Rigoberto Pantoja v. State , 2016 Tex. App. LEXIS 6170 ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00204-CR
NO. 02-15-00205-CR
RIGOBERTO PANTOJA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NOS. 1385575D, 1385577D
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OPINION
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I. INTRODUCTION
Appellant Rigoberto Pantoja pleaded guilty to the offenses of aggravated
assault and attempted capital murder. A jury assessed his punishment at twenty
years’ confinement and sixty years’ confinement, respectively, and the trial court
sentenced him accordingly. Pantoja perfected this appeal, raising two issues:
(1) the trial court abused its discretion by permitting the State to cross-examine
Pantoja’s father concerning images on Pantoja’s cell phone, and (2) the trial
court erred by not granting Pantoja’s motion for new trial because the sixty-year
sentence Pantoja received constitutes cruel and unusual punishment. We will
affirm the trial court’s judgment for the reasons set forth below.
II. FACTUAL AND PROCEDURAL OVERVIEW
One evening in September 2014, Pantoja gathered with friends to watch a
prize fight involving Floyd Mayweather. After using alcohol and cocaine at the
party and afterwards, Pantoja and some of his friends from the party ended up at
a mobile home park in Mansfield, Texas. They were joined by a few individuals
already at the mobile home park. This group included Pantoja, Luis Romero,
Javier Martinez, Eduardo Vazquez, Francisco Curiel, and Hector Salinas. At
around midnight, Pantoja started “talking crazy,” pulled out a gun, and fired twice,
striking Curiel in the face with one of the shots. Pantoja then put his gun to
Salinas’s head and pulled the trigger, but the gun was out of bullets so Pantoja
pulled out a knife and stabbed Martinez three times in the neck. Pantoja then
attacked Romero, cutting Romero’s neck with the knife. The police and
ambulance personnel arrived, and Curiel, Martinez, and Romero all survived their
injuries.
After Pantoja pleaded guilty to the offenses of aggravated assault and
attempted capital murder, the case proceeded to a jury trial on punishment. The
State called twelve witnesses; Pantoja called four members of his family to testify
on his behalf. They explained that Pantoja is a loving and caring brother, son,
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and uncle. Pictures showing Pantoja in this capacity were introduced before the
jury. Pantoja had filed an application requesting community supervision in both
cases, and the jury was charged on that issue in both cases. As set forth above,
the jury returned verdicts assessing Pantoja’s punishment at twenty years’
confinement and sixty years’ confinement for the offenses of aggravated assault
and attempted capital murder, respectively.
III. CROSS-EXAMINATION REGARDING IMAGES FOUND ON CELL PHONE
In his first issue, Pantoja asserts that the trial court should have sustained
his objections to the State’s cross-examination of Pantoja’s father regarding
images found on Pantoja’s cell phone depicting “satanic, cocaine use, guns, and
other prejudicial images.” Specifically, Pantoja argues on appeal that these
images had “no relevance whatsoever to the case” under Texas Rules of
Evidence 401 and 402 and that the State’s references to these images at trial
“were highly and unduly prejudicial.”1
A. Pertinent Facts
Immediately before the defense called Pantoja’s father Jose to testify, and
outside the presence of the jury, the State indicated that it intended to cross-
examine Jose regarding images obtained from Pantoja’s cell phone. The
Pantoja asserts that the images have “no probative value at all. It does
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not establish a material fact that relates to any element of the offense of
attempted capital murder or aggravated assault nor to any disputed fact.”
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prosecutor explained that he had shown the images to defense counsel and
summarized the issue to the trial court as follows:
The content of the phone contained those photos, which I
have shown to Defense counsel. So it’s our argument, Judge, I
believe, and Defense counsel even said it on opening, that he has a
strong Catholic faith. And, you know, obviously, the angle with
putting up family members is an argument that he is a good person.
I believe Defense counsel intends, from what he showed me just
briefly here, introducing some photographs in which are depicted
items of his faith, and I think those are questions that Defense may
intend exploring—areas that he may intend exploring.
