BOBBY RAY RUIZ v. THE STATE OF TEXAS
No. 11-18-00267-CR
Eleventh Court of Appeals
July 30, 2021
In The
Eleventh Court of Appeals
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I. Factual Background
This case originated in 2011 in Hobbs, New Mexico, at the house that Linda Taber inherited when her parents passed away. Taber and her daughter, Lori Craig, lived at the house with Taber‘s aunt, who had inherited some diamond rings from Taber‘s mother, Estella Collum. Trent Ashlock was a friend of Craig‘s and an addict; he also temporarily resided at the house as Craig‘s clandestine guest. Before Taber‘s aunt passed away, Ashlock found a bag in one of the bathrooms at the house; the bag contained three diamond rings. Ashlock took the rings and went to Rolando “Rollie” Cantu‘s house in Hobbs, where Ashlock attempted to trade them for methamphetamine. Instead, Cantu kept the rings, and Ashlock never received any drugs in exchange for them.
Cantu initially gave one of the three diamond rings to his girlfriend, and the mother of his son, Desirae Mata. At some point, Cantu took the ring
In December of 2011, Allen flew to New York City with another individual, Nathan Webster, to sell the rings there. While they were in New York City, Allen sold the three rings for $73,000. Allen spent some of the proceeds from the sale on a 2004 Maserati. Allen and Webster drove home to Texas in the Maserati. Later, Allen and Webster split the rest of the money from the sale of the diamond rings.
In the meantime, Cantu was sentenced to a term of imprisonment, and Mata moved in with Allen in January of 2012 after Allen returned from New York City. Mata knew that Allen had sold the diamond rings in New York City, and Allen told her that he had received $60,000 for them. Mata was angry because Allen had sold “[her] diamond.” Cantu wrote to Allen from prison about some money that Allen was to give to Mata; however, Mata never received any money from Allen. Mata‘s romantic involvement with Allen ended in April of 2012.
Around that time, Allen and Webster installed a four-camera security system at Allen‘s house. Allen had become paranoid because someone had attempted to break into his house once while he was out of town; Allen later told Webster that he
On May 9, 2012, the day before Allen and Doyal were murdered, Mata and Cantu spoke on the phone. Mata testified that, during their phone conversation, Mata told Cantu: “That was my diamond. My diamond. F--k that. I don‘t give a damn about the money. That was my diamond. . . . F--k him. That was bulls--t. People die over diamonds. I don‘t give a damn.” To agitate Cantu, Mata then claimed that Allen had been paid $90,000 for the diamond rings that were sold in New York City, and she repeatedly called Cantu a “fool” for trusting Allen. Mata told Cantu that Allen was getting ready to move to Oklahoma, so she would never see any of the money that she was due from him. Mata also mentioned to Cantu that Appellant, who had been shot on May 2, 2012 during an unrelated event, was no longer in the hospital.
On May 10, 2012, Texas Ranger Brian Burney received a phone call from Gaines County Sheriff Jon Key about a double homicide in Seminole. Apparently, Allen and Doyal had been shot and killed at Allen‘s house. Allen‘s body was found in a child‘s bedroom toward the back of the house, and Doyal‘s body was found in the living room. Doyal had been shot in the head and chest, and a cigarette lighter and a methamphetamine pipe were found in one of his hands. Autopsies were performed and revealed that both men had methamphetamine in their systems at the time of their deaths. A red cigarette lighter was also found on the living room windowsill. DNA was extracted from the red lighter, and the DNA test results could not exclude Appellant as a possible contributor to the DNA profile, which was determined to be a mixture of four individuals. However, the tested DNA sample did exclude Allen and Doyal as possible contributors.
Detective Rodney Porter worked in the Crimes Investigation Division at the Hobbs Police Department at the time these events occurred. From May to August of 2012, Detective Porter assisted Sheriff Key and Ranger Burney in the investigation of the Allen and Doyal murders. Detective Porter learned that Sheriff Key and Ranger Burney were searching for four individuals in connection with the murder investigation: Desirae Mata,1 Juan Castillo,2 Nicomedes Sosa,3 and Appellant.
A. Desirae Mata
Mata was friends with Sosa and Appellant, whom she had known since she was fifteen or sixteen years old. Two months after Allen and Doyal were murdered, Mata went to Alabama, where she was subsequently arrested in Shelby County. While she was there, she was confined in
Additionally, Mata told Brown that she and Appellant attempted to break into Allen‘s house two weeks before Allen and Doyal were murdered so that Appellant could return some guns that they had stolen. Mata expressed concern that the surveillance footage from Allen‘s house would show that she had shut off the power to the house during the attempted break-in. Brown further testified that Appellant “ran over some girl” named Abigail while Mata was with him in Hobbs but that Appellant “beat it because it was accidentally [sic] or something.”
