Ricardo Garza Lopez v. State

NUMBER 13-09-00585-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RICARDO GARZA LOPEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 430th District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Ricardo Garza Lopez, guilty of capital murder, and

because the State did not seek the death penalty, the trial court assessed punishment

at life imprisonment in the Institutional Division of the Texas Department of Criminal

Justice. See TEX. PENAL CODE ANN. §§ 12.31(a)(2), 19.03(a)(2) (Vernon Supp. 2010).

By eight issues, Lopez contends that: (1) the evidence is legally and factually
insufficient to support his capital murder conviction; (2) the ―trial court committed

reversible error by instructing the jury abstractly on the law of parties respecting [Texas

Penal Code section] 7.02(b), but not meaningfully including that abstract theory of

criminal responsibility in the subsequent application paragraph‖; (3) the ―trial court

committed reversible error by including an unsubstantiated and prejudicial comment on

the weight of the evidence in [the] application paragraph [of the jury charge] by simply

denominating, or characterizing, two unnamed persons as conspirators‖; (4) the trial

court erred by including four lesser-included offenses in the jury charge; (5) the trial

court abused its discretion in allowing hearsay testimony from several investigators; (6)

―the trial court abused its discretion in allowing . . . [Investigator Max] Cantu to testify

about an ultimate issue of fact for the jury‖; and (7) ―the trial court abused its discretion

in overruling [Lopez‘s] bolstering objection to . . . [Investigator] Fernando Tanguma.‖

We affirm.

I. BACKGROUND

On June 8, 2008, eighty-three-year-old Elena Ayala was shot as she rode in the

backseat of her daughter and son-in-law‘s black Chrysler 300.

Modesta Diaz testified that at 9:30 p.m., she and her husband, Jesus Mario Diaz,

picked up her mother, Ayala, of whom they were the primary caretakers, from the home

of Margarita Esparaza, one of Ayala‘s daughters. The trio proceeded to the Diazes‘s

residence with Jesus in the driver‘s seat, Modesta in the front passenger‘s side seat,

and Ayala in the back passenger‘s side seat. Around 9:50 p.m., Modesta noticed a

vehicle, which she later described as a ―van‖ or ―small Blazer‖ pass and ―cut[] in front‖ of

her family‘s Chrysler 300 as they drove on Depot Road near the Monte Cristo

2
intersection in Edinburg, Texas. The vehicle stopped, and Jesus honked. Modesta saw

a man ―with his face covered‖ exit the back passenger‘s side door of the vehicle with ―a

pistol‖ in his hand. Modesta told Jesus, ―Let‘s get out of here. Let‘s go speeding fast.

Let‘s get out of here.‖ Jesus reversed, accelerated backwards, and told Modesta ―to get

down on the floorboard.‖ Modesta then heard one gunshot. Jesus turned the Chrysler

around and drove away from the shooter, south towards McAllen, Texas. Modesta

testified that at the time of the shooting, she did not know why someone had shot at the

Chrysler.

Modesta testified that as they drove away, Ayala stated, ―I got shot.‖ Modesta

tried to calm her mother and told her that the sound was only ―a fire cracker,‖ but Ayala

protested, ―No, my daughter. It was a shot. I got hit.‖ Modesta turned on the Chrysler‘s

interior light, saw blood, and confirmed that Ayala had been shot. Modesta called 911.

According to Modesta, the 911 dispatcher ―told me . . . not to move—for me to stay

there. Well, we didn‘t want to stay there so we drove all the way to 10th [Street] and

[Highway] 107 at the Valero, and that‘s where we waited.‖ An ambulance arrived at the

Valero and transported Ayala to a nearby hospital where she was pronounced dead.

Norma Jean Farley, M.D., the chief forensic pathologist for both Hidalgo and

Cameron Counties, performed the autopsy on Ayala‘s body. Dr. Farley recalled that

Ayala‘s injuries were consistent with a ―perforating gun[]shot,‖ which she defined as a

gunshot that ―went through the body, and there was no bullet recovered.‖ Dr. Farley

observed that a bullet had travelled ―almost straight through‖ Ayala‘s torso—entering on

the left lateral side of Ayala‘s chest and exiting on the right—puncturing her abdomen,

3
diaphragm, stomach, and liver. Dr. Farley concluded that the cause of death was a

gunshot wound to Ayala‘s chest and abdomen.

