Salto, Jose Angel v. State ( 2004 )

Opinion issued March 11, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-01004-CR

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JOSE ANGEL SALTO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 41,120

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MEMORANDUM OPINION

          A jury found appellant, Jose Angel Salto, guilty of murder and, after finding true the allegation in an enhancement paragraph that appellant had a prior felony conviction, assessed punishment at confinement for life and a $10,000 fine. In four points of error, appellant contends that (1) his federal constitutional rights to compulsory process and to due process of law were violated when the State, prior to trial, authorized the deportation of an exculpatory witness; (2) the trial court erred in admitting into evidence specific impeachment testimony that was presented by the State as a subterfuge to avoid the hearsay rule; and (3) the trial court erred in admitting into evidence specific expert testimony offered by the State to bolster the out-of-court statements made by another witness, because those statements were admitted for impeachment only, and, thus, were not relevant to the purpose for which the statements were made. We affirm.

Background

          On July 1, 2001, the body of Jaime Rodriguez, the complainant, was discovered in Pearland. An investigation by the Pearland Police Department ensued, culminating with the arrest of appellant and his co-defendant, Fernando Cano. On August 22, 2001, appellant was indicted on the charge of murder with a deadly weapon.

Deportation of Exculpatory Witness

          In his first two points of error, appellant contends that his federal constitutional rights to compulsory process and to due process of law were violated when the State authorized the deportation of an exculpatory witness, Carlos Romero.

          On October 16, 2001, Pearland Police Department Detective Alvarado, interviewed, Carlos Romero, a witness to the offense. Romero gave a written statement, exculpating appellant and inculpating his co-defendant, Cano. The Immigration and Naturalization Service (INS) was present during Romero’s interview, and subsequently transported Romero to the detention center for further investigation. Shortly thereafter, Romero was deported.

          During a pretrial hearing on August 26, 2002, appellant asserted that a continuance was necessary in order to obtain Romero’s testimony because he had been deported to Honduras. Appellant argued that Romero’s testimony would be both material and favorable to the defense because he could testify that all the shots fired at the complainant were fired by appellant’s co-defendant, Cano. As evidence, appellant relied on the State’s notice of exculpatory evidence, which stated, “Carlos Romero indicates that all the shots fired at the deceased were fired by Jose Cano.”           Subsequently, the trial court sought to elicit any evidence that, “other than in the regular course of what law enforcement and INS does, . . . there was any intent to get [Romero] deported where he would not be available .” Upon questioning by the trial court, the prosecutor denied knowledge of any involvement by the district attorney’s office in instigating Romero’s deportation prior to trial. The prosecutor also denied knowing who contacted INS regarding Romero’s presence in the United States illegally, or how INS became involved. Thereafter, the trial court concluded that, had either the district attorney’s office or local law enforcement notified INS that they were interviewing Romero, “an illegal,” there would be no wrongdoing. At the hearing, it was established that appellant was aware the State had issued a subpoena for Romero. It was also established that, because the State maintained an open file in the underlying cause, appellant had access to all of the information therein, including the fact that the subpoena was not served. Effectively, then, appellant was afforded notice that the State had failed to locate Romero.

          Further, it was ascertained that appellant’s family was acquainted with Romero’s family, leading the trial court to conclude that appellant effectively had prior knowledge of Romero’s whereabouts. Thus, the trial court held that if appellant planned to call Romero as a witness, appellant should have pursued an avenue through INS to allow Romero legal access to this country. However, appellant presented no evidence that he had either attempted to locate Romero, or to compel Romero to testify, e.g., by issuance of subpoena. Based on these facts, and the fact that appellant made no showing of improper conduct by the State to eliminate Romero’s ability to testify, the trial court denied appellant’s motion for continuance.

          At trial, Detective Alvarado testified that he notified INS that Romero was a material witness, and that he requested the District Attorney’s office hold Romero as a material witness. In response to Alvarado’s request, the District Attorney’s office explained that Romero could be deported because the State was not going to call him as a witness. There is no evidence, however, that the State either recommended or requested that Romero be deported.

          In regard to appellant’s argument that he was denied his constitutional rights to compulsory process and to due process of law as a consequence of Romero’s deportation, we note that “[a] defendant cannot normally complain that he was deprived of a constitutional right, such as compulsory process, which he did not attempt to exercise.” Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987). Here, the record reveals that appellant failed to afford himself of his right to compulsory process by requesting the issuance of a subpoena to compel Romero’s attendance at trial. We hold that appellant has waived his right to compulsory process by his failure to file his application for a subpoena pursuant to Tex. Code Crim. Proc. Ann. art. 24.03 (Vernon 1989 & Supp. 2004).

          Regarding appellant’s argument that the State denied him due process of law by authorizing Romero’s deportation, the acts complained of must be of such quality as necessarily prevents a fair trial. United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S. Ct. 3440, 3449 (1982). Here, however, there is no evidence that the State “authorized” Romero’s deportation, or even that the State either recommended or requested that INS deport Romero. Because there is no evidence that the State engaged in any wrongdoing in connection with Romero’s deportation by INS, we overrule appellant’s first and second points of error.

Impeachment Testimony Admitted Into Evidence

          In his third point of error, appellant contends that “the trial court abused its discretion by admitting into evidence the otherwise inadmissible impeachment testimony of Alvaro Espinoza when the State’s primary purpose in placing those out-of-court statements before the jury was for the truth of the matters asserted and impeachment served as a subterfuge to avoid the hearsay rule.”   

