Roy Daniel Garza v. State ( 2020 )

Opinion filed January 16, 2020
In The
Eleventh Court of Appeals
___________
No. 11-17-00335-CR
___________
ROY DANIEL GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-16-0305-CR
MEMORANDUM OPINION
The jury convicted Roy Daniel Garza of the attempted capital murder of
Sergeant Pedro Gonzalez and Corporal Cory Wester of the Odessa Police
Department (OPD) and assessed his punishment at confinement for life for each
offense—with the sentences to run concurrently. We affirm.
Appellant presents eleven issues on appeal. In the first issue, he contends that
the trial court erred when it denied his motion for new trial. In his second and third
issues, Appellant complains that the trial court abused its discretion when it denied
his motion for new trial. In Appellant’s fourth, fifth, and sixth issues, he asserts that
the trial court erred in when it admitted certain testimony into evidence. In his
seventh issue, Appellant contends that the trial court erred when it permitted the
untimely reading of enhancement paragraphs and Appellant’s untimely pleas to
those paragraphs. In Appellant’s eighth issue, he complains that the trial court erred
when it overruled his objection to the charge regarding the range of punishment. In
his ninth issue, Appellant asserts that the evidence was insufficient to support the
jury’s implied rejection of his self-defense claim. In Appellant’s tenth issue, he
contends that the trial court erred when it denied his motion for directed verdict. In
his eleventh issue, Appellant complains that the evidence is insufficient to support
his convictions for attempted capital murder.
On the morning of December 23, 2015, several OPD officers and two private
investigators went to Appellant’s apartment to execute three confirmed warrants for
his arrest. Appellant was a wanted fugitive who had failed to appear in court on a
charge of aggravated robbery.
The apartment manager accompanied Corporal Cory Wester, Corporal Jaime
Aguirre, and the private investigators to Appellant’s apartment. The manager
knocked on the front door of Appellant’s apartment and announced herself.
Sergeant James Patrick Chadwick and Sergeant Pedro Gonzalez waited at the back
of the apartment and watched for Appellant. Corporal Wester heard a male and a
female talking inside, and when Appellant’s wife, Megan Garza, answered the door
alone, Corporal Wester repeatedly asked her to provide Appellant’s location. Megan
told Corporal Wester that she had not seen Appellant in months and did not know
his location.
While positioned at the rear of the apartment, Sergeant Chadwick heard the
sliding glass door to Appellant’s apartment open. Appellant left his apartment and
“proceed[ed] to the patio next door.” Sergeant Chadwick informed other officers by
2
radio that he had seen Appellant proceed to the neighbor’s patio. Sergeant Chadwick
and Sergeant Gonzales “enter[ed] that back patio in an attempt to apprehend
[Appellant], but he had already moved inside the [neighbor’s] apartment.”
Corporal Aguirre used the manager’s key to open the front door of
the neighbor’s apartment. Corporal Wester then announced: “Odessa Police
Department, make yourself known.” Corporal Wester entered the apartment, and
then Corporal Aguirre entered. After Corporal Wester cleared the living room,
kitchen, and a bathroom, Corporal Aguirre pointed out that Corporal Wester had
missed a door. Corporal Wester heard a noise, and when he glanced back, he saw
Appellant exit a closet in a crouched position as he continuously fired his gun at
Corporal Wester.
Corporal Wester attempted to retreat into the kitchen, but as he did, a bullet
hit his left pelvis. The gunshot wound rendered his left leg useless, and he fell on
his back. As Corporal Wester raised himself up on one elbow and extended his
pistol, Appellant fired his gun again and injured Corporal Wester’s thumb, which
caused Corporal Wester to drop his weapon. Appellant moved toward the bedroom
doorway as he continued to fire his gun at Corporal Wester. A bullet penetrated
Corporal Wester’s vest and struck his chest. The shooting did not end there. While
on his back, Corporal Wester scooted back in an attempt to gain cover. However,
Appellant continued to fire his gun at Corporal Wester, and another bullet struck his
right calf. According to Corporal Wester, after Appellant shot him five times,
Appellant approached the end of the hallway and fired toward the front door. As
Corporal Wester prepared to fire his Taser, Appellant stopped firing his pistol and
ran toward the bedroom. Corporal Wester’s Taser probe struck the bedroom door
as it closed.
During this time, Corporal Aguirre had taken cover and returned gunfire.
While Corporal Aguirre fired rounds toward the bedroom, Corporal Wester crawled
3
on his stomach to the doorway, and one of the private investigators dragged
Corporal Wester away. Corporal Aguirre backed out of the apartment.
Sergeant Gonzalez retrieved his rifle and exchanged gunfire with Appellant.
Appellant shot Sergeant Gonzalez in the torso, which was covered by his protective
vest, and also in the left arm.
Corporal George Amezola fired a shot and struck Appellant. Appellant
subsequently fired and struck a pool house roof where two members of a SWAT
team, “snipers,” were positioned. Appellant also shot and disabled a robot that had
been deployed into the apartment for surveillance and intelligence purposes.