Hidalgo County crime scene specialist, Eduardo Aleman, testified that a bullet

entrance hole was found on the back driver‘s side of the Chrysler and that one bullet

was recovered from inside the vehicle. He also testified that one spent casing was

recovered at the scene of the shooting and that the evidence supported the theory that

only one shot was fired at the Diaz‘s Chrysler.

In August 2008, Texas Ranger Robert Matthews met with and questioned

Lopez‘s friend, Oziel Gutierrez, about the June 8 shooting. Gutierrez testified that he

gave a statement to Ranger Matthews that Lopez ―had come to my house

and . . . [Lopez] started talking to me about a murder that had taken place. And that he

was like—you know—somewhat involved, because he had loaned the gun to some

people . . . .‖ Gutierrez denied knowing the names of the people to whom Lopez lent

the gun, but stated that Lopez had lent them the gun ―[t]o steal some rims‖ for ―a

vehicle,‖ and Lopez drove a Chrysler 300.

On August 22, 2008, Ranger Matthews and Investigator Fernando Tanguma

went to Lopez‘s home. Lopez agreed to go to the Hidalgo County Sheriff‘s Office to

speak with the officers. While en route to the sheriff‘s office, the officer stopped at a

―mobile unit.‖1 Lopez told the officers that he planned to speak to an attorney before

giving a statement. At that point, the officers stopped questioning Lopez and decided to

continue to the sheriff‘s office. Investigator Tanguma testified that as they drove to the

sheriff‘s office, Lopez told him that ―he knew what I [Investigator Tanguma] was talking

about. He told me that it was a .40 caliber handgun. He told me that the gun was
1
Investigator Tanguma defined a ―mobile unit‖ as a ―portable‖ sheriff‘s office.

4
located underneath his house.‖2 The officers drove back to Lopez‘s residence, and

Lopez consented to the search of his house. Investigator Tanguma testified that Lopez

resided in a frame home that was lifted off the ground by blocks. Investigator Tanguma

recalled, ―[Lopez] pointed out where the gun was. . . . He walked to the corner of the

residence and pointed . . . he told me ‗If you stick your hand under there you can grab

the gun, and it‘s wrapped in a newspaper, and it‘s there in the corner.‘‖ Investigator

Tanguma complied and recovered the firearm.

Forensic firearms and tool-marks examiner, Richard Hitchcocks, conducted a

comparative analysis between the bullet, cartridge, and firearm recovered by police.

Based on his analysis, Hitchcocks opined that the cartridge recovered near the

intersection of Depot Road and Monte Cristo was fired from the firearm located under

Lopez‘s house. Hitchcocks was unable to conclusively determine whether the bullet

recovered from the Diaz‘s Chrysler was fired from the firearm found under Lopez‘s

home; however, he ―could not eliminate that firearm as the one that that bullet may have

been fired from.‖

At the conclusion of the trial, a jury convicted Lopez of capital murder and

punishment was assessed at life imprisonment in the Institutional Division of the Texas

Department of Criminal Justice. See id. Lopez filed a motion for new trial. A hearing

was held, and the motion was subsequently denied by the trial court. This appeal

ensued.

II. SUFFICIENCY OF THE EVIDENCE

2
On appeal, Lopez does not challenge the voluntariness of his statements to police.

5
 By his first and second issues, Lopez contends that the evidence is legally and

factually insufficient to support the jury‘s verdict. Specifically, Lopez asserts that the

evidence is insufficient to support Lopez‘s conviction ―either as a principal and/or a party

and/or a conspirator‖ to capital murder.

A. Standard of Review

The Court of Criminal Appeals has recently held that there is ―no meaningful

distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis

factual-sufficiency standard‖ and that the Jackson standard ―is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖ Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *8, *14

(Tex. Crim. App. Oct. 6, 2010) (plurality opinion). Accordingly, we review Lopez‘s

claims of evidentiary sufficiency under ―a rigorous and proper application‖ of the

Jackson standard of review. Id. at *11.

Under the Jackson standard, ―the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.‖ Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see Brooks, 2010 WL 3894613, at *5 (characterizing

the Jackson standard as: ―Considering all of the evidence in the light most favorable to

the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.‖).

