Enrique Zamora v. State ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00275-CR
Enrique ZAMORA,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR0494
Honorable Melisa Skinner, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: March 13, 2013
AFFIRMED
Enrique Zamora was convicted by a jury of two counts of aggravated assault with a
deadly weapon. On appeal, Zamora contends the trial court erred in admitting evidence of
extraneous offenses as contextual evidence, the State violated a motion in limine, and trial
counsel rendered ineffective assistance of counsel. We overrule Zamora’s contentions and
affirm the trial court’s judgment.
04-12-00275-CR
PROCEDURAL AND FACTUAL BACKGROUND
Zamora was charged with four counts of aggravated assault with a deadly weapon. In
two of the counts, Zamora was charged with offenses that allegedly occurred on or about
October 30, 2010 involving complainants Crystal Perez and Marcello Cruz. In the other two
counts, Zamora was charged with offenses that allegedly occurred on or about November 1,
2010, involving the same two complainants. A jury found Zamora guilty of the counts that
occurred on or about October 30, 2010, but acquitted him of the other two counts.
The extraneous offense evidence which is the focus of Zamora’s complaints on appeal
was introduced through two witnesses. The following details the relevant testimony of the two
witnesses.
Crystal Perez testified that she knew Zamora in elementary and middle school but lost
contact with him in high school. In 2005 or 2006, Perez and Zamora began writing letters to
each other, 1 and they later began living together at Zamora’s mother’s house on August 4, 2010.
Perez testified that the relationship started “going bad” when she discovered Zamora’s
possessiveness. Three weeks after Perez began her relationship with Zamora, she discovered
that she was five to six weeks pregnant. Perez told Zamora she was only three weeks pregnant
because she was afraid of him and scared to tell him the baby was not his. On October 23, 2010,
Perez told Zamora she no longer wanted to live with him and that the baby was not his. Zamora
told her “if he couldn’t have [her] no one else could have [her].” Zamora also told her “that he
could kill [her] and get rid of [her] body [and] nobody would even know.” After arguing for a
few hours, Perez told Zamora she needed to pick up her son. Zamora refused to let Perez leave
by herself. Instead, he drove her around town until he had to stop for gas. When Zamora
1
The trial court granted a motion in limine regarding any references to Zamora being in prison at that time.
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stopped, Perez exited the car and called her dad to pick her up. A few days later, Zamora
returned Perez’s car to her.
On October 30, 2010, Perez was eating at a restaurant with her son. Zamora appeared at
the restaurant and sat with them. Perez testified that Zamora knew where she was because he
followed her around. Zamora again told Perez that “if he couldn’t have [her] nobody else
could.” Later the same day, Perez and her new boyfriend, Marcello Cruz, drove to a Church’s
restaurant. As Perez was exiting the parking lot, Zamora arrived in a truck. Upon seeing Perez,
Zamora drove his truck head-on into the front driver’s side of Perez’s car, pushing the car back
into the parking lot. Zamora reversed and drove into Perez’s car two more times, pushing her car
into a post by a trash dumpster. After Perez exited the car, Zamora drove off. Perez then drove
to her dad’s house and called the police. Perez, who was four months pregnant, was later taken
to the hospital because she began experiencing cramping and spotting.
On October 31, 2010, Perez was at her grandmother’s house when Zamora continually
drove by, screeching his tires. Although Perez called the police, they told her they could not do
anything since his brother also lived in the neighborhood. Around midnight, Perez and Cruz left
her grandmother’s house to meet some friends at a bar. Perez and Cruz exited the bar around
1:30 a.m. and were getting into Cruz’s jeep when Perez saw Zamora’s truck parked nearby.
Zamora pulled into the parking space next to the jeep as Cruz reversed from his parking space.
Zamora then ran to the jeep and pointed a gun at Perez and Cruz. Cruz drove off with Zamora
chasing them. After Cruz exited the highway, Zamora caught up to him and rammed the jeep in
the back, causing the jeep to spin into an intersection. Zamora hit the jeep again, and it flipped
over. Zamora hit the jeep a third time, pushing it onto a sidewalk. Zamora then drove away.
Officer Maria Briggs reported to the scene on November 1, 2010. She stated it was her
first time to testify before a jury, and she was nervous. Officer Briggs testified that Perez
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provided most of the information about the incident. Officer Briggs was told that Zamora caused
the accident. In response to whether she learned that Zamora was angry with Perez for being
with someone else, Officer Briggs testified that Perez “said that pretty much — after he got out
of prison that he had been following her and going to her house and he rammed her vehicle
before.” Defense counsel objected that the testimony was in violation of the motion in limine
and asked the trial court to instruct the jury. The trial court instructed the jury to disregard
Officer Briggs’s answer.
SAME TRANSACTION CONTEXTUAL EVIDENCE
In his first issue, Zamora asserts the trial court erred in allowing extraneous offense
evidence to be admitted as same transaction contextual evidence. Specifically, Zamora
complains about Perez’s testimony regarding the threats he made to her and the testimony
regarding his pointing a gun at Perez and Cruz.
Same transaction contextual evidence is evidence regarding the context in which a
criminal act occurs and recognizes that “events do not occur in a vacuum, and the jury has a right
to hear what occurred immediately prior to and subsequent to the commission of that act so that
it may realistically evaluate the evidence.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim.
