Arreola, Jose Ismael ( 2015 )

PD-1666-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/4/2015 3:35:13 PM
Accepted 2/6/2015 2:38:55 PM
Oral Argument Requested ABEL ACOSTA
CLERK
NO. PD-1666-14
IN THE TEXAS COURT OF CRIMINAL APPEALS
_____________________________________________________________
JOSE ISMAEL ARREOLA,
Appellant
V.
THE STATE OF TEXAS,
Appellee
______________________________________________________________
FROM THE FIFTH DISTRICT COURT OF APPEALS
CAUSE NO. 05-13-00181-CR
APPEAL FROM THE 195TH DISTRICT COURT
DALLAS COUNTY, TEXS CAUSE NO. F-12-00581-N
THE HONORABLE FRED TINSLEY PRESIDING
______________________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
______________________________________________________________
GARY UDASHEN
STATE BAR NO. 20369590
gau@sualaw.com
SORRELS, UDASHEN & ANTON
2311 CEDAR SPRINGS ROAD
SUITE 250
February 6, 2015 DALLAS, TEXAS 75201
(214) 468-8100 Office
(214) 468-8104 Fax
ATTORNEY FOR PETITIONER,
Jose Ismael Arreola
GROUNDS FOR REVIEW
I. Did the court of appeals err by holding evidence of specific prior acts of
violence inadmissible to show that the victim was actually the first aggressor in
light of conflicting holdings from sister courts?
II. Did the court of appeals err in its interpretation of the statement against interest
hearsay exception to exclude otherwise admissible testimony when they failed
to conduct an inquiry into the corroboration of the statement as required by
case law?
−ii−
IDENTITY OF PARTIES AND COUNSEL
For Appellant Jose Arreola:
Michael J. Todd
Trial Counsel
Law Office of Michael J. Todd
700 N. Pearl Street
Suite 2170
Dallas, Texas 75201
Kenneth Weatherspoon
Trial Counsel
325 North St. Paul Street
Dallas, Texas 75201
Gary Udashen
Appellate Counsel
Sorrels, Udashen & Anton
2311 Cedar Springs Suite 250
Dallas, Texas 75201
For Appellee the State of Texas:
Jerry Varney & Brandi Wade
Trial Counsel
Dallas County District Attorney’s Office
133 N. Riverside Drive
Dallas, Texas 75027
Mart. L. Peterson
Appellate Counsel
Dallas County District Attorney’s Office
133 N. Riverside Drive
Dallas, Texas 75027
−iii−
TABLE OF CONTENTS
Page
GROUNDS FOR REVIEW .............................................................................................. ii
IDENTITY OF PARTIES AND COUNSEL ..................................................................... iii
TABLE OF CONTENTS ................................................................................................. iv
INDEX OF AUTHORITIES ............................................................................................... v
STATEMENT REGARDING ORAL ARGUMENT ......................................................... 1
STATEMENT OF THE CASE AND PROCEDURAL HISTORY ................................ 2-3
ARGUMENT
I. PRIOR ACTS OF VIOLENCE BY THE VICTIM WERE
ADMISSIBLE TO SHOW SHE WAS IN FACT THE FIRST
AGGRESSOR .......................................................................................... 4-13
a. Ramon Guillen’s Testimony ......................................................... 5-9
b. Ronald Castro’s Testimony ......................................................... 9-13
II. WITHOUT ANALYSIS THE COURT OF APPEALS
ERROENOUSLY EXCLUDED TESTIMONY AS HEARSAY
THAT QUALIFIED AS A STATEMENT AGAINST PENAL
INTEREST ........................................................................................... 13-16
CONCLUSION AND PRAYER ..................................................................................... 16
CERTIFICATE OF SERVICE ........................................................................................ 17
CERTIFICATE OF COMPLIANCE .............................................................................. 18
APPENDIX ..................................................................................................................... 19
−iv−
INDEX OF AUTHORITIES
Cases Page
Arreola v. State, No. 05-13-00181-CR,
2014 Lexis 13047 (Tex. App. – Dallas, Dec. 5, 2014) .............................................. 3, 8, 15
Bingham v. State, 987 S.W.2d 54 (Tex. Crim. App. 1999) ....................... 11, 13, 14, 15, 16
Davis v. State, 872 S.W.2d 743 (Tex. Crim. App. 1994) .......................................... 14, 16
Dudzik v. State, 276 S.W.3d 554 (Tex. App. – Waco 2008, pet. ref’d.) ..... 4, 5, 7, 9, 10, 13
Fonseca v. State, 908 S.W.2d 519 (Tex. App. – San Antonio, 1995) ......................... 11, 16
Hayes v. State, 161 S.W.3d 507 (Tex. Crim. App. 2005) ............................................. 5, 10
MacDonald v. State, 179 S.W.3d 571 (Tex. Crim. App. 2005) .......................................... 4
Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999) .......................................... 4, 5, 8
Poteir v. State, 68 S.W.3d 657 (Tex. Crim. App, 2002) ................................................... 12
Smith v. Dretke, 417 F.3d 438 (5th Cir. 2005) .................................................................... 5
Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 1998) .......................... 4, 9, 10, 12, 13, 16
Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002)............................................... 5, 10
United States v. McClure, 546 F.2d 670 (5th Cir. 1977) ................................................ 12
Walter v. State, 267 S.W.3d 883 (Tex. Crim. App. 2008) .................................... 11, 14, 15
Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) ........................................... 12
−v−
Codes and Rules
TEX. R. EVID. 404 ................................................................................................................ 4
TEX. R. EVID. 803 .................................................................................................. 10, 11, 14
TEX. PENAL CODE § 22.01 ........................................................................................... 11, 15
TEX. R. APP. P. 66.3 ....................................................................................................... 4, 13
−vi−
STATEMENT REGARDING ORAL ARGUMENT
Arreola believes that oral argument will be helpful to this Court to resolve the
issues presented herein, which are fact intensive, and implicate conflicting court of
appeals holdings.
