Louis Gerardo Nieves v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00201-CR
LOUIS GERARDO NIEVES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Louis Gerardo Nieves, who was charged with intoxication
manslaughter, pled guilty to a jury that assessed his punishment at twenty years’
confinement. Although Appellant stood mute as to the deadly weapon allegation,
the jury found that he did, indeed, use a deadly weapon in the commission of the
offense. The trial court sentenced him in accordance with the jury verdict.
1
See Tex. R. App. P. 47.4.
In two issues, Appellant contends that (1) the trial court abused its
discretion by admitting evidence at punishment without proper authentication in
violation of the Confrontation Clause and (2) the trial court erred by allowing, over
objection, the prosecutor’s improper jury argument injecting facts not proven at
trial. Because we hold that the trial court did not reversibly err, we affirm the trial
court’s judgment.
Summary of the Facts
On the night in question, Appellant, who worked at a local Mexican
restaurant, had celebrated a friend’s birthday at a downtown club in Fort Worth.
In the early morning hours, he had left the club and was headed eastbound in the
westbound lanes of the I-30 freeway. Alejandro Raya, driving a tanker truck
carrying 7,780 gallons of gasoline, was headed westbound in the westbound
lanes of the same freeway. Appellant’s vehicle collided with Raya’s truck,
causing an explosion and fire that burned so intensely that it compromised the
structural integrity of the bridge where the collision occurred. A witness stated
that it appeared that “[t]he entire freeway was on fire.” Flames rose 200 to 300
feet above the freeway. The investigator for the medical examiner’s office
reported that the fire was so hot and had burned so intensely that large portions
of Raya’s truck had melted into pools of metal. Raya was killed by the fire, and
his body was so badly destroyed that his identity had to be determined by DNA
testing.
2
Appellant’s blood-alcohol concentration (BAC) was between .16 and .23
when tested after the collision. Extrapolation suggested that his BAC was
between .19 and .24 at the time of the collision. A coworker who had been at the
birthday party with Appellant corroborated his extreme intoxication and testified
that he had prevented Appellant from taking another friend with him to an
afterparty. Although Appellant admitted his guilt by pleading guilty at trial, an
eyewitness to the collision testified that, immediately after the wreck, Appellant
had claimed that his uncle had been driving.
The State offered evidence of Appellant’s criminal history, which included
three federal immigration offenses and a poor driving record from Washington
State. The jury also viewed an in-car video lasting five and a half minutes that
depicted the fire caused by the collision.
Social Security Number
In his first issue, Appellant argues that the trial court abused its discretion
by admitting evidence without proper authentication, violating the Confrontation
Clause. Specifically, he contends that the trial court abused its discretion by
admitting evidence that he had used someone else’s social security number on
an employment application because the State failed to show that he, rather than
the employer or another person, actually provided the number and because the
admission of the extraneous act violated his Sixth Amendment right to confront
his accuser.
3
A special agent with the Social Security Administration Office of the
Inspector General testified that Appellant had used the social security number of
another person when applying for employment at a Mi Cocina restaurant a few
weeks before the collision. The special agent relied on an application for
employment form provided by the restaurant. The State filed its notice of intent
to offer the business record before trial. At trial, the document in question was
offered as a business record and relied on by the special agent. The
employment application before us contains no social security number because it
has been redacted. The handwriting on the application is markedly different from
the handwriting on the W-4 form. Nothing suggests that the employment
application was prepared for purposes of trial or even after the commission of the
offense, and Appellant likewise raises no such challenge.
In Burch v. State, 2 the Texas Court of Criminal Appeals held that the lab
report identifying the substance seized as cocaine and providing the quantity
seized was testimonial and that its admission absent the testimony of the analyst
who prepared it violated Burch’s rights under the Confrontation Clause. 3 In that
opinion, however, the Texas Court of Criminal Appeals distinguished Williams v.
Illinois, a case in which a majority of the United States Supreme Court upheld the
admission of testimony by a prosecution witness that the defendant’s DNA profile
2
401 S.W.3d 634 (Tex. Crim. App. 2013).
3
Id. at 637–38, 640.
4
came from semen within the complainant, even though that witness had gleaned
that information solely from reading an independent lab report. 4 The Texas Court
of Criminal Appeals explained:
Justice Alito delivered the judgment of the court and an
opinion that garnered four votes. In the view of the plurality, the
petitioner’s rights were not violated because the out-of-court
statement (that the DNA profile came from semen within the victim)
was not offered to prove the truth of the matter asserted. Instead, it
was merely alluded to in order to explain the basis of the witness’s
independent conclusions (that the profile matched the petitioner’s
DNA). Alternatively, as a second and independent basis for the
decision, Justice Alito stated that the report was not testimonial
because it was created before there was a specific suspect.
Consequently, it was not inherently inculpatory or created for use
against the petitioner. 5
Here, the application for employment was not offered for the truth of the
matter asserted, nor was it prepared as an accusation against Appellant. We
therefore hold that the application for employment was not testimonial and not
hearsay; its admission was therefore not a violation of the right of confrontation.
Appellant also argues that the trial court abused its discretion when it
admitted evidence that he had used the social security number of another
because the State did not prove beyond a reasonable doubt that Appellant
committed the extraneous offense. He bases his argument on the fact that no
one who testified saw him fill out the form purporting to contain the social security
4
Will. v. Illinois, 132 S. Ct. 2221, 2227–28 (2012).
5
Burch, 401 S.W.3d at 638–39 (citations omitted).
5
number or interviewed anyone who saw Appellant fill out the form. Nor did the
special agent for the Social Security Administration who testified regarding the
unlawful use of another’s social security number verify Appellant’s signature.