―[T]he fact[-]finder‘s role as weigher of the evidence is preserved through a legal

conclusion that upon judicial review all of the evidence is to be considered in the light

most favorable to the prosecution.‖ Jackson, 443 U.S. at 319 (emphasis in original);

6
see TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979) (―The jury, in all cases, is the

exclusive judge of facts proved and the weight to be given to the testimony . . . .‖);

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (―The jury is the

exclusive judge of the credibility of witnesses and of the weight to be given testimony,

and it is also the exclusive province of the jury to reconcile conflicts in the evidence.‖).

In the present case, the jury charge included general instructions on the concept

of criminal responsibility under the law of parties. See TEX. PENAL CODE ANN.

§ 7.02(a)(2) (Vernon 2003); id. § 7.02(b) (providing that a party is criminally responsible

for the conduct of another ―[i]f, in the attempt to carry out a conspiracy to commit one

felony, another felony is committed by one of the conspirators, all conspirators are guilty

of the felony actually committed, though having no intent to commit it, if the offense was

committed in furtherance of the unlawful purpose and was one that should have been

anticipated as a result of the carrying out of the conspiracy‖). The application paragraph

applied the law of the parties under section 7.02(a)(2), but did not apply the section

7.02(b) concept of criminal responsibility for the anticipated result of a conspiracy.

The sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394, 404

(Tex. Crim. App. 2000); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi

2002, pet. ref‘d). Because a hypothetically correct jury charge in this case would

authorize the jury to convict on either section 7.02(a)(2) or 7.02(b), we must determine

whether the evidence is sufficient under either of these alternative theories of liability.

See Garza Vega v. State, 267 S.W.3d 912, 915-16 (Tex. Crim. App. 2008).

B. Applicable Law

7
 Under section 7.02(a)(2), ―[a] person is criminally responsible for an offense

committed by the conduct of another if . . . acting with intent to promote or assist the

commission of the offense he solicits, encourages, directs, aids, or attempts to aid the

other person to commit the offense.‖ TEX. PENAL CODE ANN. § 7.02(a)(2). An act is

committed intentionally when it is the actor‘s conscious objective or desire to engage in

the conduct which causes the result. Id. § 6.03(a) (Vernon 2003). A person acts

knowingly when he knows that the conduct is reasonably certain to cause the result. Id.

§ 6.03(b). Intent may ―be inferred from circumstantial evidence[,] such as acts, words,

and the conduct of the appellant.‖ Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.

App. 2004); see also Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (stating

that a fact-finder may infer both knowledge and intent from the defendant‘s acts, words,

or conduct and from the nature of the wounds inflicted on the victim); Ledesma v. State,

677 S.W.2d 529, 531 (Tex. Crim. App. 1984) (noting that the requisite culpable mental

state may also be inferred from the surrounding circumstances).

A person may be found guilty of capital murder under the law of parties. Johnson

v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992) (en banc); see also Vega v.

State, No. 13-05-007-CR, 2010 WL 2966861, at *3 (Tex. App.–Corpus Christi July 29,

2010, pet. ref‘d) (mem. op. on remand, not designated for publication). A person

commits capital murder if he or she intentionally or knowingly causes the death of an

individual while in the course of committing or attempting to commit, among other

things, robbery. TEX. PENAL CODE ANN. §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(2). ―In

determining whether a defendant participated in an offense as a party, the fact[-]finder

may examine the events occurring before, during, and after the commission of the

8
offense and may rely on actions of the defendant that show an understanding and

common design to commit the offense.‖ Frank v. State, 183 S.W.3d 63, 73 (Tex. App.–

Fort Worth 2005, pet. ref‘d). Furthermore, ―[c]ircumstantial evidence may be used to

prove one is a party to an offense.‖ Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim.

App. 1985).