Appellant’s Petition for Discretionary Review - Page 1
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
On June 21, 2012, an indictment was filed against Jose Ismael Arreola (“Arreola”)
charging him with the aggravated assault of then-girlfriend Maria Escamilla
(“Escamilla”) on or about March 13, 2011. (CR: 5). On February 4, 2013, after a ten-day
trial, a jury convicted Arreola and sentenced him to twenty-eight years in the Texas
Department of Corrections. (CR: 50, 55-57). Arreola timely filed his notice of appeal.
(CR: 59).
Escamilla and Arreola were the only witnesses to what took place at their home on
March 13, 2011. At trial, Escamilla testified that Arreola attacked her without
provocation in their driveway after a night out at clubs in Dallas and that a violent attack
continued throughout their home. (RR5: 52-69). Escamilla denied drinking that night,
although she admitted to having blackouts when drinking, and she denied ever becoming
angry with Arreola over other women that night. (RR6: 29-33, 42-51, 90-91, 148-149).
Arreola testified that he and Escamilla were both drinking all night and that
Escamilla became angry with him at a nightclub over other women. (RR9: 44, 53-54,
59-69). Arreola testified that an argument ensued on the way home and Escamilla came
at him with knives inside the home. (RR9: 68-69, 81-85). Arreola testified that he acted
only in self-defense but admitted to kicking Escamilla, throwing her against a wall, and
holding her hand over a knife blade in attempt to stop her attacks. (RR9: 81-129).
During the guilt-innocence phase of Arreola’s trial, he sought to introduce
testimony from two witnesses regarding specific prior acts of violence committed by
Escamilla. (RR10: 45-53; 70-77). First Arreola proffered the testimony of Ramon Guillen
Appellant’s Petition for Discretionary Review - Page 2
(“Guillen”), Escamilla’s ex-husband, regarding three times Escamilla attacked him.
(RR10: 70-77). Specifically, Guillen testified that Escamilla attacked him at a nightclub,
in their home, and at his workplace after accusing him of cheating on her with other
women. Id. The State objected to this testimony as prejudicial and irrelevant due to
remoteness of time. (RR10: 76). The trial court excluded this testimony without
explanation and Guillen was only allowed to testify to his general opinion that Escamilla
is a violent person. (RR10: 76-77).
Likewise, Arreola proffered the testimony of Escamilla’s friend Ronald Castro
(“Castro”) regarding two specific criminal acts of violence that she admitted to Castro.
First, Castro testified that after he purchased a vehicle from Escamilla, she told him that
she used the vehicle to run over some people outside of a nightclub after an argument.
(RR10: 47-49). Also, he testified that Escamilla told him she had shot at people from the
sun-roof. Id. The trial court excluded the testimony as hearsay. (RR10: 52-53).
Accordingly, on appeal Arreola argued, in part, that the trial court abused its
discretion by excluding these specific acts of violence by Escamilla, which were
admissible to show that she was the first aggressor in the altercation with Arreola.
Arreola v. State, No. 05-13-00181-CR, 2014 Lexis 13047 (Tex. App. – Dallas, Dec. 5,
2014). The court of appeals affirmed Arreola’s conviction finding that Guillen and
Castro’s testimony did not “reflect the kind of state of mind evidence that could explain
Escamilla’s purported aggression toward appellant.” Id. Furthermore, the court of appeals
found that Castro’s testimony was inadmissible hearsay, which did not qualify as a
statement against Escamilla’s interest. Id.
Appellant’s Petition for Discretionary Review - Page 3
ARGUMENT
I. PRIOR ACTS OF VIOLENCE BY THE VICTIM WERE
ADMISSIBLE TO SHOW SHE WAS IN FACT THE FIRST
AGGRESSOR
The court of appeals erroneously concluded that Escamilla’s prior acts of violence
were not admissible to show that she was the first aggressor in the altercation with
Arreola because the acts demonstrate her intent, motive, and state of mind. Also, the
court of appeals erroneously concluded that Castro’s testimony was hearsay because the
statements qualify as a statement against Escamilla’s interest. The court’s exclusion of
this evidence directly conflicts with sister court’s holdings on the same issue, which
fundamentally impacted Arreola’s right to a fair trial, thus this Court should grant review
and reverse and remand Arreola’s case for a new trial. See TEX. R. APP. P. 66.3(a).
Applicable Law
A trial court’s decision to admit or exclude evidence is reviewed under an abuse of
discretion standard. MacDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).
A victim’s prior specific acts of violence may be admissible if offered for a non-character
purpose such as proof of a specific intent or motive. See TEX. R. EVID. 404(b). In a
prosecution for aggravated assault, evidence of a victim’s character for violence is
admissible to show that the victim was the first aggressor. See Mozon v. State, 991
S.W.2d 841, 846 (Tex. Crim. App. 1999); see also Dudzik v. State, 276 S.W.3d 554, 560
(Tex. App. – Waco 2008, pet. ref’d.); Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim.
