Joseph Gonzales v. the State of Texas ( 2022 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-21-00225-CR
________________________
JOSEPH GONZALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2019-417,224; Honorable Douglas Freitag, Presiding
November 14, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Joseph Gonzales appeals his convictions on two counts of aggravated kidnapping.
The convictions arose from the following incident. He was the subject of an outstanding
arrest warrant when spied by an officer. The officer followed appellant, who rode as a
passenger in a pickup truck at the time. Eventually, appellant saw the officer, left his
truck, ran towards the home of Ruiz and Saucedo, and entered it. Then, he refused to
exit when called upon by police to do so. At one point, he alluded to having “hostages”
and that the officers would have to kill him. Later, when again told to release the
“hostages,” appellant replied that the officers were “going to have to make” him. An officer
also witnessed appellant holding a knife.
Eventually, Ruiz and Saucedo were released after appellant demanded and
received the opportunity to speak with his girlfriend. Upon her exit, Ruiz both spoke with
an officer and displayed to the official various text messages she sent on her cell phone
while captive. The messages included those stating: 1) “[h]e had a knife and won’t let us
out the house,” 2) “[h]e won’t let us leave. I’m at my house. I’m scared” 3) “[t]he window
in the backroom is bordered [sic] up,” 4) “[w]hat do I do I’m scared,” 5) “[h]e doesn’t know
I have the phone,” and 6) “[t]hey can come in through the back door quitely [sic] or the
back window.” Appellant also surrendered, and during an ensuing search of the house,
the officers found a switchblade knife on the floor. This and other evidence convinced a
jury to convict him of the aforementioned charges.
We address the nine issues raised in appellant’s 91-page brief, and, upon doing
so, affirm.
Sufficiency of the Evidence
Our analysis begins with issues one, three, and four. Through them, appellant
contends that the State failed to prove various elements of the charged offense, such as
the requisite mens rea, fear and intimidation, and the lack of consent. We overrule each
point.
The pertinent standard of review is that described in Zuniga v. State, 551 S.W.3d
729 (Tex. Crim. App. 2018). We apply it here.
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Next, there are various ways in which one may commit aggravated kidnapping.
Reading the State’s indictment indicates it apparently opted to blend two of the different
ways. That is, it alleged in count one that appellant “did then and there intentionally
abduct . . . RUIZ, without the consent of the said . . . RUIZ, with intent to prevent the
liberation of the said RUIZ, by using or threatening to use deadly force and with intent to
use said victim as a shield or hostage and the defendant did then and there use or exhibit
a deadly weapon, to-wit: knife, during the commission of said offense.” Through the
second, it averred that he “did then and there intentionally abduct . . . SAUCEDO, without
the consent of the said SAUCEDO, with intent to prevent the liberation of the said
SAUCEDO, by using or threatening to use deadly force and with intent to use said victim
as a shield or hostage and the defendant did then and there use or exhibit a deadly
weapon, to-wit: knife, during the commission of said offense.” These allegations reveal
a blending of section 20.04(a)(2) of the Penal Code with section 20.04(b). Per the former,
one commits the crime by “intentionally or knowingly abduct[ing] another person with the
intent to . . . use him as a shield or hostage,” TEX. PENAL CODE ANN. § 20.04(a)(2), and
per the latter by “intentionally or knowingly abduct[ing] another person and us[ing] or
exhibit[ing] a deadly weapon during the commission of the offense.” Id. at § 20.04(b). 1
With that in mind, we turn to the appeal at hand.
The circumstances of the incident described in the opening paragraph to this
opinion came from the evidentiary record before the jury. When read together in a light
1 The legislature defined “abduct” as “to restrain a person with intent to prevent . . . liberation by: . . .
using or threatening to use deadly force,” TEX. PENAL CODE ANN. § 20.01(2)(B), and “restrain” to mean
“restrict a person’s movements without consent, so as to interfere substantially with the person's liberty, by
moving the person from one place to another or by confining the person.” Id. at § 20.01(1). It further stated
that the requisite restraint may be accomplished through “force, intimidation, or deception” if it lacks
consent. TEX. PENAL CODE ANN. § 20.01(1)(A).