When Mata testified at Appellant‘s trial, she denied involvement in, and conversing with Brown about, the murders of Allen and Doyal.
B. Juan Castillo
A week after Allen and Doyal were murdered, Juan appeared at David Delapaz‘s house and said that “he had to get something off his chest.” Juan told Delapaz that he, Mata, Sosa, and Appellant drove to Allen‘s house in Juan‘s car. When they arrived, the three men waited on the side of Allen‘s house while Mata knocked on the front door. They all rushed into the house as soon as Allen opened the front door. Because Allen apparently refused to give them his safe, Sosa began pistol-whipping Allen until he fell to the ground; Appellant then shot Doyal twice in the chest. Allen got up and ran from the room; Sosa followed and “gunned him down” near a hallway in the house. Juan, Mata, Sosa, and Appellant then “moved the bodies around” and placed a pipe in one of the victim‘s hands to “make it look like it was a drug deal gone bad.”
Detective Porter had known Juan and his brother, Roque Castillo, for several years prior to the inception of this investigation. Because Roque was in the city jail in Hobbs at the time, Detective Porter asked Roque for information as to his brother‘s (Juan‘s) whereabouts. According to Detective Porter, Roque knew certain critical details about the murders of Allen and Doyal that his brother Juan had told him; namely, who drove, which car was used, and who went inside Allen‘s house. Detective Porter ultimately located and arrested Juan on an outstanding Texas arrest warrant that was unrelated to the Allen and Doyal murders.
Detective Porter later interviewed Juan at the Hobbs Police Department. Juan stated that he, Sosa, Appellant, and “Dez,” whom he clarified to be someone named Desirae Reyna,5 went to Allen‘s house in a
Pannell testified about an encounter that she had with Juan that occurred after Allen and Doyal had been murdered but prior to her interview with Ranger Burney. Evidently, Pannell had been arrested for outstanding traffic tickets and was in a transport van that was traveling from the city jail in Hobbs to the Lea County jail. Juan was also in the van at the time, and he asked Pannell if she remembered him. When Pannell said that she knew Allen, Juan told her that “it was a good lick.”
Juan testified at Appellant‘s trial and denied having any involvement in the murders. According to Juan, because he was not involved, he never told Delapaz anything about what had occurred at Allen‘s house. Juan further testified that the confession he provided to Detective Porter during the interview was coerced and that he was not present at Allen‘s house when Allen and Doyal were murdered.
C. Nicomedes Sosa
The State called Sosa as a witness at Appellant‘s trial. Sosa testified that he alone shot and killed Allen and Doyal; that he went to Allen‘s house that day with another individual, whom he refused to name; and that Mata, Appellant, and Juan were neither present at Allen‘s house that day nor involved in the murders. According to Sosa, after he shot Allen and Doyal, he left the bodies in the house but returned later to remove the surveillance console from Allen‘s house.
D. Appellant
When he was interviewed by Detective Porter, Appellant denied any involvement in the murders of Allen and Doyal. Appellant also told Detective Porter that he had been shot on May 2, 2012, and claimed that, at the time the murders were committed, he was at home on bed rest. Appellant did not testify at trial.
II. Sufficiency of the Evidence
In his first issue, Appellant challenges the sufficiency of the evidence to support his convictions.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref‘d). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the charged offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all of the evidence admitted at trial, including evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder‘s role as the
Further, we treat direct and circumstantial evidence equally under this standard. Isassi, 330 S.W.3d at 638; Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). It is not necessary that the evidence directly prove the defendant‘s guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant‘s guilt, and circumstantial evidence can alone be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper, 214 S.W.3d at 13). Therefore, in evaluating the sufficiency of the evidence, we must consider the cumulative force of all the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Each fact need not point directly and independently to guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13.
Finally, we measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge for the case. Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016); see also Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State‘s burden of proof or unnecessarily restrict the State‘s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240.
Appellant contends that the evidence is insufficient to support his convictions for capital murder because the State failed to prove all of the statutory elements of the charged offenses beyond a reasonable doubt. Specifically, Appellant argues that the record contains “absolutely no substantive evidence” that he either committed the murders of Allen and Doyal as the principal actor or that he was criminally responsible as a party to these murders. We cannot agree.