App. 1998). Specific acts of violence or aggression by a victim are admissible to show
the victim was the first aggressor and are relevant apart from showing character
Appellant’s Petition for Discretionary Review - Page 4
conformity by demonstrating the victim’s intent, motive, or state of mind. Id; see also
Hayes v. State, 161 S.W.3d 507, 509 (Tex. Crim. App. 2005) (“where a defendant claims
self-defense, the deceased’s prior threats may be admitted, even though those threats
were not directed at the defendant, “as long as the proffered [threats] explain the outward
aggressive conduct of the deceased at the time of the killing, and in a manner other than
demonstrating character conformity only.”) (citing Torres v. State, 71 S.W.3d 758,
761-62 (Tex. Crim. App. 2002). The prior specific acts of violence do not have to be
directed toward the defendant. See Mozon, 91 S.W.2d at 841; see also Dudzik, 276
S.W.3d at 560; Smith v. Dretke, 417 F.3d 438, 441-41 (5th Cir. 2005). Rather, the prior
violent acts must tend to explain the violent or aggressive acts raised in a self-defense
claim. See Dudzik, 276 S.W.3d at 560 (trial court abused its discretion by excluding
victim’s prior acts of violence, which tended to show that the victim was actually the first
aggressor by demonstrating the victim’s state of mind when he hears racial slurs).
a) Ramon Guillen’s Testimony
Guillen’s testimony regarding specific acts of violence Escamilla committed
against him is admissible because it tends to show that she was in fact the first aggressor
against Arreola. Specifically, these acts demonstrate Escamilla’s motive and her state of
mind in regard to relationships with men, jealousy over other women, and her state of
mind when clubbing and drinking.
Guillen offered the following testimony:
“Q. (BY MR. TODD): Did you have an occasion where
you saw her out at some club?
A. I was at a club one time, and I thought everything was
Appellant’s Petition for Discretionary Review - Page 5
over. I don’t know the exact date. But she attacked me at a
club and ripped my shirt. She said she bought me this chain
and ripped it off and we got kicked out of the club. But she
ripped my shirt – I can’t remember if I covered up my face –
she just went crazy
Q. Now, based upon your interactions with her and her
subsequent actions you’ve seen in her, do you have an
opinion as it relates to whether she’s violent or not?
A. Yes, she is. (RR: Vol. 10, p. 69)
...
Q. Now, during the time period that you-all were together, did
you-all have any altercations where she could have attacked
you?
A. Yes. She would accuse me of cheating on her when I
later found out it was her. That’s one of the reasons I left her.
One of my buddies came and told me she was cheating on
me. And when I got them together, she still denied it.
We were talking about the attacks. So I accused her of
giving me an STD and later found out that it was just a yeast
infection. But I was on the toilet sitting down and I told her.
And we were at our apartment.
We had an apartment in DeSoto. She broke the door
down and ripped my shirt. I can’t remember if I covered up
my face or whatnot, but she lost it. She’s out of control. And
as soon as she did that, she just got up and left.
And there was another occasion where I was working
security at a shopping center. And I was escorting a lady out
to her car. And she had been drinking. She shows up. And she
accused me of sleeping with this lady. I believe her name was
Pauline. I had to hold Mary back in order to let this lady
leave. And I kept shutting the door on her car so she would
[not] get out.
As soon as Pauline left, we were the only ones in the
shopping center. I let her out and she started running after me.
I thought it was funny. I am – we’re running around the
shopping center, and I’m laughing at her. And I’m telling
her to calm down and whatnot, but she won’t. She’s still
running after me. Somebody ended up calling the cops . . .
So she got arrested that night. If that doesn’t tell you
that she doesn’t have respect for the law, what does that tell
you about me?
Appellant’s Petition for Discretionary Review - Page 6
Q. So all of that together, that goes into your opinion that
she’s a violent person?
A. Yes. And when she couldn’t catch me, she keyed my
car; put “Mary” on the hood of my car. I had some low-rider
rims that are called “roadsters,” and they have a centerpiece.
But that centerpiece is held together from a lung nut with a
cable. I mean, it’s a quarter-inch cable. They’re not easy to
come off.
She yanked those things like they weren’t even there.
And she threw them at the windows of my car. Didn’t break
but just trying to throw them at me like they were rocks while
chasing me around the parking lot. So she is a violent person,
yes, sir. (RR10: 71-73).
The court of appeals summarily concluded that these acts of aggression do not
reflect a state of mind that could explain Escamilla’s aggression toward Arreola.
However, that conclusion wholly ignores conflicting case law and the similarities
between the aggression that Guillen describes and the aggression Arreola described. See
Dudzik. 276 S.W.3d at 560 (trial court erroneously excluded witness testimony about an
incident similar to the one the defendant was charged with). First, Guillen describes an
attack at a nightclub when Escamilla, “just went crazy.” (RR10: 72-73). Arreola also
testified that the problems with Escamilla began at a nightclub. (RR9: 59-69). Second,
Guillen describes incidents when Escamilla would become violent after accusing him of
cheating. (RR10: 71-73). Likewise, Arreola and others testified that Escamilla was angry
over other women at the club the night of the incident. (RR9: 59-69); see Dudzik. 276
S.W.3d at 560. These acts show not only Escamilla’s state of mind in these types of
situations but her motivation for attacking Arreola.
Escamilla’s violence against Guillen would explain her actions against Arreola as
Appellant’s Petition for Discretionary Review - Page 7
he described them. The trial court’s exclusion of this testimony denied Arreola the
opportunity to present evidence crucial to his theory of self-defense. See Mozon, 991
S.W.2d at 844-47. The court of appeals incorrectly noted that “the only incident Guillen
related that involved jealousy over another woman did not result in any violence toward
him at all.” Arreola v. State, No. 05-13-00181-CR, 2014 Lexis 13047 (Tex. App. –
Dallas, Dec. 5, 2014). However, Guillen described having to hold Escamilla back from
attacking another person, Escamilla chasing him, and vandalizing his car when she could
not get her hands on him. (RR10: 71-73). These acts of violence or at least aggression
tend to explain Escamilla’s relentless attack on Arreola not because of conformity of
character but because they illustrate her mind set in similar situations. Furthermore,
Guillen testified that Escamilla was drinking before at least one incident of violence,
which also explains her aggression toward Arreola who testified that she was drinking
that night.
