Hector Henriquez v. State

Opinion issued June 27, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00528-CR
———————————
HECTOR HENRIQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1578931
OPINION
A jury convicted appellant, Hector Henriquez, of the first-degree felony
offense of murder.1 The trial court assessed his punishment at eighty years’
1
See TEX. PENAL CODE ANN. § 19.02(b).
confinement. In one issue on appeal, appellant contends that the trial court erred
when it admitted the complainant’s written autopsy report, completed by a medical
examiner who did not testify at trial, in violation of the Confrontation Clause.
We affirm.
Background
On April 22, 2016, Ivania Salguero spoke with her good friend Jason
Cisneros, the complainant, and they discussed the possibility of Cisneros’s visiting
Ivania that evening at her parents’ house in southwest Houston, where she lived.
Later that evening, while Ivania was inside watching a movie with her father, Carlos
Salguero, Cisneros drove to the Salgueros’ house and parked his Jeep outside.
Cisneros texted Ivania that he was outside of her house.
The Salgueros lived next door to appellant’s parents. On the night of April 22,
Irma Baza, who had been dating appellant for several months, drove to appellant’s
parents’ house with two of her small children. When she arrived, Baza called for
appellant to come outside, and when he eventually did, he appeared to be angry. An
argument ensued between Baza and appellant while they were standing outside and,
during the course of this argument, appellant slapped Baza in the face. After
appellant struck Baza, Cisneros, whom Baza had never met, got out of his Jeep,
which had been parked next door at the Salgueros’ house, and intervened.
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Cisneros told appellant that he should not hit a woman, and the two men began
arguing. At one point during the argument, Cisneros stepped behind appellant and
wrapped him in a bear hug to stop him from being violent. According to Baza, this
was the only physical contact that occurred between Cisneros and appellant. After
Cisneros let appellant go, appellant pulled a handgun out from underneath his shirt
and shot Cisneros. Cisneros tried to run away down the street, and appellant fired a
second shot. Baza did not know if the second shot hit Cisneros, but he did not make
it very far down the street before he fell down.
Baza moved her vehicle and parked in the middle of the street to be closer to
where Cisneros was lying, and she called 9-1-1 and attempted to perform CPR. After
Baza moved closer to Cisneros, appellant walked over and kicked Cisneros twice in
the head.
Ivania and Carlos Salguero heard the gunshots from their living room. Ivania
and Carlos both went outside, and, when they saw Cisneros’s Jeep, they began
looking for him. They saw appellant, whom they had both known for many years,
standing outside. Ivania asked appellant what had happened, and he told her, “Go
inside, go inside, I shot someone.” Carlos was still looking for Cisneros, whom he
could not see, but when a car drove by, Carlos was able to see someone lying on the
ground. Carlos began walking in that direction, and appellant said to him, “No, Don
Carlos, don’t go there.” Carlos ignored appellant, and he discovered Cisneros lying
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in the grass near the street. Ivania walked over as well and called 9-1-1. Cisneros
was still alive, but he was struggling to breathe. At some point after Ivania and Carlos
discovered Cisneros, appellant went inside his parents’ house and then left the scene
entirely. An ambulance arrived shortly thereafter and took Cisneros to the hospital,
where he died from his injuries.
Houston Police Department (HPD) Officer W. Linares was on patrol when he
and his partner received a dispatch concerning the shooting of Cisneros. Linares and
his partner were the first police unit on the scene, and they arrived at approximately
the same time as the ambulance. Upon arriving at the scene, Linares and his partner
could not immediately find Cisneros. It was only when they saw Baza’s vehicle
parked in the middle of the street that they could see Cisneros lying in the grass by
the street and a driveway. Baza was crying, and Cisneros was bleeding heavily and
was nonresponsive. Linares told Baza to move her vehicle so the ambulance could
move closer to Cisneros. Baza did so, and the EMTs quickly loaded Cisneros into
the ambulance.
Given the quick response time to the scene following the 9-1-1 calls, Officer
Linares believed that there was a high likelihood that the suspect was still in the area,
and he asked Baza if she had seen a suspect. Baza initially told Linares that “there
was a tall, skinny guy wearing a black shirt, tan pants that shot [Cisneros] and left
the scene.” Linares put out a general broadcast for a person matching this
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description. Baza was shaking and crying throughout the entire time Linares was
present at the scene. When he learned that Cisneros had passed away at the hospital,
he informed Baza, who “broke down crying” and told Linares, “Okay, I’ll tell you
what happened.” Baza then identified appellant, her boyfriend, as the person who
shot Cisneros. She told Linares why she had gone over to appellant’s parents’ house,
she described her argument with appellant and appellant’s assault of her, and she
told Linares about Cisneros’s intervention in the argument. Baza told Linares that
appellant was able to get behind Cisneros and that he shot Cisneros “at very close
range” before shooting at Cisneros again when he tried to run away. Baza then told
Linares that, before appellant left the scene, appellant told her “that if he goes to jail,
it would be because of her, he just killed someone because of her.” Linares put out
a second general broadcast with a correct description of appellant as the suspect.
