Tommy Galindo Rodriguez v. State ( 2008 )

Affirmed as Reformed and Memorandum Opinion filed September 2, 2008

Affirmed as Reformed and Memorandum Opinion filed September 2, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00142-CR

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TOMMY GALINDO RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1073193

M E M O R A N D U M   O P I N I O N

Appellant, Tommy Galindo Rodriguez, was indicted on the offense of first-degree murder.  The jury convicted him of the lesser-included offense of manslaughter, and the trial court sentenced him to life imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine.  In five issues, appellant challenges the legal and factual sufficiency of the evidence supporting the verdict, as well as alleged evidentiary errors committed by the trial court.  Appellant also argues, and the State concedes, that the trial court erred in entering a second enhancement finding in the judgment.  We reform the judgment, and affirm.

Factual and Procedural Background

On the evening of November 12, 2005, appellant and his girlfriend, Sallie Millan, went to a party hosted by the parents of Maria Melchor.  They were accompanied by the complainant, John Melchor,^[1] and one of Sallie=s children.  Maria testified that appellant, Sallie, and the complainant were all drinking alcohol at the party.

Sometime during the party, Jose Sarmiento, Maria=s cousin, approached Sallie and asked her whether she remembered him.  According to Maria, when Sallie answered Ayes,@ appellant became Ajealous@ and Aupset.@  He raised his voice and asked Sallie how she knew Sarmiento.  When Sallie responded that she knew him because she had seen him before, and that he was Maria=s cousin, appellant pushed Sallie.  This angered the complainant.

The complainant then pushed appellant, who fell to the ground.  Maria testified that appellant then Agot very upset,@ stood up, and pulled a Adagger@^[2] out of his right pocket.  Appellant lunged toward the complainant with the dagger and tried to stab him.  Appellant also tried to stab Sarmiento and Maria=s uncle, Ruben Flores, as well as another of Maria=s cousins, Ruben Flores, Jr.^[3] George then attempted to restrain the complainant, who at this point had retrieved a long fork from the nearby barbeque pit.^[4] George was able to wrest the fork from the complainant, while Maria and other family members tried to calm appellant.  Eventually, Sarmiento disarmed appellant and gave the dagger to Maria.  Maria then handed the dagger to her mother, who hid it in the dirt underneath some nearby plants.

Appellant, Sallie, and the complainant continued arguing, and finally decided to leave the party.  Sallie requested the dagger from Maria, who initially refused to return it.  Maria testified that she eventually gave the dagger to Sallie, who then hid it between the door and the front seat on the driver=s side of her car.  Appellant, Sallie, her son, and the complainant then got into Sallie=s car and left the party.

The four drove to the complainant=s house.  Sallie testified that appellant, who was in the back seat of the car, kept repeating, AYou just wait. You just wait,@ which she interpreted as a threat.  When they arrived, the complainant ordered appellant out of the car, telling him to walk home.  The complainant also told appellant not to go to Sallie=s apartment. Appellant then walked off, and the complainant informed Sallie that he would accompany her to her apartment because he didn=t Awant [appellant] going over there and probably beat[ing] [her] up.@ Sallie, her son, and the complainant then drove to Sallie=s apartment. 

When they arrived, Sallie=s daughter Jasmine informed her that appellant had called to tell Sallie he was coming over. Appellant then called a second time, apologized for his behavior, and asked Sallie to pick him up.  She told him that she would and left her apartment to attempt to locate him.  When she was unable to do so, she returned home. Appellant then called a third time.  Sallie testified that appellant was Aangry@ and Aupset.@  Accusing her of lying about attempting to pick him up, he told her that he was coming over. Sallie specifically told appellant not to come over, then hung up on him.

Approximately thirty minutes later, appellant arrived at Sallie=s apartment and knocked on the door.  Sallie testified that the complainant was seated at a table adjacent to the kitchen area.  She also testified that she had placed the dagger behind the radio on the table where the complainant was seated, but that the complainant was unaware the dagger was there.  Appellant again apologized for his behavior and promised her that he would remain calm and Abehave@ if she let him in.  Sallie eventually decided to allow appellant to enter the apartment.