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most favorable to the verdict, they allow a rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt. In utilizing their common sense,
intelligence, and knowledge gained from life experiences, see Clark v. State, 461 S.W.3d
244, 248 (Tex. App.—Eastland 2015, pet. ref’d) (acknowledging a juror’s authority to use
same when determining guilt or innocence), jurors could rationally interpret appellant’s
own use of the word “hostages” as evidence of appellant’s conscious objective and desire
to both seize and hold Ruiz and Saucedo against their will. So too did they see Ruiz’s
text messages revealing that appellant would not “let us leave” and possessed a knife.
That the evidence may have been contradictory or interpreted in different ways
matters not here. As we often iterate, evidentiary conflicts and issues about a witness’
credibility are for the jury to resolve. Robinson v. State, 568 S.W.3d 718, 722 (Tex. App.—
Amarillo 2019, no pet.). Not us. Instead, we defer to its decision regarding those matters.
Id.; Zuniga, 551 S.W.3d at 732-33. And, in so deferring, we find legally sufficient evidence
supporting conviction coming from not only what the officers and “hostages” saw but also
from what appellant himself said.
Charge Error
Through his second, fifth, and sixth issues, appellant contends the trial court erred
in: 1) failing to provide in its jury charge a non-statutory definition of the word “intimidation”
that included reference to a “reasonable belief” of harm; 2) instructing jurors that a
“knowingly” culpable mental state would satisfy the offense; and 3) omitting the passage
“without consent” from the application paragraphs. We overrule them.
Regarding the definition of intimidation, it is somewhat unclear what appellant
wants. We read his contention as suggesting that the trial court erred in failing to define
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the word “intimidation” and include in that definition a passage requiring the fear arising
from such intimidation to be reasonable. Yet, he cites us to no legal authority requiring
the trial court to define “intimidation” in the first instance. Nor does he provide any
substantive analysis explaining why the definition was necessary, unless, of course, we
deem his reference to instructing a jury on defensive theories as being that missing
substance. And in our assuming that reference is the missing substance, then another
problem arises. If the definition somehow constitutes a defensive issue, as appellant
seems to suggest, he failed to request its inclusion in the charge. Since such a default
waives a defense, Vega v. State, 394 S.W.3d 514, 518-19 (Tex. Crim. App. 2013) (stating
that a trial judge has no duty to sua sponte instruct the jury on unrequested defensive
issues and one cannot complain on appeal about their absence unless requested), the
trial court need not have included it. So whether considered as waived due to inadequate
briefing, see Rule 38.1(i) of the Texas Rules of Appellate Procedure (requiring the
appellant to provide both citation to legal authority and substantive analysis or risk
waiver), or the failure to request a defensive instruction, the complaint was waived.
Regarding the inclusion of the mens rea “knowingly” into the abstract legal
description of aggravated kidnapping, we acknowledge that the mens rea with which
appellant was accused of acting within the indictment consisted only of “intentionally
abducting” Ruiz and Saucedo. Moreover, appellant objected to this before the charge
was read to the jury. Nevertheless, through its application paragraph, the trial court
instructed the jury to find appellant guilty of aggravated kidnapping if it determined that
he “intentionally abduct[ed]” them. The State conceded that inclusion of “knowingly” in
the abstract paragraph was error.
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Had no objection been uttered by the defendant at trial, then the mistake would be
inconsequential. See Edwards v. State, 228 S.W.3d 450, 452-53 (Tex. App.—Amarillo
2007, pet. ref’d) (so holding when the application paragraph is correct while the abstract
one is not). Yet, objection was made. So, we must determine if appellant suffered some
harm from it; that is, whether the error was calculated to injure the rights of the defendant.
Barringer v. State, No. 07-16-00068-CR, 2017 Tex. App. LEXIS 9327, at *15 (Tex. App.—
Amarillo Oct. 3, 2017, no pet.) (mem. op., not designated for publication). And, harm
must be actual, not theoretical. Jordan v. State, 593 S.W.3d 340, 347 (Tex. Crim. App.