B. Analysis
As charged in this case, a person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual in the course of committing or attempting to commit robbery.
At trial, the State adduced sufficient evidence to support the jury‘s verdicts that Appellant committed capital murder as charged in the indictment. The jury heard testimony from multiple witnesses that Appellant went to Allen‘s house with Mata, Sosa, and Juan and that they, including Appellant, intended to rob Allen because Mata wanted the money that had been promised to her by Cantu. Juan made statements to Detective Porter and Delapaz that identified Appellant as one of the shooters and the person who murdered Doyal. Prior to the murders, Mata and Appellant had been seen by others at Allen‘s house on occasion. Evidence was presented that Cantu and Appellant were members of the “most hated” gang, which showed the association between Appellant and Cantu and the former‘s motive or intent to participate and assist in the commission of the robbery that led to the murders of Allen and Doyal. Further, the DNA evidence could not exclude Appellant as a contributor to the red lighter that was found at Allen‘s house.
The jury is authorized to believe all, some, or none of any witness‘s testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Reyes v. State, 465 S.W.3d 801, 805 (Tex. App.—Eastland 2015, pet. ref‘d) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)); see Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899. Although Mata and Juan maintained that they were not involved in the murders of Allen and Doyal, and Sosa testified that he alone committed these murders, it is the jury‘s duty to resolve conflicts in the testimony, to weigh the evidence, to assess witness credibility, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 326; Merritt, 368 S.W.3d at 525-26; Clayton, 235 S.W.3d at 778. It is not our role or function to engage in or make credibility determinations. See Jackson, 443 U.S. at 326; Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899; Clayton, 235 S.W.3d at 778. As such, when the evidence in the record supports conflicting inferences, we presume that the jury resolved any conflicting inferences in favor of the verdicts, and we defer to the jury‘s determinations. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899; Clayton, 235 S.W.3d at 778.
We have reviewed the evidence in the light most favorable to the jury‘s verdicts, and we hold that the record before us contains sufficient evidence from which a rational jury could have logically inferred and found beyond a reasonable doubt that Appellant was guilty of both counts of capital murder for the deaths of Allen and Doyal as charged in the indictment. Therefore, because the jury could have found the elements of the charged offenses beyond a reasonable doubt, we hold that the evidence is sufficient to support Appellant‘s convictions. Accordingly, we overrule Appellant‘s first issue.
III. Accomplice and Jailhouse-Informant Testimony
In his second issue, Appellant asserts that the State failed to meet its statutory burden for the corroboration of “accomplice-witness” testimony and “jailhouse-informant” testimony under Articles 38.14 and 38.075, respectively, of the Texas Code of Criminal Procedure. See
A. Standard of Review
When we conduct a sufficiency review under either the “accomplice-witness” rule or the “jailhouse-informant” rule, we must eliminate from consideration the accomplice-witness‘s or jailhouse-informant‘s testimony and then examine the remaining portions of the record to determine if there is any evidence that tends to connect the accused with the commission of the charged offense. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993); Schnidt v. State, 357 S.W.3d 845, 851 (Tex. App.—Eastland 2012, pet. ref‘d).
Here, Appellant specifically argues that neither “accomplice-witness” testimony nor “jailhouse-informant” testimony can be used to corroborate the other. However, for the reasons discussed below, we need not address the merits of Appellant‘s argument on appeal.
B. Analysis
A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant‘s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code.
In this case, the trial court‘s charge contained a general instruction as to the corroboration requirement for any “accomplice-witness” testimony. The charge also included an instruction on “jailhouse-informant” corroboration that was specific to the testimony of Brown.
In their briefs, both Appellant and the State advance their arguments on the premise that the
Although Juan is an “accomplice witness” under
In connection with the parties’ reliance on the application of the “jailhouse-informant” rule, such reliance is misplaced. Here, Appellant‘s briefing repeatedly refers to Brown‘s “testimony,” which consisted of the statements that Mata, an accomplice to the murders of Allen and Doyal, had made to Brown when they were confined together in the Shelby County jail. However, in this case, Brown cannot, under any scenario, be characterized as a “jailhouse-informant” pursuant to
Because neither “accomplice-witness” nor “jailhouse-informant” testimony exists in this instance, neither corroboration provision under the controlling statutes is applicable. Therefore, we need not decide the question of whether one may corroborate the other under
IV. Jury Charge
In Appellant‘s third and fourth issues, he asserts jury charge error with respect to “accomplice-witness” and “jailhouse-informant” testimony and the law-of-parties doctrine.