As she unlocked the door, appellant shoved the door open and Awent straight to the kitchen.@  Sallie testified that she could hear appellant opening and searching through the kitchen drawers.  Jasmine, who was seated on the sofa in the living room, then exclaimed, AMommy, [appellant] has a knife. [Appellant] has a knife.@

The complainant then stood up and walked toward the kitchen.  Sallie told Jasmine to go next door and call the police.^[5] Sallie then grabbed the dagger, handed it to the complainant, and followed behind him.  Sallie testified that the complainant held the dagger to his side, behind his right leg, with the blade pointed toward the floor.  Appellant, who had obtained a butcher knife from one of the kitchen drawers, pointed the knife at the complainant, who repeatedly asked appellant to put it down.  Appellant began walking toward the complainant with the knife still pointed at him.  The complainant raised the dagger from behind his leg, while Sallie repeatedly told appellant to put the knife down.

Sallie testified that things then Ahappened real fast.@  Appellant and the complainant Awere fighting,@ and at one point both were Abent over with the knife.@  By this time, the complainant had dropped the dagger, and was holding appellant=s hand Atrying to keep [appellant] from stabbing him@ with the knife.  The complainant then called for Sallie, who jumped in between the two.  Sallie Asaw blood,@ but she did not see the knife go into the complainant and did not know that he had been stabbed in his Astomach.@^[6]  Sallie exclaimed, AYou stabbed my brother,@ at which time appellant and the complainant let go of the knife.

The complainant fell back against the wall and onto the kitchen floor, unable to get up.  The complainant, who was bleeding, requested an ambulance.  Sallie testified that appellant Awalk[ed] real slow@ out of the kitchen and toward the front door of the apartment.  Jasmine, who by this time had returned from the neighbor=s apartment and was standing in the doorway, exclaimed, AMom, [appellant] is trying to leave.@  Thinking appellant was trying to flee the scene, Sallie knocked appellant down, telling him AYou=re not going anywhere.@  Sallie then called for an ambulance.

Police and paramedics eventually arrived at the scene. Officers Kelly Berg and Danel Sanchez of the Houston Police Department were the first to respond.  Each testified that Sallie answered the door with the knife and the dagger in her hands.  Appellant was seated on the kitchen floor, with the complainant=s head in his lap.  The kitchen floor was covered in blood.  Officers Berg and Sanchez asked who had the stabbed the complainant, and appellant responded, AI did.@  Officer Sanchez then handcuffed appellant and seated him on the sofa in the living room.

Sallie was then transported to LBJ Hospital.  While awaiting treatment for her injuries, Sallie gave an initial statement to Officer Sanchez.^[7] Appellant and the complainant were taken to Ben Taub Hospital,^[8] where the complainant later died from his injuries.

Appellant was subsequently indicted on the offense of first-degree murder.  The jury convicted him of the lesser-included offense of manslaughter, and the trial court sentenced him to life imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine.  This appeal followed.

Issues on Appeal

In five issues, appellant challenges various aspects of his conviction.  In his first and second issues, appellant contends that the evidence is legally and factually insufficient to prove that, at the time of the alleged offense, he had the mens rea required for manslaughter, specifically, that he acted recklessly.  In his third and fourth issues, appellant contends that the trial court abused its discretion in (1) excluding testimony from Lina Hernandez; and (2) admitting testimony from Officer Sanchez regarding the reliability of Sallie=s initial statement to police investigators.  In his final issue, appellant argues that the judgment should be reformed to delete that there was a plea or a finding on a second enhancement paragraph.  We analyze each of appellant=s issues in the order he has presented them.

Analysis of Appellant=s Issues

I.        The Evidence is Legally and Factually Sufficient to Prove that Appellant Recklessly Caused the Death of the Complainant.

In his first and second issues, appellant challenges the sufficiency of the evidence supporting his conviction for manslaughter. Appellant specifically contends that the evidence is legally and factually insufficient to prove that he recklessly caused the death of the complainant.