2020). Assessing it requires us to evaluate the whole record, including the jury charge,
contested issues, weight of the probative evidence, arguments of counsel, and other
relevant information. Id. at 347.
As noted earlier, the application paragraphs accurately described the prerequisites
to conviction for aggravated kidnapping. Furthermore, the theory pursued by the State
focused on appellant intentionally, as opposed to knowingly, abducting his “hostages.”
We also note that neither party referenced the mens rea of “knowingly” during their
respective closing arguments. And, as illustrated through our discussions of issues one,
three, and four, the evidence certainly supported the jury’s verdict that appellant
“intentionally abducted” those whom he expressly deemed to be his “hostages.” In short,
we encountered no circumstances suggesting that the mistake was calculated to injure
appellant’s rights.
Regarding the omission of the phrase “without consent” from the application
paragraphs of the charge, appellant concedes he did not broach the topic to the trial court.
This leads us to conclude that even if the omission were error, appellant suffered no
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egregious harm. This is so because the trial court’s definitions on page two of its charge
covered the matter. That is, the court defined “abduct” to “mean[] to restrain a person . . .”
and “restrain” to “mean[] to restrict a person’s movements without consent.” (Emphasis
added). So, the application paragraphs implicitly required proof that appellant’s abduction
of his “hostages” was without their consent. And, unlike appellant’s insinuation otherwise,
we do not ascribe laziness to the jurors; we do not think them too lazy “to reach back a
few pages into the abstract paragraphs and properly apply the legal rules and concepts
in the abstract paragraphs . . . .” Our obligation is to presume they followed the trial
court’s instructions as presented. De La Torre v. State, 583 S.W.3d 613, 620-21 (Tex.
Crim. App. 2019).
Admission of Text Messages
Appellant next complains, in issues seven and eight, about the admission into
evidence of Ruiz’s text messages. Admitting them supposedly violated evidentiary rules
barring hearsay and his right to confront witnesses. We overrule them.
The standard of review is abused discretion. Tienda v. State, 358 S.W.3d 633,
638 (Tex. Crim. App. 2012). So long as the trial court’s decision falls within the zone of
reasonable disagreement, its discretion was not abused. Id. That said, we begin with the
hearsay objection.
The text messages were written by Ruiz and sent to an unnamed third party. They
describe the abduction by appellant, allude to his knife, reveal her fear, and solicit
assistance from the person. They end with the latter referring to Ruiz as “Mama,” asking
“you okay,” and beseeching Ruiz to “[p]lease answer me.” Given their substance, their
indication of Ruiz being in a highly emotional state while appellant held her as his
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“hostage,” and the continuation of that state once freed from the house, jurists could
reasonably debate about whether they constituted excited utterances.
Such utterances are statements “relating to a startling event or condition, made
while the declarant was under the stress of excitement that it caused.” TEX. R. EVID.
803(2). “The critical question . . . is not the specific type of emotion that the declarant is
dominated by—anger, fear, happiness—but whether the declarant was still dominated by
the emotion caused by the startling event when she spoke.” Coble v. State, 330 S.W.3d
253, 294 (Tex. Crim. App. 2010). Given the circumstances surrounding the text
messaging and Ruiz’s apparent emotional state while texting, the trial court’s decision to
admit the messages as excited utterances (which is an exception to the hearsay rule) fell
within the zone of reasonable disagreement.
As for the Confrontation Clause attack, admission of a hearsay statement may
implicate a defendant’s constitutional right to confront witnesses. That occurs when the
surrounding circumstances objectively indicate that the primary reason the statement was
made was to establish or prove past events potentially relevant to a later criminal
prosecution, i.e., when they are testimonial in nature. De La Paz v. State, 273 S.W.3d
671, 680 (Tex. Crim. App. 2008); Gilbert v. State, No. 07-16-00378-CR, 2017 Tex. App.