A. Standard of Review
We review alleged jury charge error by considering: (1) whether error existed in the charge and (2) if actual error is present, whether sufficient harm resulted from the error to compel reversal. Phillips v. State, 463 S.W.3d 59, 64-65 (Tex. Crim. App. 2015); Leza v. State, 351 S.W.3d 344, 355-56 n.45 (Tex. Crim. App. 2011) (citing Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005)); Hardeman v. State, 556 S.W.3d 916, 923 (Tex. App.—Eastland 2018, pet. ref‘d). If no error occurred, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). However, if we find error, we conduct a harm analysis. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Phillips, 463 S.W.3d at 65; Kirsch, 357 S.W.3d at 649. If the error was preserved by a timely objection to the charge, we will reverse if the error caused some harm to the appellant. Ngo, 175 S.W.3d at 743-44. Conversely, if the error was not preserved, we will reverse only if the record demonstrates that the error, if any, caused egregious harm to the appellant. Id.
B. Corroboration Instruction
In his third issue, Appellant argues that the trial court erred when it failed to instruct the jury that neither an “accomplice-witness” nor a “jailhouse-informant” could corroborate the testimony of the other. Because we have concluded that neither statute is applicable to the witnesses who testified at Appellant‘s trial or to the circumstances in this case, we hold that the trial court did not err when it refused to instruct the jury in the manner requested by Appellant. Accordingly, we overrule Appellant‘s third issue on appeal.
C. Law-of-Parties Instruction
In his fourth issue, Appellant argues that the trial court erred when it submitted a law-of-parties instruction in the charge because the evidence adduced at trial did not support a jury verdict under that doctrine. We disagree.
If it is supported by the evidence and can legally apply to the offense at issue, liability as a party is an available legal theory that the State is entitled to have submitted to the jury in the trial court‘s charge. In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013) (citing Marable v. State, 85 S.W.3d 287, 287-88 & n.3 (Tex. Crim. App. 2002)); see
Appellant‘s argument that the trial court erred when it submitted a party-liability instruction essentially reasserts his prior complaints regarding the sufficiency of the evidence to support his convictions and the corroboration dispute. Appellant maintains that the only evidence that links or tends to connect him to the charged offenses consisted of the statements of Juan and Mata and that this evidence could not support the jury‘s finding of his guilt as the principal actor. Here, the record before us does not indicate, and we will never know, whether the jury found Appellant guilty of the charged offenses as a party or as the principal actor. Nevertheless, we have already held, consistent with the applicable standard of review, that the evidence adduced at trial is sufficient to support Appellant‘s capital murder convictions, on both counts, as either the principal actor or as a party to the offenses. Therefore, we hold that the trial court did not err when it submitted a law-of-parties instruction to the jury. Accordingly, we overrule Appellant‘s fourth issue on appeal.
V. Excluded Evidence
We next consider two issues raised by Appellant (his fifth and seventh issues) that relate to the trial court‘s exclusion of certain evidence of which Appellant was the proponent.
A. Standard of Review
We review a trial court‘s decision to exclude evidence under an abuse of discretion standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010); Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)); Kelly v. State, 824 S.W.2d 568, 574 & n.14 (Tex. Crim. App. 1992); Walter v. State, 581 S.W.3d 957, 977 (Tex. App.—Eastland 2019, pet. ref‘d). We will not reverse a trial court‘s decision to exclude evidence, and there is no abuse of discretion, unless that decision lies outside the zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009); Cameron, 241 S.W.3d at 19; Walter, 581 S.W.3d at 977. Furthermore, we will not disturb a trial court‘s evidentiary ruling, even if the trial court‘s reasoning was flawed, if it is correct on any theory of law that reasonably finds support in the record and is applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016); De La Paz, 279 S.W.3d at 344; Gonzalez v. State, 195 S.W.3d 114, 125-26 (Tex. Crim. App. 2006); Dering v. State, 465 S.W.3d 668, 670 (Tex. App.—Eastland 2015, no pet.).
B. Testimony of Dr. Charles Keenan
In his fifth issue, Appellant argues that the trial court erred when it excluded the testimony of Dr. Charles Keenan, a witness offered by Appellant at trial. Appellant asserts that this error infringed on his constitutional right to present a defense. We cannot agree.