Corporal Travis W. Fraser, a crisis negotiator, began negotiations with
Appellant. A recording of the negotiations was admitted into evidence. During the
negotiations, Appellant acknowledged that he had shot two officers and noted that,
although he could have shot one of the snipers, he shot in the direction of the sniper
for the mere purpose of scaring him. When Corporal Fraser asked: “You shot at the
officers to wound them, not to kill them, right?” Appellant answered: “Right.”
However, Appellant later explained that officers “came in [with] weapons drawn
and when I seen them, I started firing.” Appellant also said that he “really wasn’t
trying to hurt them.” Ultimately, Appellant discarded his weapons and surrendered.
Texas Ranger Randy Lewis responded to the scene, accompanied Appellant
in the ambulance, and subsequently interviewed Appellant at the police department.
A recording of that interview was admitted into evidence. During the interview,
Appellant admitted that he knew that there was a warrant for his arrest, but Appellant
claimed that he did not initially know that police were present at the apartment
because he had been asleep, was not wearing his contacts, and had very poor
eyesight. Appellant took his gun, grabbed a box of ammunition, and entered the
neighbor’s apartment where he hid in a closet. Appellant acknowledged that, when
officers entered his neighbor’s apartment, he heard them announce: “This is Odessa
4
PD. Come out with your hands up. Make yourself known.” He claimed that, when
he peeked out of the closet door with his gun in his hand, officers deployed a Taser
and fired a gunshot but did not strike him. Appellant stated that “there wasn’t too
much thought process” when he fired his weapon; he said that he instinctively
returned fire, in self-defense, at the two officers, whom he claimed had fired first.
Appellant claimed that, when he shot one of the officers—whom he described
as being crouched, holding an M16, and moving his head back and forth—he was
aiming at the fence and was not necessarily trying to hit the officer. Appellant
acknowledged, however, that he knew that the man was a police officer. Appellant
admitted that he had reloaded his .40 caliber pistol twice during the course of events.
When asked whether he had considered that one of his rounds could actually strike
and kill an officer, Appellant answered: “I mean, speaking in possibilities, we all
know what can happen.”
During trial, Appellant testified that warrants for his arrest had been issued
based on his violation of the terms of his parole for a drug-related conviction and his
violation of the terms of his bond when he failed to appear in court on a charge of
aggravated robbery. He claimed that Megan’s grandmother, who was the guarantor
on his bail bond, had sent “bounty hunters” to find him. He also claimed that,
although he had not planned to escape if police had approached him, he had prepared
to abscond from the bounty hunters by putting a trap door in the apartment fence and
stashing his loaded pistol, ammunition, and a bag of clothes in his neighbor’s
apartment closet.
Appellant again claimed that, when someone knocked on his apartment door,
he had been sleeping and was unable to determine who was at the door because he
was not wearing his contacts. Because he thought it might be his wife’s grandmother
or the bounty hunters, Appellant used the trap door in the fence, entered his
neighbor’s apartment, and hid in the closet with the door closed.
5
Appellant testified that he heard an unknown person enter his neighbor’s
apartment and announce, “Odessa Police Department.” Appellant explained that,
when he “cracked” the closet door and looked toward the officers, one of them fired
a Taser in Appellant’s direction and another officer fired his weapon. He testified
that he had misspoken when he told the negotiator that officers entered with their
“guns drawn” and that he had meant to say, instead, that they had entered with “guns
blazing.” Appellant testified that, when the officer fired his gun in Appellant’s
direction, Appellant fired his pistol four or five times in the general direction of the
initial gunshot, heard the officer scream, and noticed that the officers were retreating.
Appellant stated that he did not look as he fired his weapon from the closet and
denied that he ever entered the living room while firing his pistol. Appellant testified
that, as he fired his pistol, his intent was to defend himself and to scare the officers
away.
Appellant testified that, after the officers left the apartment, he barricaded
himself in the bedroom and put in his contact lenses. Appellant subsequently fired
his weapon again, but he testified that his intent at that time was to scare the officers
and keep them away. He claimed that he did not know at that time that he had shot
another officer.
We will first address Appellant’s ninth, tenth, and eleventh issues concerning
the sufficiency of the evidence to support his convictions. In his ninth issue,
Appellant complains that the evidence was insufficient to support the jury’s implied
rejection of his self-defense claim after the jury found him guilty of attempted capital
murder. In his tenth issue, Appellant argues that the trial court erred when it denied
his motion for a directed verdict at the conclusion of the guilt/innocence phase of
trial. In his eleventh issue, Appellant contends that the evidence was not sufficient
to warrant a conviction for attempted capital murder.
6
We review the sufficiency of the evidence under the standard of review set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,
895, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). This standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Blackman v. State, 350
S.W.3d 588, 595 (Tex. Crim. App. 2011). A motion for directed verdict is reviewed
under the same standard as the legal sufficiency of the evidence. See Williams v.