C. Analysis

Lopez argues that the evidence is insufficient to support his conviction because

the State failed to prove, beyond a reasonable doubt, that ―he harbored a specific intent

that a murder be committed,‖ because the evidence showed that ―murder was not part

of [his] plan‖ and, instead, was ―the result of something gone wrong.‖

Gutierrez testified Lopez ―had come to my house and . . . [Lopez] started talking

to me about a murder that had taken place. And that he was like—you know—

somewhat involved, because he had loaned the gun to some people . . . .‖ Gutierrez

also testified that Lopez loaned the gun to unidentified individuals ―[t]o steal some rims‖

for ―a vehicle,‖ and Lopez drove a Chrysler 300. There was evidence that on the night

of June 8, 2008, Ayala was shot as she rode in the backseat of a Chrysler 300. When

Lopez was later questioned about the June 8 shooting, he told investigators that he

―knew what [they were] talking about‖ and led them to a firearm wrapped in newspaper

and concealed under his home. There was evidence that a cartridge found at the scene

of the June 8 shooting was discharged from the firearm located under Lopez‘s home.

Lopez relies on Tippett v. State, to support his argument that the evidence is

insufficient to support his conviction. 41 S.W.3d 316, 324 (Tex. App.–Fort Worth 2001,

no pet.), disapproved of on other grounds by Hooper v. State, 214 S.W.3d 9, 15 (Tex.

9
Crim. App. 2007). In Tippett, the evidence was insufficient to support a capital murder

conviction under both sections 7.02(a)(2) and 7.02(b) where the evidence established

that the appellant and the alleged co-conspirator agreed only to rob the victim and there

was no evidence that the appellant knew that the alleged co-conspirator had a gun in

his possession during the commission of the underlying robbery. Id. at 324-25. The

present case is distinguishable because the evidence showed that Lopez asked two

unnamed individuals to commit robbery and provided them with a gun with the intent

that the gun be used in the commission of the offense. A jury may infer intent to kill

from the use of a deadly weapon. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim.

App. 1996); Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (holding

that if a deadly weapon is used in a deadly manner, the inference is almost conclusive

that the defendant intended to kill); Vega v. State, 198 S.W.3d 819, 825 (Tex. App.–

Corpus Christi 2006), vacated on other grounds, 267 S.W.3d 912 (Tex. Crim. App.

2008). Thus, the jury could have reasonably inferred that Lopez intended to promote or

assist in murder when he provided two unnamed individuals with a firearm and

instructed them to ―[t]o steal some rims‖ for ―a vehicle‖; see Vega, 198 S.W.3d at 825,

and the evidence was sufficient to support Lopez‘s conviction under section 7.02(a)(2).

See TEX. PENAL CODE ANN. § 7.02(a)(2). Viewing all of the evidence in the light most

favorable to the prosecution, we conclude that a rational juror could have found beyond

a reasonable doubt that Lopez was guilty of capital murder. See Jackson, 443 U.S. at

319; Brooks, 2010 WL 3894613, at *5. Accordingly, we overrule Lopez‘s first and

second issues.

III. CHARGE ERROR

10
 By his third, fourth, and fifth issues, Lopez complains of charge error. When we

review a jury charge, we must first determine whether error exists. Middleton v. State,

125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we find error, we apply the appropriate

harm analysis depending on whether the error was preserved in the trial court. See

Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010) (stating that all jury-

charge errors are cognizable on appeal, but unobjected-to error is reviewed for

―egregious harm,‖ while objected-to error is reviewed for ―some harm‖); Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g).

A. Failure to Apply Texas Penal Code Section 7.02(b)

By his third issue, Lopez contends that the trial court erred by failing to apply the

theory of criminal liability found in Texas Penal Code section 7.02(b). See TEX. PENAL

CODE ANN. § 7.02(b). The State concedes that the trial court erred by failing to include

section 7.02(b) in the application paragraph of the charge, even though Lopez Failed to

object to the error at trial. Nevertheless, because he did not object to the omission of

section 7.02(b) at trial, Lopez now asserts that he was egregiously harmed by the trial

court‘s error. See Almanza, 686 S.W.2d at 171. Egregious harm will be found only if

the error deprived the defendant of a fair and impartial trial. Ex parte Smith, 309 S.W.3d

53, 63 (Tex. Crim. App. 2010) (citing Almanza, 686 S.W.2d at 171).

―The application paragraph of a jury charge is that which authorizes conviction,

and an abstract charge on a theory of law which is not applied to the facts is insufficient

to bring that theory before the jury.‖ Campbell v. State, 910 S.W.2d 475, 477 (Tex.

Crim. App. 1995) (citing Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App. 1991)).

