of hearsay to volunteer how such hearsay is admissible prior to or contemporaneously with proffering the evidence.@ Patterson, 980 S.W.2d at 535 (Walker, C.J., concurring)). This Court recently agreed with Justice Walker and found no compelling reason to require the proponent of hearsay testimony to provide an exception to the hearsay rule when the trial court immediately rules in the proponent=s favor. Ortega v. State, 126 S.W.3d 618, 620 (Tex. App.CHouston [14th Dist.] 2004, no pet. h.). Therefore, we find appellant=s contention that the evidence is inadmissible because the State failed to respond to the objection is without merit.
We next consider appellant=s contention that Subia=s statements were inadmissible under the excited utterance exception to the hearsay rule. An excited utterance is any Astatement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.@ Tex. R. Evid. 803(2). The critical factor in determining if a statement is an excited utterance is whether the declarant was Astill dominated by the emotions, excitement, fear, or pain of the event.@ Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995). It is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event. Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001). Instead, whether the statement is in response to a question or a significant amount of time elapsed between the event and the statement, are simply factors to consider in determining whether the statement is admissible under the excited utterance exception. Id. The element of time is an important factor, but it is not controlling. Fisk v. State, 432 S.W.2d 912, 914B15 (Tex. Crim. App. 1968); Hawkins v. State, 792 S.W.2d 491, 495 (Tex. App.CHouston [1st Dist.] 1990, no pet.).
The trial court did not abuse its discretion in permitting Rivera to testify to Subia=s statements because the record supports a finding that Subia was still dominated by the emotions and fear of the event. Rivera was the first officer on the scene, arriving at 3:03 p.m., between six and eleven minutes after being dispatched. He arrived shortly after the shooting, while paramedics were treating Mares. Rivera testified that Subia was upset, excited, and nervous. Rivera observed Subia running around yelling that his friend had just been shot. Subia later testified that he could not remember what he told Officer Rivera because he was Apretty messed up.@ The record supports the trial court=s implied finding that Subia=s statements to Rivera were excited utterances. Accordingly, appellant=s second issue is overruled.
IV. Admissibility of Gang Evidence
In his third issue, appellant contends the trial court erred in permitting testimony during the punishment phase establishing that the ARuthless Assassins@ gang was known to commit drive-by shootings before appellant was a member of the gang. At trial, appellant objected to testimony proffered by Roberto Izaguirre, a police officer with the Pasadena Police Department, assigned to the Gang Task Force Unit in the mid-1990=s. Officer Izaguirre testified that appellant was a member of the Ruthless Assassins gang beginning in 1995. When the prosecutor asked Izaguirre about the operation of the Ruthless Assassins, he responded: AAt that particular time, back in >93, when we first startedCof course, gangs first hit Pasadena in >89. It took until >93 to get everything going. But there at that time we had a lot of drive-by shootings.@ Appellant objected to the relevancy of this testimony because the year 1993 was not Atied to [appellant] in this case.@ The court overruled his objection and Izaguirre continued without objection:
By the end of >95, there was a lot of drive-by shootings. We had a lot of assaults on innocent victims, school kids that perhaps did not want to be in a gang but were being pressured into being in a gang. There was a big territory turf war type deal. In certain areas of town was one gang and another area of town was another gang. When these groups would clash, even in the schools sometimes, we would have a lot of problems. Our main focus was to try to suppress all this, put a little pressure on them, let them know that they were being watched.
As the years went by, the crime got a little more violent. What started off as spray painting, it ended up going to the killing of people.
Gang affiliation may be relevant and admissible at the punishment stage to show the character of the accused. Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995); see also Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon Supp. 2004). To prove relevance of a defendant=s membership in an organization or a group, the State must show: (1) proof of the group=s violent and illegal activities; and (2) defendant=s membership in the group. Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995). Without this information, the jury has nothing to conclude whether membership in the gang is a positive or negative character trait of the defendant. Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim. App. 1995). The State proved both facts through Izaguirre=s testimony.
Evidence regarding a gang and its activities, however, is not admissible as character evidence unless the four-part test established by the Texas Court of Criminal Appeals in Beasley is met. Aguilar v. State, 29 S.W.3d 268, 270 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Specifically, the Beasley court held that it was not necessary to link the accused to the bad acts or misconduct generally engaged in by gang members so long as the jury is (1) provided with evidence of the defendant=s gang membership; (2) provided with evidence of the character and reputation of the gang; (3) not required to determine if the defendant committed the bad acts or misconduct; and (4) only asked to consider reputation or character of the accused. Beasley, 902 S.W.2d at 457. Appellant argues the trial court erred in admitting evidence of drive-by shootings committed prior to appellant=s participation in the gang because the third and fourth prongs of the admissibility test were not met. We agree.
