cameron-county-texas-v-francisco-salinas-and-gregoria-salinas ( 2013 )

NUMBER 13-12-00046-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALQUER DUARTE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 221st District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant, Alquer Duarte, was convicted of possession of methamphetamines.
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(f) (West 2010). A jury sentenced
Duarte to forty years’ incarceration. See id. Duarte argues three issues on appeal:
(1) that the evidence was insufficient to corroborate the accomplice witness’s testimony;
(2) the trial court erred in admitting evidence of extraneous offenses; and (3) the trial
court erred in admitting evidence that Duarte’s father had been arrested and convicted of
methamphetamine trafficking. We affirm.
I. BACKGROUND1
Officer Jason Dunn is an undercover investigator for the Houston Police
Department Narcotics Division. In January 2011, he let it be known through his street
connections that he was interested in purchasing large quantities of methamphetamine.
A person named “Kike” eventually called Dunn from a cell phone associated with the
number (786) 255-1020 and offered to sell him methamphetamine. Officer Dunn and
“Kike” agreed to meet in a Chili’s parking lot to make the transaction.
On February 2, 2011, Officer Dunn parked his vehicle in the Chili’s parking lot.
Hanner Pineda entered Dunn’s pickup on the passenger side, and Duarte went into the
backseat. Pineda introduced Duarte as “Kike” and explained that Pineda was there to
act as a translator because Duarte did not speak English. Officer Dunn “knew this
wasn’t right” because he recognized Pineda’s voice as the “Kike” he had spoken to on
the phone. He also knew that Duarte spoke English from his undercover investigation.
However, Officer Dunn did not question that at that moment. Pineda sold Officer Dunn
one ounce of methamphetamine. Officer Dunn gave Pineda $1,100 for the drugs, and
Pineda promptly handed the money over to Duarte in the backseat. Duarte remained
silent throughout the transaction.
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
2
Five days later on February 7, 2011, Officer Dunn called “Kike’s” cell phone
number, the -1020 number, to negotiate a larger purchase of methamphetamines. No
one answered. However, someone promptly called Officer Dunn back from the -1020
number and identified himself as “Kike.” Officer Dunn recalled that this voice did not
sound like Pineda’s voice. “Kike” and Officer Dunn agreed that Dunn would purchase
one pound of methamphetamines for $16,500 in a Lowe’s parking lot the next day.
Officer Dunn later received a call from “Kike” from a cell phone with the number (832)
347-7515. Kike informed Officer Dunn that the -7515 number was his new cell phone
number and that he no longer used the -1020 number.
Officer Dunn called the -7515 number to finalize the details about the one pound
sale of methamphetamine. No one answered, but Pineda later called to follow-up. On
February 8, 2011, Officer Dunn purchased the pound of drugs from Pineda in a Lowe’s
parking lot for $16,500. Duarte was not present. Shortly after the exchange, Officer
Dunn called Kike to purchase 2.5 pounds of methamphetamine later that same
afternoon. This time, after the drugs were exchanged in the Lowe’s parking lot, officers
arrested both Pineda and Officer Dunn (Dunn was arrested to maintain his undercover
status so that law enforcement could keep pursuing Duarte). Authorities searched
Pineda’s home and found additional methamphetamine, in addition to the $16,500 in
cash from the morning’s transaction.
On March 3, 2011, law enforcement obtained a warrant to search Duarte’s home.
Officers did not find any drugs, drug paraphernalia, or money there, but they did find four
cell phones. Two of the four cell phones were linked to the -1020 and -7515 numbers,
respectively.
3
Pineda testified at trial. He explained that he had known Duarte since childhood
and that Duarte recruited him into the drug business. In short, Duarte gave Pineda
instructions on when and where to deliver the methamphetamines. Pineda testified that
although he set up the initial sale of drugs to Officer Dunn in the Chili’s parking lot,
Duarte himself arranged the larger purchases of methamphetamines on the phone with
Officer Dunn.
A jury found Duarte guilty of possession of methamphetamines. The trial then
proceeded to the punishment portion of the trial. Special Agent Marco Saltirelli, with the
Department of Homeland Security, Immigration and Customs Enforcement Division
(ICE), testified that Duarte had been previously deported to Mexico. On
cross-examination, Special Agent Saltirelli admitted that Duarte was not deported
because of any particular crime he committed, but rather because of his citizenship
status. The State then requested permission to present another witness to explain how
Duarte was found by ICE in the first place:
The State: Judge, based upon [Duarte’s counsel’s] questioning of
the agent, basically implying that there was no criminal
activity involved with his deportation, I would like to put
on Agent Bryson to talk about the reason they
deported him, was he was found in his father’s home
when the DEA did a bust on his father.