Thus, because the jury charge did not apply Texas Penal Code section 7.02(b) to the

11
facts of the present case, section 7.02(a)(2) was the only theory of criminal

responsibility for another‘s conduct that was properly before the jury. See id. We have

already held that the evidence is sufficient to support Lopez‘s conviction pursuant to

section 7.02(a)(2); thus, we cannot conclude that Lopez was egregiously harmed by the

trial court‘s failure to place section 7.02(b)—an alternative theory of liability—properly

before the jury. See Greene v. State, 240 S.W.3d 7, 15-16 (Tex. App.–Austin 2007, pet.

ref‘d). We overrule Lopez‘s third issue.

B. Comment on the Weight of the Evidence

By his fourth issue, Lopez contends that the trial court ―committed reversible

error by including an unsubstantiated and prejudicial comment on the weight of the

evidence‖ in the jury charge ―by simply denominating, or characterizing, two unnamed

persons as conspirators.‖ Specifically, Lopez complains of the following language:

If you find from the evidence beyond a reasonable doubt that on or about
JUNE 8, 2008, in Hidalgo County, Texas, JOHN DOE 1 and JOHN DOE
2 (hereinafter referred to as Conspirators) . . . .

(Emphasis added.) The charge then authorized the jury to find Lopez guilty of capital

murder if it found that he ―acted with intent to promote or assist the commission of the

offense by conspirators by encouraging, directing, aiding or attempting to aid

conspirators to commit the offense of robbery which resulted in the death of Elena

Ayala . . . .‖ At trial, Lopez did not object to the inclusion of the above language as a

comment on the weight of the evidence; therefore, we must determine whether the

charge was erroneous and, if so, whether that error caused egregious harm. See

Jennings, 302 S.W.3d at 311; Almanza, 686 S.W.2d at 171.

12
 A charge that assumes the truth of a controverted issue is a comment on the

weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex.

Crim. App. 1986); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007) (providing

that a trial court shall deliver to the jury ―a written charge distinctly setting forth the law

applicable to the case; not expressing any opinion as to the weight of the evidence, not

summing up the testimony, discussing the facts or using any argument in his charge

calculated to arouse the sympathy or excite the passions of the jury‖). Lopez asserts

that the charge was erroneous because it authorized the jury ―to assess Appellant‘s

criminal culpability as a party and/or a conspirator with two persons who—if the

instruction in that regard were to be followed . . . —were conspirators.‖

Assuming, without deciding, that referring to the unnamed individuals as

―conspirators‖ was erroneous, such a reference did not cause Lopez egregious harm.

The application paragraph authorized the jury to find Lopez guilty of capital murder if it

found, beyond a reasonable doubt, that Lopez: (1) acted with intent to promote or

assist the commission of the offense; and (2) encouraged, directed, aided or attempted

to aid in the commission of the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2). Thus,

the usage of the term ―conspirators‖ to refer to the two unnamed individuals does not

necessarily implicate Lopez as a conspirator. Even if the jury believed that the two

unnamed individuals were ―conspirators,‖ in order to find Lopez guilty, the jury,

nevertheless, had to find that the elements of section 7.02(a)(2) were proven beyond a

reasonable doubt. See id. Under the facts of the present case, there is no indication

that the trial court‘s error, if any, in referring to the unnamed individuals as

13
―conspirators‖ caused Lopez egregious harm. See Almanza, 686 S.W.2d at 171. We

overrule Lopez‘s fourth issue.

C. Lesser-Included Offenses

By his fifth issue, Lopez asserts that the trial court reversibly erred in overruling

his objection to the jury charge‘s inclusion of murder, aggravated robbery, and robbery

as lesser-included offenses.3 The State asserts that, under the facts of the present

case, neither robbery nor aggravated robbery constitutes a lesser-included offense.

However, even assuming, without deciding, that the trial court erred by including these

offenses in the jury charge, we would not conclude that such error amounts to reversible

error because Lopez was not harmed. See id.

Texas law generally presumes that the jury follows the trial court‘s instructions in

the manner presented. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)

(citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Williams v. State,

937 S.W.2d 479, 490 (Tex. Crim. App. 1996); Waldo v. State, 746 S.W.2d 750, 753

(Tex. Crim. App. 1988); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)).