In sum, it is difficult to see how the court of appeals could conclude that these acts
of aggression do not shed light on Escamilla’s state of mind and motive to show that she
was the first aggressor. More importantly, the court’s exclusion of this evidence conflicts
with a court of appeal’s decision directly on point in Dudzik. See Dudzik, 276 S.W.3d at
560. In that case, Dudzik was charged with assaulting a bouncer at a nightclub, while he
admitted to punching and stabbing the bouncer he claimed it was in self-defense because
the bouncer came at him after he called him a racial slur. Id at 556-59. Dudzik sought to
introduce testimony from a third party to show that the victim was in fact the first
aggressor. Id at 560. In that case, the trial court excluded testimony from a witness that,
Appellant’s Petition for Discretionary Review - Page 8
in a completely unrelated incident years prior, the victim had attacked him after he used a
racial slur. Id. The court of appeals found, “[B]ecause Dudzik testified that Henry was the
first aggressor, he was entitled to offer evidence of extraneous acts of violence by the
victim. Therefore, the court abused its discretion by excluding this evidence.” See
Dudzik, 276 S.W.3d at 560.
Therefore, the court’s holding here is in direct conflict with this case because like
the trial court in Dudzik, the trial court excluded testimony that would have shown
Escamilla’s intent, motive, and state of mind. Also, like Dudzik, the specific acts of
violence, which Guillen would have testified to, involve similar circumstances to those
Arreola testified to finding himself in when Escamilla attacked him. Finally, the Court of
Criminal Appeals in Tate held that where “proffered evidence tended to make the
existence of a consequential fact more probable,” namely that the victim was the first
aggressor, the defendant had the right to present that evidence to the jury and the trial
court’s exclusion was an abuse of discretion. Tate, 191 S.W.2d at 193.
b) Ronald Castro’s Testimony
The court of appeals erroneously concluded that Castro’s testimony was
inadmissible because the incidents he described did not reflect Escamilla’s state of mind
in her altercation with Arreola and the testimony was properly excluded as hearsay.
Escamilla admitted to Castro that she had run people over outside of a nightclub
following an altercation at the club and that she had shot at people from the roof of the
same vehicle, which she was in the process of selling to Castro. (RR10: 47-49). First,
these prior acts of violence by Escamilla again establish her motive and state of mind
Appellant’s Petition for Discretionary Review - Page 9
when she gets into arguments with people. Specifically, the conduct tends to explain her
state of mind when she is out at clubs as she was with Arreola. The court of appeals
focuses solely on the fact that these acts of violence do not involve jealousy over other
women without considering other similarities between these incidents. See Dudzik, 276
S.W.3d at 560. Furthermore, these acts of extreme aggression show Escamilla’s intent
and state of mind generally when she is in an altercation with someone particularly when
she is out a club drinking. That she is willing to shoot at people and run them down in
cars sheds light on her intent when she comes at Arreola with knives after an argument in
a club. See Hayes, 161 S.W.3d at 509; See Torres, 71 S.W.3d at 761-62. Arreola was
entitled to offer her extraneous acts of violence to show that she was the first aggressor.
See Dudzik, 276 S.W.3d at 560. As explained above, the court’s exclusion of this
testimony directly conflicts with sister court’s holdings on the same issue. Id; see also
Tate, 191 S.W.2d at 193 (trial court abused its discretion in excluding evidence when “a
reasonable jury could have believed this evidence shed light upon [the victim’s] state of
mind when he arrived at appellant’s house on the night in question, and as it was
otherwise admissible, appellant possessed the right to present it for the jury.”).
Escamilla’s admission of violence to Castro also constitutes an exception to the
hearsay rule, which allows statements against a declarant’s interest. The Texas Rules of
Evidence provide:
“A statement which was at the time of its making so
far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant
against another, or to make the declarant an object of hatred,
ridicule, or disgrace, that a reasonable person in declarant’s
Appellant’s Petition for Discretionary Review - Page 10
position would not have made the statement unless believing
it to be true. In criminal cases, a statement tending to
expose the declarant to criminal liability is not admissible
unless corroborating circumstances clearly indicate the
trustworthiness of the statement.” TEX. R. EVID. 803(24).
This exception is based on the commonsense notion that “a reasonable person
would not normally claim that he committed a crime, unless it were true.” Walter v. State,
267 S.W.3d 883, 890 (Tex. Crim. App. 2008). There is a two-step inquiry should be
conducted in deciding whether to admit a statement under 803(24); first whether the
statement tends to expose the declarant to criminal liability and whether the declarant
realized this when making the statement, and second, whether there are corroborating
circumstances that clearly indicate the trustworthiness of the statement. Bingham v. State,
987 S.W.2d 54, 57-58 (Tex. Crim. App. 1999).
First, the court of appeals concludes that Escamilla’s statements that she (1) ran
over people and (2) shot at people are insufficient to establish that they could expose her
to criminal penalties. Clearly, running people down in a car over an argument and
shooting at people are criminal acts capable of causing serious bodily injury. See TEX.
PENAL CODE § 22.01. Furthermore, Escamilla herself acknowledged that these acts were
capable of exposing her to criminal liability, she told Castro, “she ran over some folks
and got away with it so it was a good thing that she was selling it.” (RR10: 48). The
second prong of this hearsay exception is met because Escamilla made the
self-inculpatory statements to Castro, who was her friend at the time, which is a factor
indicating the trustworthiness of the statement. See Fonseca v. State, 908 S.W.2d 519,
522 (Tex. App. – San Antonio, 1995) (the fact that the declarant made the statement
Appellant’s Petition for Discretionary Review - Page 11
against his penal interest to a friend corroborated the trustworthiness of the statement).