State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).
The trier of fact is the sole judge of the weight and credibility of the evidence.
See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013). Thus, when performing an evidentiary
sufficiency review, we may not reevaluate the weight and credibility of the evidence
and substitute our judgment for that of the factfinder. Isassi, 330 S.W.3d at 638.
We must presume that the factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Jackson, 443 U.S. at 326; Temple v. State,
390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
The Texas Penal Code provides that a person commits the offense of murder
if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE
ANN. § 19.02(b)(1) (West 2019). Murder becomes capital murder under certain
circumstances, including when the person murders a peace officer who is acting in
the lawful discharge of his official duties and whom the person knows to be a peace
7
officer. Id. § 19.03(a)(1). An attempt to commit an offense occurs when, with the
specific intent to commit the offense, a person does an act that amounts “to more
than mere preparation that tends but fails to effect the commission of the offense
intended.” Id. § 15.01(a).
To permit the jury to find Appellant guilty of the attempted capital murders
of Corporal Wester and Sergeant Gonzalez, the State was required to prove beyond a
reasonable doubt that, with the specific intent to cause the deaths of Corporal Wester
and Sergeant Gonzalez, and while knowing that they were peace officers acting in
the lawful discharge of an official duty, Appellant intelligently and knowingly
discharged a firearm at Corporal Wester and at Sergeant Gonzalez, which were acts
amounting to more than mere preparation that tended but failed to effect the
commission of the offenses of capital murder. See id. §§ 15.01(a), 19.02(b)(1),
19.03(a)(1); Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984) (op.
on reh’g) (“[A] specific intent to kill is a necessary element of attempted murder.”).
Appellant does not challenge the sufficiency of the evidence to establish that
Corporal Wester and Sergeant Gonzalez were peace officers or that they were acting
in the lawful discharge of an official duty. Instead, Appellant argues that the
evidence was insufficient to show that he intended to kill Corporal Wester or
Sergeant Gonzalez. Although Appellant claimed that he was not trying to hurt the
officers, the jury was free to reject this claim. “[T]he specific intent to kill may be
inferred from the use of a deadly weapon.” Cavazos v. State, 382 S.W.3d 377, 384
(Tex. Crim. App. 2012); see also Godsey v. State, 719 S.W.2d 578, 580–81 (Tex.
Crim. App. 1986) (citing Flanagan, 675 S.W.2d at 744).
The record reflects that, if Corporal Wester had not been wearing his
protective vest, the gunshot wound to his chest would probably have been fatal.
Dr. Michael Jerard Cornielle testified that he “expect[ed]” that a person firing a
gunshot to that area of the body was “trying to hurt someone very badly, if not kill
8
them.” Dr. Cornielle noted that Sergeant Gonzalez also had an abrasion on his chest
with the same characteristics as Corporal Wester’s chest wound.
The evidence supports a finding that Appellant intended to kill
Corporal Wester and Sergeant Gonzalez. See Cavazos, 382 S.W.3d at 384; Godsey,
719 S.W.2d at 580–81. The jury was free to disbelieve Appellant’s testimony that
he lacked the requisite intent to cause the deaths of the officers when he shot them.
When we consider the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found beyond a reasonable doubt that
Appellant committed the offenses of attempted capital murder of Corporal Wester
and Sergeant Gonzalez. Accordingly, we hold that the evidence was sufficient to
support Appellant’s convictions and the trial court’s denial of Appellant’s motion
for directed verdict.
In his ninth issue, Appellant claims that the evidence was legally insufficient
to support the jury’s implicit rejection of his self-defense claim. Self-defense is a
fact issue that is determined by the jury, and the jury’s verdict of guilt is an implicit
finding that it rejected the defendant’s self-defense theory. See Saxton v. State, 804
S.W.2d 910, 913–14 (Tex. Crim. App. 1991). The defendant has the burden of
producing evidence to support a self-defense claim. Zuliani v. State, 97 S.W.3d 589,
594 (Tex. Crim. App. 2003); see also Saxton, 804 S.W.2d at 913–14 (contrasting
self-defense from affirmative defenses and explaining how burdens shift for self-
defense). If the defendant produces some evidence, the State has “the burden of
persuasion to disprove the raised defense.” Zuliani, 97 S.W.3d at 594. The State’s
burden does not require the production of any additional evidence; instead, “it
requires only that the State prove its case beyond a reasonable doubt.” Id.; see
Saxton, 804 S.W.2d at 913. We review a sufficiency challenge to the jury’s rejection
of self-defense under the legal sufficiency standard. Smith v. State, 355 S.W.3d 138,
145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). We have already discussed
9
the well-known standard of review under which we review a challenge to the
sufficiency of the evidence. We see no need to repeat that standard here.