So it’s become relevant on a number of levels. It’s relevant
certainly to punishment because of his character for being a
peaceful, law-abiding citizen when you have depicted on his
personal cell phone items of drug sales, drug use, as well as that of
his counter to what Defense argument—what Defense has already
raised, a strong Catholic faith, the items of satanic worship. So we
believe that these are areas for proper exploration in cross-
examination of his character witnesses and in punishment.
After further argument from defense counsel and the prosecutor, the trial court
ultimately instructed the prosecutor to “whenever you are ready to ask the
questions, approach up here and then I’ll make a ruling at that time.”
The jury returned to the courtroom, and the defense called Jose to testify.
Jose testified on direct examination that Pantoja is his nineteen-year-old son.
Jose testified that Pantoja lived at home with his parents. Pantoja worked and
helped his parents with expenses and chores around the house. Jose said that
Pantoja had never exhibited signs of violence and that he had no knowledge of
any drugs or guns kept by Pantoja in the family’s home. Jose identified photos
that were admitted into evidence of Pantoja at his first communion with his two
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sisters, of Pantoja’s bedroom showing pictures of the Lady of Guadalupe and
other saints hanging on the bedroom walls, and the car Pantoja used to drive
with a rosary hanging off of the rearview mirror. Jose identified other family
photos of Pantoja as a child and as an adult at the swimming pool with his
nephew. Jose testified that he was surprised when he learned of this case
involving his son and that he thought his son was not the person “who did that.”
He agreed that he tried to raise his son “better than that.”
The State proceeded with its cross-examination of Jose and after several
questions asked to approach the bench; the prosecutor obtained a ruling from
the trial court that he could “ask [Jose] if he’s aware” that Pantoja had pictures of
drugs, guns, and satanic worship on his cell phone. The actual images from
Pantoja’s cell phone––State’s Exhibits 67–78––were not admitted into evidence
and are not part of the appellate record; the jury did not see them. Instead, on
cross-examination of Jose, the State simply asked him to review State’s Exhibits
67–78 and queried whether he was aware that his son kept pictures of cocaine,
guns, other items associated with the use and sale of narcotics, and satanic
worship on his phone. Jose answered, “No.” The entire exchange before the
jury is set forth below:
Q. [PROSECUTOR]: Sir, I’m going to show you State’s
Exhibit 67 through 78, and I want you to look through these to—just
look through them, if you could, please.
THE COURT: Just look at them.
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Q. [PROSECUTOR]: Now, sir, were you aware or did you
know that your son kept pictures of cocaine, guns and other items
associated with the use and sale of narcotics?
[DEFENSE COUNSEL]: Your Honor, I’m going to object at
this time. There’s—he’s asking for facts that are not in evidence
and, you know, he’s asking is he aware. Still our objection is these
things are unauthenticated; they’re hearsay and irrelevant.
THE COURT: I’ll overrule that objection. He can answer if he
knows.
THE WITNESS: No.
Q. [PROSECUTOR]: Sir, were you aware that your son kept
pictures of satanic worship on his cell phone?
A. No.
B. The Law Concerning Cross-Examination
of a Character Witness at Punishment
Article 37.07, section 3(a) of the Texas Code of Criminal Procedure
governs the admissibility of evidence during the punishment phase of a
noncapital case. Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008);
see Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 2015). Article
37.07, section 3(a)(1) provides that
evidence may be offered by the [S]tate 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 . . . 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.
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Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). The definition of “relevant” as
stated in rule 401 does not readily apply to article 37.07. Sims, 273 S.W.3d at
295; see Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009)
(“Borrowing from the definition of ‘relevant’ in Texas Rule of Evidence 401 is of
little avail because the factfinder’s role during the guilt phase is different from its
role during the punishment phase.”). Evidence is “relevant” to a punishment
determination if that evidence will assist the factfinder in tailoring an appropriate
sentence in a particular case. Sims, 273 S.W.3d at 295; see Henderson v. State,
29 S.W.3d 616, 626 (Tex. App.––Houston [1st Dist.] 2000, pet. ref’d) (“[T]he plain
language of article 37.07, section 3(a) indicates that evidence of a defendant’s
conduct may be admissible even if the conduct does not constitute an offense or
bad act.”). When a defendant requests community supervision—as Pantoja did
here—a trial court may reasonably deem any character trait that pertains to the
defendant’s suitability for community supervision to be a relevant matter for the
sentencer to consider. Sims, 273 S.W.3d at 295.