Thus, the court of appeals incorrectly concluded the statements were inadmissible
hearsay, as discussed in additional detail below. Furthermore, the court incorrectly found
the specific prior acts did not reflect Escamilla’s state of mind, intent and motivation thus
admissible to show she was the first aggressor.
The court’s error in excluding evidence of prior acts of violence and aggression by
Escamilla, which would have explained her aggression toward Arreola, denied him the
opportunity to fully present a vital component of his self-defense claim. Ultimately, of
course, it would be for the jury to decide what, if any, weight or credibility to attach to
Guillen and Castro’s testimony but excluding the evidence altogether denied Arreola the
opportunity to present his theory, which irreparably tainted the verdict in his case. Tate v.
State, 981 S.W.2d 189, 193 (“A jury cannot properly convict or acquit absent the
opportunity to hear proffered testimony bearing upon a theory of defense and weigh its
credibility along with other evidence in the case”) (citing U.S. v. McClure, 546 F.2d 670,
673 (5th Cir. 1977) (holding the right to present a vigorous defense requires the
admission of evidence proffered under Rule 404(b)).
The evidence excluded in this case went to the heart of Arreola’s claim of
self-defense and thus cannot be said to be harmless. See Walters v. State, 247 S.W.3d
204, 221 (Tex. Crim. App. 2007) (the exclusion of self-defense evidence might rise to the
level of a constitutional violation if it effectively prevents the defendant from presenting
his defensive theory) (citing Poteir v. State, 68 S.W.3d 657, 665 (Tex. Crim. App,
2002)). Escamilla’s state of mind, motivation, and her intent to harm Arreola on the night
Appellant’s Petition for Discretionary Review - Page 12
in question is crucial to a jury’s understanding of his claim of self-defense. See id. This is
especially true when considering that Escamilla and Arreola were the only witnesses to
the altercation that evening and Escamilla ultimately suffered greater injuries than
Arreola. Therefore, her prior specific acts of aggression, which tends to show her state of
mind, intent, and motivation in similar situations is probative of whether she was in fact
the first aggressor. See Tate, 191 S.W.2d at 193; see also Dudzik, 276 S.W.3d at 560.
Arreola possessed the right to present this evidence for the jury’s consideration. Id. The
denial of that right has a serious impact on the fundamental fairness of his trial and thus
should entitle him to relief.
II. WITHOUT ANALYSIS THE COURT OF APPEALS ERROENOUSLY
EXCLUDED TESTIMONY AS HEARSAY THAT QUALIFIED AS A
STATEMENT AGAINST PENAL INTEREST
The court of appeals’ erroneous interpretation of the statement against interest
exception to the hearsay rule led to the improper exclusion of otherwise admissible
testimony. The trial court improperly excluded the testimony of Castro as hearsay, which
qualified as an admission against interest. (RR10: 47-49). The court of appeals then failed
to apply any of the factors laid out by this Court in Bingham v. State, which resulted in a
finding that is contradicted by the case law and the facts of this case. See Bingham, 987
S.W.2d at 57-58. See T. R. App. P. 66.3(c).
Applicable Law
The Texas Rules of Evidence provide an exception to the general rule against
hearsay statements:
Appellant’s Petition for Discretionary Review - Page 13
“A statement which was at the time of its making so
far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or
criminal liability, or to render invalid a claim by the declarant
against another, or to make the declarant an object of hatred,
ridicule, or disgrace, that a reasonable person in declarant’s
position would not have made the statement unless believing
it to be true. In criminal cases, a statement tending to
expose the declarant to criminal liability is not admissible
unless corroborating circumstances clearly indicate the
trustworthiness of the statement.” TEX. R. EVID. 803(24).
The court of appeals correctly noted that there is a two-part inquiry required to
determine the admissibility of a statement against interest. See Bingham, 987 S.W.2d at
57-58. First, the court must determine whether the statement tends to expose the declarant
to criminal liability; second, whether there are corroborating circumstances that clearly
indicate the trustworthiness of the statement. Id. The standard of review of a trial court’s
decision to exclude a hearsay statement under this rule is abuse of discretion. Id.
While, there is no “definitive test by which to gauge the existence of corroborating
circumstances,” there are a number of factors that may be considered, including “whether
the guilt of the declarant is inconsistent with the guilt of the accused; whether the
declarant was so situated that he might have committed the crime; the timing of the
declaration and its spontaneity; the relationship between the declarant and the party to
whom the declaration was made; and the existence of independent, corroborative facts.”
See Bingham, 987 S.W.2d at 57-58; see also Walter v. State, 267 S.W.3d at 890.
Corroborating evidence and evidence that undermines the reliability of the statement may
both be considered. Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994).
Appellant’s Petition for Discretionary Review - Page 14
However, the credibility of the witness is an issue for the jury. Id.
In this case, Castro proffered testimony that Escamilla had admitted to him that
she had shot people out of the sunroof of her car and ran people over as she was leaving a
nightclub. (RR10: 47-49). The state objected to the testimony as hearsay and the trial
court sustained that objection and excluded the testimony as hearsay. (RR10: 45-52). The
court of appeals, without any analysis, summarily concluded that the statements failed
both prongs of the statement against interest exception. See Arreola v. State, No.
05-13-00181-CR, 2014 Lexis 13047 (Tex. App. – Dallas, Dec. 5, 2014); see also
Bingham, 987 S.W.2d at 57-58 (court noted that the court of appeals two-step inquiry
was minimal).
