Jerald Ytuarte v. State ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00168-CR
Jerald Ytuarte, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. CR2000-009, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING
On January 25, 2001, a jury convicted appellant Jerald Ytuarte of burglary of a habitation
and sentenced him to seventy-five years in jail.1 See Tex. Pen. Code Ann. ' 30.02 (West 2002).
Appellant appeals this conviction and contends the district court erred by: (1) admitting testimony
concerning oral statements that appellant made to a law enforcement officer, (2) admitting testimony
regarding appellant=s prior felony convictions, (3) allowing the State to impeach appellant with a prior
conviction for failure to identify, (4) admitting testimony of specific instances of appellant=s conduct to show
his character for untruthfulness, and (5) submitting an erroneous instruction in the jury charge. We will
affirm the judgment of the trial court.
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Before closing arguments in the guilt/innocence phase of appellant=s trial, the State waived count
one of the indictment charging appellant with sexual assault.
DISCUSSION
Appellant asserts five issues on appeal; however, appellant failed to object to these issues
or raise them during trial and accordingly has not preserved any of them for appeal. See Tex. R. App. P.
33.1. For that reason, they are all overruled. In the interest of justice, however, we will briefly address the
merits of each of appellant=s issues.
Admission of Evidence
In his first four issues, appellant contends the trial court erred by erroneously admitting
certain testimony into evidence. The admission or exclusion of evidence is committed to the trial court=s
sound discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). A trial court=s
ruling on the admissibility of evidence will be overturned only if the ruling is so clearly wrong that it lies
outside the zone of reasonable disagreement. Id.
In his first issue, appellant contends the trial court erred by admitting the testimony of New
Braunfels Police Detective Tarinna Skrzycki regarding oral statements that appellant made to her. At trial,
Skrzycki testified that she first interviewed appellant on July 2, 1999, during the course of an investigation.
When Skrzycki asked appellant if he had had sex with the victim, appellant would not answer. On July 20,
1999, Skrzycki arrested appellant for sexual assault and took him to the hospital pursuant to a search
warrant for a DNA analysis. On the way to the hospital, Skrzycki explained to appellant that a DNA
comparison would be made between appellant and the victim. Appellant then asked Skrzycki, AHow do I
prove it was consensual?@ In response, Skrzycki inquired whether appellant had engaged in sex with the
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victim, to which appellant answered Akind of.@ Skrzycki asked appellant to tell her what had happened, but
appellant did not answer.
Appellant did not object to Detective Skrzycki=s testimony, and has not preserved the issue
for appeal. See Tex. R. App. P. 33.1. However, even if we assume that appellant preserved this error, the
trial court did not abuse its discretion in admitting Detective Skrzycki=s testimony. Appellant argues in his
brief that the oral statements made to Skrzycki were the result of custodial interrogation and therefore
should not have been admitted. Custodial interrogation involves questioning initiated by a law enforcement
officer after a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way. Shiflet v. State, 732 S.W.2d 622, 624 (Tex. Crim. App. 1985). If, while in custody, an
oral admission is given freely, voluntarily, without compulsion or persuasion, and not in response to
interrogation, it is admissible as evidence. See id.; East v. State, 702 S.W.2d 606, 614 (Tex. Crim. App.
1985). Appellant=s statements, although made while in custody, were voluntary. Detective Skrzycki=s
question ADid you have sex with her?@ was in response to appellant=s question AHow do I prove it was
consensual?@ The record reflects that appellant made these statements voluntarily, and appellant cannot
show that the district court abused its discretion by admitting Detective Skrzycki=s testimony.
In his second issue, appellant contends that the trial court erred by allowing the State to
elicit testimony regarding the details of appellant=s prior felony conviction. Appellant testified in the
guilt/innocence phase of the trial. During cross examination, the State asked appellant if he was a convicted
felon. Appellant responded, AI am now . . . . After this trial.@ The State responded, ASo you=re saying
because of the rape you are a convicted felon?@ Appellant replied, ANo, I=m not saying because of that . . .
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. They had no other resources to do it with, to convict me. I=m pending with this charge here.@ The State
attempted to clarify appellant=s testimony by saying, AYou=re convicted of theft,@ to which appellant agreed.
The State further clarified, AYou=re not convicted of theft because [the victim] made up some charges of
rape.@ Appellant answered, ANo. But . . . they couldn=t send me to no kind of treatment for . . . why I was
revoked on my probation.@ The State then asked, AIt=s [the victim=s] fault that you=re a convicted felon?@
Appellant responded,ANo, it=s not her fault. I mean her accusations.@ The State contends that appellant
was leaving a false impression with the jury by implying that it was the victim=s fault that he was a convicted
felon. To clarify the situation, the State asked, AWhat did you do wrong while you were on probation?@
Appellant read from State=s exhibit 13, the judgment revoking his probation, and listed several probation
violations. The State responded, AOkay, so it wasn=t [the victim=s] fault. It=s just because you weren=t
writing in and you weren=t paying.@
The State continued to elicit testimony from appellant regarding other violations of his
probation including failure of a drug test, failure to perform community service, and testing positive for
amphetamines. During redirect examination, appellant stated, AJust to have somebody make an accusation
against you can be grounds to terminate . . . probation.@ Appellant further explained that the pending sexual
assault and burglary charges contributed to his probation revocation.