We conclude the first and second prongs of Beasley were met through the testimony of Officer Izaguirre. However, the third prong of Beasley was not met. When asked about the operations of the Ruthless Assassins, Izaguirre testified to drive-by shootings that occurred prior to appellant=s participation in the gang. The State did not attempt to separate appellant from those crimes.[5] The trial court in the jury charge specifically instructed the jury that it could consider evidence of extraneous offenses Aonly if the extraneous crime or bad act has been shown by the State beyond a reasonable doubt to have been committed by the defendant or is one for which the defendant could be held criminally responsible.@ The Court of Criminal Appeals has analyzed evidence of purported gang affiliation and activities as evidence of an extraneous offense. Pondexter v. State, 942 S.W.2d 577, 583 (Tex. Crim. App. 1996). Therefore, by instructing the jury that it could not consider extraneous offenses unless it found beyond a reasonable doubt that appellant had committed the offense, the trial court improperly instructed the jury that it could not consider the gang affiliation testimony unless it found appellant committed the bad acts described in the testimony.
Appellant argues the fourth prong of the Beasley test was not satisfied because the jury was not instructed to consider the evidence in the context of appellant=s character or reputation. Because the prosecutor never asked Izaguirre about the character or reputation of appellant and there was no limiting instruction, nor charge to the jury to limit its consideration of such testimony, the predicate for admitting the evidence was not established. See Beasley, 902 S.W.2d at 457.
Harm Analysis
Having determined the trial court erred in admitting the gang related evidence without meeting the Beasley test, we must now conduct a harm analysis. Nonconstitutional errors that do not affect the substantial rights of the defendant must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury=s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Substantial rights are not affected by the erroneous admission of evidence if the error, after viewing the record as a whole, did not influence the jury or had but a slight effect. Fowler v. State, 958 S.W.2d 853, 865 (Tex. App.CWaco 1998), aff=d, 991 S.W.2d 258 (Tex. Crim. App. 1999). If we have Agrave doubts@ about whether an error did not affect the outcome, we must treat the error as if it did. Id. (citing United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732, 88 L. Ed. 2d 814 (1986)). AGrave doubt@ means that in the judge=s mind, the matter is so evenly balanced that he or she feels in virtual equipoise as to the harmlessness of the error. Id.
Here, appellant was not harmed by the admission of evidence of drive-by shootings that occurred prior to appellant=s participation in the gang. There was no danger the jury could have been misled to believe that appellant was involved in the drive-by shootings that occurred in 1993. Izaguirre testified prior to his description of the gang activities that appellant was not a documented gang member until 1995. After appellant=s objection to the testimony pertaining to 1993 gang activity was overruled, Izaguirre testified to gang activity that occurred by the end of 1995, when appellant was a gang member. Izaguirre testified to assaults on innocent victims and other acts of violence by gang members, including acts of murder. Appellant did not object to the evidence pertaining to 1995.
In considering whether inadmissible evidence prejudiced appellant during the punishment phase, we also look to the other evidence presented, such as prior convictions, bad acts, and the nature of the crime committed. See Thorton v. State, 925 S.W.2d 7, 13B14 (Tex. App.CTyler 1994, pet. ref=d) (stating any alleged error in admitting gang evidence was rendered harmless in light of evidence demonstrating violent circumstances of the crime and appellant=s prior convictions); see also Boston v. State, 965 S.W.2d 546, 551 (Tex. App.CHouston [14th Dist.] 1997, no pet.). In addition to Izaguirre, the State presented five witnesses that testified to appellant=s criminal history, including Officer James Peeples with the Pasadena Police Department, and Officers Brian Davis and Ryan Escalante with the Houston Police Department. The officers provided details of crimes committed by appellant that led to three different felony convictions. Peeples testified that he arrested appellant in March 1999 for possessing two pounds of marijuana. Davis established the circumstances surrounding appellant=s aggravated assault conviction. Specifically, appellant pointed a Glock .45 semi-automatic weapon and threatened an individual outside of a club in December 2000. Escalante testified that he arrested appellant in April 2001 for possession of a controlled substance. This evidence presented during the punishment hearing, combined with the testimony establishing the events surrounding Mares=s murder, was sufficient to support the jury=s life sentence of appellant. Viewing the entire record, we find the gang-related evidence did not have a substantial and injurious effect or influence on the jury=s decision in the punishment phase. Appellant=s third issue is overruled.
The judgment of the trial court is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed May 27, 2004.
Panel consists of Justices Edelman, Frost, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Mares was arrested for outstanding traffic warrants and Subia was arrested for public intoxication.
[2] The State argues Caldwell was not an accomplice as a matter of fact or as a matter of law even though the court instructed the jury that Caldwell was an accomplice. Because we find sufficient non-accomplice evidence to corroborate Caldwell=s testimony, we assume without deciding that Caldwell was an accomplice as characterized by the trial court.
[3] Caldwell testified appellant informed them that the gun belonged to his cousin, who wanted it returned. Appellant then exclaimed, AWe just killed somebody with that. We had to get rid of it[.]@
[4] It was established at trial that ABobo@ was appellant=s nickname.
[5] The State contends Izaguirre was not specifically testifying about the Ruthless Assassins gang, but about drive-by shootings by gangs in general in the early 1990=s. The prosecutor, however, specifically asked Izaguirre about the operation of the Ruthless Assassins and Izaguirre did not qualify his answer.