A thoughtful inquiry into the two-step analysis required under this hearsay
exception and review of the factors laid out in Bingham reveals that the trial court erred
by excluding this testimony as hearsay. First, the testimony clearly meets the first step of
the two-step inquiry because Escamilla admitted to criminal activity, namely hitting
people with her car and shooting people, and her statements to Castro were entirely
self-inculpatory. See TEX. PENAL CODE § 22.01. Furthermore, Escamilla herself
acknowledged that these acts were capable of exposing her to criminal liability, she told
Castro, “she ran over some folks and got away with it so it was a good thing that she was
selling it.” (RR10: 48).
Second, there are sufficiently corroborating circumstances that clearly indicate the
trustworthiness of the statement. See Bingham, 987 S.W.2d at 57-58; see also Walter v.
State, 267 S.W.3d at 890. The court of criminal appeals failed to conduct any inquiry into
Appellant’s Petition for Discretionary Review - Page 15
the factors in Bingham to determine whether corroborating circumstances existed. Id.
First, Escamilla’s guilt of these crimes is inconsistent with Arreola’s guilt because they
make it more likely that she was in fact the first aggressor. See Bingham, 987 S.W.2d at
57-58; see also Tate, 981 S.W.2d 189. There is nothing to suggest the Escamilla was not
so situated that she might have committed these crimes. Bingham, 987 S.W.2d at 57-58.
In fact, additional evidence from other witnesses, including Escamilla who admitted to
having access to guns and shooting at Arreola, despite being a convicted felon, also
corroborates Escamilla’s statement to Castro that she had shot at people. Id; (RR: Vol. 4;
p. 219; Vol. 6; pp. 7-8; Vol. 8; pp. 133-137; Vol. 9; pp. 157-167). Also, Castro and
Escamilla were friends when she made these statements to him. Id; See Fonseca, 908
S.W.2d at 522 (the fact that the declarant made the statement against his penal interest to
a friend corroborated the trustworthiness of the statement); (RR10: 47-49). The timing of
Escamilla’s statement corroborates their trustworthiness because she admitted her crimes
to Castro when she was selling him the car she used in connection with the crimes.
Bingham, 987 S.W.2d at 57-58. Finally, there is no evidence that undermines the
trustworthiness of these statements. See Davis v. State, 872 S.W.2d at 749. Thus, the
court of appeals erred by excluding Castro’s testimony as hearsay when it clearly falls
under the statement against interest exception to the hearsay rule.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Mr. Arreola prays that this Court
grant this Petition, reverse the court of appeals’ opinion and reverse the judgment of
conviction and order the conviction set aside.
Appellant’s Petition for Discretionary Review - Page 16
Respectfully submitted,
___/s/ Gary Udashen_____________
GARY A. UDASHEN
Bar Card No. 20369590
gau@sualaw.com
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
214-468-8100
214-468-8104 (fax)
Attorney for Appellant
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing
Appellant’s Petition for Discretionary Review electronically served to the Dallas County
District Attorney’s Office and the State Prosecuting Attorney on February 4, 2015.
____/s/ Gary Udashen _____________
GARY UDASHEN
Appellant’s Petition for Discretionary Review - Page 17
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(I)(3), undersigned counsel certifies that this brief
complies with:
1. the type-volume limitation of TEX. R. APP. P. 9.4(I)(2)(D) because this petition
contains 3,931 words, excluding the parts of the brief exempted by TEX. R. APP. P.
9.4(I)(1).
2. The typeface requirements of TEX. R. APP. P. 9.4(e) and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been prepared in a
proportionally spaced typeface using Microsoft Word 2011 in 14-point Times
New roman.
/s/ Gary Udashen
GARY A. UDASHEN
Appellant’s Petition for Discretionary Review - Page 18
APPENDIX
Appellant’s Petition for Discretionary Review - Page 19
AFFIRM; and Opinion Filed December 5, 2014.
In The
804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The
jury is to determine the credibility of the witnesses and the weight to be given their testimony.
Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Our duty is to ensure the evidence
presented supports the jury's verdict and the State has presented a legally sufficient case of the
offense charged. Montgomeryv. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
To establish the offense of aggravated assault, the State was required to prove appellant
intentionally, knowingly, or recklessly caused serious bodily injury to Escamilla or caused her
bodily injury while using or exhibiting a deadly weapon. TEX. PENAL CODE ANN.
-4-
§§ 22.0l(a)(l), 22.02(a) (West 2011 & Supp. 2014). Appellant acknowledged he kicked
Escamilla in the face and threw her across the bathroom twice. In addition-viewing the
evidence in the light most favorable to the verdict-we credit Escamilla' s testimony that
appellant beat her with his hands, kicked her, and cut her with a knife on her hand, her breast, her
forehead, and her thigh, all the while telling her she was going to die. Her doctors testified to the
life-threatening nature of those injuries and others, including significant internal injuries to
Escamilla's lungs and vaginal area. Appellant's expert testified she was cut with both a straight-
edged knife and a serrated knife. Ample evidence indicates appellant was acting intentionally,
that he caused Escamilla serious bodily injury, and used deadly weapons in the assault.
Viewing the evidence in the light most favorable to the verdict, we conclude rational
jurors could have found the essential elements of aggravated assault beyond a reasonable doubt.
See Saxton, 804 S.W.2d at 914.