Appellant’s signature was on other documents available for comparison.
Additionally, although it is clear from comparing the handwriting that someone
other than Appellant filled out the form in question, Appellant is the person who
worked under that social security number. While providing the number may be
one manner of using the number, it is not the only manner. Appellant held his job
under that number and received payment for his work under that number, and
that number is reflected on his W-4 form. The evidence is sufficient to show that
Appellant used that number. 6
Additionally, although Appellant discusses the requirement that the trial
court instruct the jury that they are not to consider extraneous acts of misconduct
unless they find the evidence of the extraneous acts to have been proved beyond
a reasonable doubt, Appellant does not point to any specific failure of the trial
court to provide such instruction. He argues only that the State failed to provide
sufficient evidence to prove the extraneous acts beyond a reasonable doubt. We
hold the evidence sufficient to support a rational trier of fact’s determination
6
See, e.g., United States v. Buchanan, No. 11-20918, 506 Fed. App’x 314,
315 (5th Cir. Jan. 8, 2013) (not designated for publication in federal reporter);
U.S. v. Oliver, 630 F.3d 397, 415–16 (5th Cir.), cert. denied, 132 S. Ct. 758
(2011).
6
beyond a reasonable doubt that Appellant used another’s social security number.
The trial court therefore did not abuse its discretion by admitting the evidence.
We overrule Appellant’s first issue.
Jury Argument
In his second issue, Appellant complains about the State’s improper
argument at punishment. To be permissible, the State’s jury argument must fall
within one of the following four general areas: (1) summation of the evidence;
(2) reasonable deduction from the evidence; (3) answer to argument of opposing
counsel; or (4) plea for law enforcement. 7
If a jury argument exceeds the bounds of proper argument, a trial court’s
erroneous overruling of a defendant’s objection is not reversible error unless it
affected the appellant’s substantial rights. 8 In determining whether the
appellant’s substantial rights were affected, we consider (1) the severity of the
misconduct (that is, the prejudicial effect of the prosecutor’s remarks);
(2) curative measures; and (3) the certainty of the punishment assessed absent
the misconduct. 9
7
Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert.
denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.
Crim. App. 1973).
8
Tex. R. App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.
Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)
(op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
9
Martinez, 17 S.W.3d at 692–93; Mosley, 983 S.W.2d at 259.
7
Appellant argues that, in the State’s closing argument, the prosecutor
improperly stated to the jury, “And I know you’re not going to consider probation
because I know you know that based on the evidence you’ve heard, that he’s
illegally in this country, and he will be deported. He will never serve a day on that
probation.”
On appeal, Appellant does not point to any specific objections he made to
that argument; he merely disputes the accuracy of the argument. At trial, the
objection was that the prosecutor was asking the jury to disregard the court’s
instructions. The prosecutor’s closing argument continued with no further
objection until Appellant finally objected that the argument was outside the
record. At that point, the prosecutor was instructed to rephrase his argument.
Appellant also argues in this issue that the prosecutor falsely claimed that
Appellant had lied about being born in this country. Rather than pointing to a
specific objection, Appellant merely disputes the truthfulness of this argument.
When the prosecutor argued, “You know, unfortunately, for [defense
counsel at trial], the proof that [Appellant] lied is the fact that we have two
documents that his name is on that he swore to,” Appellant objected that the
prosecutor was misstating the evidence and that there was no evidence that any
document was ever sworn to. The trial court overruled his objection. While this
was probably technically error, in that the employment application was not a
verified document, the evidence was before the jury. They had the opportunity to
take the documents into the jury room and to see for themselves that the
8
prosecutor had misstated the record. We therefore hold that this error did not
affect Appellant’s substantial rights, and we overrule his second issue.
We note with concern that the State’s punishment evidence and argument
dwelt to a large extent on Appellant’s being from Mexico and in this country
illegally. The prosecutor’s argument included the following:
And there’s no doubt he lied on those documents. So it has to make
you wonder. What is it that he thought about our state that made
him start his lies when he got here? Because when he answered
questions—when he got his license, he told the truth. What does
that tell us about his attitude about the way things work in Texas?
The prosecutor discussed the impact of the complainant’s death on his family,
the facts of the offense, and Appellant’s conduct in lying about who was driving
and his irresponsible conduct that night. Then the prosecutor argued,
And that is why he deserves the maximum punishment so that no
one else from Washington, Vancouver, Idaho, wherever else they’re
traveling from, will have any doubts about what is the wrong place to
come to a community, engage in this conduct, lie about your
responsibility, lie about whether you were born in this country,
destroy a family, destroy a bridge—
Our sister court in Houston has addressed referencing a defendant’s
nationality in jury argument. The prosecutor in that case argued, “I am going to
ask you to find this man guilty of three counts of aggravated sexual assault of a
child because he did this to these children. It wasn’t right, and in this country we
don’t allow foreigners to rape little girls.” 10 The appellate court held that the
10
Zakkizadeh v. State, 920 S.W.2d 337, 340 (Tex. App.—Houston [1st
Dist.] 1995, no pet.).
9
objection,—“improper argument”—was sufficient to preserve Appellant’s
complaint and held the argument was improper, albeit harmless. 11
Conclusion
While we are greatly disturbed by the tenor of the State’s punishment
evidence and the jury argument, we are constrained to hold that the trial court did
not reversibly err by allowing the arguments actually complained of or by
admitting the evidence complained of. Having overruled Appellant’s two issues,
we must therefore affirm the trial court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
WALKER, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 12, 2014
11
Id. at 340–41.
10