HPD Sergeant T. Simmons, with the Homicide Division, spoke with Baza at
the scene and rode with her to HPD headquarters in downtown Houston. While Baza
was driving, she received several phone calls from appellant, in which he apologized
“for what he did” and told her where he was. The officers used these phone calls to
determine that appellant was near a bayou close to the scene of the shooting. Officer
Linares called for a tactical unit to go to the scene, and this unit took appellant into
custody underneath a bridge near a bayou. Officer K. Daignault, also with the
Homicide Division, joined the tactical unit that found appellant. When Daignault
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arrived at the bayou, the tactical unit officers searched appellant and discovered a
semiautomatic handgun in his waistband. Daignault took the gun and gave it to
Christine Stobaugh, a crime scene investigator with the Houston Forensic Science
Center, who was processing the scene of the shooting for evidence.
Stobaugh took a video recording and numerous pictures of the scene, all of
which were admitted into evidence. At the scene, Stobaugh documented two spent
cartridge casings lying on the ground near Cisneros’s Jeep. Stobaugh documented
four separate bloodstains on the concrete further down the street from Cisneros’s
Jeep. Three of the bloodstains were located in the street, and the fourth was located
on the sidewalk just beyond a strip of grass. Stobaugh collected the handgun given
to her by Officer Daignault and the cartridge casings from the scene, and these items
were submitted for further testing.
After appellant was taken into custody, Sergeant Simmons tested appellant’s
hands for gunshot residue. Jason Schroeder, the manager of the trace laboratory at
the Harris County Institute of Forensic Sciences, analyzed the samples taken from
the gunshot residue test. Appellant’s right hand had two particles of gunshot residue,
and his left hand had three particles. The result for the right hand was considered
“inconclusive,” but, with respect to the left hand, Schroeder concluded that the three
particles “likely resulted from activity such as firing a weapon, being in close
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proximity to a firearm during discharge, handling a firearm, a fired cartridge, or
some surface bearing [gunshot residue].”
Ryan Hookano, a firearms examiner for the Houston Forensic Science Center,
tested the handgun recovered from appellant and the cartridge casings found at the
scene of the shooting. Based on the testing performed, Hookano concluded that the
cartridge casings at the scene were fired from the handgun that was in appellant’s
possession at the time of his arrest.
Dr. Dana Hopson, an assistant medical examiner at the Harris County Institute
of Forensic Sciences, testified concerning the autopsy performed on Cisneros. Dr.
Hopson did not perform the autopsy on Cisneros; instead, the autopsy was performed
by Dr. Alex John who, by the time of appellant’s trial, had left the Institute of
Forensic Sciences and was employed at the Montgomery County Medical
Examiner’s Office. Dr. Hopson stated that she had “independently review[ed]” the
autopsy report that Dr. John had completed and the photographs taken during the
autopsy. When the State offered the autopsy report completed by Dr. John into
evidence, defense counsel objected on the basis of the Confrontation Clause because
Dr. John was not present to testify and counsel had not had a chance to cross-
examine him concerning his autopsy report. The trial court overruled the objection
and admitted the autopsy report into evidence.
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Dr. Hopson testified that Cisneros had two gunshot wounds: an entrance
wound on the left side of his back and an exit wound beneath his left collarbone. No
projectiles were recovered from Cisneros’s body during the autopsy, and no stippling
was observed near the entrance wound on Cisneros’s back or on his clothing. The
projectile passed through muscle, ribs on the left side of Cisneros’s body, his left
lung, and several blood vessels. The State offered several photographs taken during
Cisneros’s autopsy. Defense counsel did not object to these photographs, nor did
counsel object to any of Dr. Hopson’s testimony.