Appellant points to what he calls "major inconsistencies" between Escamilla's version of
events and the physical evidence at the crime scene; he contends those inconsistencies would not
have allowed a reasonable jury to reject his claim of self-defense. Appellant's arguments center
on how and where the incident began: although Escamilla testified appellant dragged her
through gravel and across a concrete patio, doctors found no gravel in her wounds or "road rash"
consistent with such dragging; Escamilla said appellant struck her repeatedly with a landscape
brick, but no brick bearing evidence of her injuries was found; she testified appellant then
dragged her through a broken glass door, but again doctors found no evidence of glass in her
injuries; and she testified that the sexual assault, rectal injury, and some of the cutting injuries
took place in the living room, but police found no blood in that room consistent with those
injuries. Appellant contends the significant amount of blood found in the bedroom and bathroom
was consistent with his version of events.
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Although the physical evidence may not bear out the locations where Escamilla testified
she suffered certain of her injuries, it is undisputed she suffered those injuries and that-in some
fashion-she suffered them at the hands of appellant. We do not view where the actions
occurred as detenninative, especially because the nature of Escamilla's injuries could have
caused her to be confused as to where she was when she received each injury. Indeed,
appellant's own medical expert confinned that a person who had lost a great deal of blood might
experience issues with memory and conscious awareness. Regardless, to the extent the evidence
included factual inconsistencies, resolution was within the jury's province. The jury resolves
any conflicts in the evidence and is free to accept or reject the defensive evidence. Saxton, 804
S.W.2d at 914. In this case, the jury was entitled to believe the testimony of Escamilla and to
disbelieve appellant. After viewing all the evidence in the light most favorable to the verdict, we
conclude a rational jury could have found against the appellant on the self-defense issue beyond
a reasonable doubt. See id.
We have detennined a rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt, and could have found against the appellant on the self-
defense issue beyond a reasonable doubt. See id. We conclude, therefore, that the evidence
supporting the jury's verdict is sufficient, and we overrule appellant's third issue.
Our sufficiency review takes into account all evidence the jury heard at trial. That
evidence included the fact that Escamilla had prior convictions for aggravated assault, possession
of marijuana, possession of a controlled substance, and theft over $20,000. And it included the
many arguments between Escamilla and appellant, including his allegation that she once hit him
in the head with a frying pan. But in his first and second issues, appellant contends the trial court
erroneously excluded certain evidence that would have led the jury to a different verdict. He
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argues that two wituesses should have been allowed to testify as to specific acts of violence by
Escamilla that would have established she was the first aggressor in the incident before us.
In his first issue, appellant complains of the trial court's exclusion of certain testimony
from Ramon Guillen, Escamilla's former husband. Guillen was permitted to testify to his
opinion that Escamilla was a violent person, but the trial court excluded his testimony
concerning three specific incidents involving Escamilla. First, after their relationship was over,
Guillen ran into Escamilla at a club; she ripped off a chain he was wearing that she said she had
bought him, and she tore his shirt. Second, during their relationship, he once was sitting in the
bathroom and told Escamilla (incorrectly) that she had given him a sexually transmitted disease;
she broke the door down and ripped his shirt. Third, also during their relationship, Escamilla
saw him escorting a female patron to her car as part of his security job; she accused him of
sleeping with the patron, chased him around the parking lot while he laughed at her, and keyed
his car. The State established Guillen had not had contact with Escamilla in sixteen or seventeen
years, and then objected to the testimony, arguing it was too remote and the facts underlying the
three incidents were irrelevant to the facts in the pending case. The trial court sustained the
objection.
In his second issue, appellant argues the trial court erroneously excluded evidence from
Ronald Castro, a long-time acquaintance of Escamilla. Again, Castro was permitted to testify to
his opinion that Escamilla was a vindictive person. But he was not permitted to testify that
Escamilla sold him a car and told him, while using that car, "she had ran over some folks and got
away with it" and "she had hung out the sunroof and shot at people." The State objected to the
proffered testimony as hearsay and argued the statements were not relevant to Escamilla' s
motive, intent, or state of mind in the instant offense.
-7-
We review the trial court's decision to exclude evidence for an abuse of discretion.
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). The rules of evidence pennit
a defendant to offer evidence of the victim's character for violence or aggression when the
defendant is charged with an assaultive offense. Ex parte Miller, 330 S.W.3d 610, 618 (Tex.
Crim. App. 2009). A defendant may offer evidence of the victim's character trait for violence to
demonstrate that the victim was, in fact, the first aggressor. See TEX. R. EVID. 404(a)(2); Miller,
330 S.W.3d at 619. This character-trait evidence is admissible, however, only through reputation
and opinion testimony. See TEX. R. EVID. 405(a); Miller, 330 S.W.3d at 619. A defendant may
not offer evidence of the victim's prior specific acts of violence to prove the victim's violent
character and that the victim acted iu conformity with that violent character at the time of the
assault. See TEX. R. EVID. 404(b)(2); Miller, 330 S.W.3d at 619. Therefore, to the extent
appellant's proffered testimony of specific acts of violence served only to prove Escamilla's
conduct was iu conformity with her violent character, the testimony was inadmissible.
A victim's prior specific acts of violence may be admissible if offered for a non-character
purpose in the particular case, such as her specific intent or motive for an attack on the
defendant. See TEX. R. Evrn. 404(b); Miller, 330 S.W.3d at 620. But these specific acts are
admissible only to the extent that they have relevance apart from their tendency to show
character conformity. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). For
example, in Tate v. State, the defendant offered evidence through a third party that the victim had
threatened to hann the defendant on the night in question. Tate v. State, 981 S.W.2d 189, 192
(Tex. Crim. App. 1998). The court of criminal appeals concluded the evidence of the specific act
was probative of the victim's "state of.mind and possibly indicated a motive or demonstration of
intent behind the confrontation tbat evening." Id. Appellant argues the specific acts these
witnesses described were probative, "specifically with regard to [Escamilla's] state of mind in
-8-
relationships with men when she becomes jealous over other women and they tend to explain her
aggressive conduct toward [appellant] on the night of the assault." We disagree. The incidents
related by Guillen and Castro did not implicate appellant in any way. Nor do they reflect the
kind of state-of-mind evidence that could explain Escamilla's purported aggression toward
appellant. Torres, 71 S.W.3d at 762 ("For purposes of proving that the deceased was the first
aggressor, the key is that the proffered evidence explains the deceased's conduct."). The sixteen-
or seventeen-year-old acts described by Guillen-tearing clothes and jewelry or chasing him
around a parking lot--987 S.W.2d 54, 57 (Tex. Crim. App. 1999). Here, the
proposed testimony fails both prongs: Castro's rendition provides insufficient information to
discern whether the statements could expose Escamilla to criminal penalties, and he offered no
testimony that indicated the trustworthiness of the statements.
