Arroyo v. StateArroyo v. State
OPINION
Susаnna Arroyo appeals from her conviction for capital murder. In seven issues, she argues that the evidence was insufficient to support the conviction and that the trial court should have excluded evidence of her gang affiliation and the statements of a coconspirator. We affirm.
Background
On July 1, 1999, Jeffrey Adam Carrier and his friend Aaron Warren went to Kilo-land Park, a landing on Lake Palestine. They introduced themselves to a group who was already there, which included Hersain Gomez, Crystal Garcia, Appellant, and three others. Appellant and her group had traveled together to Kiloland Park and spent the day drinking alcohol, smoking marijuana, swimming, and listening to music. Carrier asked the group if he could purchase marijuana from them. They did not have any marijuana left, but someone in the group told Carrier that if he would return later that evening, they would go to Tyler with him and help him find a dealer. Carrier agreed, and he and Warren left the landing. The group, excluding Garcia at this time, began planning to rob the two boys when they returned.
As instructed, the two boys returned to Kiloland Park later that evening. The group’s car battery was dead, and so Warren, Carrier, and a mеmber of the group left in Carrier’s car to find jumper cables. While they were gone, the remaining members of the group, Garcia and Appellant included, resumed their planning of the robbery of the two boys. Hersain stated that they should just kill the two boys because aggravated robbery and murder both had essentially the same range of punishment. No one voiced opposition to that plan, and Appellant said she was “down with” Hersain’s plan. Subsequently, the others returned and were able to start the car. The group and the two boys left Kiloland Park in two cars.
They traveled to a rеmote area in the far southern reaches of the city of Tyler. Once they arrived, two members of the group took Warren in their car, telling the boys that the person they were to purchase marijuana from did not like large groups of people at his house. The rest of the group, including Appellant, remained with Carrier by his car. At Hersain’s instruction, Garcia used a knife to puncture two of the tires on Carrier’s car.
Garcia told Carrier about the flats, and Carrier exited the car and got out the spare tire and the related tools. While Carrier was kneeling down to wоrk on the flattened tire, Hersain picked up the spare tire and threw it at Carrier’s head. Carrier stood up, and he and Hersain began to fight. Carrier was apparently getting the best of Hersain. That ended when Appellant hit Carrier with the car jack. Carrier fell to the ground and Hersain and Appellant continued to beat him. At one point, Carrier kicked Appellant in the leg. This angered Garcia. She began to kick Carrier as he lay on the ground and then picked up the tire iron and hit Carrier with it a number of times.
The others returned, having assaulted Warren, taken his money, and left him at a spot farther down the road. The group drove back to Tyler together and dispersed. Hersain and Appellant fled to Mexico. Michael Thompson, one member of the group, contacted the police and notified them of the murder. The police arrested him along with Garcia and the rest of the remaining group.
Appellant was charged with the capital murder of Jeffrey Carrier. She was captured in Mexico several years after the murder and returned to Smith County for trial. She pleaded not guilty. The jury found Appellant guilty of the capital murder of Carrier, and she received the mandatоry punishment of imprisonment for life. This appeal followed.
Accomplice Testimony
In her first and second issues, Appellant contends that the testimony of Crystal Garcia is not sufficiently corroborated. Although she phrases her argument in terms of legal and factual sufficiency, Appellant’s argument is that the accomplice testimony is not corroborated as required by law and that the nonaccomplice testimony does not tend to link her to the commission of the offense.
Applicable Law
A conviction may not be sustained on the testimony of an accomplice unless there is other evidence “tending to connect the defendant to the offense committed.” Tex.Code CRim. Proc. Ann. 38.14 (Vernon 2006);
Simpson v. State,
Even apparently insignificant incriminating circumstances may provide sufficient corroboration.
Trevino v. State,
To evaluate whether there is sufficient corrоborating evidence, we eliminate the accomplice testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant with the offense.
McDuff v. State,
Analysis
Crystal Garcia was an accomplice to Carrier’s murder as a matter of law because she was charged with the same offenses as Appellant.
See Burns v. State,
1) Aaron Warren identified Appellant as part of the group that took him and Carrier to South Tyler.