LEXIS 10039, at *4 (Tex. App.—Amarillo Oct. 25, 2017 pet. ref’d) (mem. op., not
designated for publication). Hearsay statements evincing pleas for help or made to
provide information enabling others to end an ongoing emergency situation, such as a
911 call, generally fall outside that realm. Gilbert, 2017 Tex. App. LEXIS 10039, at *4-5.
A reasonable jurist could have interpreted the circumstances surrounding Ruiz’s texts as
comparable to making a 911 call. She was revealing ongoing criminal events, describing
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her fear while in the midst of those events, and soliciting assistance from the third party.
Thus, deeming them non-testimonial and free from constitutional limitation also fell within
the zone of reasonable disagreement.
Impeach Ruiz
Through his ninth and last issue, appellant argues the trial court erred in excluding
evidence of Ruiz’s reputation in the community for truth and veracity. We overrule the
issue.
To be admissible, an opinion about one’s reputation for truthfulness in the
community must be based on discussions with others about the person or hearing others
discuss the person’s reputation but not just on personal knowledge. Adanandus v. State,
866 S.W.2d 210, 225-26 (Tex. Crim. App. 1993) (quoting Wagner v. State, 687 S.W.2d
303, 313 (Tex. Crim. App. 1985)); Pinion v. State, No. 08-13-00045-CR, 2015 Tex. App.
LEXIS 4018, at *14-15 (Tex. App.—El Paso April 22, 2015, no pet.) (mem. op., not
designated for publication) (quoting Adanandus v. State, supra). That is, the opinion must
be based on a synthesis of observations of and discussions with others resulting in a
conclusion about the individual’s reputation. Adanandus v. State, 866 S.W.2d at 226.
Furthermore, a witness intending to pontificate about another’s reputation is an
appropriate one if he or she has a substantial familiarity with the reputation of the person
about whom the witness is supposed to testify. Lopez v. State, No. 04-07-00472-CR,
2008 Tex. App. LEXIS 2303, at *3-4 (Tex. App.—San Antonio April 2, 2008, pet. ref’d)
(mem. op., not designated for publication); Garza v. State, 18 S.W.3d 813, 824 (Tex.
App.—Fort Worth April 6, 2000 pet. ref’d).
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Again, appellant endeavored to obtain an opinion from a witness about Ruiz’s
reputation for truthfulness. During voir dire, the witness indicated she lived in the same
community as did Ruiz, the town was small, “everybody knows everything,” and Ruiz was
known to not tell the truth. Further query revealed that Ruiz had a reputation for “[b]eing
a dope head, being on drugs” and having had her children “tooken [sic] away before she
went to prison.” Yet, the witness conceded to having never personally heard Ruiz lie or
to experiencing instances where Ruiz lied to others.
Missing from the foregoing exchange were references to the witness personally
discussing with others the topic of Ruiz’s truthfulness or having others discuss that
particular topic. At best, her voir dire testimony suggested that the “everybody [who] know
[sic] everything” in the small town knew Ruiz lost her children and apparently consumed
drugs. Having a reputation as a drug addict and possibly a less than adequate parent
does not necessarily establish the character trait of untruthfulness, or so the trial court
could have reasonably concluded. Without being provided evidence that the witness
discussed with others or overheard others discuss the topic of Ruiz’s truthfulness, we
cannot say the trial court’s decision to exclude the witness’s opinion about Ruiz’s
reputation in the community for truthfulness fell outside the zone of reasonable
disagreement.
Sua Sponte Correction of the Judgment
While reviewing the record, we discovered that the judgments state appellant pled
“true” to the enhancement paragraphs in the indictment. The reporter’s record actually
reveals that the trial court “accept[ed] and enter[ed] a plea of not true as to each . . .”
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allegation. Having the authority to modify a judgment so it speaks the truth, we exercise
it by reforming those here to reflect pleas of “not true.”
Conclusion
Having overruled each of appellant’s nine appellate issues and reformed the
judgments to illustrate that appellant pled “not true” to the enhancement allegations in the
indictment, we affirm the judgments as reformed.
Brian Quinn
Chief Justice
Do not publish.
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