We conclude the trial court did not abuse its discretion in excluding the proposed
testimony concerning prior specific acts of violence involving Escamilla. The statements were
not admissible under rule 404(b ), and Castro's testimony was also properly excluded as hearsay.
-9-
Further, the trial court allowed both sides to introduce considerable evidence about Escamilla's
prior criminal history and prior conduct with appellant. We overrule appellant's first and second
issues.
In his fourth issue, appellant contends he was caused egregious harm by the trial court's
failure to limit the definitions of the culpable mental states to the result of the act charged. The
trial court submitted definitions on the "nature of the conduct" as well as "result of the conduct."
There are three "conduct elements" that can be involved in an offense: (1) the nature of
the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct.
TEX. PENAL CODE ANN. § 6.03 (West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex.
Crim. App. 1989). A trial court errs by failing to limit the definitions of the culpable mental
states to the conduct element or elements of the offense to which they apply. Cook v. State, 884
S.W.2d 485, 491 (Tex. Crim. App. 1994). An offense defined by causing bodily injury-such as
aggravated assault-is a result-of-conduct offense. See Garfias v. State, 424 S.W.3d 54, 60
(Tex. Crim. App. 2014). Accordingly, the trial court erred when it failed to limit its definitions
of mental states to the result of appellant's conduct. See Cook, 884 S.W.2d at 491.
The State concedes the court's general definitions were incorrect, but contends the error
was harmless. Appellant did not object to the definitions at trial; accordingly, any error in those
definitions is reversible only if appellant was egregiously harmed such that he was denied a fair
and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). To
determine the actual degree of harm we look to the entire record, the jury charge, and the state of
the evidence as a whole, taking into account the contested issues and the weight of probative
evidence. Id. We have reviewed the entire record of this case and concluded the evidence was
sufficient to support the jury's verdict. In addition, the State did not emphasize the improper
"nature of conduct" language from the charge in its argument, focusing instead on Escamilla' s
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injuries-the result of appellant's conduct-and how those injuries were caused. Finally, we
look to the application portion of the jury charge. See Patrick v. State, 906 S.W.2d 481, 492
(Tex. Crim. App. 1995) ("In assessing harm resulting from the inclusion of improper conduct
elements in the defmitions of culpable mental states, we 'may consider the degree, if any, to
which the culpable mental states were limited by the application portions of the jury charge."'
(quoting Cook, 884 S.W.2d at 492 n.6)). The application paragraph in appellant's charge pointed
the jury to the proper issue involved in a result-oriented offense. Specifically, the jury was
instructed that to find the defendant guilty of aggravated assault, they must find that appellant
"intentionally, knowingly, or recklessly caused serious bodily injury" to Escamilla.
Consequently, we conclude appellant was not denied a fair trial; he did not suffer egregious harm
due to the erroneous general definitions in the charge. We overrule appellant's fourth issue.
In his fifth and final issue, appellant argues the trial court erred by entering an affirmative
deadly weapon finding because the State failed to provide adequate notice of its intention to seek
such a finding. Appellant's indictment charged that he did:
intentionally, knowingly and recklessly cause serious bodily injury to Maria
Escamilla, hereinafter called complainant, by [l] striking complainant with a haud
and hands aud a lamp and [2] stabbing complainant with a knife and an unknown
object, the exact nature and description of which is unknown and unknowable to
the grand jury and [3] cutting complainant with a knife and an unknown object,
the exact nature and description of which is unknown and unknowable to the
grand jury, during the conunission of the assault.
The jury instructions tracked the above language as did the deadly weapon special issue
submitted to the jury. Appellant voiced no objection to this issue at any time.
"[A]ccused persons are entitled to notice in some fonn that the use of a deadly weapon
will be a fact issue at the time of prosecution, if the State intends to pursue the entry of a deadly
weapon finding." Ex parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989). The definition
of deadly weapon includes anything that in the mar.mer of its use is capable of causing serious
-11-
bodily injury. TEX. PENAL CODE ANN. § l.07(a)(l 7)(B) (West Supp. 2014). In an aggravated
assault case, notice is sufficient if the indictment alleges that some object or instrument caused
serious bodily injury to the complainant. See Gilbert v. State, 769 S.W.2d 535, 536-37 (Tex.
Crim. App. 1989). The State's inability to identify one or more of the deadly weapons alleged
did not render its notice to appellant inadequate. See Mixon v. State, 804 S.W.2d 107, 108 (Tex.
Crim. App. 1991).
Because appellant's indictment alleged that both named and unnamed objects caused
serious bodily injury to Escamilla, we conclude appellant had sufficient notice that the State
intended to pursue a deadly weapon finding. The deadly weapon special issue tracked the
indictment. We overrule appellant's fifth issue.
We affirm the trial court's judgment.
/Molly Francis/
MOLLY FRANCIS
ms TICE
Do Not Publish
TEX. R. APP. P. 47
130181F.U05
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