The Court: I think that is fine. It is punishment. You can make
your objection for the record.
Duarte’s Counsel: Yes, I would object. I think it is an attempt by the
State to use the criminal offenses of the father against
the son. And so I object to the introduction of
testimony about the father’s criminal activity because I
think it would unfairly prejudice the jury in view of this
defendant.
4
The Court: I mean, I think that the standard on punishment . . . is
whether or not it is relevant to any issue. And I think
that knowing how they came in contact to know the
Defendant might be relevant . . . .
Agent John Bryson from the Drug Enforcement Administration then testified that
authorities deported Duarte after he was found in the home of his father, Don Carmelo
Duarte, during a drug raid. Carmelo was arrested for methamphetamine trafficking
after authorities performed a legal search of his home and found an AR-15 assault rifle,
among other weapons. Carmelo is currently serving a federal prison term for that
offense.
Duarte was sentenced to forty years’ incarceration, and subsequently filed this
appeal.
II. ANALYSIS
A. Accomplice Witness Testimony
In his first issue, Duarte argues that there is legally insufficient evidence to
connect him to the drug transactions which occurred at the Lowe’s parking lot.2
1. Applicable Law and Standard of Review
A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed, and the corroboration is not sufficient if it merely shows the commission of
the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). In other words, the
test for weighing the sufficiency of corroborative evidence is to eliminate from
consideration the testimony of the accomplice witness and then examine the testimony
2
Duarte appears to concede that he fully participated in the drug deal at the Chili’s parking lot in
January of 2011.
5
of other witnesses to ascertain if there is evidence which tends to connect the accused
with the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.
Crim. App. 1997). The corroborative evidence need not be sufficient in itself to
establish guilt, nor must it directly link the accused to the commission of the offense.
Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (citing Hernandez, 939
S.W.2d at 176). We view the evidence in the light most favorable to the jury's verdict.
Brown, 270 S.W.3d at 567.
An accomplice is someone who participates with the defendant before, during, or
after the commission of a crime and acts with the required culpable mental state.
Brown, 270 S.W.3d at 567; Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App.
2004) (citing TEX. PENAL CODE ANN. § 7.02(a) (West 2011)). Here, Pineda provided the
accomplice testimony. Thus, for the conviction to rest upon his testimony, "there must
simply be some non-accomplice evidence which tends to connect appellant to the
commission of the offense alleged in the indictment." Brown, 270 S.W.3d at 567
(internal quotations omitted) (emphasis in original); McDuff v. State, 939 S.W.2d 607,
613 (Tex. Crim. App. 1997) (en banc).
2. Analysis
Although Duarte concedes that he was present during the drug transaction at the
Chili’s parking lot, he argues that there is no evidence to link him to the drug deals in the
Lowe’s parking lot besides Pineda’s testimony. We disagree. Pineda’s testimony
aside, there is some non-accomplice evidence which tends to connect Duarte to the sale
of methamphetamines at Lowe’s. Brown, 270 S.W.3d at 567; McDuff, 939 S.W.2d at
613. First, Duarte was present at the initial drug purchase in the Chili’s parking lot and
6
accepted the money Officer Dunn offered to purchase the drugs. Second, Officer Dunn
testified that he had phone conversations with someone from the telephone numbers
-1020 and -7515 to set up the Lowe’s drug deals, and two cell phones with those
numbers were found during the search of Duarte’s home.
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that there existed some non-accomplice evidence which tended to connect Duarte to the
drug transactions in question and therefore corroborate Pineda’s testimony. Brown,
270 S.W.3d at 567. We overrule Duarte’s first issue.
B. Admission of Extraneous Offenses
In his second issue, Duarte argues that the trial court erred by allowing Pineda to
testify about the different times he sold drugs for Duarte. Duarte argues that allowing
evidence of these extraneous offenses constituted an abuse of discretion.
1. Applicable Law and Standard of Review
Rule 404(b) of the Texas Rule of Evidence provides that: “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. It may, however, be admissible for other purposes,
such as . . . identity.” See TEX. R. EVID. 404(b). “Extraneous offenses are relevant to
the issue of identity if there are distinguishing characteristics common to both the
extraneous offense and the offense for which the defendant is on trial or if there is a high
degree of similarity so as to earmark them as the handiwork of the accused.” See Reed
v. State, 751 S.W.2d 607, 611 (Tex. App.—Dallas 1988, no pet.) (citing Castillo v. State,
739 S.W.2d 280, 289 (Tex. Crim. App. 1987)). Before a court can admit evidence
7
regarding extraneous offenses to prove identity, identity must be a contested matter.