A.      Standards of Review and Applicable Law

When reviewing challenges to both the legal and factual sufficiency of the evidence supporting the verdict, we first review the legal sufficiency challenge. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).  In reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  This standard of review applies to cases involving both direct and circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  Although we consider all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 134.  We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  While we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that an appellate court should not reverse a verdict it disagrees with unless it represents a manifest injustice, though supported by legally sufficient evidence).

A person commits the offense of manslaughter if he recklessly causes the death of an individual. Tex. Penal Code _ 19.04(a).  Because manslaughter is a result-oriented offense, the definition of the culpable mental state is limited to the result of the conduct. See Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003); Perez v. State, 216 S.W.3d 855, 857 (Tex. App.CCorpus Christi 2006, pet. ref=d).  A person acts recklessly with respect to the result of his conduct when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the result will occur. Tex. Penal Code _ 6.03(c).  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint. Id.

B.      Application of Law to the Facts

The gist of appellant=s legal and factual sufficiency challenges involves whether the evidence supports the jury=s finding of recklessness, the level of intent required to support a manslaughter conviction.  Proof of a culpable mental state generally relies on circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978).  Whether an individual is aware of a requisite risk, as well as whether he consciously disregarded that risk, are  conclusions to be drawn through inference from all the circumstances by the trier of fact. See id.; Sadler v. State, 728 S.W.2d 829, 831 (Tex. App.CDallas 1987, no pet.).  Therefore, the issue is whether, given all the circumstances, a rational trier of fact could infer that appellant was aware of, but consciously disregarded, the risk created by his conduct. See Sadler, 728 S.W.2d at 831; Dillon, 574 S.W.2d at 94; see also Gahagan v. State, 242 S.W.3d 80, 86 (Tex. App.CHouston [1st Dist.] 2007, pet. filed). With this in mind, we proceed to appellant=s specific arguments.

1.       Legal Sufficiency

In support of his legal sufficiency challenge, appellant contends that there is no evidence showing Athe risk disregarded, even if perceived, was unjustifiable under the circumstances.@  Thus, appellant=s challenge is focused on the definition of recklessness contained in the Texas Penal Code. See Tex. Penal Code _ 6.03(c) (stating that a person acts recklessly with respect to the result of his conduct when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the result will occur) (emphasis added).  He asserts that the evidenceCeven when viewed in the light most favorable to the verdictCmerely shows that the complainant Awas stabbed during a struggle over one or both knives.@  He argues that the evidence is therefore legally insufficient to prove that, at the time of the alleged offense, he had the mens rea required for manslaughter.

In contrast, the State contends that the evidence is legally sufficient to prove that appellant had the culpable mental state of recklessness required for a manslaughter conviction.  The State asserts that the evidence, viewed in the light most favorable to the verdict, demonstrates that appellant (1) was drinking alcohol the night of the complainant=s death and showed signs of intoxication; (2) carried a dagger to the party hosted by Maria=s parents; (3) pulled out and waived the dagger at the complainant and at least two others at the party; (4) started a physical fight with the complainant at Sallie=s apartment while utilizing a knife; (5) during the fight, utilized the knife in the same manner as he had the dagger earlier in the evening; and (6) pushed the knife into the complainant=s stomach during the fight.  The State argues that a rational trier of fact could infer from these circumstances that appellant was aware ofCbut consciously disregardedCthe Asubstantial and unjustifiable risk that complainant would be injured or killed,@ and that the evidence is therefore legally sufficient to prove that appellant recklessly caused the death of the complainant.  We agree with the State.

