Osiel Alvarez v. State
11-14-00294-CR
| Tex. App. | Nov 30, 2016Background
- Appellant Osiel Alvarez pleaded guilty to aggravated robbery and pleaded true to a deadly-weapon allegation; jury found him guilty, found the deadly-weapon allegation true, and assessed punishment at life imprisonment and a $5,000 fine.
- Incident: Alvarez (passenger) and a driver approached Heather Conner in an HEB parking-lot crosswalk; Alvarez distracted her with a paper, grabbed her purse, shoved her from the car, and she suffered severe arm injuries requiring surgery.
- After the attack, credit cards were used at several businesses; Alvarez was later arrested. Victim and other witnesses (including surveillance video excerpts) were presented at trial.
- Three appellate complaints: (1) trial court denied Appellant the opportunity to voir dire a witness (Brenda Hardin) as an expert under Tex. R. Evid. 705(b); (2) trial court admitted hearsay testimony by Greg Conner about portions of the surveillance video that were not admitted; (3) trial court overruled objections to portions of the State’s closing jury argument.
- Court’s disposition: affirmed the trial court on all three issues; held no reversible error as to voir dire, any hearsay error was harmless, and the prosecutor’s jury arguments were permissible.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial court erred by denying voir dire of Brenda Hardin under Tex. R. Evid. 705(b) | Hardin should be treated as an expert and Appellant was entitled to voir dire her about underlying facts/data before she testified | Hardin merely related factual, non-opinion testimony about parole practice and prior supervision; not an expert opinion requiring Rule 705(b) voir dire | No error; Hardin was not an expert and Rule 705(b) voir dire was not required |
| Whether trial court erred by admitting Greg Conner’s testimony about portions of surveillance video not admitted into evidence (hearsay) | Admission of Conner’s account of the unadmitted video was hearsay and reversible error | Any error was nonconstitutional and harmless given the record, admitted video portion, victim testimony, and other evidence supporting punishment findings | Even if erroneous, admission was harmless; Appellant’s substantial rights unaffected |
| Whether trial court erred by overruling objections to portions of the State’s jury argument (speculation on motive for returning PlayStation; asking jury to "send a message") | Argument about motive to return PlayStation was speculation outside the evidence; asking jury to "send a message" improperly appealed to community demands | Motive inference (return to get cash) was a reasonable deduction; urging jury to "send a message" was a permissible plea for law enforcement asking jurors to represent the community | No error; arguments were permissible as reasonable inference and proper plea for law enforcement |
Key Cases Cited
- Render v. State, 347 S.W.3d 905 (Tex. App.—Eastland 2011, pet. ref’d) (erroneous admission of hearsay is nonconstitutional)
- Schmutz v. State, 440 S.W.3d 29 (Tex. Crim. App. 2014) (definition of "substantial rights" and reversible-error standard for nonconstitutional error)
- Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (harmless-error review factors and assessing effect on jury verdict)
- Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001) (discussing when erroneous evidence admission does not affect substantial rights)
- Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) (four areas of proper jury argument)
- Esquivel v. State, 180 S.W.3d 689 (Tex. App.—Eastland 2005, no pet.) (scope of permissible jury argument)
- Shannon v. State, 942 S.W.2d 591 (Tex. Crim. App. 1996) (allowing wide latitude for reasonable inferences in argument)
- Cortez v. State, 683 S.W.2d 419 (Tex. Crim. App. 1984) (improper to ask jury to decide based on community demands; distinction for pleas asking jury to represent community)
- Mata v. State, 952 S.W.2d 30 (Tex. App.—San Antonio 1997, no pet.) (argument appealing to community expectations is improper)
- Goocher v. State, 633 S.W.2d 860 (Tex. Crim. App. [Panel Op.] 1982) (plea for law enforcement to "send a message" held proper)
- Caballero v. State, 919 S.W.2d 919 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (jury may be urged to represent community as part of proper argument)