We have examined all the evidence in this case in the light most favorable to
the verdict and have previously determined that a rational trier of fact could have
found the essential elements of the charged offenses beyond a reasonable doubt. We
therefore proceed to determine whether a rational trier of fact could have found
against Appellant on the self-defense issue beyond a reasonable doubt. See Saxton,
804 S.W.2d at 914.
Section 9.32 of the Penal Code provides in relevant part that a person is
justified in using deadly force against another (1) if he would be justified in using
force under Section 9.31 and (2) when and to the degree he reasonably believes the
deadly force is immediately necessary to protect himself against the other’s use or
attempted use of unlawful deadly force. PENAL §§ 9.31, 9.32(a)(1), (a)(2)(A).
Section 9.31 provides that the use of force against another in self-defense is not
justified to resist an arrest or search that the actor knows is being made by a peace
officer—even though the arrest or search is unlawful—unless, before the actor offers
any resistance, the peace officer uses or attempts to use greater force than necessary
to make the arrest or search and the actor reasonably believes the force is
immediately necessary to protect himself against the peace officer’s use or attempted
use of greater force than necessary. Id. § 9.31(b)(2), (c).
From the evidence presented at trial, a rational jury could have found that
Appellant’s use of deadly force was not justified. The jury was entitled to disbelieve
Appellant’s version of the events, especially in light of his various inconsistent
statements and the conflicting testimony. The jury could have determined from the
evidence that Appellant’s belief that deadly force was immediately necessary to
protect himself was not a reasonable belief. Furthermore, the jury could have
reasonably determined that Corporal Wester and Corporal Aguirre had not used or
10
attempted to use unlawful deadly force against Appellant or had not used or
attempted to use greater force than was necessary when they executed the arrest
warrant. In the absence of evidence in the record indicating that the jury was
irrational in rejecting Appellant’s claims of self-defense, we decline to substitute our
own view of the witnesses’ credibility for that of the jury. Saxton, 804 S.W.2d at
913.
Because we have concluded that a rational trier of fact could have found the
essential elements of the offenses beyond a reasonable doubt, and because the record
contained sufficient evidence from which a rational jury could have rejected
Appellant’s claim of self-defense beyond a reasonable doubt, we overrule
Appellant’s ninth, tenth, and eleventh issues on appeal.
In his fourth, fifth, and sixth issues, Appellant complains of evidentiary
rulings. We review a trial court’s evidentiary rulings under an abuse of discretion
standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial
court abuses its discretion when its decision falls outside the zone of reasonable
disagreement. Id.; Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
We will uphold the trial court’s ruling on the admission or exclusion of evidence if
the ruling was proper under any legal theory or basis applicable to the case. Devoe v.
State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). We address Appellant’s three
evidentiary issues in turn.
In Appellant’s fourth issue, he contends that the trial court erred when it
allowed multiple witnesses to testify regarding the nature of the warrant for
Appellant’s arrest. At a pretrial conference, defense counsel advised the trial court
that references were made to Appellant’s warrants, criminal history, and pending
cases during both the recorded negotiations and the custodial interview and asserted
that the prejudicial danger of that information outweighed its evidentiary value.
Defense counsel also noted: “If you limit it [to the fact that officers] were just there
11
to serve a warrant . . . I think that might clean it up to where both sides can live with
it.”
At the pretrial hearing, the prosecutor and defense counsel advised the trial
court that they had agreed that evidence regarding Appellant’s parole warrant would
be admitted at trial. The State agreed that information regarding “certain aspects of
the priors” and the “facts relating to what the [aggravated robbery] warrant [was]
for” would not be disclosed at trial. However, the State noted that it had the burden
to prove that Appellant possessed the requisite intent to kill the police officers. The
State argued that the fact that the arrest warrant was being executed based on a
charge of aggravated robbery was properly admissible because that fact was relevant
to Appellant’s state of mind, motive, intent and plan—to “why [Appellant] would
go to those extremes”—and to the officers’ actions when they attempted to arrest
Appellant pursuant to the warrant. Defense counsel objected to the admissibility of
the “aggravated robbery portion” of the warrant under Rule 404(b) because the
conduct was unproven and under Rule 403 because such disclosure would be
extremely prejudicial to Appellant, who had not been convicted of the charged
aggravated robbery. See TEX. R. EVID. 403, 404(b). Defense counsel argued that
the State had “plenty of motive evidence” and facts to show Appellant’s intent. The
trial court commented, “If [the defendant] brings it up during the course of the
negotiations, then I am going to allow it in,” and expressly acknowledged its belief
that the probative nature of the evidence would outweigh its prejudicial effect.
During its opening statement in the guilt/innocence phase of trial, the State
told the jury that Appellant had a parole warrant as well as a warrant for failure to
appear in an aggravated robbery case. Defense counsel requested a bench
conference, stated that he had understood that the nature of the arrest warrant would
not be introduced, and noted that references to the aggravated robbery had been
redacted from the recorded evidence. However, the trial court agreed with the
12
State’s observation that the State had previously indicated that it would be
introducing into evidence the warrant in which the aggravated robbery charge was
mentioned. The trial court asked defense counsel, “Is that an objection?” Defense
counsel answered, “Yes,” and the trial court overruled the objection. The trial court
subsequently granted Appellant’s request for a running objection regarding “the
issue concerning aggravated robbery on the warrant and any reference to it” on
grounds that the aggravated-robbery nature of the warrant was an unproven
extraneous offense and that the prejudicial effect of the evidence outweighed its
probative value. See TEX. R. EVID. 103(b).