In the light most favorable to the verdict, the evidence supports the jury=s finding that, at the time of the alleged offense, appellant had the culpable mental state of recklessness required for a manslaughter conviction.  In this light, the evidence demonstrates that (1) appellant armed himself with a butcher knife taken from Sallie=s kitchen; (2) the complainant was unarmed when appellant armed himself with the butcher knife; (3) appellant pointed the butcher knife at the complainant in a threatening manner and walked toward him; (4) both Sallie and the complainant repeatedly asked appellant to put down the butcher knife; (5) appellant refused these repeated requests and was holding the butcher knife when he began fighting with the complainant; (6) appellant was Aswinging@ the butcher knife at the complainant; (7) appellant struggled with the complainant over control of the butcher knife; and (8) appellant pushed the butcher knife into the complainant=s midsection during the struggle.  This evidence is legally sufficient to prove that appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that the complainant would be stabbed and killed during a physical altercation involving the butcher knife. See Sadler, 728 S.W.2d at 831 (evidence legally sufficient to prove that appellant was aware of, but consciously disregarded, risk of injury or death involved in struggle over pistol; evidence indicated that both appellant and complainant attempted to gain possession of pistol, which accidentally discharged during struggle); see also Tejeda v. State, No. 08-02-00451-CR, 2004 WL 2252108, at *8 (Tex. App.CEl Paso Oct. 7, 2004, no pet.) (not designated for publication) (evidence legally sufficient to prove that appellant was aware of risk of stabbing involved in wielding knife during fight; evidence showed that appellant was holding knife when fight with complainant began, appellant switched hands and began swinging with both hands during fight, and appellant admitted hitting several people during fight Abut did not know if he stabbed them@); Harrison v. State, No. 07-01-0422-CR, 2002 WL 31730720, at *2B3 (Tex. App.CAmarillo Dec. 3, 2002, no pet.) (per curiam) (not designated for publication) (evidence was legally and factually sufficient to prove that appellant was aware of, but consciously disregarded, risk associated with use of knife; evidence indicated that appellant and complainant got into a physical altercation, appellant picked up the knife Ato scare@ complainant, and complainant was stabbed during the physical altercation).  Contrary to appellant=s contention, under the facts of this case, it is of no consequence that the complainant was stabbed and killed during a struggle for control over the butcher knife, as appellant himself initiated the altercation.

Moreover, testimony at trial also indicated that appellant wielded the dagger in a threatening manner hours earlier at the party, where he tried to stab the complainant and three members of Maria=s family.  This constitutes some evidence that appellant was aware ofCbut consciously disregardedCthe risk that the complainant might be stabbed or killed during a physical altercation involving the butcher knife. See Hayes v. State, 728 S.W.2d 804, 809B10 (Tex. Crim. App. 1987) (op. on reh=g) (evidence that appellant involved himself in a physical struggle with complainant, brandished a gun to intimidate complainant and protect himself, and the gun discharged during further struggle demonstrated appellant was aware of but consciously disregarded risk created by his conduct); Mendieta v. State, 706 S.W.2d 651, 653 (Tex. Crim. App. 1986) (evidence that appellant pulled out knife and began swinging it to keep complainant away from him showed appellant was aware of risk created by his conduct); Bergeron v. State, 981 S.W.2d 748, 752B53 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d) (evidence that appellant merely tried to ward off complainant when he drew knife and stabbed complainant did not indicate appellant failed to perceive risk complainant might be seriously injured or killed as a result of appellant=s use of the knife).

Finally, appellant points to inconsistencies in Sallie=s and Jasmine=s testimony regarding whether the complainant answered the door at Sallie=s apartment, as well as whether the complainant was armed with the dagger when appellant entered the apartment.  The jury, as the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, was entitled to believe some or all of any witness=s testimony, and reconcile any conflicts in the evidence. See Mosley, 983 S.W.2d at 254; see also Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

Viewed in the appropriate light, the evidence is legally sufficient to support the inference that appellant was aware of, but consciously disregarded, the substantial and unjustifiable risk created by his conduct.  Therefore, the evidence is legally sufficient to prove that, at the time of the alleged offense, appellant had the culpable mental state of recklessness required for a manslaughter conviction.  We overrule appellant=s first issue.

2.       Factual Sufficiency

In support of his factual sufficiency challenge, appellant again focuses on whether the risk created by his conduct was justifiable under the circumstances.  He specifically points to statements given by Sallie and Jasmine to police investigators, in which each stated that the complainant answered the door at Sallie=s apartment while armed with the dagger. He asserts that this evidenceCwhich he alleges is inconsistent with their trial testimonyCcreated an issue regarding Awhether the risk taken by appellant was justifiable under the circumstances, or whether a reasonable doubt existed as to whether the risk was unjustified.@  He argues that the evidence is therefore factually insufficient to prove that he recklessly caused the death of the complainant.

