Paul David Morales v. State ( 1993 )

Morales-PD v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-205-CR

     PAUL DAVID MORALES,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-606-C

O P I N I O N

      This is an appeal by defendant Morales from his conviction for murder (habitual), for which he was assessed life in the Institutional Division of the Texas Department of Criminal Justice.

      On January 31, 1990, Emelio Lopez was at home in Waco when he was shot with a firearm and killed. Eric Enriquez was sitting on his front porch a half block from the Lopez house. Eric saw defendant Morales drive his car up to and enter the back yard of the deceased. A few minutes later Eric heard gun shots. After Eric heard the shots, defendant came out and left in his car with a large TV which was not there when Eric saw defendant go into the Lopez house. Debbie Torres Morales testified that defendant called her to say he had to leave town because he had messed up. Tom Enriquez, Eric's father, was told by defendant, "[I]f you or your son Eric tell the police that I was anywhere around this home when this murder happened, you will be taken care of," and "that your son, Eric, was the one who had seen him at the time the murder was committed." Tom Enriquez further testified that defendant also told him that he, the defendant, was the one who had killed the deceased.

      Defendant was found guilty. During the punishment phase, four prior felony convictions were proved up on defendant and, as noted, he was assessed life in prison.

      Defendant appeals on six points of error.

      Point one asserts the questions posed by the State inquiring into the witness' fear of the family of [defendant] is in violation of the ruling on a motion in limine, was manifestly improper, and denied [defendant] due process and a fair trial under the Fourteenth Amendment to the U.S. Constitution and under the Texas Constitution.

      During testimony of State's witness Tom Enriquez, the State asked him if he told Detective Sanders he was in fear. The witness answered, "Yes, sir."

            Q   Do you know the Morales family?

            A   Yes, sir.

            Q   Are you afraid of them also?

            A   Yes, sir.

      [DEFENSE COUNSEL]: I object Judge, that has no relevance.

      THE COURT: Sustained.

      [DEFENSE COUNSEL]: I ask that the jury be instructed to disregard.

      THE COURT: I instruct the jury to disregard for any purpose.

      [DEFENSE COUNSEL]: Move for a mistrial.

      THE COURT: Overruled.

      Defendant's objection at trial to the question was on the ground of relevancy; his objection on appeal is that he was denied due process of law and a fair trial. To preserve a complaint regarding admission of evidence, the objection made at trial must comport with the objection raised on appeal, which it does not in this case. Goodman v. State, (Tex. Crim. App.) 701 S.W.2d 850, 864; Hodge v. State, (Tex. Crim. App.) 631 S.W.2d 754; Nelson v. State, (Tex. Crim. App.) 607 S.W.2d 554. Assuming, without deciding, that the complained of testimony was inadmissible and that error was preserved, we hold that the sustaining of defendant's objection and the court's instruction to the jury to disregard cured any harm. Rogers v. State, (Tex. App.—Houston [1st Dist.] 725 S.W.2d 350, 359; Brown v. State, (Tex. Crim. App.) 692 S.W.2d 497, 501. The court did not err when it denied the mistrial. Point one is overruled.

      Point two asserts the trial court erred in refusing to allow testimony that Pete Espinosa, who was seen with the victim prior to death and who supplied the victim with controlled substances for resale, was found in possession of controlled substances, large amounts of money, and a pistol on the day after the victim's death, and such refusal denied [defendant] a fair trial.

      At trial there was testimony that the victim was in possession of 50 pounds of marihuana and $10,000 prior to his death. Defendant, in an attempt to show that someone other than defendant committed the murder of Lopez, sought to introduce evidence that Pete Espinosa had supplied Lopez with a large amount of marihuana the day before the murder; that Espinosa was stopped by the police the day after the murder and the search of his vehicle revealed two pounds of marihuana, a gun and $1,150 in money. Defendant contends the above shows another person's motive and ability to commit the offense. The trial court sustained the State's objection to the evidence.

      Before evidence of the guilt of another party to the charged offense is admissible, three requirements must be met:

●The state is relying on circumstantial evidence for conviction;

●The guilt of such party is inconsistent with the guilt of the accused on trial;

●The facts show that such party was so situated that he might have committed the crime.

      The State here was not relying on circumstantial evidence to convict defendant. Witness Tom Enriquez testified that defendant told him that he [defendant] was the one that killed Emelio Lopez. Enriquez later testified again that defendant said, "I told you I killed him. I don't want you to tell nobody nothing. You tell your boy the same thing, or I swear . . . ."

      Direct testimony from any source that the defendant was the person who caused the death of Lopez results in this case being one that is based on direct evidence and not circumstantial evidence. Barefoot v. State, (Tex. Crim. App.) 596 S.W.2d 875, 880; Moore v. State, (Tex. Crim. App.) 700 S.W.2d 193, 198. The trial court did not err in refusing to admit the evidence complained of by defendant. Point two is overruled.