Witnesses testified that the arrest warrant involved a charge of aggravated
robbery with a deadly weapon, and the warrant was admitted into evidence. The
jury heard Appellant’s recorded acknowledgment that a warrant had been issued for
his arrest based on a charge of aggravated robbery and also heard Appellant testify
during direct examination that he knew the warrant was being executed because he
had failed to appear in court on the aggravated robbery charge.
Under Rule 404(b), evidence of an extraneous offense may be admissible as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident. TEX. R. EVID. 404(b). In other words, Rule 404(b)
requires evidence of an extraneous offense to be “relevant to a material, non-
propensity issue.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
We agree with the trial court’s decision to admit evidence regarding the
“aggravated robbery” nature of Appellant’s warrant under Rule 404(b). This
evidence was relevant to a material, non-propensity issue because it tended to show
Appellant’s motive, intent, plan, knowledge, and absence of mistake or accident
regarding his conduct to evade arrest. See Sypniewski v. State, 799 S.W.2d 432, 434
(Tex. App.—Texarkana 1990, pet. ref’d) (reasoning that a warrant for an extraneous
offense inferentially shows motive to evade arrest). Because the trial court fairly
13
reasoned that the arrest warrant was relevant to Appellant’s motive rather than
Appellant’s character, there was no error under Rule 404(b).
Under Rule 403, a trial court’s decision to admit evidence is reasonable if “the
probative value of that evidence is not substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading of the jury.” De La Paz, 279
S.W.3d at 344; see TEX. R. EVID. 403. Rule 403 requires the balancing of these
factors: “(1) the probative value of the evidence; (2) the potential to impress the jury
in some irrational, yet indelible, way; (3) the time needed to develop the evidence;
and (4) the proponent’s need for the evidence.” Hernandez v. State, 390 S.W.3d
310, 324 (Tex. Crim. App. 2012). A trial court is presumed to have engaged in the
required balancing test when Rule 403 is invoked. Williams v. State, 958 S.W.2d
186, 195–96 (Tex. Crim. App. 1997). There is a presumption in favor of admitting
relevant evidence; the corollary presumption is that evidence admissible under
Rule 404(b) “is more probative than prejudicial.” Santellan v. State, 939 S.W.2d
155, 169 (Tex. Crim. App. 1997).
With these presumptions in mind, we weigh the probative value and the
proponent’s need for the evidence against the likelihood that the evidence will create
unfair prejudice or mislead the jury. Hernandez, 390 S.W.3d at 324. Given the
presumptions and the abuse-of-discretion standard of review, we cannot conclude
that the trial court’s ruling was unreasonable. The existence and nature of the arrest
warrant was probative of Appellant’s motive and intent to evade arrest and to kill
police officers, and it compellingly served to make those facts of consequence—
motive and intent—more or less probable. See Montgomery v. State, 810 S.W.2d
372, 389–90 (Tex. Crim. App. 1991). The State’s evidence of Appellant’s motive
and intent was restricted to the testimony of others about Appellant’s conduct
and demeanor when the police officers attempted to serve the warrant and
about the police officers’ injuries. The limited sources of evidence related to
14
Appellant’s motive and intent may have increased the need for evidence of the arrest
warrant and its nature. The probative value of the arrest warrant evidence was high,
and the State’s need for it was arguably high.
Furthermore, there was only a moderate likelihood that evidence of the arrest
warrant would mislead the jury. At trial, the underlying nature of the warrant—that
is, the aggravated robbery charge—was referenced only in conjunction with the
existence of the warrant and the fact that officers were attempting to arrest Appellant
in conformity with the warrant. No facts regarding the alleged aggravated robbery
were presented to the jury during the guilt/innocence phase of trial. During its
closing argument, the State only referred to Appellant’s knowledge that the warrant
existed and made no reference to the fact that the warrant was related to an
aggravated robbery charge. Because the testimony regarding the aggravated robbery
was brief and the evidence at trial focused on Appellant’s shooting of the officers in
this case, the chance that the jury was distracted due to the extraneous aggravated
robbery charge was low.
The State’s need to present the relevant, underlying nature of the warrant was
relatively high, and the potential of this evidence to mislead the jury was low.
Consequently, the trial court did not abuse its discretion when it determined that the
danger of unfair prejudice did not substantially outweigh the probative value of the
warrant, and its decision to admit evidence that the warrant was based on an
aggravated robbery charge was reasonable under Rule 403. We overrule Appellant’s
fourth issue on appeal.