On cross-examination, Dr. Hopson agreed with defense counsel that the
projectile traveled a straight path “from [the] middle of the back up towards the
clavicle or collarbone area before exiting.” She also agreed that the angle of the
projectile’s trajectory was “sharply upward.” Based on the relative placements of the
wounds, “this projectile moved from the back towards the front, and it moved from
the left toward the right and went upward as it exited.” On redirect examination, the
State asked whether the trajectory of the projectile was consistent with Cisneros’s
“running away from and ducking from a gun when he was shot.” Dr. Hopson
responded:
So typically if I’m given a scenario, I can determine if—based on the
trajectory if that would fit with a scenario. So in this case, the projectile,
as I mentioned, is going from the back, from the left towards the right,
and going sharply upwards. So that means that either the gun is lower
than where the entrance [wound] was or the decedent was tilted or
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lower than the gun or at a level similar to the gun, because as we
described, the projectiles go in a straight line. So that scenario could fit.
She then agreed with defense counsel that other scenarios could “fit with that angle,”
including if the shooter was “significantly shorter” than Cisneros. Dr. Hopson
testified that Cisneros was six feet tall, and she estimated, based on observing
appellant standing in the courtroom, that he appeared to be shorter than six feet tall,
although she did not estimate a particular height for appellant.
The jury found appellant guilty of murder, and the trial court assessed his
punishment at eighty years’ confinement. This appeal followed.
Confrontation Clause
In his sole issue on appeal, appellant contends that the trial court violated the
Confrontation Clause by admitting an autopsy report when the author of that report
did not testify at trial.
A. Standard of Review and Governing Law
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial
court abuses its discretion when its decision falls outside the zone of reasonable
disagreement. Id. at 83. Before we may reverse the trial court’s decision admitting
evidence, we must find that the trial court’s ruling was “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.” Id. (quoting
Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)).
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The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him . . . .” U.S. CONST. amend. VI. “The main purpose behind the
Confrontation Clause is to secure for the opposing party the opportunity of cross-
examination because that is ‘the principal means by which the believability of a
witness and the truth of his testimony are tested.’” Johnson v. State, 490 S.W.3d 895,
909 (Tex. Crim. App. 2016) (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)).
Another purpose of the Confrontation Clause is
to prevent depositions or ex parte affidavits, such as were sometimes
admitted in civil cases, being used against the prisoner in lieu of a
personal examination and cross-examination of the witness in which
the accused has an opportunity, not only of testing the recollection and
sifting the conscience of the witness, but of compelling him to stand
face to face with the jury in order that they may look at him, and judge
by his demeanor upon the stand and the manner in which he gives his
testimony whether he is worthy of belief.
Woodall v. State, 336 S.W.3d 634, 641–42 (Tex. Crim. App. 2011) (quoting Mattox
v. United States, 156 U.S. 237, 242–43 (1895)).
To implicate the Confrontation Clause, an out-of-court statement must
(1) have been made by a witness absent from trial and (2) be testimonial in nature.
Id. at 642. If those initial requirements are met, the statement is admissible and does
not violate the Confrontation Clause only if (1) the declarant is unavailable and
(2) the defendant had a prior opportunity to cross-examine the declarant. Id. Whether
a statement is testimonial is a question of law that we review de novo. Gutierrez v.
10
State, 516 S.W.3d 593, 597 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d); see
Woodall, 336 S.W.3d at 642 (stating that while we defer to trial court’s
determination of historical facts and credibility, we review constitutional legal
rulings de novo). For Confrontation Clause purposes, “testimonial” statements
include those “that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later
trial.” Paredes v. State, 462 S.W.3d 510, 514 (Tex. Crim. App. 2015) (quoting
Crawford v. Washington, 541 U.S. 36, 52 (2004)); Burch v. State, 401 S.W.3d 634,
636 (Tex. Crim. App. 2013) (“While the exact contours of what is testimonial
continue to be defined by the courts, such statements are formal and similar to trial
testimony.”).
An autopsy report is considered testimonial when an objective medical
examiner would reasonably believe that the report would be used in a later
prosecution. Williams v. State, 513 S.W.3d 619, 637 (Tex. App.—Fort Worth 2016,
pet. ref’d); Lee v. State, 418 S.W.3d 892, 896 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d); Wood v. State, 299 S.W.3d 200, 209 (Tex. App.—Austin 2009,
pet. ref’d) (noting that, in Texas, medical examiner is statutorily required to conduct
inquest when person dies under circumstances warranting suspicion that death was
caused by unlawful means) (citing TEX. CODE CRIM. PROC. ANN. art. 49.25 § 6(a)).
Although courts have not held that autopsy reports are categorically considered
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testimonial statements, in determining whether certain autopsy reports are
testimonial, courts have considered whether the autopsy was performed pursuant to
the provisions in the Code of Criminal Procedure, whether police officers attended
the autopsy, and the circumstances surrounding the death. See Lee, 418 S.W.3d at
896; Wood, 299 S.W.3d at 209–10.
