Jose Angel Ramirez v. State ( 2008 )

i i i i i i
MEMORANDUM OPINION
No. 04-07-00746-CR
Jose Angel RAMIREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-5073
Honorable Bert Richardson, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Alma L. López, Chief Justice
Catherine Stone, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: October 15, 2008
AFFIRMED
Jose Angel Ramirez was found guilty of murder by a jury. The jury assessed punishment of
life in prison and a $10,000 fine. On appeal, Ramirez contends that the trial court (1) committed
reversible error in failing to quash the indictment against him, based upon the destruction of
evidence that was potentially exculpatory to him; (2) abused its discretion in refusing his requested
jury instruction on the missing evidence, leading to an inappropriate remedy and denial of his rights
under the Due Course of Law provision of the Texas Constitution; (3) abused its discretion in failing
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to grant his motion for mistrial when a State’s witness testified in violation of a limine order; and
(4) erroneously commented on the weight of the evidence through an oral instruction to the jury. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
During the early hours of April 16, 1980, firefighters responded to a call reporting a fire at
the home of Gladys Jean Ramirez (“Gladys”). After extinguishing the fire, officers discovered
Gladys’s body on the floor of the room in which the fire was contained. Medical examiners
concluded that Gladys, who was found with a knife blade protruding from her neck and a cord
wrapped around her neck, was murdered. San Antonio Police Department Detective Anton Michalec
investigated the murder, and later that year closed the case as unsolved.
In 2004, Detective George Saidler reopened the investigation of Gladys’s murder after
receiving a telephone call from Rebecca Tuttle. Tuttle was married to Jose for a brief period
subsequent to Gladys’s murder. She told the detective that while they were married, she overheard
Ramirez talking to his brother about the murder, and that he later told Tuttle he murdered his late
wife. In 2005, Ramirez was indicted for Gladys’s murder. The case proceeded to trial in 2007, and
a jury found Ramirez guilty of murder, sentenced him to life in prison and assessed a $10,000 fine.
DESTRUCTION OF EVIDENCE AND BAD FAITH REQUIREMENT
Ramirez argues that the trial court committed reversible error in failing to quash the
indictment against him, based upon the State’s destruction of evidence that was potentially
exculpatory to him. In addition, Ramirez argues that the trial court violated his rights under the Due
Course of Law provision of the Texas Constitution when it required him to show bad faith on the
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part of the police department in the destruction of evidence. We will address each of these
arguments in turn.
Ramirez argues that the State failed to properly preserve evidence, that such evidence might
have helped him, and that potentially exculpatory evidence was never tested. When a defendant
desires to prove the State failed to preserve potentially useful evidence, he has to establish that the
evidence was (1) material, (2) favorable to the defense, and (3) destroyed in bad faith by the State.
Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.–San Antonio 2005, no pet.). Furthermore, “[t]o meet
this standard of constitutional materiality, the missing evidence must possess an exculpatory value
that was apparent before the evidence was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonable available means.” California
v. Trombetta, 467 U.S. 479, 489 (1984) (internal citations omitted). It is not enough to show that
the missing or destroyed evidence might have been favorable for the defendant; in order to meet the
materiality standard, its exculpatory value must be apparent. See Lee v. State, 893 S.W.2d 80, 87
(Tex. App.–El Paso 1994, no pet.); Hebert v. State, 836 S.W.2d 252, 254 (Tex. App.–Houston [1st
Dist.] 1992, pet. ref'd); Gamboa v. State, 774 S.W.2d 111, 112 (Tex. App.–Fort Worth 1989, pet.
ref'd.).
Ramirez argues that evidence destroyed by the San Antonio Police Department might have
had exculpatory value for him. During the course of investigating Gladys’s murder in 1980, police
officers collected several pieces of physical evidence. In 1987, several items of evidence were
apparently destroyed, including a doorknob with a bloody print, a pack of cigarettes containing a
latent fingerprint, a telephone cord containing hair fibers, fingernail clippings, carpet samples, and
pieces of Gladys’s clothing. Prior to trial in 2007, the trial court heard a pre-trial motion to dismiss
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the indictment due to the destruction of evidence. The detective assigned to the case testified that
it was not uncommon for the San Antonio Police Department to destroy evidence after a certain
amount of time, and although evidence of an unsolved murder is typically not destroyed, there was
a chance the evidence in this case might have been recorded under arson instead of homicide, leading
to the routine order of destruction.