In his fifth issue on appeal, Appellant asserts that the trial court erred when it
overruled his relevancy objection to private investigator Raul Escalante’s testimony
that aggravated robbery occurs when a deadly weapon is used during the commission
of a robbery. See PENAL § 29.03(a)(1)–(3). The State contends that it had asked
Escalante to explain the elements of aggravated robbery to impart to the jury that the
15
seriousness of the extraneous felony charge provided the basis for Appellant’s
motive and intent in evading arrest—essentially, to show that Appellant knew that
he faced a long sentence and had planned a “final stand.”
To be admissible, evidence must be relevant. TEX. R. EVID. 402. Evidence is
relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence. Id. We conclude that this evidence—that
Appellant faced a charge on the serious offense of aggravated robbery with a deadly
weapon—was relevant to show Appellant’s intent when he evaded and shot police
officers during the execution of the arrest warrant based on that charge.
Even if we were to decide that the admission of Escalante’s testimony
regarding the elements of aggravated robbery constituted error, the admission of this
evidence did not harm Appellant. Appellant subsequently testified on direct
examination that he had known of the existence of a warrant for aggravated robbery
and admitted that he had been “on the run” for failing to appear in court on a charge
of aggravated robbery.
The improper admission of evidence cannot constitute reversible error if the
same or similar evidence is admitted without objection at another point in the trial.
See Estrada v. State, 313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010) (citing
Leday v. State, 983 S.W.2d 713, 716–18 (Tex. Crim. App. 1998)); Lane v State, 151
S.W.3d 188, 193 (Tex. Crim. App. 2004); Brooks v. State, 990 S.W.2d 278, 287
(Tex. Crim. App. 1999). Accordingly, we overrule Appellant’s fifth issue on appeal.
In his sixth issue on appeal, Appellant complains that the trial court erred
when it overruled his objection to Ranger Lewis’s testimony regarding the bullet
points of entry and exit on Corporal Wester’s protective vest. He argues that the
trial court abused its discretion when it allowed Ranger Lewis to testify as an expert
on the bullet’s trajectory and the angle at which the bullet entered and exited
16
Corporal Wester’s protective vest. Appellant bases his argument on the failure of
the trial court to determine that Ranger Lewis was qualified to testify regarding
ballistics, the State’s failure to identify Ranger Lewis as an expert prior to trial, and
Ranger Lewis’s failure to testify regarding any training he had in ballistics that
would qualify him to provide an expert opinion regarding the bullet’s trajectory or
the angle at which Corporal Wester had been shot.
At trial, the State handed Corporal Wester’s protective vest to Ranger Lewis
and asked him to use a flight path rod to “demonstrate the basic trajectory of the
bullet for the jury.” Defense counsel sought a bench conference and noted: “This
appears to be in the neighborhood of expert witness and if he’s going to testify as to
trajectory or dynamics of a bullet, I would like to hear his qualifications before he
starts making those statements.” The trial court noted that the State had asked
Ranger Lewis whether he could show “where the bullet went through.” The trial
court overruled the objection.
After Ranger Lewis noted that he was uncertain whether he could get the rod
through the vest, the State asked him: “Can you say, generally speaking, whether the
entry was higher or lower than what the exit wound appears to be?” Ranger Lewis
testified that the entry hole was slightly lower than the exit hole. The State asked:
“Could I ask you if that would be consistent with the wearer of the vest [lying] on
his back while being shot?” The trial court overruled defense counsel’s renewed
objection “to [Ranger Lewis’s] expertise.” Ranger Lewis answered: “I would say
it’s consistent with someone [lying] down.”
Appellant contends on appeal that, absent a showing of any ballistics training,
Ranger Lewis was not qualified to determine whether the trajectory of the bullet or
the hole in Corporal Wester’s vest was consistent with a man being shot while lying
on his back. Consequently, he argues, the trial court erred when it overruled defense
counsel’s Rule 702 objection and allowed Ranger Lewis to opine regarding bullet
17
trajectory, gun angle, and Corporal Wester’s position when the bullet entered his
vest. See TEX. R. EVID. 702 (“A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion or
otherwise if the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue.”).
The State asserts that it did not offer Ranger Lewis’s testimony as that of an
expert but that it offered the testimony only as Rule 701 lay testimony rationally
based on his common-sense perception. See TEX. R. EVID. 701. Ranger Lewis did
not perform any experiments or tests; he merely attempted to push a rod through the
hole of the vest, commented that the entry hole was lower on the vest than the exit
hole, and rendered a common-sense conclusion that the entry and exit holes were
consistent with someone who was lying down when shot. We agree with the State
that the complained-of testimony was lay testimony, not expert testimony. We are
unable to conclude that the trial court abused its wide discretion when it permitted
Ranger Lewis to testify regarding the entry and exit holes on the vest and the
significance of the entry hole being lower than the exit hole. We note that
Corporal Wester testified that he was lying on his back when Appellant shot him.
We overrule Appellant’s sixth issue on appeal.