The jury charge instructed the jury to determine whether the evidence proved beyond a

reasonable doubt that Lopez was guilty of capital murder before considering whether he

was guilty of any of the lesser-included offenses included in the charge. Because the

jury found Lopez guilty of capital murder, we presume that it did not consider the other

offenses. See id. Thus, the trial court‘s error, if any, in the inclusion of the offenses of

murder, aggravated robbery, and robbery in the jury charge did not harm Lopez. See

Almanza, 686 S.W.2d at 171. We overrule Lopez‘s fifth issue.

IV. EVIDENTIARY RULINGS
3
The alleged lesser-included offenses were included in the jury charge at the State‘s request.

14
 In his sixth, seventh, and eighth issues, Lopez urges that the trial court abused

its discretion by allowing the admission of certain evidence. We review a trial court‘s

evidentiary rulings under an abuse-of-discretion standard. Klein v. State, 273 S.W.2d

297, 304-05 (Tex. Crim. App. 2008). To constitute an abuse of discretion, the trial

court‘s decision must fall outside the zone of reasonable disagreement. Wead v. State,

129 S.W.3d 126, 129 (Tex. Crim. App. 2004).

A. “Investigator Exception”

By his sixth issue, Lopez asserts that the trial court abused its discretion by

crafting an ―investigator exception‖ to the hearsay rules, ―which permitted [Investigators

Tanguma and Cantu, as well as Deputy Salvador Arguello (herein collectively referred

to as ―the investigators‖)] to tell jurors what they heard from other testifying and non-

testifying sources.‖ Additionally, Lopez complains that the trial court‘s admission of the

investigators‘ testimony violates the Confrontation Clause.4 See Crawford v.

Washington, 541 U.S. 36, 53-54 (2004).

1. Disputed Testimony

Specifically, Lopez complains of the admission of Deputy Arguello‘s testimony,

which follows in pertinent part:

[The State]: On August 18th, 2008, did you receive any
information that was relevant to this investigation?

[Deputy Arguello]: Yes.

4
The State urges that Lopez‘s sixth issue is multifarious and therefore presents nothing for
review. See Taylor v. State, 190 S.W.3d 758, 764 (Tex. App.–Corpus Christi 2006), rev’d on other
grounds, 233 S.W.3d 356 (Tex. Crim. App. 2007). Out of an abundance of caution, and because we may
elect to consider multifarious issues if we are able to determine, with reasonable certainty, the alleged
error about which the complaint is made, we elect to address Lopez‘s sixth issue. See Stults v. State, 23
S.W.3d 198, 205 (Tex. App.–Houston [14th Dist.] 2000, pet. ref‘d); see also Dilworth v. State, No. 13-07-
00520-CR, 2008 WL 5732155, at *3 n.3 (Tex. App.–Corpus Christi Dec. 4, 2008, pet. ref‘d) (mem. op.,
not designated for publication).

15
 [The State]: Okay. Did that information that you received indicate
a potential suspect for this crime?

[Deputy Arguello]: Yes.

[The State]: Did you pass that information on to the investigating
officers?

[Deputy Arguello]: Yes.

[The State]: All right. Who was the potential witness that was
identified?

[Defense Counsel]: Your Honor, again, my objection is as to hearsay.
This is back door hearsay. This witness‘s
investigative techniques have not been challenged,
and I believe—

The Court: The objection is overruled.

[The State]: Deputy, did that information provide you with a name
for a potential suspect?

[Deputy Arguello]: Yes.

[The State]: All right. Who was that person?

[Deputy Arguello]: Ricardo, Ricardo Lopez.

Lopez also complains of the admission of the following testimony provided by

Investigator Tanguma:

[The State]: Now, sir, at this point did you have information
which—or let me put it this way: Did you
obtain information which led you to believe that
Ricardo Lopez was involved in this actual
case—the murder?

[Defense Counsel]: Objection, Your Honor. It calls for hearsay. It
is backdoor hearsay, that was previously
stated.

The Court: Overruled.

[The State]: You may answer, sir.

16
 [Investigator Tanguma]: Yes, I did.

....

[The State]: Do you know what type of vehicle Mr. Lopez
wanted the rims for?

[Investigator Tanguma]: Yes, He‘s—

[Defense Counsel]: Objection, Your Honor. It calls for hearsay.