Charles Keenan, Ph.D., was retained by Appellant and his trial counsel as an expert to testify in the field of false or coerced confessions and to evaluate whether Juan‘s confession to Detective Porter was made freely and voluntarily. In assessing the voluntariness of Juan‘s confession, Dr. Keenan reviewed discovery documents that he had been provided, which included video and audio recordings of the interviews and transcripts of Juan‘s prior testimony from the trials of the other accomplices who were charged with the murders of Allen and Doyal. In this case, Appellant represents that Dr. Keenan intended to opine that Juan‘s confession to Detective Porter “was a coerced compliant false confession.”
Under
Although Dr. Keenan‘s proffered testimony may have been helpful to the jury if Juan had been the trial defendant in this case, we cannot agree with Appellant‘s assertion that the presentation of “expert” testimony on the voluntariness of Juan‘s confession would have aided the jury in its determination of Appellant‘s guilt. Juan testified that he lied to Detective Porter during the interview, that he had “slammed” heroin just before he was arrested, and that he only concocted an elaborate story about what had occurred at Allen‘s house so that Detective Porter would release him. Appellant asserts that Dr. Keenan‘s testimony, if admitted, “would have given the jury a template against which to judge Juan Castillo‘s claim” that he lied to Detective Porter; however, the jury was able to view Juan‘s
Appellant further asserts that Juan‘s pretrial statements implicated Appellant and comprised a majority of the evidence that the State presented against Appellant at trial. As such, if admitted, Dr. Keenan‘s testimony would have provided credence to Juan‘s testimony when Juan recanted his confession. However, Detective Porter was not the only witness to whom Juan had made statements prior to Appellant‘s trial. Delapaz and Pannell testified about the statements that Juan made to them in connection with his and the others’ involvement in the murders of Allen and Doyal. The statements that Roque made about his brother‘s (Juan‘s) involvement in the murders were presented to the jury. Further, the jury viewed a video recording from the Hobbs Police Department of Roque talking to his mother and saying that “[t]hey know Juan was there” and that “[Juan] didn‘t kill them.” Therefore, we cannot say, as Appellant suggests, that Dr. Keenan‘s proposed “expert” opinion—that the statements that Juan made to Detective Porter were involuntary—would have assisted or been helpful to the jury in understanding the evidence.
Because Dr. Keenan‘s proposed testimony would not have helped the jury to either understand the evidence or to determine a fact in dispute, we hold that the trial court did not abuse its discretion when it excluded Dr. Keenan‘s testimony. Accordingly, we overrule Appellant‘s fifth issue on appeal.
C. Interview of Jerry Castillo by Craig Eldon Whitworth
In his seventh issue, Appellant complains that the trial court erred when it excluded the testimony of a witness, Craig Eldon Whitworth, that Appellant tendered at trial concerning statements that Jerry Castillo7 made during an interview with Whitworth.8
Whitworth is a private investigator whom Appellant and his trial counsel retained. As part of his investigation, Whitworth interviewed Jerry in Santa Fe, New Mexico, while the latter was incarcerated there in 2017. Whitworth‘s testimony, as proffered by Appellant‘s trial counsel, consisted of his interview with Jerry; the purpose of the proffer was purportedly to show that Jerry had received information from Sosa that would confirm Sosa‘s testimony that Sosa had acted alone in the murders of Allen and Doyal.
Jerry was called as a witness in Appellant‘s trial; however, he asserted his Fifth Amendment privilege and refused to answer any question that was presented to him
by the State. Consequently, the State objected to the offer by Appellant‘s trial counsel to present testimony from Whitworth as to the substance of the statements that were made to him by Jerry during their interview session. The following[PROSECUTOR]: . . . [Jerry] has been in this courtroom, has been put under oath and he became unavailable because he refused to answer questions. The State has the right to cross-examine about a statement.
THE COURT: Again, with regard to asking him if he took a statement, I don‘t have any problem with that. He just can‘t tell what [Jerry] said.
[DEFENSE COUNSEL]: Well, I —
THE COURT: Once he takes the Fifth, that puts the whole thing —
[DEFENSE COUNSEL]: Well, the State doesn‘t have a Sixth Amendment right to confront and cross-examine witnesses like the Defense does.
THE COURT: I disagree with that. But —
[DEFENSE COUNSEL]: Okay. So is your -- you are gonna’ make an objection to him testifying?
[DEFENSE COUNSEL]: The objection is that the witness is --
THE COURT: About what the witness says.
[PROSECUTOR]: So therefore, he cannot, that witness cannot be crossed on any statement that he‘s given either to the investigator or any other because he was brought in this courtroom in this cause and refused to answer questions.
THE COURT: Doesn‘t make any difference.