In his seventh issue on appeal, Appellant complains that the trial court erred
when it overruled his objection to the untimely reading of enhancement paragraphs
and the untimeliness of Appellant’s plea to the enhancement paragraphs. In his
eighth issue on appeal, Appellant contends that, based on such untimeliness, the trial
court erred when it overruled his objection to the range of punishment included in
the jury charge.
The reading of the enhancement paragraphs at the inception of the
punishment phase of trial and a defendant’s plea to them are mandatory. CRIM.
PROC. art. 36.01(a)(1) (West 2017); Turner v. State, 897 S.W.2d 786, 788 (Tex.
18
Crim. App. 1995). The purpose of this rule is to inform the defendant of the charges
against him and to inform the jury of the precise terms of the particular charges
against the defendant. Turner, 897 S.W.2d at 788 (citing Warren v. State, 693
S.W.2d 414, 415 (Tex. Crim. App. 1985). Error that results from a failure to read
the enhancement allegations and from a failure to obtain the defendant’s plea to the
allegations can be cured by the State’s reopening of its case-in-chief and its reading
of the enhancement allegations, by the defendant’s entry of a plea to the allegations,
and by the State’s reintroduction of the previously introduced evidence unless the
parties have stipulated to that evidence. Warren, 693 S.W.2d at 416 (citing Welch v.
State, 645 S.W.2d 284, 285 (Tex. Crim. App. 1983) (explaining that the proper
procedure to place the evidence before the jury in these circumstances is to permit
the State to reintroduce the evidence unless the defendant stipulates to the same));
Mendez v. State, 212 S.W.3d 382, 388 (Tex. App.—Austin 2006, pet. ref’d). “When
this is done, the issue is joined and a trial on the issue may be held.” Warren, 693
S.W.2d at 416.
In this case, the enhancement allegations were not set out in the indictments
but, rather, were set out in the State’s notice of intent to seek enhancement of
sentence. The prosecutor did not read the enhancement allegations set forth in the
State’s enhancement notice at the inception of the punishment phase of trial;
consequently, Appellant did not enter a plea at that time. Instead, at the close of the
State’s punishment evidence—but before the State rested—the prosecuting attorney
informed the trial court that he needed to read the enhancement allegations and
obtain Appellant’s plea to them. The trial court allowed the prosecutor to read
the enhancement allegations over defense counsel’s objection that “[t]his is very out
of order” and “[t]his should have been done before we -- this should have been done
-- to do it at the end of the State’s case, I don’t think it is proper to do it at this point in
time.” The prosecutor read the enhancement allegations. Defense counsel renewed
19
his objection “as to the timeliness of this procedure,” and Appellant entered a plea
of true. The trial court did not err when it permitted the State to “untimely” read the
enhancement allegations and Appellant to enter a plea to the allegations. See Welch,
645 S.W.2d at 285 (recognizing that failure to read enhancement allegations and take
defendant’s plea may be cured).
After the close of evidence, defense counsel objected that, “based upon [the
prosecutor’s] untimely reading of the enhancement paragraph,” the trial court’s
punishment charge “should read not 25 to 99, but instead 5 to 99 or life.” The
prosecutor expressed his belief that the alleged error had been cured when it read the
enhancement allegations and Appellant entered his plea to the allegations. The trial
court overruled the objection. Under the charge given to the jury, if the jury found
the State’s enhancement allegations to be true, it was to assess punishment for a term
of not less than twenty-five years nor more than ninety-nine years or life. That was
the proper range of punishment because the untimeliness in the reading of the
enhancement allegations and the entry of Appellant’s plea thereto was cured. And,
because Appellant pleaded true to those allegations, the State was not required to
reintroduce its punishment evidence. See Hopkins v. State, 487 S.W.3d 583, 586
(Tex. Crim. App. 2016); Wilson v. State, 671 S.W.2d 524, 525–26 (Tex. Crim. App.
1984) (plea of true to enhancement allegation constitutes evidence and satisfies
State’s burden of proof). We overrule Appellant’s seventh and eighth issues on
appeal.
In his first three issues, Appellant challenges the trial court’s denial of his
motion for new trial. In his first issue, Appellant complains that the trial court erred
when it denied his motion for new trial “based on new evidence discovered as
a result of the State’s failure to disclose exculpatory information prior to
trial.” Appellant asserts in his second and third issues that the trial court’s denial
of the motion for new trial constituted an abuse of discretion because the
20
State’s suppression of the “exculpatory evidence” violated his due process rights and
the mandate of Article 39.14(h) of the Texas Code of Criminal Procedure. See CRIM.
PROC. art. 39.14(h) (West Supp. 2019) (requiring the State to disclose “any
exculpatory, impeachment, or mitigating document, item, or information in the
possession, custody, or control of the state that tends to negate the guilt of the
defendant or would tend to reduce the punishment for the offense charged”). The
exculpatory evidence that Appellant refers to in these three issues relates to the
extent of the projectile’s penetration—full or partial—into Corporal Wester’s
protective vest.