Ramirez’s argument that the doorknob “may have contained blood and a print” or the
carpeting “may have had” exculpatory value fails to meet the standards set forth above. See Lee, 893
S.W.2d at 87 (“A showing that the evidence might have been favorable does not meet the materiality
standard.”); Hebert, 836 S.W.2d at 254 (same); Gamboa, 774 S.W.2d at 112 (same). Ramirez had
to prove that the evidence had apparent exculpatory value. Though he speculates that there is a
possibility the missing items could have helped him, Ramirez fails to prove access to the doorknob
and/or carpeting would have favored him.
Ramirez further argues that the trial court should have interpreted the Due Course of Law
provision of the Texas Constitution in light of Pena v. State, 226 S.W.3d 634 (Tex. App.–Waco
2007, pet. granted). In Pena, the court held that “under the Due Course of Law provision of article
I, section 19 [of the Texas Constitution], the State has a duty to preserve material evidence which
has apparent exculpatory value, encompassing both exculpatory evidence and evidence that is
potentially useful to the defense,” regardless of whether bad faith was involved in the loss or
destruction. Pena, 226 S.W.3d at 651. However, this court and eight of our sister courts1 have
1
…
See, e.g., Martinez v. State, No. 13-06-665-CR, 2008 W L 2515876, at *9 (Tex. App.–Corpus Christi Jan.
24, 2008, no pet.) (mem. op.) (not designated for publication); State v. Vasquez, 230 S.W .3d 744, 750 (Tex.
App.–Houston [14th Dist.] 2007, no pet.); Alvarado v. State, No. 07-06-0086-CR, 2006 W L 2860973, at *3 (Tex.
App.–Amarillo Oct.9, 2006, no pet.) (mem. op.) (not designated for publication); McGee v. State, 210 S.W .3d 702, 705
(Tex. App.–Eastland 2006, no pet.); Salazar, 185 S.W .3d at 92, Jackson v. State, 50 S.W .3d 579, 588-89 (Tex.
App.–Fort W orth 2001, pet. ref’d); Mahaffey v. State, 937 S.W .2d 51, 53 (Tex. App.–Houston [1st Dist.] 1996, no pet.);
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declined to follow the ruling in Pena, holding the due course of law provision of the Texas
Constitution and the Due Process Clause of the United States Constitution afford defendants the
same protections. Salazar, 185 S.W.3d at 92-93.
Under both the Texas and United States constitutions, defendants must prove bad faith on
the part of the State when there is a claim of erroneous destruction of material, potentially
exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding that under Due
Process Clause of the Fourteenth Amendment, unless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful evidence does not constitute a denial of
due process of law); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.–Houston [1st Dist.] 1996, no
pet.) (noting that “the accused must show that the State acted in bad faith when it failed to preserve
the evidence in order to show a violation of due process or due course of law [under the Texas
Constitution].”). Here, Ramirez has failed to prove the State destroyed the evidence in bad faith.
There is no evidence that the San Antonio Police Department specifically targeted the evidence in
this case for destruction. Detective Saidler testified that the evidence was destroyed in accordance
with routine police department procedure. The detective further stated that the records were not
singled out to be destroyed and the destruction was through no bad faith of the police department.
Even if the destruction of the homicide evidence in this case was negligent, a showing of negligence
on the part of the officers is not equivalent to bad faith. Saldana v. State, 783 S.W.2d 22, 23 (Tex.
App.–Austin 1990, no pet.). Because Ramirez did not prove bad faith on the part of the State, the
State v. Rudd, 871 S.W .2d 530, 532-33 (Tex. App.–Dallas 1994, no pet.); Saldana v. State, 783 S.W .2d 22, 23 (Tex.
App.–Austin 1990, no pet.).
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trial court did not abuse its discretion in denying the motion to quash the indictment. Ramirez’s first
issue is overruled.