See id.
A trial court’s decision to admit or exclude evidence is reviewed under an abuse of
discretion standard. See De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009). If the decision is within the “zone of reasonable disagreement,” then there is no
abuse of discretion. See id. at 343–44.
2. Analysis
During trial, Pineda testified about the manner and means in which he worked for
Duarte. He explained that Duarte would initially call him regarding a particular drug
deal. Pineda would then obtain the drugs from Duarte, make the delivery, and return
the money to Duarte. Pineda opined that he did this for Duarte approximately eight
different times before he was caught and arrested. This scenario matched how Officer
Dunn described how most drug transactions took place:
Officer Dunn: Basically, from my experience, one person, the person
that is higher up, will take the order, talk about the
money, do that kind of thing. Then he will relay the
information to his associate, which we call the runners.
And they are the ones that actually put their hands on
the drugs, deliver the drugs, take the money. They
do all the dirty work, basically.
Duarte argues that Pineda’s testimony regarding the numerous times they
conducted drug deals together was inappropriate evidence of extraneous offenses.
Duarte contends that this testimony was improper because it was used to show
character conformity with the allegation that Duarte was, essentially, a drug dealer.
See TEX. R. EVID. 404. Duarte further argues that identity is not disputed because
8
“there was no issue that Pineda knew [Duarte].” However, the State correctly points out
that the concern is whether Officer Dunn could correctly identify “Kike” as Duarte.
We agree that the identity of “Kike” was at issue. The State had to prove that the
“Kike” who negotiated the sale of methamphetamines with Officer Dunn on the telephone
was, in fact, Duarte. The trial court established that it was “going to find on the record
that identity has become a disputed issue in this case” and admonished the jury that the
extraneous offenses should only be considered for the purposes of identifying Duarte as
“Kike.”3 Based on the foregoing, we hold that the trial court did not abuse its discretion
when it allowed Pineda to discuss Duarte’s extraneous offenses. We overrule Duarte’s
second issue.
C. Admission of Duarte’s Father’s Convictions
In his third issue, Duarte argues that evidence of his father’s conviction of drug
possession and current federal prison term should not have been admitted into evidence
during the punishment phase of the trial.
1. Applicable Law and Standard of Review
We review a trial court's decision to admit punishment evidence under an
abuse-of-discretion standard. In re Davis, 329 S.W.3d 798, 802 (Tex. Crim. App.
2010); De La Paz, 279 S.W.3d at 343. Article 37.07 of the Texas Code of Criminal
3
The trial court issued the following jury instruction: “You are instructed that if there is any
testimony before you in this case regarding the defendant’s having committed another offense(s) or bad
act(s) other than the offense alleged against him in the indictment in this case, you cannot consider said
testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant
committed such other offense(s) or bad act(s), if any were committed, and even then you may only consider
the same in determining motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of
mistake or accident, if any, in connection with the offense, if any, alleged against him in the indictment in this
case, and for no other reason.”
9
Procedure outlines what kind of evidence can be considered during the punishment
phase of a trial:
Regardless of the plea and whether the punishment be assessed by the
judge or the jury, evidence 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, section 3(a)(1) (West 2011).
2. Analysis
The trial court specifically stated that it believed that “how [law enforcement] came
in contact to know the Defendant” was relevant to the punishment portion of the trial.
And evidence of one’s associations can be considered relevant to sentencing. See
Beasley v. State, 902 S.W.2d 452, 456–57 (Tex. Crim. App. 1995) (allowing the
admission of one’s gang affiliation into evidence); Ybarra v. State, 775 S.W.2d 409, 411
(Tex. App.—Waco 1989, no pet.) (same). Further, as the State points out, “evidence
that is otherwise inadmissible may become admissible when a party opens the door to
such evidence.” Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 1999). “A
party opens the door by leaving a false impression with the jury that invites the other side
to respond.” Here, Agent Saltirelli’s testimony left the impression that Duarte was
previously deported to Mexico because of his citizenship status and not because of any
particular crime he committed. Agent Bryson’s testimony was used to give some
background to the way Duarte was found by immigration officials in the first
10
place—during a methamphetamine raid of his father’s home, which was similar to the
very crime of which Duarte had just been convicted.
We conclude the trial court did not abuse its discretion in admitting this
punishment evidence, Davis, 329 S.W.3d at 802, and overrule Duarte’s third issue.
III. CONCLUSION
Having overruled all of Duarte’s issues, we affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
11th day of July, 2013.
11