When evidence of a person’s character or character trait is admissible––as
a defendant’s character traits pertaining to his suitability for community
supervision are when the defendant requests community supervision––such
character traits may be proved by testimony about the person’s reputation or by
testimony in the form of an opinion. See Tex. R. Evid. 405(a);2 Wilson v. State,
2
Rule 405 is titled “Methods of Proving Character,” and subsection (a)(1)
provides: “When evidence of a person’s character or character trait is
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71 S.W.3d 346, 349–51 (Tex. Crim. App. 2002). When character is proved by
reputation testimony, a reputation witness is generally asked “have you heard”
questions. See Wilson, 71 S.W.3d at 350 (citing Reynolds v. State, 848 S.W.2d
785, 788 (Tex. App.––Houston [14th Dist.] 1993, pet. ref’d)). When character is
proved by opinion testimony, an opinion witness is generally asked “did you
know” questions. Id.
The right of a party to cross-examine a character witness on specific
instances of conduct as provided by Rule 405(a)––“[o]n cross-examination of the
character witness, inquiry may be made into relevant specific instances of the
person’s conduct”––is subject to certain limitations. Wilson, 71 S.W.3d at 351;
Burke v. State, 371 S.W.3d 252, 261 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d, untimely filed). First, the incidents inquired about must be relevant to the
character traits at issue. Burke, 371 S.W.3d at 261 (citing Wilson, 71 S.W.3d at
351); Murphy v. State, 4 S.W.3d 926, 930–31 (Tex. App.––Waco 1999, pet.
ref’d). Second, the alleged bad act must have a basis in fact. Burke, 371
S.W.3d at 261 (citing Wilson, 71 S.W.3d at 351); Murphy, 4 S.W.3d at 930–31.
Before the questions are asked, the foundation for inquiring into the specific
instances of conduct should be laid outside the jury’s presence so that the judge
will have an opportunity to rule on the propriety of asking them. Burke, 371
admissible, it may be proved by testimony about the person’s reputation or by
testimony in the form of an opinion. On cross-examination of the character
witness, inquiry may be made into relevant specific instances of the person’s
conduct.” Tex. R. Evid. 405(a)(1).
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S.W.3d at 261 (citing Wilson, 71 S.W.3d at 351); Murphy, 4 S.W.3d at 930–31.
The party cross-examining the character witness may not offer extrinsic evidence
to prove that the specific instances actually occurred. Wilson, 71 S.W.3d at 351.
The purpose of the inquiry is to test the character witness and the basis of
knowledge for her opinion, and the bad act is only probative for this reason. Id.
(citing Fed. R. Evid. 405 cmt.).
C. Standard of Review
A trial court’s decisions concerning the admission or exclusion of evidence
and concerning the extent of cross-examination are reviewed under an abuse of
discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011) (concerning the admission or exclusion of evidence); Cantu v. State, 939
S.W.2d 627, 635 (Tex. Crim. App.) (concerning the extent of cross-examination),
cert. denied, 522 U.S. 994 (1997); Walker v. State, 300 S.W.3d 836, 843 (Tex.
App.—Ft. Worth 2009, pet. ref’d) (concerning the extent of cross-examination). A
trial court abuses its discretion when its decision lies outside the zone of
reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App.
1996), cert. denied, 520 U.S. 1200 (1997).