      Point three asserts the trial court erred in refusing to grant a mistrial after determining that the State violated Rule 613, Texas Rules of Criminal Evidence, and Article 36.06 of the Texas Code of Criminal Procedure.

      The above rules provide that witnesses, under "the rule," are not to converse with each other or with any person concerning the case except by permission of the court. "The rule" was invoked by the State and all witnesses were so instructed. Detective Sanders was called as a witness by both the State and the defendant. Vinnie Laredo was called as a witness by the defendant. Detective Sanders had testified. He was an investigator for the State. The State's attorney, on the evening after Sanders had testified, asked him to locate a person named "Vinnie" who was a potential defense witness and find out what he remembered. Detective Sanders did find "Vinnie Laredo" and asked him to recall his knowledge of certain events occurring the day before and the day of the murder, which he did. There is no showing that defendant was injured thereby. There is no question that "the rule" was violated. Defendant moved for a mistrial which was denied by the trial court.

      While "the rule" should be complied with, not every violation is reversible error. Beets v. State, (Tex.Crim. App.) 767 S.W.2d 711, 746; Hougham v. State, (Tex. Crim. App.) 659 S.W.2d 410, 413. Enforcement of the rule is within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion or injury to the defendant. Green v. State, (Tex. Crim. App.) 682 S.W.2d 271, 294; Hartsook v. State, (Tex. Crim. App.) 244 S.W.2d 830, 831.

      Defendant called Vinnie Laredo to the stand. There is no showing his testimony was affected in any way by his conversation with Detective Sanders. Sanders only discussed with Laredo the date of an automobile collision and a funeral that occurred close to the time of the murder. The trial court did not err in refusing to grant a mistrial. Point three is overruled.

      Point four asserts the trial court erred in placing first the form verdict of guilty in the first main charge of the court and that such constituted a comment on the weight of the evidence and violated the [defendant's] right to the presumption of innocence. 

      Point six asserts the trial court erred in placing first the form verdict of finding the allegations of prior convictions true in the second main charge of the court and that such constituted a comment on the weight of the evidence and violated [defendant's] right to presumption of innocence.

      Defendant cites no authority and no where in the record can harm to defendant be found by virtue of the order of verdict forms in the court's charge. Points four and six are without merit and are overruled.

      Point five contends that the comments by the prosecutor during argument in the guilt-innocence phase alluding to the failure of the defendant to testify were manifestly improper, could not be cured by an instruction to disregard, and denied [defendant] a fair trial, due process of law, and denied [defendant] his right against self incrimination, all in violation of the United States and Texas Constitutions.

      During the final argument in the guilt-innocence phase, the State argued: "We don't have a gun. The only person who would know where the gun would be, the defendant, I'm sure had an opportunity to put the gun somewhere."

[DEFENSE COUNSEL]: I'm going to object at this time. That's an improper comment on the defendant's failure to testify.

THE COURT: Overruled.

THE STATE: The defendant would certainly have an ability to dispose of the gun to where we're never going to find it. You don't expect him to come running in and say, ``Here's my gun.'

[DEFENSE COUNSEL]: I'm going to object again. That's a comment on . . .

THE COURT: Sustain the objection. I instruct the jury they will disregard the last statement of counsel for the State for any purpose.

[DEFENSE COUNSEL]: We move for a mistrial.

THE COURT: Overruled.

THE STATE: Folks, I just want you to think of the evidence you heard. Use your common sense. A person who uses a gun is going to hide it in a crime.

[DEFENSE COUNSEL]: I'm going to object again. He's going back into the same area again.

THE COURT: Overruled.

      Earlier in the argument, counsel for defendant questioned: "Did you hear anybody testify about any results of any tests on bullets?" Answer: "No." Question: "Did you hear any testimony about what caliber they were?" Answer: "No." Question: "Did you hear any testimony about any rifle, what type of gun they could have been fired from?" Answer: "No." Question: "Did you hear any testimony showing [defendant] has ever in his home, on his person, ever possessed a gun? And you better believe it, if they had it, they would have brought it to you folks."

      The argument complained of by defendant was in response to the earlier quoted argument of the defendant's counsel. 

      A prosecutor may answer jury argument of opposing counsel. Andujo v. State, (Tex. Crim. App.) 755 S.W.2d 138, 144; Johnson v. State, (Tex. Crim. App.) 611 S.W.2d 649, 650. The State's response to an invited argument may even be a comment on defendant's failure to testify. Nethery v. State, (Tex. Crim. App.) 692 S.W.2d 686, 702. Assuming, without deciding, that the complained of argument was error, we hold beyond a reasonable doubt that such did not contribute to the verdict. Tex. R. App. P., 81(b)(2); Orona v. State, (Tex. Crim. App.) 791 S.W.2d 125. Point five is overruled.

      The judgment is affirmed.

                                                                                     FRANK G. McDONALD

                                                                                     Chief Justice (Retired)

Before Chief Justice Thomas,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 16, 1993

Do not publish