....

The Court: The objection is overruled.

[Investigator Tanguma]: Yes, for a Chrysler 300.

Lopez also complains of the following exchange during Investigator Cantu‘s

testimony:

[The State]: How was it that Mr. Gutierrez‘s information and
statement helped you in the investigation, sir?

[Investigator Cantu]: Through the interview with Mr. Gutierrez, it was
learned—

[Defense Counsel]: Again, Your Honor, the objection as to
hearsay.

The Court: The objection is overruled.

[The State]: You may answer.

[Investigator Cantu]: Through the interview with Mr. Gutierrez, it was
learned that he had been a friend of the
defendant for sometime [sic]. The defendant
had confided in him—that he had provided a
weapon that was used to go steal some rims
for his vehicle, which was a 300 Chrysler,
identical—or similar to the one that the
deceased was riding in. It was learned that he
was feeling bad about providing that weapon,
and he had knowledge that the weapon that he
provided these individuals to steal these rims

17
 had been used to shoot and kill this victim—the
deceased.

2. Preservation of Error

To preserve an issue for appellate review, a party must make a timely objection

or request to the trial court, sufficiently stating the specific grounds for the requested

ruling, unless apparent from the context, and obtain an adverse ruling. See TEX. R.

APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Trevino v.

State, 174 S.W.3d 925, 927 (Tex. App.–Corpus Christi 2005, pet. ref‘d). Moreover, the

objection or request at trial must comport with the complaint presented on appeal.

Wilson, 71 S.W.3d at 349. Even constitutional errors may be forfeited by failure to

object at trial. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Trevino,

174 S.W.3d 927.

A review of the record demonstrates that Lopez objected to the disputed portions

of the investigators‘ testimonies on hearsay grounds. A party‘s hearsay objection does

not preserve error on a Confrontation Clause ground. See Reyna v. State, 168 S.W.3d

173, 179 (Tex. Crim. App. 2005); see also Nolen v. State, No. 13-08-00526-CR, 2009

WL 4051980, at *4 (Tex. App.–Corpus Christi Nov. 24, 2009, pet. ref‘d) (mem. op. on

reh‘g, not designated for publication). Accordingly, in reviewing Lopez‘s sixth issue, we

will only consider his hearsay arguments, as his Confrontation Clause arguments were

not preserved. See Reyna, 168 S.W.3d at 179; see also Nolen, 2009 WL 4051980, at

*4.

3. Analysis

Hearsay is a statement, other than one made by the declarant while testifying at

the trial, which is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d).

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Nevertheless, ―[p]olice officers may testify to explain how the investigation began and

how the defendant became a suspect.‖ Lee v. State, 29 S.W.3d 570, 577-78 (Tex.

App.–Dallas 2000, no pet.) (citing Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim.

App.1995); Short v. State, 995 S.W.2d 948, 954 (Tex. App.–Fort Worth 1999, pet. ref‘d);

Thornton v. State, 994 S.W.2d 845, 854 (Tex. App.–Fort Worth 1999, pet. ref‘d)); see

also Samora v. State, No. 13-09-00587-CR, 2010 WL 3279536, at *7 (Tex. App.–

Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for publication). ―An

officer‘s testimony is not hearsay when it is admitted, not for the truth, but to establish

the course of events and circumstances leading to the arrest.‖ Thornton, 994 S.W.2d at

854. The critical question is whether there is an inescapable conclusion that a piece of

evidence is being offered to prove statements made outside the courtroom. See

Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989).

The State‘s questions to the investigators were not designed to elicit hearsay

testimony; instead the questions allowed the investigators to comment on their

investigations and how Lopez became a suspect. See Dinkins, 894 S.W.2d at 347;

Lee, 29 S.W.3d at 577-78. Accordingly, the trial court did not abuse its discretion in

overruling Lopez‘s hearsay objections. Moreover, even if the complained-of portions of

the investigator‘s testimonies had been hearsay, any error in admitting them was

harmless because the testimonies were cumulative of Gutierrez‘s testimony. See

Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (providing that ―any error

in admitting [hearsay] evidence was harmless in light of other properly admitted

evidence proving the same fact‖). We overrule Lopez‘s sixth issue.