JURY INSTRUCTION
In his second issue, Ramirez continues to argue that because material and potentially
exculpatory evidence was missing or destroyed, the trial court abused its discretion in refusing his
requested jury instruction on the missing evidence, leading to an inappropriate remedy and denial
of Ramirez’s rights under the Due Course of Law provision of the Texas Constitution. However,
as noted above, Ramirez has failed to prove that the missing or destroyed evidence has material,
exculpatory value, or that the police department acted in bad faith in the destruction of the evidence.
Salazar, 185 S.W.3d at 92. Because we do not follow the standard set forth in Pena, but require a
showing of bad faith in the State’s destruction of evidence, the trial court could not have abused its
discretion in refusing Ramirez’s requested instruction under the circumstances. Ramirez’s second
issue is overruled.
VIOLATION OF LIMINE ORDER
Ramirez’s third issue contends the trial court abused its discretion in failing to grant his
motion for mistrial when a State’s witness, Rebecca Tuttle, testified in violation of a limine order.
We review a trial court’s ruling on a motion for mistrial for abuse of discretion. Archie v. State, 221
S.W.3d 695, 699 (Tex. Crim. App. 2007). Thus, we must uphold the trial court’s ruling if it was
within the zone of reasonable disagreement. Id. “Only in extreme circumstances, where the
prejudice is incurable, will a mistrial be required.” Id. (quoting Hawkins v. State, 135 S.W.3d 72,
77 (Tex. Crim. App. 2004)).
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In analyzing whether an event is so prejudicial that a mistrial must be declared, we apply the
factors established in Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). Mosley requires us
to consider: (1) the prejudicial effect; (2) the curative measures taken; and (3) the certainty of
conviction absent the prejudicial event. Id. at 259.
At trial, Tuttle testified that she married Ramirez in 1981. She testified that two weeks after
they were married, she woke up in the middle of the night and overheard a conversation between
Ramirez and his brother, Roberto. Tuttle heard Roberto tell Ramirez that Ramirez needed to put “it”
behind him and move on with his life; Ramirez responded, “How do you forget beating someone to
death when they are saying the act of contrition?” Approximately two weeks later, Tuttle left the
defendant, but about a month later began seeing him again after discovering she was pregnant.
Tuttle testified that Ramirez later admitted he had killed Gladys, that he pretended he could not
speak English when he was in police custody, and that “you could start a fire that would burn a house
down using two matches if you knew what you were doing.” Ramirez and Tuttle continued to talk
until November 1982. This testimony was presented without objection by Ramirez.
Prior to Tuttle’s testimony, a bench conference was held in which the trial court issued a
limine order instructing the witness not to offer any additional information regarding the incidents
that surrounded her relationship with Ramirez, specifically any bad acts or threats. During Tuttle’s
testimony, the State initiated a bench conference in order to address the prior court ruling, in which
it informed the trial court that Tuttle would be testifying that Ramirez told her he would hunt her
down and kill her. The trial court again ordered the witness to stay away from commenting on
Ramirez’s bad acts or threats to Tuttle, and the State agreed to quietly warn Tuttle against it so that
the jury would not have to be excused for further instruction. However, when asked, “At some point
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during that time, did you learn any information from the defendant about his former wife?”, the
witness stated, “Yes. I confronted him with what I had heard, and he said to me that he had killed
her. He got away with it, and if I ever left again, he would hunt me down.” Ramirez immediately
objected and moved for mistrial. He argued that the testimony was a direct violation of the limine
order, and that the evidence was inadmissible under rules of evidence. The trial court overruled the
motion for mistrial, commenting that the question itself did not violate the limine order though the
answer did. The court issued a curative instruction to the jury, ordering them to disregard the answer
given by Tuttle.
Here, the prejudicial effect of Tuttle’s statement was minimal, as a previous witness had
already testified that Ramirez had also threatened her life. A curative measure was taken when the
trial court gave the instruction to disregard, and Ramirez’s conviction did not rest on Tuttle’s
statement that he threatened her life. In addition, we have previously held that testimony about a prior
threat made by a defendant was not of such a character as to suggest the impossibility of withdrawing
the impression produced on the minds of the jury. See, e.g., Garcia v. State, 246 S.W.3d 121, 134
(Tex. App.–San Antonio 2007, pet. ref’d) (holding there was no abuse of discretion when the trial
court denied a motion for mistrial and issued an instruction to disregard after the victim’s attorney
said she was concerned the appellant might harm her); Martinez v. State, 844 S.W.2d 279, 284 (Tex.