Conversely, the State contends that the evidence is factually sufficient to prove that appellant recklessly caused the death of the complainant.  The State asserts that it was the jury=s task at trial to review the credibility of all the witnesses and determine the weight to be given their testimony.  The State argues that a reasonable jury could have chosen to disbelieve any inconsistent descriptions of the event and credit the circumstantial evidence surrounding the incident and appellant=s own statement to police.  The State concludes that the evidence supporting the verdict is not so weak to support a finding of guilt, nor is the verdict against the great weight and preponderance of the evidence.  Again, we agree with the State.

Viewing all of the evidence in a neutral light, we conclude that the evidence is factually sufficient to prove that appellant was aware of, but consciously disregarded, the substantial and unjustifiable risk that the complainant might be stabbed or killed during a physical altercation involving the knife.  The evidence is not so weak that the verdict is clearly wrong and manifestly unjust, and the verdict is not against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414B15.  Both Sallie and Jasmine testified at trial that Sallie answered the door at her apartment, that the complainant was seated when Sallie answered the door, and that the complainant was unarmed when appellant entered the apartment.  Both explained the reasons for the inconsistencies between their trial testimony and their statements to police investigators, and these explanations were corroborated by the testimony of the police officers who took their statements.^[9]

Finally, we are mindful that we must exercise appropriate deference to the jury=s credibility determinations in order to avoid substituting our judgment for theirs. See Drichas, 175 S.W.3d at 799; Watson, 204 S.W.3d at 414.  The jury was free to believe or disbelieve any or all of Sallie=s and Jasmine=s trial testimony, even though some of it may have been inconsistent with their statements to police investigators. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (stating that the jury, as the judge of the credibility of the witnesses, may choose believe any portion of a witness=s testimony, even though her testimony may be contradicted by other evidence); Dorsey v. State, 24 S.W.3d 921, 924 (Tex. App.CBeaumont 2000, no pet.) (citing standard in context of factual sufficiency review).

Therefore, we hold that the evidence is factually sufficient to prove that, at the time of the alleged offense, appellant had the culpable mental state of recklessness required for a manslaughter conviction. We overrule appellant=s second issue.

II.       The Trial Court Did Not Abuse its Discretion in Excluding and Admitting Certain Testimony.

In his third and fourth issues, appellant contends that the trial court abused its discretion in (1) excluding allegedly non-hearsay testimony from Lina Hernandez; and (2) admitting testimony from Officer Sanchez regarding the reliability of Sallie=s initial statement to police investigators.  We examine each of appellant=s arguments in turn.

A.      Standard of Review

We review a trial court=s evidentiary rulings under an abuse of discretion standard. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).  A trial court abuses its discretion when it acts arbitrarily or unreasonably, or when it fails to analyze or apply the law correctly. See Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003); Mays v. State, 223 S.W.3d 651, 655 (Tex. App.CTexarkana 2007, pet. granted) (citing State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004) (Holcomb, J., dissenting)). 

B.      The Trial Court=s Exclusion of Allegedly Non-Hearsay Testimony From Lina Hernandez Was Harmless.

Appellant first contends that the trial court abused its discretion when it prevented Lina Hernandez from testifying regarding a statement that she overheard on the telephone the night of the complainant=s death.  Appellant asserts that his statementCACall the police. Call an ambulance.@Cwhich he alleges Lina heard him screaming while she was on the telephone with Jasmine, was not hearsay because it was not offered to prove the truth of the matter asserted. Rather, appellant argues that this statement was offered to show that it was made, and was relevant because Ait showed [he] lacked any criminal intent or sense of guilt for his actions.@  Appellant argues that the trial court therefore abused its discretion when it excluded this testimony on hearsay grounds.

In the present case, we need not decide whether the trial court=s exclusion of Lina=s testimony on hearsay grounds was error because we conclude the error, if any, in excluding her testimony was harmless.  Therefore, for purposes of analysis, we will assume error and address appellant=s contention that the error was harmful.