D. Analysis
Jose’s testimony that he was surprised by the offense, that he did not think
Pantoja had committed the offense when he heard about it, that Pantoja had not
displayed violence at home, and that he was not aware of Pantoja’s possession
of drugs or guns at the family home, as well as Jose’s sponsorship of numerous
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photos connecting Pantoja to the Catholic church, constituted opinion character
testimony of Pantoja’s good character. See, e.g., Burke, 371 S.W.3d at 261
(holding mother’s testimony that defendant was a “good boy” and “I know my
son’s heart, and I know he didn’t do this” constituted opinion character
testimony). Jose’s character opinion testimony, elicited by the defense, was
relevant and admissible at this punishment trial as evidence of Pantoja’s
character and character traits relevant to sentencing and pertinent to his
suitability for community supervision. See Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a)(1) (authorizing admission of opinion testimony of defendant’s character as
a matter relevant to sentencing); Sims, 273 S.W.3d at 295. That is, in
determining an appropriate punishment for Pantoja and whether Pantoja could
adequately complete the demands of community supervision, a sentencer might
rationally want to take into account testimony of his good character and that he
had a stable home life with no signs of violence, that he did not openly do drugs
or possess guns at home, and that he possessed indicia of a religious
upbringing. See Sims, 273 S.W.3d at 295 (explaining testimony that defendant
lied to police officer relevant at punishment to determine ability to complete
demands of supervision).
Because the defense sponsored Jose as a character-opinion witness, the
State was entitled to cross-examine him through “did-you-know” questions about
any relevant specific instances of Pantoja’s conduct to test the basis of his good-
character opinion of Pantoja and the basis of his opinions as to Pantoja’s
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character traits. See Tex. R. Evid. 405(a)(1) (“On cross-examination of the
character witness, inquiry may be made into relevant specific instances of the
person’s conduct.”); Quiroz v. State, 764 S.W.2d 395, 397–99 (Tex. App.––Fort
Worth 1989, pet. ref’d) (holding State’s “did-you-know” questions on cross-
examination of defendant’s character witnesses at punishment regarding
defendant’s relationship with his daughter and regarding his work were “clearly
relevant” to request for probation when probation terms included supporting
dependents and remaining employed); Lancaster v. State, 754 S.W.2d 493, 495–
96 (Tex. App.––Dallas 1988, pet. ref’d) (holding State’s “did-you-know” questions
on cross-examination of defendant’s character witness at punishment regarding
whether witness knew of several offenses defendant had committed were
relevant when witness testified that defendant was not a violent person and not a
continuing threat to society).
The two “did-you-know” questions the State asked Jose on cross-
examination were “did you know that your son kept pictures of cocaine, guns and
other items associated with the use and sale of narcotics” and “were you aware
that your son kept pictures of satanic worship on his cell phone?” The State laid
the proper predicate for these two “did-you-know” questions by establishing
outside the presence of the jury the factual basis for the specific instances of
Pantoja’s conduct questioned (possessing photos on his cell phone) and the
relevance of Pantoja’s possession of such photos (to Jose’s opinion that Pantoja
generally possessed a good character and to Pantoja’s request for probation).
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See Quiroz, 764 S.W.2d at 397–99. The prosecutor’s question regarding
cocaine, guns, and the use and sale of narcotics was specifically relevant to
Pantoja’s request for community supervision as pertinent to his ability to follow
the terms and conditions of community supervision, if granted, including his
ability to avoid committing an offense against the law, to avoid injurious or vicious
habits, and to submit to testing for alcohol and controlled substances. See Tex.
Code Crim. Proc. Ann. art. 42.12, § 11(a)(1)–(2), (14) (West Supp. 2015). And
both questions were relevant as specific instances of Pantoja’s conduct to test
the basis of Jose’s knowledge in forming his opinion that Pantoja possessed
good character. See Wilson, 71 S.W.3d at 351 (explaining that the purpose of
“did-you-know” cross-examination questions posed to a character witness is to
test the witness’s basis of knowledge for his opinion). Accordingly, we hold that
the trial court acted within its discretion by permitting the prosecutor to cross-
examine Jose, a character witness, during the punishment trial with two “did-you-
know” questions regarding images found on Pantoja’s cell phone. See Burke,
371 S.W.3d at 262 (applying abuse of discretion standard of review to alleged
error in permitting prosecutor to propound “did-you-know” questions on cross-
examination of defendant’s mother who had testified for defense as a character
witness).
We overrule Pantoja’s first issue.