By contrast, photographs taken during autopsies are not considered
statements. Williams, 513 S.W.3d at 637. Thus, autopsy photographs are considered
nontestimonial in nature and do not implicate the Confrontation Clause. Id.; Herrera
v. State, 367 S.W.3d 762, 773 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see
also Wood, 299 S.W.3d at 214–15 (stating that photograph is not out-of-court
statement and that admission of autopsy photographs did not disclose to jury any
testimonial hearsay). Furthermore, “an expert may disclose facts from the report of
an autopsy conducted by another person if the expert relied on those facts in coming
to his or her own conclusions.” Williams, 513 S.W.3d at 637.
B. Analysis
In this case, Dr. Alex John, who was an assistant medical examiner with the
Harris County Institute of Forensic Sciences, performed an autopsy on Cisneros on
April 22, 2016. By the time the case was tried in May 2018, Dr. John had left the
Institute of Forensic Sciences and was employed with the Montgomery County
Medical Examiner’s Office. Dr. John did not testify at appellant’s trial. Instead, Dr.
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Dana Hopson testified concerning the autopsy performed on Cisneros. Dr. Hopson
testified that she “independently review[ed]” Dr. John’s autopsy report and the
pictures taken during the autopsy, and she referred to the report and to the pictures
during her testimony. The trial court admitted the autopsy report into evidence over
appellant’s objection on the basis of the Confrontation Clause. Defense counsel did
not object to Dr. Hopson’s testimony or to the pictures taken during the autopsy.
The autopsy report stated that the autopsy was performed “pursuant to Article
49.25, Texas Code of Criminal Procedure.” The report indicated that no police
officers attended the autopsy. In agreeing that the autopsy report in this case is a
testimonial statement, both appellant and the State point out that Cisneros was found
lying in the street with a gunshot wound to his back, raising a suspicion that his death
was a homicide. The autopsy report listed the cause of Cisneros’s death as “[g]unshot
wound of torso” and listed the manner of his death as “[h]omicide.”
We agree with appellant and the State that, considering the circumstances
surrounding Cisneros’s death, an objective medical examiner would reasonably
believe that the autopsy report prepared by Dr. John would be used in a later
prosecution. See Williams, 513 S.W.3d at 637; Lee, 418 S.W.3d at 896; Wood, 299
S.W.3d at 209; see also TEX. CODE CRIM. PROC. ANN. art. 49.25 § 9(a) (“If the cause
of death shall be determined beyond a reasonable doubt as a result of the
investigation, the medical examiner shall file a report thereof setting forth
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specifically the cause of death with the district attorney . . . . Upon completion of the
autopsy, the medical examiner shall file a report setting forth the findings in detail
with the office of the district attorney . . . .”).
We thus agree with appellant and the State that the autopsy report constitutes
a testimonial out-of-court statement. See Williams, 513 S.W.3d at 637; Lee, 418
S.W.3d at 896; Wood, 299 S.W.3d at 209. Because it is undisputed that Dr. John, the
declarant, did not testify at trial and that appellant did not have the opportunity to
cross-examine Dr. John before trial, we agree with appellant and the State that
admission of this autopsy report violated the Confrontation Clause. See Woodall,
336 S.W.3d at 642. We therefore turn to whether admission of the autopsy report
harmed appellant.
In assessing the harm arising out of a violation of constitutional rights, we
must reverse a judgment of conviction unless we determine beyond a reasonable
doubt that the error did not contribute to the conviction. TEX. R. APP. P. 44.2(a). “The
critical inquiry is not whether the evidence supported the verdict absent the
erroneously admitted evidence, but rather ‘the likelihood that the constitutional error
was actually a contributing factor in the jury’s deliberations.’” Lee, 418 S.W.3d at
899 (quoting Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007)). When
reviewing harm for violations of the Confrontation Clause, we consider: (1) how
important the out-of-court statement was to the State’s case; (2) whether the out-of-
14
court statement was cumulative of other evidence; (3) the presence or absence of
evidence corroborating or contradicting the out-of-court statement on material
points; and (4) the overall strength of the prosecution’s case. Gutierrez, 516 S.W.3d
at 599 (quoting Scott, 227 S.W.3d at 690).
The autopsy report demonstrated that Cisneros died of a single gunshot wound
that entered the left side of his back and traveled upward, through his ribs and left
lung, before exiting his body below his left collarbone. It is undisputed that Cisneros
died of a gunshot wound, and the autopsy photographs, which were non-testimonial
and were properly admitted into evidence, also depicted the relative placements of
the entrance and exit wounds. Dr. Hopson, who reviewed the autopsy report and the
photographs, testified concerning the entrance and exit wounds, and she used the
photographs and the appearance of the wounds to explain to the jury how she reached
the conclusion that the wound on Cisneros’s back was the entrance wound and the
wound below Cisneros’s collarbone was the exit wound.