1.       Applicable Law

The erroneous exclusion of a defendant=s evidence generally constitutes non-constitutional error unless the excluded Aevidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.@ Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).  Here, the evidence excludedCtestimony regarding appellant=s statement to ACall the police. Call an ambulance.@Cdid not prevent appellant Afrom presenting the substance of his defense to the jury.@ See id. at 666.  We therefore apply the harmless error standard of Rule 44.2(b) of the Texas Rules of Appellate Procedure. See id. at 662.

Rule 44.2(b) provides that any non-constitutional error which does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b).  Substantial rights are not affected by the erroneous exclusion of evidence Aif the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.@ Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).  However, if we harbor Agrave doubts@ that an error did not affect the outcome, we must treat the error as if it did. See Webb v. State, 36 S.W.3d 164, 182 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

In assessing the likelihood that the jury=s decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla, 78 S.W.3d at 355.  Neither party has the burden to prove harm from an error. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).  It is the duty of the reviewing court to assess harm from the context of the error. Id.

2.       Application of Law to the Facts

Appellant contends that the erroneously-excluded testimony Ashowed appellant lacked any criminal intent or sense of guilt for his actions.@  Thus, appellant=s argument is focused on the mens rea element of the offense.  Stated differently, appellant argues that, had testimony of his statement been admitted, it would have proved that he did not recklessly cause the death of the complainant.  We disagree.

As the Texas Court of Criminal Appeals has explained, one factor to consider in our analysis is Athe character of the alleged error and how it might be considered in connection with other evidence in the case.@ Motilla, 78 S.W.3d at 355. Testimony regarding appellant=s request to call the police and/or an ambulanceCwhich he made after he had stabbed the complainantCdoes not demonstrate that appellant did not act recklessly at the time the complainant was stabbed.  In fact, this testimony bears no relationship to appellant=s state of mind during his commission of the offense.  At most, it is probative of appellant=s state of mind immediately following the incident, and not, as he contends, Arelevant to appellant=s state of mind at the time of the incident.@

When considered in connection with the evidence that was presented to the jury of appellant=s state of mind at the time of the offense, the trial court=s alleged error in excluding Lina=s testimony was harmless.  At trial, Sallie testified that appellant walked straight to the kitchen when he entered the apartment, that appellant obtained a butcher knife from one of the kitchen drawers, that appellant walked toward the complainant while pointing the knife at him, that a fight started between appellant and the complainant, that appellant struggled with the complainant over control of the knife, and that appellant pushed the knife into the complainant=s stomach during the struggle.  Other testimony indicated that appellant carried a dagger to the party hosted by Maria=s parents, where he tried to stab the complainant and three members of Maria=s family. Furthermore, appellant admitted in his statement to Officer Parker that the complainant was unarmed (1) at the time appellant armed himself with the butcher knife from Sallie=s kitchen; (2) when appellant began fighting with the complainant while utilizing the butcher knife; and (3) when appellant was Aswinging@ the butcher knife at the complainant.  This evidence was probative of appellant=s state of mind at the time of the offense. See Sadler, 728 S.W.2d at 831; Dillon, 574 S.W.2d at 94; Gahagan, 242 S.W.3d at 86.

Therefore, after considering the record in this case, we cannot say that the trial court=s error, if any, in excluding Lina=s testimony had a substantial and injurious effect or influence on the jury=s verdict. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).  We have a fair assurance that exclusion of her testimony Adid not influence the jury, or had but a slight effect,@ and we do not harbor Agrave doubts@ that this exclusion affected the outcome of this case. See Motilla, 78 S.W.3d at 355; Webb, 36 S.W.3d at 182.  We overrule appellant=s third issue.

C.      Appellant Waived Any Error in the Trial Court=s Admission of Testimony From Officer Sanchez.

Appellant next contends that the trial court erred in admitting testimony from Officer Sanchez regarding the reliability of Sallie=s initial statement.  Appellant asserts that Officer Sanchez=s expert opinionCthat, based on her training and experience as a police officer, the statement given by Sallie at LBJ Hospital was Aunreliable@Cconstituted Aa direct opinion as to the truthfulness of [Sallie].@  Appellant further asserts that he was entitled to have the jury decide Awhich version of the facts given by Sallie was truthful or credible@ and argues that, because Officer Sanchez=s opinion decided an issue for the jury rather than assisted them with understanding the evidence or determining a fact in issue, this testimony is inadmissible under Rule 702 of the Texas Rules of Evidence.