2) Warren further testified that he ran back to Carrier’s car after he was left on the side of the road. Consistent with Garcia’s testimony, he found the car with two tires punctured and Carrier and the group gone. (Carrier was likely alrеady dead, lying nearby in the woods.)
3) Appellant and Hersain discussed the murder with Benito Gomez, Hersain’s brother. Appellant said that “it just happened” and that she had taken a watch, presumably from the victim. Hersain said more, including that he had hit Carrier and that he had killed him.
In assessing the strength of a particular item of nonaccomplice evidence, we examine its reliability or believability and the strength of its tendency to connect the defendant to the crime.
See Herron v. State,
In
Burks v. State,
This case is distinguishable on the facts from
Wincott v. State,
Gang Affiliation
In her third issue, Appellant argues that the trial court erred when it allowed the State to introduce evidence of her gang affiliation. Appellant argues that this evidenсe was irrelevant and that its probative value did not outweigh its prejudicial impact.
Standard of Review and Applicable Law
We review a trial court’s decision to admit evidence for an abuse of discretion.
Casey v. State,
Relevant evidence is admissible. Tex.R. Evid. 402. Evidence is relevant if it has a tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence. Tex.R. Evid. 401. Relevant evidence mаy be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex.R. Evid. 403. Evidence that does not have relevance apart from character conformity is inadmissible. Tex.R. Evid. 404(b).
With respect to evidence of gang involvement specifically, we have previously discussed related issues in appeals by two of Appellant’s codefendants. In
Thompson v. State,
Analysis
Appellant acknowledges Thompson, but seeks to differentiate it on the ground that nonaccomplice testimony, including Thompson’s own statement, linked Thompson to the сommon scheme or plan with the gang. She argues that there was no nonaccomplice testimony about her involvement, it was not shown that she was a member of the gang, there was not reliable evidence that she conspired to rob the victim, and it was not shown that Carrier’s murder was gang activity.
We do not agree that this case is distinguishable from
Thompson
on the grounds of nonaccomplice testimony. Whether there is accomplice testimony does not factor into the decision to admit gang evidence. It is true that Thompson made a statement to the police that corroborated the accomplice testimony.
See Thompson,
With respect to Appellant’s argument that there was insufficient evidence to show that the killing was gang related or that she was involved in the conspiracy, we disagree. The gang evidence was not admitted to show that the murder was gang activity. It was admitted to show that it was predictable that a homicide would occur as the result of a conspiracy to rob someone in which some of the conspirаtors are violent gang members. And there was evidence that she was involved in the conspiracy. Crystal Garcia testified that Appellant said she was “down with” Hersain’s plan.
Finally, the trial court’s ruling that the probative value of this evidence is not outweighed by its prejudicial impact is not outside the zone of reasonable disagreement. There is a danger of unfair prejudice when it comes to this kind of evidence because criminal street gangs, and those associated with them, are not held in high regard. In this case, however, we think the prejudicial impact is less than it could bе in another case. Whether gang members or not, the group of people Appellant associated herself with were not people the jury was likely to hold in high regard. They met the two boys because they were breaking the law (smoking marijuana) and they made the arrangements that led to Carrier’s murder by agreeing to break more laws (brokering a marijuana transaction.). Indeed, the boys selected the group because they believed that the group had access to controlled substances. Furthermore, Hersain’s nickname was “Demon,” and he had that moniker tattooed across the back of his shaved head. Finally, the group engaged in a brutal murder to facilitate a petty robbery. Explaining to this jury that they were members of a street gang helped the jury understand the organizational structure of the group — and is why the evidence was relevant — but it was not the jury’s first notice that they were not benevolent actors — which is why it is not unduly prejudicial. We overrule Appellant’s third issue.
Statements of Coconspirator
In her fourth, fifth, sixth, and seventh issues, Appellant argues that the trial court erred when it allowed into evidence statements made by Hersain Gomez the night of the murder. Specifically, she argues that she was denied her right to confront witnesses as guaranteed by the U.S. and Texas constitutions and that the evidence was inadmissible hearsay. Applicable Law
The Confrontation Clause of the Sixth Amendment provides that “[i]n
Testimonial statements include police interrogations and ex parte in-court testimony or its functional equivalents, including extrajudicial statements contained in formalized testimonial materials, prior testimony at a preliminary hearing, before a grand jury, or at former trial.