B. Ultimate Issue of Fact

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 In his seventh issue, Lopez asserts that ―the trial court abused its discretion in

allowing . . . [Investigator] Cantu to testify about an ultimate issue of fact for the jury.‖

During the State‘s direct examination of Investigator Cantu, the State asked whether he

was able to ―determine why this murder took place.‖ Lopez objected on the grounds

that the question ―invad[es] the province of the jury‖ and ―calls for an ultimate conclusion

of facts.‖ The trial court overruled the objections, and Investigator Cantu testified:

Through the investigation after reviewing the case itself, it was learned
that the defendant was attempting to get some rims for his vehicle. He
had provided a weapon to two unidentified individuals at this time who in
turn went out to get those rims for him. That weapon that he provided was
located at this residence, and was used—and was used to shoot—and
was the weapon that killed the victim.

―The doctrine which prohibited testimony that would invade the province of the

jury ‗is and has been long dead‘ as a proposition of law.‖ Mays v. State, 563 S.W.2d

260, 263 (Tex. Crim. App. 1978) (quoting Boyde v. State, 513 S.W.3d 588, 590 (Tex.

Crim. App. 1974) (citing Hopkins v. State, 480 S.W.2d 212, 220 (Tex. Crim. App.

1972))). However, ―[t]he repudiation of the ‗invasion of the province of the jury‘ rule

does not mean that an expert or non-expert witness may freely state his opinion in

regard to any fact in issue.‖ Hopkins, 480 S.W.2d at 220. Lopez asserts that the trial

court abused its discretion by overruling his objection and allowing Investigator Cantu

―to testify about an ultimate issue of fact for the jury (which was an opinion as to why

[the Diaz‘s] car was stopped).‖ We disagree.

Motive is not a required element in a criminal case. Bush v. State, 628 S.W.2d

441, 444 (Tex. Crim. App. 1982). And although ―evidence of motive is one kind of

evidence [that aids in] establishing proof of an alleged offense,‖ see Crane v. State, 786

S.W.2d 338, 349-50 (Tex. Crim. App. 1990), the evidence of motive within the

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complained-of statement is cumulative of evidence presented in the testimonies of

Gutierrez, Ranger Matthews, and Investigator Tanguma. Thus, error, if any, by the trial

court in allowing the admission of Investigator Cantu‘s testimony is harmless. See

Brooks, 990 S.W.2d at 287. Lopez‘s seventh issue is overruled.

C. Bolstering

By his eighth issue, Lopez contends that the trial court ―abused its discretion in

allowing the State . . . to bolster [Investigator] Tanguma‘s testimony by inquiring whether

he would lose his peace officer‘s license if he were to testify falsely.‖ During the State‘s

questioning of Investigator Tanguma, the following exchange occurred:

[State]: Investigator Tanguma[,] as a law enforcement
[sic] and an investigator with experience, do
you know that there is a penalty for perjury,
correct [sic]?

[Investigator Tanguma]: Yes, I do.

[Defense Counsel]: Objection, Your Honor. Again, bolstering the
witness.

The Court: The objection is overruled.

[State]: You may answer, sir.

[Investigator Tanguma]: Yes, ma‘am.

[State]: If you were to commit perjury on the stand,
would you lose your license as a peace officer?

[Investigator Tanguma]: Oh, yes, I would.

[State]: Thank you, sir. I‘ll pass the witness.

Lopez lodged an objection to the State‘s question on whether there was a

penalty for perjury. However, he did not object to the question of which he now

complains—whether Investigator Tanguma would lose his peace officer‘s license if he

21
were to testify falsely. Thus, Lopez failed to preserve this complaint. See TEX. R. APP.

P. 33.1(a). Even if we were to conclude that Lopez‘s objection to the State‘s first

question preserved a complaint as to the second question, Lopez fails to cite any

authority or advance any argument to support his contention that the trial court erred by

overruling his objection. As such, this issue is inadequately briefed. See TEX. R. APP.

P. 38.1(i) (providing that ―the brief must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.‖). We

overrule Lopez‘s eighth issue.

V. CONCLUSION

Having overruled all of Lopez‘s issues on appeal, we affirm the trial court‘s

judgment.

________________________
ROGELIO VALDEZ
Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
30th day of December, 2010.

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