The written autopsy report itself, therefore, adds little beyond the autopsy
photographs and Dr. Hopson’s testimony, both of which were properly admitted and
did not implicate the Confrontation Clause. See Lee, 418 S.W.3d at 900 (stating that
relevance of autopsy report was that complainant died of multiple gunshot wounds,
“which was not only undisputed but readily apparent even to a lay person,” that key
evidence that defendant was one of several carrying firearms during robbery and that
15
gunfight with complainant ensued was undisputed and independent from autopsy,
and, therefore, autopsy report’s importance was minimal, weighing heavily against
reversal of conviction); see also Williams, 513 S.W.3d at 637 (stating that, even
though autopsy reports can be considered testimonial for Confrontation Clause
purposes, “an expert may disclose facts from the report of an autopsy conducted by
another person if the expert relied on those facts in coming to his or her own
conclusions”).
Appellant argues, however, that there was a dispute concerning the trajectory
of the bullet through Cisneros’s body and that Dr. Hopson, in testifying concerning
the trajectory and the entrance and exit wounds, “simply regurgitate[d]” Dr. John’s
conclusions in the autopsy report as her own, which harmed appellant. The autopsy
report described the size of the entrance and exit wounds, as well as their relative
placements compared to the top of Cisneros’s head and the midline of his spine. The
report then stated, “The direction of the bullet is back to front, left to right, and
upwards.”
In addition to using the autopsy photographs to explain the placement of the
wounds on Cisneros’s body, Dr. Hopson also used a diagram from the autopsy report
where Dr. John had made notations of the entrance and exit wounds. On cross-
examination, defense counsel elicited testimony from Dr. Hopson that the trajectory
of the bullet was a straight line and that the angle of the trajectory was “sharply
16
upward.” Dr. Hopson agreed with the State that the trajectory of the projectile was
consistent with Cisneros “running away from and ducking from a gun when he was
shot.” She also agreed with defense counsel that the trajectory could be consistent
with “other scenarios,” and she agreed with defense counsel that one such scenario
could be if the shooter was shorter than Cisneros, although she stated that, given the
placement of the entrance wound on the mid-to-lower portion of Cisneros’s back,
the shooter would have to be “significantly shorter” than Cisneros. This testimony
is not evidence of a dispute between Dr. Hopson and Dr. John, evident from the
autopsy report, concerning the trajectory of the bullet. Instead, this testimony merely
indicates that more than one situation could lead to the occurrence of this particular
projectile trajectory. Moreover, evidence of the trajectory of the bullet came not just
from the written autopsy report but also from the properly-admitted autopsy
photographs and Dr. Hopson’s testimony based on those photographs.
Furthermore, the State’s case against appellant was strong. Irma Baza was an
eyewitness to the confrontation between appellant and Cisneros, and she testified
that, after Cisneros released appellant from a bear hug that he had put appellant in to
attempt to prevent appellant from using violence, appellant pulled out a handgun
from his waistband and shot at Cisneros. Cisneros turned and started to run away
from appellant, who shot at him a second time. Cisneros managed to make it a little
further down the street before collapsing. Ivania and Carlos Salguero were watching
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a movie in their house when they heard two gunshots and went outside to investigate.
They both spoke with appellant. Appellant told Ivania to go back inside her house
because he had shot someone and he told Carlos not to go over to where Cisneros
was lying on the ground. Appellant then fled the scene.
Appellant later called Baza, apologizing “for what he did” and telling her that
he was near a bayou that was minutes away from the scene of the shooting. When
officers located appellant, they recovered a handgun from his waistband. Firearms
testing revealed that two cartridge casings found at the scene of the shooting were
fired from the handgun in appellant’s possession at the time of his arrest. Gunshot
residue testing revealed two particles of gunshot residue on appellant’s right hand—
an “inconclusive” result—and three particles on his left hand—a result leading to
the conclusion that the particles “likely resulted from activity such as firing a
weapon, being in close proximity to a firearm during discharge, handling a firearm,
a fired cartridge, or some surface bearing [gunshot residue].”
We therefore conclude beyond a reasonable doubt that the erroneous
admission of the written autopsy report did not contribute to appellant’s conviction.
See TEX. R. APP. P. 44.2(a); Lee, 418 S.W.3d at 899–901; Wood, 299 S.W.3d at 214–
16.
We overrule appellant’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Kelly, and Goodman.
Publish. TEX. R. APP. P. 47.2(b).
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