See id.,
In our review, we defer to a trial court’s determination of historical facts and credibility.
See Wall,
Statements of coconspirators are not hearsay and are admissible against another coconspirator if the statement is made during the course of and in furtherance of the consрiracy. Tex.R. Evid. 801(e)(2)(E). In
Lee v. State,
Analysis
Appellant argues that Hersain’s statements, as recounted by Crystal Garcia and Benito Gomez, were inadmissible.
3
Although Appellant discusses the standards related to testimonial hearsay, she does not argue that the statements are testimonial.
4
Rather, Appellant argues that her right to confrontation was violated because the statements were inadmissible hearsay. This is not a claim that is suppоrted by the current interpretation of the Confrontation Clause.
See Davis,
Appellant further argues that Hersain’s statement is a confession and that confessions by an accomplice that implicate another are not a firmly rooted exception to the hearsay rule.
See Crawford,
When the Court in
Crawford
uses the term “confession,” it is referring to testimonial confessions.
Crawford,
Finally, Appellant argues that the trial court erred in admitting Hersain’s statements because they were not, she argues, made in furtherance of the conspiracy. If the conspiracy is understoоd as being only to rob and to kill the boys, the conspiracy had ended at the time Hersain asked his brother to help him and Appellant escape to Mexico.
See, e.g., Krulew-itch v. United States,
The exception to the hearsay rule for coconspirator statements is a “very narrow” one.
See Byrd v. State,
In this regard, Byrd is instructive. In Byrd, an actor made two statements. One was the enunciation of a plan for one party to accept responsibility to protect another participant. The other was a question about why one participant had hit the victim. The court held that the first was properly admitted and the second was not. The differentiating feature was that the first statement advanced the conspiracy to escape apprehension or punishment and the second did not. Id. at 442-44. The statement here fits intо the first category. Hersain’s statements advanced the conspiracy to avoid capture, and therefore the trial court’s decision to allow these statements as a coconspirator statement was not outside the zone of reasonable disagreement.
If the statements were not made during an active conspiracy or were not in furtherance of the conspiracy, they would be inadmissible hearsay, and it would have been error to admit them. As Appellant recognizes, the admission of inadmissible hearsay is nonconstitutional error.
See Johnson v. State,
In assessing the likelihood that the jury’s decision was affected by an error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case.
See Motilla v. State,
Here, Hersain’s statements had, at most, a slight effect on the jury. His statement was that he had killed Carrier. Appellant made substantially the same statement at the same time, saying that it had “just happened.” Furthermore, Warren’s testimony placed Appellant at the scene of the offense, and Crystal Garcia was an eyewitness to the conspiracy and the assault on Carrier if not to the actual murder. There was substantial evidence of Appellant’s guilt apart from Hersain’s statement, including her own statement to Benito, and therefore any error in admitting Hersain’s statement was harmless. We overrule Appellant’s fourth, fifth, sixth, and seventh issues.
Disposition
Having overruled Appellant’s seven issues, we affirm the judgment of the trial court.
Notes
. Hersain Gomez was at the trial. His tattoos were photographed and shown to the jury. The State does not argue that he was available for cross examination, and therefore we do not reach that question.
. Texas courts have treated the federal and Texas confrontation clauses similarly.
See Long
v.
State,
. We summarize the types of statements because, as the State points out, Appellant has not identified the statements except to reference the testimony of the two witnesses. The State urges that this failure to cite to the record waives this issue. We will address the issue despite the lack of direct citation to the record.
. Statements of a coconspirator in furtherance of a conspiracy are not, in the ordinary case, testimonial.
See Crawford,
.
See, e.g., Delaware v. Van Arsdall,
. Under
Ohio v. Roberts,
. Appellant doеs not make an argument that Crystal's recounting of Hersain’s statements was erroneously admitted, and her trial counsel specifically declined to make a hearsay objection, stating, "I understand that they [co-conspirator statements] are excluded from hearsay under [Rule] 801.”
.
See, e.g., Byrd,