Saul Carrizales Loera v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00401-CR
No. 10-12-00407-CR
No. 10-12-00413-CR
SAUL CARRIZALES LOERA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court Nos. 2011-2309-C2, 2012-63-C2 and 2011-2310-C2
MEMORANDUM OPINION
In these three cases, Saul Carrizales Loera pleaded guilty to four felony offenses
(two counts of aggravated robbery, aggravated assault with a deadly weapon, and
possession of a controlled substance with intent to deliver).1 A punishment hearing
was held before a jury, which assessed punishment ay sixty years’ imprisonment on
1 The guilty pleas were part of an agreement in which the State agreed to drop the drug-free-zone
enhancement allegation in the possession case, to withdraw its motion to cumulate sentences, and to not
pursue additional charges against Loera.
each aggravated robbery charge, twenty years’ imprisonment on the aggravated assault
charge, and thirty years’ imprisonment on the possession charge. The trial court
entered judgments accordingly, with the sentences to be served concurrently. In his
sole issue in all three cases, Loera complains about the admission of evidence in the
punishment hearing. We will affirm.
Briefly, the punishment evidence shows that Loera and Clarissa Martinez were
arguing. Miguel Figueroa and his brother Juan were in a nearby car eating lunch, and
Miguel testified that as Martinez was driving away, Loera fired a gun at Martinez’s car.
Miguel said that Loera then approached Miguel’s car, pointed his gun at Miguel and
Juan, and robbed them of their telephones and wallets.
Former Waco police detective Steve January investigated the assault and
robbery, and after identifying Loera as a suspect, the Figueroas identified Loera as the
robber. January interviewed Clarissa Martinez, which led to the discovery of a bullet
hole in the driver’s door of her car. January obtained an arrest warrant for Loera, and
Waco police officer Steve Anderson executed it and arrested Loera at a Waco residence
with the address of 617 North 33rd Street. During a protective sweep of the residence,
police discovered the contraband (cocaine along with drug paraphernalia) that
constituted the possession offense.
In explaining how Loera was linked to the offenses by a witness and his location
was found, January testified:
Q. … And then, what did you do next to try and link the
Defendant to this crime?
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A. The information we retrieved from a witness gave us a
particular house, location that Saul Loera was identified as being
associated with. So I ran that particular address through our database.
Q. And then, do you remember what that address was or what
street it was on?
A. 627 North 33rd.
Q. 617 North 33rd?
A. Yes. Yes. I’m sorry.
Q. So you ran this address?
A. I did.
Q. And then what information came back for that address?
A. Well, and I also had ran his particular name.
Q. Okay.
A. To see if it was associated with the address we had.
Q. And that’s through a database in Waco?
A. Yes.
Q. Okay.
A. That’s the database that I drew some conclusions on.
Q. And what conclusions did you draw from that?
A. Well, there were 70 entries for Saul Loera’s name. And I
physically counted each of the entries and there were 65 that associated
him with that particular address on North 33rd that corroborated what the
witness had told me.
[Defense Counsel]: Judge, I’m going to object to him referring to
the number of incidences. He had the information available. Any
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specificity to that would be – I would object to that under 403 as well as
404.
THE COURT: Overruled.
Loera’s sole issue asserts that the trial court abused its discretion by admitting
this alleged extraneous-offense evidence offered by January.2 We review a trial court’s
decision to admit or exclude evidence for an abuse of discretion. McDonald v. State, 179
S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion standard, an
appellate court should not disturb the trial court’s decision if the ruling was within the
zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App.
2008).
Section 3(a) of Article 37.07 of the Code of Criminal Procedure grants trial courts
broad discretion to admit evidence, including extraneous-offense evidence, during the
punishment phase. The relevant statutory language is:
[E]vidence may be offered by the state and the defendant as to any matter the
court deems relevant to sentencing, including but not limited to the prior
criminal record of the defendant, his general reputation, his character, an opinion
regarding his character, the circumstances of the offense for which he is being
tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any
other evidence of an extraneous crime or bad act that is shown beyond a
reasonable doubt by evidence to have been committed by the defendant or for
which he could be held criminally responsible, regardless of whether he has
previously been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (West Supp. 2013).
“[T]he admissibility of evidence at the punishment phase of a non-capital felony
offense” trial “is” really “a function of policy rather than relevance.” Rodriguez v. State,
2 On appeal Loera does not argue that the evidence was inadmissible under Rule of Evidence 403.
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203 S.W.3d 837, 842 (Tex. Crim. App. 2006); accord Miller-El v. State, 782 S.W.2d 892, 894-
95 (Tex. Crim. App. 1990). “Evidence is ‘relevant to sentencing,’ within the meaning of”
Article 37.07, Section 3(a), “if the evidence is ‘helpful to the jury in determining the
appropriate sentence for a particular defendant in a particular case.’” McGee v. State,
233 S.W.3d 315, 318 (Tex. Crim. App. 2007) (quoting Rodriguez, 203 S.W.3d at 842). The
test for relevancy is much broader during the punishment phase because it allows a jury
to consider more evidence in exercising its discretion to assess punishment within the
appropriate range. See Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988) (op. on
reh’g).
The State contends that January’s reference to the database entries for Loera was
not extraneous-offense evidence; we agree. Rule 404(b) provides: “Evidence of other
crimes, wrongs or acts is not admissible to prove the character of a person in order to
show action in conformity therewith.” TEX. R. EVID. 404(b). “An extraneous offense is
defined as any act of misconduct, whether resulting in prosecution or not, that is not
shown in the charging papers.” Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App.
1996). The evidence must show that a crime or bad act was committed and that the
defendant was connected to it. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.
1993). “If the challenged evidence does not show that an offense was committed … ,
then it is not evidence of an extraneous offense.” Mayo v. State, 17 S.W.3d 291, 299 (Tex.
App.—Fort Worth 2000, pet. ref’d).
Accordingly, the trial court did not abuse its discretion in overruling Loera’s
Rule 404 objection to January’s testimony about the database entries because there was
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no evidence that the entries pertained to a crime or bad act connected to Loera. We
overrule Loera’s sole issue and affirm the trial court’s judgments in each case.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurs with a note)*
Affirmed
Opinion delivered and filed December 12, 2013
Do Not Publish
[CRPM]
*(Chief Justice Gray concurs in the judgment only. A separate opinion will not issue.)
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