App. 2000). Same transaction contextual evidence is admissible “only to the extent that it is
necessary to the jury’s understanding of the offense.” Wyatt v. State, 23 S.W.3d 18, 25 (Tex.
Crim. App. 2000) (internal citation omitted). Such necessity can be shown where: (1) several
crimes are connected so that they form an indivisible criminal transaction; or (2) the evidence
tends to establish some evidentiary fact, such as motive or intent. See Devoe v. State, 354
S.W.3d 457, 469 (Tex. Crim. App. 2011); McDonald v. State, 148 S.W.3d 598, 602 (Tex.
App.—Houston [14th Dist.] 2004), aff’d, 179 S.W.3d 571 (Tex. Crim. App. 2005). A trial
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court’s ruling on the admissibility of extraneous offenses is reviewed under an abuse of
discretion standard. Devoe, 354 S.W.3d at 469.
With regard to Perez’s testimony about Zamora’s threats, this testimony was necessary
for the jury to understand Zamora’s motive for the actions he took when he saw Perez with Cruz.
Similarly, Zamora threatened Perez and Cruz with a gun immediately before the car chase that
ended with the second alleged aggravated assault. Zamora’s threat with the gun was intermixed
or connected with the second alleged aggravated assault because narrating the events leading to
the second alleged aggravated assault would be impracticable without describing the manner in
which the interaction started. See McDonald, 148 S.W.3d at 602. Because Zamora’s threat with
the gun began the chain of events ending in the second alleged aggravated assault, the jury had a
right to hear the testimony to realistically evaluate the evidence. See Wesbrook, 29 S.W.3d at
115. Accordingly, we hold the trial court did not abuse its discretion in admitting the testimony
in question. Zamora’s first issue is overruled.
VIOLATION OF MOTION IN LIMINE AND INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Zamora complains that the State violated the motion in limine the
trial court previously granted regarding evidence about Zamora’s prison time. To preserve error
regarding the admission of evidence in violation of a motion in limine, the preferred procedure
is: (1) a timely, specific objection; (2) a request for an instruction to disregard; and (3) a motion
for mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004); Westmoreland v. State,
174 S.W.3d 282, 290 (Tex. App.—Tyler 2005, pet. ref’d). Although the foregoing “sequence is
not essential to preserve complaints for appellate review,” “a timely, specific request that the trial
court refuses” is essential. Young, 137 S.W.3d at 69. In this case, defense counsel failed to
move for a mistrial after the trial court instructed the jury to disregard Officer Briggs’s testimony
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about Zamora being in prison; therefore, error was not preserved because no timely, specific
request was made that the trial court refused. Id. Zamora’s second issue is overruled.
In his third issue, Zamora asserts defense counsel was ineffective in failing to move for a
mistrial in order to preserve error. “The failure of appellant’s counsel to request a mistrial could
only be termed an act of ineffective assistance of counsel if a mistrial should have been granted.”
Weinn v. State, 281 S.W.3d 633, 641 (Tex. App.—Amarillo 2009), aff’d, 326 S.W.3d 189 (Tex.
Crim. App. 2010). A trial court’s decision to grant or deny a mistrial is reviewed under an abuse
of discretion standard. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009); Berkley
v. State, 298 S.W.3d 712, 714 (Tex. App.—San Antonio 2009, pet. ref’d). A mistrial is an
extreme remedy of last resort used to halt trial proceedings when error is so prejudicial that it is
incurable and an impartial verdict cannot be reached. Berkley, 298 S.W.3d at 714; Weinn, 281
S.W.3d at 642. “The determination of whether a given error necessitates a mistrial must be made
by examining the particular facts of the case.” Weinn, 281 S.W.3d at 642. The law presumes a
jury will follow a trial court’s instruction to disregard and that such instructions are sufficient to
cure improprieties that occur during trial. Gamboa, 296 S.W.3d at 580; Berkley, 298 S.W.3d at
714.
In the instant case, Officer Briggs inadvertently referred to Zamora’s prison time once
during her testimony, and the trial court immediately instructed the jury to disregard the
reference. The State did not refer to the testimony in closing, and the jury’s verdict indicates that
the jury carefully considered the testimony regarding the alleged offenses. “Nothing in the
record demonstrates the comment had any harmful effect or that the jury was unable to follow
the trial court’s instruction” to disregard. Berkley, 298 S.W.3d at 714. Under these
circumstances, a mistrial would not have been warranted. Accordingly, defense counsel’s failure
to move for a mistrial did not constitute ineffective assistance. Weinn, 281 S.W.3d at 641.
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Moreover, it appears from the record that defense counsel’s failure to move for a mistrial was an
isolated error that generally will not warrant a finding of ineffective assistance. Ex parte
Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). Finally, the record is silent regarding
defense counsel’s reason for not moving for a mistrial. See Thompson v. State, 9 S.W.3d 808,
814 (Tex. Crim. App. 1999) (silent record fails to rebut presumption of reasonable professional
assistance). Perhaps defense counsel believed the motion would be denied and preferred to have
the jury remember the trial court’s instruction to disregard as opposed to the denial of a mistrial.
Because the record is silent, however, we may not speculate regarding trial counsel’s motivation.
Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (“Ineffective assistance of counsel
claims are not built on retrospective speculation…”). Zamora’s third issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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