To his motion for new trial, Appellant attached appellate counsel’s affidavit
and an exhibit consisting of a letter from the assistant district attorney—sent after
Appellant’s trial—informing trial and appellate counsel that the manufacturer of
Corporal Wester’s protective vest, Safariland, had informed Ranger Lewis that the
hole on the inside front panel of the protective vest had been caused by the velocity,
heat, and pressure of a projectile creating a rupture inside the vest rather than by the
exit of the projectile. In his motion, Appellant specifically argued that this
information—of which he and counsel had been unaware—constituted exculpatory,
impeachment, or mitigating information that tended to negate his guilt or,
alternatively, would have reduced his punishment.
At the hearing on Appellant’s motion for new trial, Assistant District Attorney
Michael Munk testified that, on December 5, 2017, four days after Appellant was
sentenced, Ranger Lewis informed Munk that a Safariland representative had
indicated that the projectile that struck the front of Wester’s protective vest may not
have penetrated the vest’s front panel. Munk subsequently informed Appellant’s
attorneys.
Appellant’s lead trial counsel, Michael McLeaish, testified that he
believed that the information that Munk had provided would have been critical to
21
Appellant’s defense because it would have provided a competing theory to
testimony to the effect that Appellant had intentionally shot at Corporal Wester’s
“heart,” which indicated an intent to kill. Appellant’s other trial counsel testified
that, had he known of the Safariland information prior to trial, he would have
suggested to McLeaish that the information be used to show that Appellant had fired
randomly from the bedroom, to raise doubt that Appellant had stood over
Corporal Wester and had attempted to execute him “with some type of kill shot,”
and to attempt “to minimize the specific intent” for the capital murder charge.
Ranger Lewis recalled that he had testified at trial that the bullet had
penetrated through the vest, and he explained during the hearing on the motion for
new trial that it was his opinion that the fact of whether the bullet did or did not
penetrate Corporal Wester’s vest was irrelevant to Appellant’s intent.
Corporal Wester testified that neither the assertions made by Safariland’s
representative nor the depth of the projectile’s penetration of his protective vest
would change his trial testimony that, while he was lying on his back, he saw
Appellant stand over him—“[j]ust feet away”—and fire a shot into his chest in an
attempt to kill him.
At the conclusion of the hearing, the presiding judge acknowledged that the
information should have been provided to Appellant but concluded that the evidence
“[did] not rise to the level that would require a new trial” and “overruled” the motion.
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). The trial
court abuses its discretion when it denies a motion for new trial only when no
reasonable view of the record could support the trial court’s ruling. Id. This is a
deferential standard of review that requires us to view the evidence in the light most
favorable to the trial court’s ruling. Id. In determining whether the trial court abused
its discretion, we do not substitute our own judgment for that of the trial court, and
22
we uphold the trial court’s ruling if it is within the zone of reasonable disagreement.
Id.
Appellant’s first, second, and third issues turn on his assertions that the new
evidence was exculpatory, favorable, and material. Exculpatory evidence is that
which may justify, excuse, or clear the defendant from fault, while impeachment
evidence is that which disputes or contradicts other evidence. Harm v. State, 183
S.W.3d 403, 408 (Tex. Crim. App. 2006); see Ex parte Lalonde, 570 S.W.3d 716,
724–25 (Tex. Crim. App. 2019) (citing Giglio v. United States, 405 U.S. 150, 154
(1972)). Whether exculpatory or impeaching, for evidence that was suppressed by
the State to be considered material, there must be a reasonable probability that the
result of the trial would have been different if the suppressed evidence had been
disclosed to the defense. Strickler v. Greene, 527 U.S. 263, 281–82, 289 (1999); see
United States v. Bagley, 473 U.S. 667, 682 (1985) (declaring that favorable evidence
is material and that constitutional error results from its suppression by the
government if there is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different); see also
Brady v. Maryland, 373 U.S. 83, 87 (1963) (suppression of material evidence
violates due process); Branum v. State, 535 S.W.3d 217, 225 (Tex. App.—Fort
Worth 2017, no pet.) (addressing production under Article 39.14).
The State argues that the new evidence—that the projectile fired into
Corporal Wester’s chest did not penetrate his protective vest—“was merely
impeaching” and provided no justification for a new trial. We agree. Nothing in the
record suggests that the projectile’s failure—if it failed—to completely penetrate the
protective vest would have constituted evidence that Appellant had fired his gun
recklessly rather than intentionally. The new evidence was thus not exculpatory and,
at best, would have impeached Ranger Lewis’s and Corporal Wester’s testimony
that the projectile had completely penetrated Corporal Wester’s protective vest.
23
Furthermore, we are unable to conclude on the record before us that the result of the
trial or the amount of the punishment would have been different if the new evidence
had been disclosed to Appellant. Thus, the new evidence was not material. Even in
the absence of the suppressed evidence—Appellant received a fair trial that resulted
in a verdict worthy of confidence. We overrule Appellant’s first, second, and third
issues.
We affirm the judgments of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
January 16, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
24