[PROSECUTOR]: Refused to answer questions.
[DEFENSE COUNSEL]: Okay. Then I‘m gonna’ do what the Court said that they‘ll allow. And that is, not going into the specifics of any conversation.
THE COURT: And you can perfect the bill about that —
[DEFENSE COUNSEL]: Yes. And I‘ll do that next.
THE COURT: Okay.
Whitworth‘s interview of Jerry was memorialized in a 48-page transcript, which Appellant submitted as an offer of proof after the trial court sustained the State‘s objection to Appellant‘s proffer on the basis that Jerry was “unavailable” for cross-examination by the State.
Appellant now asserts, for the first time on appeal, that Jerry‘s statements to Whitworth were admissible as statements against interest under
VI. Motion for New Trial
In his sixth issue, Appellant argues that the trial court erred when it denied his motion for new trial.
VII. Evidence Admitted
Finally, Appellant raises six issues in which he asserts that the trial court erred when it admitted certain evidence proffered by the State.
A. Standard of Review
We review the trial court‘s decision to admit evidence under an abuse of discretion standard. Rhomer, 569 S.W.3d at 669; Coble, 330 S.W.3d at 272; Cameron, 241 S.W.3d at 19 (citing Montgomery, 810 S.W.2d at 391); Walter, 581 S.W.3d at 977. This same standard applies when we review a trial court‘s decision to admit or exclude extraneous evidence. De La Paz, 279 S.W.3d at 343.
As with the exclusion of evidence, we will not reverse a trial court‘s decision to admit evidence, and the trial court does not abuse its discretion, unless its decision lies outside the zone of reasonable disagreement. Beham, 559 S.W.3d at 478; Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). Moreover, we will not disturb a trial court‘s ruling to admit evidence, even if the trial court‘s reasoning was flawed, if it is correct on any theory of law that reasonably finds support in the record and is applicable to that ruling. Henley, 493 S.W.3d at 93; De La Paz, 279 S.W.3d at 344; Gonzalez, 195 S.W.3d at 125–26; Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002); Dering, 465 S.W.3d at 670.
B. Analysis – Hearsay
We will first consider three evidentiary issues (Appellant‘s eighth, ninth, and tenth issues on appeal) in which Appellant contends that the trial court erred when it admitted certain evidence over Appellant‘s hearsay objections.
1. Juan Castillo‘s Statements
In his eighth issue, Appellant contends that the trial court abused its discretion when it admitted statements that Juan made to Delapaz and to Pannell. Appellant argues that the challenged statements are hearsay and do not fall within the hearsay exception for statements against interest. We disagree.
The general hearsay rule makes inadmissible any out-of-court statement offered in court to prove the truth of the matter asserted.
The rationale behind
Here, Juan made self-inculpating statements to both Delapaz and Pannell. See id. at 890 & n.24 (citing Williamson v. United States, 512 U.S. 594, 603–04 (1994) (explaining that context informs whether a statement is self-inculpatory or not)); see also Woods v. State, 152 S.W.3d 105, 112 (Tex. Crim. App. 2004). Juan volunteered and expressed to Delapaz a narrative of the events that occurred the night that Allen and Doyal were murdered. He explained that he and three others drove to Allen‘s house and that he saw Appellant shoot Doyal and Sosa shoot Allen. Juan also made references to Pannell about Allen and stated that the robbery was “a good lick.” See Williamson, 512 U.S. at 603 (“‘Sam and I went to Joe‘s house’ might be against the declarant‘s interest if a reasonable person in the declarant‘s shoes would realize that being linked to Joe and Sam would implicate the declarant in Joe and Sam‘s conspiracy.“). These statements are clearly self-inculpating and subject the declarant, Juan, to criminal liability for the crimes on trial, and the circumstances further indicate that he was aware of and understood this fact.