Generally, the State may prove that probation was revoked, but it may not prove the
details of the offense that formed the basis of the revocation. Cliburn v. State, 661 S.W.2d 731, 732
(Tex. Crim. App. 1983). The State argues, however, that when a defendant leaves a false impression with
the jury concerning lawful behavior, it opens the door for impeachment on matters normally inadmissible.
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Turner v. State, 4 S.W.3d 74, 79 (Tex. App.CWaco 1999, no pet.). However, the Turner court
specifically held that this exception applies only when the defendant leaves a false impression with the jury
on direct examination. Id.; see also Shipman v. State, 604 S.W.2d 182, 184-85 (Tex. Crim. App. 1980).
The exception does not apply when the false impression is created by the State=s questioning on cross
examination. Shipman, 604 S.W.2d at 184-85. In this case, the State incorrectly presented documents
concerning the details of the offenses used to revoke appellant=s probation; however, appellant did not
object at the time this evidence was presented. Therefore, appellant waived the right to complain of this
error on appeal. See Tex. R. App. P. 33.1.
In his third issue, appellant contends that the trial court erred by allowing the State to
impeach appellant with his prior conviction for failure to identify. During the State=s cross examination of
appellant, the State asked appellant if he had ever been convicted for failure to identify. Appellant admitted
that he had a misdemeanor conviction for giving a police officer Athe wrong ID.@ Appellant did not object to
this testimony when it was presented. Therefore, he has not preserved the error for appeal. See Tex. R.
App. P. 33.1.
Even if we assume that appellant preserved the error, the trial court did not abuse its
discretion in admitting the testimony concerning appellant=s prior conviction. Generally, a witness cannot be
impeached by a prior offense unless the charges resulted in a conviction for either a felony offense or an
offense involving moral turpitude. Tex. R. Evid. 609. Moral turpitude offenses include those involving
dishonesty or false statement. Dallas County Bail Bond Bd. v. Mason, 773 S.W.2d 586, 589 (Tex.
App.CDallas 1989, no writ). A person commits the offense of failure to identify by intentionally giving a
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false or fictitious name to a police officer under certain circumstances. Tex. Pen. Code Ann. ' 38.02(b)
(West 2002). Thus, the offense of failure to identify is a moral turpitude offense. See Lape v. State, 893
S.W.2d 949, 958 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). The trial court did not abuse its
discretion in allowing the State to elicit testimony concerning appellant=s prior conviction.
In his fourth issue, appellant contends that the trial court erred by allowing the State to elicit
testimony regarding specific instances of conduct that showed appellant=s character for untruthfulness. The
State called Eduardo Escobedo as a rebuttal witness. Escobedo testified that he had previously worked
with appellant at a lumberyard, and that several times appellant had lied and told their boss that he did not
damage the lumber they were moving. Appellant did not object to this evidence when it was presented. On
cross examination, appellant=s attorney asked Escobedo how well he knew the appellant. Escobedo
replied, AI just know him by, you know, acquaintance at work.@ Appellant=s attorney said, ASo is that why
you said that you . . . really couldn=t state for sure whether or not he was a truthful person?@ Escobedo
replied, AYeah.@
Other than conviction of a crime, a witness=s character for truthfulness may not be
impeached by proof of specific instances of conduct. Tex. R. Evid. 608(b); Gonzales v. State, 929
S.W.2d 546, 549 (Tex. App.CAustin 1996, pet. ref=d). Rule 608(b) is very restrictive and allows for no
exceptions. See Tex. R. Evid. 608(b); Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990).
We note the State=s reference to the concurrence in Ramirez, stating that a witness who makes blanket
statements that leave the jury with a false impression regarding his character for truthfulness may be
impeached with a specific instance of conduct to correct the false impression. Ramirez, 802 S.W.2d 674,
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677 (Miller, J., concurring). However, because appellant did not object to this evidence, he failed to
preserve this issue for appeal. See Tex. R. App. P. 33.1. Even if appellant had preserved the error, the
record does not reflect that, had the judge excluded Escobedo=s testimony, the jury would have reached a
different verdict. See Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992).
Jury Charge
In his fifth issue, appellant contends that the trial court erred by including an erroneous
definition of reasonable doubt in the jury charge. The trial court instructed the jury: AIt is not required that
the prosecution prove guilt beyond all possible doubt; it is required that the prosecution=s proof excludes all
>reasonable doubt= concerning the defendant=s guilt.@ Appellant did not object to the inclusion of this
definition in the jury charge.
If no proper objection was made at trial, the defendant must claim that the error was
Afundamental,@ and the judgment will be reversed only if the error is so egregious and created such harm that
the defendant Ahas not had a fair and impartial trial.@ Alamanza v. State, 686 S.W.2d 157, 171-72 (Tex.
Crim. App. 1984). The actual degree of harm must be assessed in light of the entire jury charge, the state
of the evidence, including the contested issues and weight of the probative evidence, the argument of
counsel, and any other relevant information revealed by the record of the trial as a whole. Id.
Appellant did not object to the trial court=s inclusion of the reasonable doubt instruction;
therefore, reversal is warranted only if we find that the error caused egregious harm and that appellant was
deprived of a fair and impartial trial. After reviewing the record, we cannot say that the inclusion of the
instruction caused egregious harm or that appellant was deprived of a fair and impartial trial.
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CONCLUSION
We overrule each of appellant=s issues and affirm the judgment of the trial court.
__________________________________________
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Affirmed
Filed: May 2, 2002
Do Not Publish
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