          We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard; we will thus not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

          Under the rules of evidence, the credibility of a witness may be attacked by any party, including the party calling the witness. Tex. R. Evid. 607. However, impeachment by prior inconsistent statements may not be permitted when employed as a mere subterfuge to place before the jury evidence that is otherwise inadmissible. Hughes v. State, 4 S.W.3d 1, 9 n.9 (Tex. Crim. App. 1999). The Court of Criminal Appeals has held that, when determining whether evidence is admissible under a rule 403 balancing test, the trial court must consider the State’s knowledge that its own witness will testify unfavorably. Hughes, 4 S.W.3d at 5 (Factors the court considered under rule 403 analysis included: 1) lack of surprise or injury; 2) any legitimate purposes in admitting prior inconsistent statements; and 3) lack of any favorable testimony.).

          Here, Detective Alvarado interviewed Espinoza twice regarding circumstances surrounding the complainant’s death, and Espinoza gave a sworn, written and video-taped statement. The State subsequently called Espinoza to testify regarding his knowledge of the complainant’s murder, but Espinoza surprised prosecutors by testifying in a manner highly inconsistent with his prior written statement. While he admitted writing the earlier sworn statement, Espinoza asserted that he had been pressured by police to do so. Consequently, the State asked Espinoza about statements he had made to police in the interview culminating in his written statement; specifically, if Espinoza told Detective Alvarado and Officer Sepolio what another witness told him about the complainant’s murder. Appellant’s trial counsel objected on the grounds of hearsay-within-hearsay, and the prosecutor responded, asserting the State intended to impeach Espinoza with his prior inconsistent statements. The trial court dismissed the jury to consider the objection.

          Although the trial court never expressly ruled on appellant’s objection, the jury returned, and the State continued to question Espinoza regarding his prior statement about his knowledge of complainant’s murder. Espinoza admitted meeting with the prosecutor before trial to discuss his written statement, but he testified that he lied to her when he admitted authoring his written statement, and, also, when he reported overhearing appellant brag about shooting the complainant.

          Thereafter, the prosecutor asked Espinoza if, during his previous interview before trial, he reported overhearing appellant and others discussing the reason why complainant was murdered. Appellant’s trial counsel objected on the grounds of hearsay. The trial court overruled the objection, with an instruction to the jury to consider the statement only for purposes of whether or not the statement was made, and not for the truth of the matter asserted. As the prosecutor continued her line of questioning, appellant requested a running objection on the same grounds. The trial court granted appellant’s running objection and re-instructed the jury not to consider the statements for the truth of the matter asserted.

          To summarize, Espinoza gave a sworn written, and video-taped statement regarding the complainant’s death, corroborated by evidence gathered in the State’s investigation, and by Officer Sepolio and Detective Alvarado, who testified that Espinoza was not coerced or promised anything in exchange for his statement, or instructed what to write. Espinoza corroborated his written statement in a subsequent interview with prosecutors, reiterating his knowledge of the complainant’s murder. Thus, the State was not expecting Espinoza to testify at trial that 1) he knew nothing of the complainant’s murder, 2) his prior written statement was nothing more than lies coerced by police, and 3) he also lied about complainant’s murder in his interview with prosecutors.

          Surprised by the material inconsistency in the testimony of its own witness, the State reacted by attacking Espinoza’s credibility. Thus, the State’s legitimate purpose in confronting Espinoza with his prior inconsistent statements was impeachment. On these facts, we conclude that it was not outside the zone of reasonable disagreement for the trial court to have decided that the probative value of the impeachment testimony substantially outweighed any prejudicial effect. Accordingly, we overrule appellant’s third point of error.

Expert Testimony Admitted into Evidence

          In his fourth point of error, appellant contends that the trial court erred in admitting Officer Sepolio’s “ expert testimony offered by the State to bolster the out-of-court statements made by Alvaro Espinoza which were admitted for the limited purpose of impeachment as such evidence was not relevant to the purpose for which the statements were admitted.”

          We interpret this point of error as an objection based on relevance, and, accordingly, we review the trial court’s decision to admit the evidence under an abuse-of-discretion standard; we will thus not reverse the trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres, 71 S.W.3d at 760; Roberts, 29 S.W.3d at 600.

          In this case, the State’s witness, Officer Richard Sepolio, a gang investigator with the Houston Police Department, testified that he was present during Espinoza’s statement to Detective Alvarado on July 9, 2001, and, that Espinoza was not threatened, coerced, or promised anything in return for his statement. Officer Sepolio testified that no one dictated the statement to Espinoza, and, that, at the time, Espinoza appeared calm, alert, and cooperative. Based on almost 12 years of experience in HPD’s gang unit, Officer Sepolio explained that, although Espinoza may have associated with known gang members, he believed Espinoza’s statement to be credible. Subsequently, the prosecutor asked Officer Sepolio how his work in the gang unit might be affected if he did not rely on statements made by persons who “aren’t necessarily credible.” Appellant objected, on the grounds of relevance, and the trial court overruled appellant’s objection.

          However, to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desires the court to make if the specific grounds are not apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). Failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). This is true even though the error may concern a constitutional right of the defendant. Id.

          Here, appellant’s objection came too late. Appellant failed to object when Officer Sepolio began to testify regarding Espinoza and his statement. Because appellant failed to object at his earliest opportunity, he has preserved nothing for appellate review on this point. See Goldberg v. State, 95 S.W.3d 345, 368 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (To preserve error for appeal, appellant was required to make a timely, specific objection at the earliest possible opportunity.)

                    We overrule appellant’s fourth point of error.

CONCLUSION

          We affirm the judgment of the trial court.  

                                                             Sherry Radack

                                                             Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Higley.

Do not publish. Tex. R. App. P. 47.2(b).