Furthermore, we cannot agree with Appellant that Juan‘s statements lack sufficient corroborating circumstances. Crime scene photographs and autopsy evidence confirmed Juan‘s account of how Allen and Doyal were murdered. Brown testified that Mata, Juan, Sosa, and Appellant went to Allen‘s house to retrieve the money that Mata wanted to collect from Allen and, thus, confirmed that the murders occurred during the commission of a robbery. Detective Porter testified to the account of the intended robbery and the murders that was expressed to him by Juan. Additionally, the testimony of other witnesses, including Sosa‘s account of the murders, confirmed that the surveillance equipment was removed from Allen‘s house. Therefore, we find that the record before us contains sufficient corroborating circumstances that establish the trustworthiness of Juan‘s statements. See, e.g., Orona v. State, 341 S.W.3d 452, 465 (Tex. App.—Fort Worth 2011, pet. ref‘d) (citing Walter, 267 S.W.3d at 899) (coconspirator‘s statement that he and the appellant beat the victim exposed both to criminal liability, and the trustworthiness of the statement
Because Juan‘s statements comport with the hearsay exception requirements of
2. Rollie Cantu‘s Letter & Estella Collum‘s Jewelry Appraisal
In his ninth and tenth issues, Appellant asserts that the trial court abused its discretion when it admitted State‘s Exhibit No. 15, a letter written by Cantu to Allen, and State‘s Exhibit No. 14, Estella Collum‘s jewelry appraisal.
Although Appellant asserted timely hearsay objections to each exhibit, the record does not indicate on what basis the trial court admitted either exhibit. We have reviewed the record and we agree with Appellant that Cantu‘s letter was inadmissible hearsay and should have been excluded. We further agree with Appellant, and the State appears to concede, that Collum‘s jewelry appraisal was also inadmissible hearsay. However, we find that the trial court did not commit reversible error when it admitted this evidence.
The trial court‘s erroneous admission of evidence generally constitutes nonconstitutional error. Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); see
On both issues, Appellant submits that he was harmed. Appellant asserts that the State was able to use this evidence—Cantu‘s letter and Collum‘s jewelry appraisal—to support “its theory that Allen owed [Cantu] a substantial sum of money.” Because he was unable to controvert or cross-examine anyone regarding Collum‘s jewelry appraisal, Appellant argues that the State was able “to present unrebuttable evidence regarding a central theory of its case against” Appellant. We cannot say that either Cantu‘s letter or Collum‘s jewelry appraisal were central to the issues in this case.
First, Cantu‘s letter to Allen makes no reference to any “deal” between Cantu and Appellant. The letter, dated February 3, 2012, was sent to Allen from Cantu while the latter was incarcerated. In the letter, Cantu refers to money that he expected to receive from Allen, purportedly for the diamonds that Allen had sold in New York City. However, Cantu‘s message in his letter is vague, albeit cordial in tone; it referenced a “black truck [Cantu]
Second, the State submits, and we agree, that Collum‘s jewelry appraisal did not bear on “any of the real issues of the case.” The appraised values of the stolen diamond rings were not relevant to the issues before the jury in Appellant‘s trial. Taber‘s mother had her jewelry appraised in 1997 by Harold Brown Jewelry in Hobbs. The appraised value of these diamonds had no relevance to or bearing on the events that preceded, and included, the murders of Allen and Doyal. In fact, Cantu‘s letter to Allen established that the amount of money that Allen received when he sold the diamonds—let alone the diamonds’ appraised values in 1997—was of no consequence to the debt that Allen owed to Cantu. Therefore, although Collum‘s jewelry appraisal had no bearing on the issues before the jury, we further conclude that we have fair assurance from the record as a whole that the erroneous admission of this evidence did not influence the jury‘s decisions in this case or, if any, its admission had but a slight effect.
Based on the record before us, we hold that the trial court‘s erroneous admission of Cantu‘s letter and Collum‘s jewelry appraisal did not affect Appellant‘s substantial rights. Accordingly, we overrule Appellant‘s ninth and tenth issues on appeal.
C. Analysis - Rules 402 and 403
Finally, we consider Appellant‘s remaining evidentiary challenges (his eleventh, twelfth, and thirteenth issues) in which he contends that the trial court erred when it admitted certain evidence over Appellant‘s objections on the grounds of relevance and unfair prejudice.
1. Brown‘s Testimony
In his eleventh issue, Appellant contends that the trial court erred when it allowed Brown to testify about (1) an occasion whereby Appellant unlawfully entered Allen‘s house with Mata without Allen‘s consent and (2) a vehicular accident in which Appellant struck a child named Abigail. Specifically, Appellant argues that this evidence was irrelevant and unfairly prejudicial.
All relevant evidence is generally admissible.
The intent of
The State sought to offer this evidence in connection with its perceived need to establish the “reliability and corroboration” of Brown‘s statements as a “jailhouse-informant.” See
However, and as we have previously discussed, the plain and unambiguous language of
Because the erroneous admission of this evidence constitutes nonconstitutional error, we must disregard it unless we find that its admission affected Appellant‘s substantial rights. See
2. Brown‘s Handwritten Notes and Statement to Law Enforcement
In his twelfth issue, Appellant argues that the trial court erred when it admitted State‘s Exhibit No. 69, Brown‘s handwritten notes, and State‘s Exhibit No. 70, Brown‘s voluntary statement to Ranger Burney.