On direct examination, the State elicited testimony from Officer Sanchez regarding the initial statement given by Sallie at LBJ Hospital.  Officer Sanchez explained that Sallie=s statement was taken while Sallie was awaiting treatment for her injuries, approximately one and one-half hours after the incident at her apartment.  In sum, Officer Sanchez testified that, at the time her initial statement was given, Sallie appeared to be (1) Avery upset@; (2) Avery worried about the condition of [the complainant]@; (3) intoxicated; (4) unable to focus on the questions being asked; and (5) Aconfused.@  She further explained that Sallie did not appear to be Alucid@ at that time, because she would respond to her questions with questions about the complainant=s condition and gave several inconsistent answers to the questions that were asked.

The following exchange then occurred:

[The State]:            Okay.  So did you believe that a follow-up statement should be taken by other people at a later time?

[Officer Sanchez]:  Absolutely.

[The State]:            Why?

[Officer Sanchez]:  I believe that she was too concerned with the condition of her brother at that time and in an intoxicated state and injured and I just felt like it probably wasn=t the best time to get a full statement from [Sallie].

*  *  *

[The State]:            Now, let me ask you this:  Based on your training and experience I think you have said that sometimes it=s beneficial to talk to somebody when they=re more lucid and not intoxicated?

[Officer Sanchez]:  Correct.

*  *  *

[The State]:            Okay. Based on your dealing with her and based on your training and experience as a police officer, do you think that her statement to you in LBJ is reliable?

[Defense Counsel]: Judge, I=m going to object to that.  It calls for speculation and also invades the province of the jury.

[The Court]:           Overruled. I=m going to let her give an opinion as toCshe=s already testified to the condition of the woman and if she can say reliable, unreliable based on her training as a police officer I=m going to let her do that.

[Officer Sanchez]:  Unreliable.

[The State]:            Thank you.  I will pass the witness.

Defense counsel then cross-examined Officer Sanchez regarding her opinion that the information contained in Sallie=s initial statement was unreliable.

Later, on redirect examination, the State again asked Officer Sanchez regarding the reliability of Sallie=s initial statement:

[The State]:            Okay.  So I=m asking you to tell this jury under oath, do you believe based on your training and experience that her statement to you was reliable about what happened in that apartment that night?

[Officer Sanchez]:  I believe that it was unreliable.

Defense counsel did not renew his objection.  Nor did he request a running or continuing objection to any of the questions asked of Officer Sanchez regarding the reliability of Sallie=s initial statement.

Because defense counsel failed to renew his objection to Officer Sanchez=s testimony, any error in its admission was not preserved. See Salazar v. State, 127 S.W.3d 355, 362 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (holding failure to renew objection when prosecutor asked substantially similar question waived any error); see also Williams v. State, 840 S.W.2d 449, 461B62 (Tex. App.CTyler 1991, pet. ref=d) (same); Johnson v. State, 975 S.W.2d 644, 653B54 (Tex. App.CEl Paso 1998, pet. ref=d) (same); Short v. State, 681 S.W.2d 652, 655 (Tex. App.CHouston [14th Dist.] 1984, pet. ref=d) (same).  We therefore overrule appellant=s fourth issue.

III.      The Judgment Should Be Reformed to Delete That There was a Plea or a Finding on a Second Enhancement Paragraph.

In his final issue, appellant arguesCand the State concedesCthat the judgment should be reformed to delete the recitation that there was a plea or a finding on a second enhancement paragraph.