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IV. SENTENCE NOT CRUEL AND UNUSUAL
In his second issue, Pantoja asserts that the trial court should have
granted his motion for new trial because the sixty-year sentence he received for
the offense of attempted capital murder constitutes cruel and unusual
punishment under the Eighth Amendment of the United States Constitution and
under article I, section 13 of the Texas constitution. Pantoja raised this issue in
the trial court by filing a motion for new trial that states, “Defendant believes the
sentence is excessive and constitutes cruel and unusual punishment.” Thus, this
issue is preserved for our review. See, e.g., Rhoades v. State, 934 S.W.2d 113,
120 (Tex. Crim. App. 1996) (holding that to preserve disproportionate–sentencing
complaint defendant must make timely, specific objection in trial court or raise the
issue in motion for new trial); Noland v. State, 264 S.W.3d 144, 151–52 (Tex.
App.––Houston [1st Dist.] 2007, pet. ref’d) (same); Trevino v. State, 174 S.W.3d
925, 927–28 (Tex. App.––Corpus Christi 2005, pet. ref’d) (same); Papillion v.
State, 908 S.W.2d 621, 623 (Tex. App.––Beaumont 1995, no pet.) (holding
defendant preserved cruel-and-unusual-punishment issue for appeal by asserting
it in timely-filed motion for new trial despite failure to object at sentencing).
Pantoja acknowledges, however, that his sixty-year sentence for the
offense of attempted capital murder is within the statutorily-authorized range of
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five years to ninety-nine years or life confinement.3 And he acknowledges that
Texas courts have traditionally held that so long as the punishment assessed is
within the range prescribed by the legislature in a valid statute, the punishment is
not cruel and unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex.
Crim. App. 1973); Hammer v. State, 461 S.W.3d 301, 303–04 (Tex. App––Fort
Worth 2015, no pet.).4
Pantoja nevertheless points out that in Calhoun v. State, when a man was
sentenced to death for rape, the court of criminal appeals held that the
punishment was excessive even though it was within the statutory punishment
range at that time. 214 S.W. 335 (Tex. Crim. App. 1919). Pantoja “urges the
court to apply the principles of Calhoun to his case and rule that the punishment
3
See Tex. Penal Code Ann. §§ 12.04 (classification of felony offenses),
12.32 (first degree felony punishment range), 15.01 (criminal attempt), 19.03
(capital murder) (West 2011 & Supp. 2015).
4
In Hammer, the appellant preserved his cruel and unusual punishment
complaint solely via a motion for new trial, as did Pantoja here. See 461 S.W.3d
at 303. We held in Hammer, however, that because the appellant offered no
evidence in connection with his motion for new trial of sentences imposed for the
same crime in the same jurisdiction and in other jurisdictions, “nothing in the
record shows that the fifteen year sentence [for burglary of a habitation]
constitutes a grossly disproportionate sentence or cruel and unusual
punishment.” Id. at 304. Consequently, even if we construed Pantoja’s brief as
requesting a disproportionality analysis in addition to his request that we simply
apply and follow Calhoun, we would, for the same reasons set forth in Hammer,
be unable to conduct such an analysis. That is, the record before us contains no
evidence regarding sentences imposed for attempted capital murder in this
jurisdiction and in other jurisdictions, so nothing in the record shows that
Pantoja’s sixty-year sentence here constitutes a grossly disproportionate
sentence or cruel and unusual punishment. See id.
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is excessive given [Pantoja’s] age and all of the other factors of this crime.”
Because Calhoun is a 1919 case in which the death penalty was imposed, and
because the United States Supreme Court, the Texas Court of Criminal Appeals,
and this court have since issued decisions binding on this court concerning the
disproportionate-sentence and cruel and unusual punishment analysis trial courts
as well as this court are to conduct, we must decline Pantoja’s invitation to apply
Calhoun here. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 1004–05, 111 S.
Ct. 2680, 2706–07 (1991) (Kennedy, J., concurring) (setting forth proportionality
analysis); Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009–10, (1983);
Jordan, 495 S.W.2d at 952; Hammer, 461 S.W.3d at 304; Moore v. State, 54
S.W.3d 529, 541 (Tex. App.––Fort Worth 2001, pet. ref’d).
We overrule Pantoja’s second issue.
V. CONCLUSION
Having overruled both of Pantoja’s issues, we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and SUDDERTH, JJ.
PUBLISH
DELIVERED: June 9, 2016
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