It is the State‘s position on appeal that Appellant failed to interpose a clear and specific objection to the admission of these exhibits. We disagree. During the bench conference mentioned above, the State initially directed the trial court‘s attention to State‘s Exhibit Nos. 69 and 70 in connection with Brown‘s testimony, which we have discussed in addressing Appellant‘s eleventh issue. Appellant‘s trial counsel clearly articulated Rule 402 and 403 objections when the State announced its intention to offer this evidence, and before the trial court made its ruling as to Brown‘s testimony. Subsequently, when the State offered Exhibit Nos. 69 and 70 into evidence, Appellant reasserted those objections, which the trial court overruled.
Although the trial court erred when it admitted this evidence, we find that such error did not affect Appellant‘s substantial rights and, therefore, does not require reversal. See
3. “[M]ost [H]ated” Gang Evidence
In his final issue, Appellant argues that the trial court erred when it admitted jail photographs of Appellant‘s tattoos and testimony regarding his affiliation with the “most hated” gang. Specifically, Appellant asserts that the admission of the tattoo photographs and the testimony that linked him to the “most hated” gang was unfairly prejudicial. We disagree.
Appellant‘s trial counsel objected to the testimony offered by the State concerning Appellant‘s connection to the “most hated” gang on relevance grounds; the trial court overruled Appellant‘s objection but granted Appellant a running objection as this evidence was presented. Appellant‘s trial counsel also objected to the admission of the photographs of Appellant‘s tattoos on the grounds of relevance and unfair prejudice. See
Here, the admission of the “most hated” gang evidence was undoubtedly prejudicial to Appellant. See Hernandez, 390 S.W.3d at 324 (noting that “[a]ll evidence is prejudicial to one party or the other“). However, to be violative of
S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref‘d). In this case, the potential “improper basis” could arguably raise a character conformity inference—the use of Appellant‘s affiliation with the “most hated” gang to show that Appellant was a bad person and that he acted in conformity with his bad character. See, e.g., Vasquez, 67 S.W.3d at 240.
Irrespective of Appellant‘s claim of prejudice, the evidence of Appellant‘s affiliation or membership with the “most hated” gang was also highly probative of Appellant‘s motive or intent to commit the robbery and the murders of Allen and Doyal. Although generally relevant and admissible only during the punishment phase of a criminal defendant‘s trial, evidence of gang affiliation or membership may be admissible during the trial‘s guilt/innocence phase if it is relevant for a noncharacter purpose that in turn tends to show the commission of a crime. Rawlins v. State, 521 S.W.3d 863, 868 (Tex. App.—Houston [1st Dist.] 2017, pet. ref‘d) (citing Tibbs v. State, 125 S.W.3d 84, 89 (Tex. App.—Houston [14th Dist.] 2003, pet. ref‘d)). Importantly, evidence of gang affiliation or membership may be admissible during the guilt/innocence phase to show the defendant‘s motive or intent to commit the charged offense. See id. (citing Smith v. State, 355 S.W.3d 138, 154 (Tex. App.—Houston [1st Dist.] 2011, pet. ref‘d)); see also Vasquez, 67 S.W.3d at 239–40; McCallum v. State, 311 S.W.3d 9, 15 (Tex. App.—San Antonio 2010, no pet.); Williams v. State, 974 S.W.2d 324, 331 (Tex. App.—San Antonio 1998, pet. ref‘d). Furthermore, gang affiliation or membership may be established by the display of a defendant‘s tattoos or other symbols that are representative of such affiliation or membership. Barrera v. State, 321 S.W.3d 137, 153 (Tex. App.—San Antonio 2010, pet. ref‘d); Garcia v. State, 239 S.W.3d 862, 866–67 (Tex. App.—Houston [1st Dist.] 2007, pet. ref‘d).
Nevertheless, and in light of the record before us, we hold that the trial court did not abuse its discretion when it concluded that, on balance, the probative value of this evidence—to show Appellant‘s motive or intent to commit the robbery and the murders of Allen and Doyal—was not substantially outweighed by the risk of unfair prejudice. Accordingly, we overrule Appellant‘s thirteenth issue on appeal.
VIII. This Court‘s Ruling
We affirm the judgments of the trial court.
W. STACY TROTTER
JUSTICE
July 30, 2021
Publish. See
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.