During punishment, the State presented appellant with the remainder of the indictment.  The State alleged that appellant had previously been convicted of the felony offense of burglary of a habitation.  Appellant pled ATrue@ to the enhancement paragraph in the indictment, and the jury also found it ATrue.@  However, the judgment reflects that appellant pled ATrue@ to a second enhancement paragraph and that the jury found this second enhancement paragraph to be ATrue.@  Appellant and the State agree that the indictment did not contain a second enhancement paragraph, that appellant did not plead ATrue@ to a second enhancement paragraph, and that the jury did not find the second enhancement paragraph to be ATrue.@

The proper remedy for this error is reformation of the judgment. See Ingram v. State, C S.W.3d C , 2008 WL 2440196, at *4 (Tex. App.CTyler June 18, 2008, no pet. h.); see also Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.CDallas 1991, pet. ref=d).  We therefore sustain appellant=s final issue and reform the judgment to reflect that the indictment contained only one enhancement paragraph, that appellant pled ATrue@ to this enhancement paragraph, and that the jury found this enhancement paragraph to be ATrue.@

Conclusion

For the foregoing reasons, we reform the trial court=s judgment to delete the plea of ATrue@ and the finding of ATrue@ on the second enhancement paragraph.  We affirm the trial court=s judgment as reformed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed September 2, 2008.

Panel consists of Chief Justice Hedges, Justice Boyce, and Senior Justice Price.*

Do Not Publish C Tex. R. App. P. 47.2(b).

_____________________________

* Senior Justice Frank C. Price sitting by assignment.

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^[1]  Maria testified that George Melchor is her husband, and that George, Sallie, and the complainant are all siblings.

^[2]  Other testimony at trial described this weapon as a ARambo knife@ with a serrated edge.  For ease of understanding and internal consistency, we refer to this weapon as Athe dagger.@

^[3]  Sallie testified that appellant Awas pointing the dagger at everybody@ because Aeverybody was surrounding him.@  When asked to clarify at whom appellant pointed the dagger, Sallie responded AMaria=s family@ and the complainant.

^[4]  Maria testified that the fork was approximately fourteen inches in length, had two prongs, and was of the type used to Aturn@ or Aflip@ barbeque.

^[5]  Jasmine testified that, at that point, she went next door and waited there until her neighbor called the police.

^[6]  According to the testimony of the medical examiner, the complainant was stabbed in his chest and in his right flank and had multiple incised wounds to his upper extremities.  The stab wound to the complainant=s chest penetrated his liver, while the stab wound to his right flank penetrated his kidney.  In addition, Sallie testified that she was stabbed in her left hand, her right hip, and her right leg during the fight.

^[7]  Officer Sanchez testified that this statement was taken at approximately 2:30 a.m., within one and one-half hours of the incident at the apartment.  Officer Sanchez also testified that she interviewed Jasmine at the scene, immediately after the incident.  In addition, Officer John Parker of the Houston Police Department testified that he interviewed Sallie and Jasmine the following afternoon.

^[8] Before being released from Ben Taub Hospital, appellant was questioned by Officer Parker.  Officer Parker testified that he also interviewed appellant a second time and that the second interview was recorded on videotape.

^[9]  Specifically, Sallie testified that she was not listening to Officer Sanchez=s questions very well when she gave her initial statement at LBJ Hospital and that she was crying while she was being questioned.  Officer Sanchez testified that Sallie was awaiting treatment for her injuries at the time her initial statement was taken, that Sallie was Avery upset@ and Avery worried about the condition of [the complainant]@ when making her statement, that Sallie appeared to be intoxicated at that time, that she had difficulty focusing on the questions and did not appear to be Alucid,@ that Sallie would respond to her questions with questions about the complainant=s condition, and that Sallie gave inconsistent answers to the questions asked during this initial interview and appeared to be confused.  Similarly, JasmineCwho was eleven years of age at the time of the incidentCtestified that she was still scared and upset when she spoke with Officers Sanchez and Berg at the scene.  Officer Sanchez testified that Jasmine appeared to be Aunder a lot of stress@ when her statement was taken, which she attributed to A[Jasmine=s] age and the circumstances that she had just been in,@ and that she was scared to be there.  Officer Parker testified that Jasmine Awas both tired and scared@ and was worried about her mother=s condition at the time he took her statement the following afternoon.