App.–San Antonio 2007, pet. ref’d) (holding the trial court’s instruction cured error when a police
officer testified that the appellant had threatened the intended victim). Therefore, Ramirez’s third
issue is overruled.
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TRIAL COURT’S COMMENT ON WEIGHT OF THE EVIDENCE
In his final issue, Ramirez contends the trial court erroneously commented on the weight of
the evidence when it withdrew a previous ruling and gave a subsequent instruction to the jury.
Ramirez challenges an instruction given by the trial court following the testimony of Paula Hale, a
friend of Gladys. Prior to Hale’s testimony, a hearing was held outside the presence of the jury, in
which both sides argued about the admissibility of a statement by Hale that Gladys was afraid of
Ramirez. The State argued the statement was admissible as to the victim’s “state of mind,” and
Ramirez objected. The trial court ruled that under Dorsey v. State, 117 S.W.3d 332 (Tex.
App.–Beaumont 2003, pet. ref’d), “the statement was admissible since a statement that the declarant
is afraid or testimony demonstrating that the declarant was afraid when the statement is made is
admissible under Texas Rules of Evidence Rule 803(3).” When Hale was asked during trial about
what Gladys said to her about Ramirez, Hale replied, “Well, she kept telling me that she was scared
and . . . that she was afraid that Jose was going to kill her.” Ramirez objected to the portion of the
statement “Jose was going to kill her” as inadmissible, and the trial court sustained the objection;
again, Ramirez moved for a mistrial.
The trial court excused the jury and heard arguments from both sides regarding the
admissibility of the statement under Dorsey. The trial court then reversed its original ruling, held the
statement was admissible, and allowed the State to re-ask the question in front of the jury. After the
jury was brought back into the courtroom, the trial court stated to the jury:
You can be seated. All right. Ladies and gentlemen, I had previously instructed you
to disregard the witness’s last answer. There may be some confusion over that. I am
just going to withdraw that ruling. I am going to allow the State to ask the same
question that was asked. The witness is permitted to give that answer, so it can be
considered as evidence and testimony before you.
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The State then began questioning Hale, and once the question was asked again, Ramirez renewed his
objection to the question presented to the witness on the basis that the question violated rules of
evidence.
Ramirez argues that the instruction given by the trial court to the jury was an improper
comment on the evidence. The State contends Ramirez waived this issue by failing to object during
trial to the instruction given by the trial court to the jury. See Rabago v. State, 75 S.W.3d 561, 562
(Tex. App.–San Antonio 2002, pet. ref’d) (noting that as a general rule, trial counsel must object to
preserve error, even if it is “incurable” or “constitutional”); see generally TEX . R. APP . P. 33.1.
However, even if Ramirez had objected we cannot say this instruction was an improper comment on
the weight of the evidence.
The Texas Code of Criminal Procedure provides:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment
upon the weight of the same or its bearing in the case, but shall simply decide
whether or not it is admissible; nor shall he, at any stage of the proceeding previous
to the return of the verdict, make any remark calculated to convey to the jury his
opinion of the case.
A trial court’s improper comment on the weight of the evidence results in reversible error only when
it is either reasonably calculated to benefit the State or to prejudice the defendant’s right to a fair and
impartial trial. Aschbacher v. State, 61 S.W.3d 532, 538-39 (Tex. App.–San Antonio 2001, pet. ref’d)
(citing Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983)). Here, the instruction given
by the trial court was not a comment on the weight of the evidence; rather, it was an explanation of
the trial court’s change in its ruling. Therefore, Ramirez’s fourth issue is overruled.
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CONCLUSION
Ramirez failed to establish that the destroyed evidence had exculpatory value, or that it was
destroyed by the State in bad faith. In addition, the trial court did not make an improper comment on
the weight of the evidence when it instructed the jury to ignore an earlier ruling and consider evidence
put before it. Accordingly, we affirm the judgment of the trial court.
Catherine Stone, Justice
Do Not Publish
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