Rivero, Elizabeth v. State

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ELIZABETH RIVERO,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

' ' ' ' '

No. 08-02-00191-CR Appeal from the 171st District Court of El Paso County, Texas (TC#940D05761)

O P I N I O N

Elizabeth Rivero was convicted by a jury of capital murder and sentenced to life in prison.  She appeals, raising five issues.  We affirm.

Factual Sufficiency

            In her fourth issue, Rivero argues that the evidence was factually insufficient to establish that she was a party to the offense.

Standard of Review

To determine whether the evidence is factually sufficient, we view all the evidence in a neutral light.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); Nunez v. State, 27 S.W.3d 210, 218 (Tex. App.--El Paso 2000, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact.  Johnson, 23 S.W.3d at 7; Nunez, 27 S.W.3d at 218.  We must reverse if the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or if the proof of guilt, although adequate standing alone, is greatly outweighed by contrary proof.  Johnson, 23 S.W.3d at 11.  We generally must defer to the jury=s determination of the weight of the evidence and the credibility of the witnesses. Id. at 8.  Although we are authorized to disagree with the jury=s determination, we may exercise that authority only to arrest the occurrence of a manifest injustice.  Id. at 9.  In conducting our review of the sufficiency of the evidence, we consider all the evidence, whether properly or improperly admitted.  Arzaga v. State, 86 S.W.3d 767, 777-78 (Tex. App.--El Paso 2002, no pet.).

The Evidence

The victim of the murder was Victor Rene Resendez. Resendez=s common-law wife, Ana Galindo, testified that in July 1994, she was living with Resendez, her three daughters, and Resendez=s nephew.  She stated that on July 5, Resendez was acting nervous.  On the morning of July 6, she and Resendez were awakened by the sounds of someone knocking on the door and of a man and woman yelling for Resendez to open the door.  Resendez instructed Galindo to see who was at the door and to call the police; meanwhile, he retrieved his gun from a drawer.

Galindo looked out the kitchen window and saw a woman, whom she later identified as Rivero.  Galindo could tell that there was someone else knocking at the door, but she could not see that person.  A man then forced open the door and entered the apartment.  Resendez and the man began shooting at each other, and Resendez was hit and fell down.  Galindo went outside and saw Rivero waiting in a red sports car with the engine running.  As the man got into the car, he shot at Galindo, and Rivero yelled that she would come back to get Galindo.  When Galindo returned to the apartment, another man was there.

Galindo testified that everything happened very fast that morning and she was very frightened.  Although she testified at trial that she got a Agood look@ at Rivero as Rivero stood outside the kitchen window, she only said in her statement to the police that she Apeeked@ out the kitchen window.  She described Rivero as a little overweight with Areddish@ hair.  She identified Rivero at trial as the woman outside the window and she testified that she picked Rivero out of a photographic line-up.  While cross-examining Galindo, defense counsel noted that she did not look at Rivero when she identified her in court.  Galindo responded, AI do not need to turn around and look at her.  When I see a face, I never forget it.@ She added, AWhy are you going to want to go and see someone who has hurt you as much as they have hurt me?@ Galindo stated that Rivero never came inside the apartment.  She never saw Rivero before or after the day of the murder, except for when she identified her in the photographic line-up.  She had, however, heard Rivero=s voice on the phone when she would call to speak with Resendez.

Sergeant Hinojosa with the El Paso Police Department testified that his investigation of the murder revealed that Resendez, his sister, and Rivero knew each other through Ainsurance transactions.@ Approximately one week before the murder, Rivero and two or three men pulled up in a red vehicle at the apartment complex where Resendez lived.  Rivero pointed out to the men where Resendez lived.   Hinojosa=s investigation also revealed that there was Abad blood@ between Rivero and Resendez.  Resendez owed Rivero some money and she threatened to kill him if he did not pay her.

Detective Zimmerly with the El Paso Police Department testified that the police initially had three suspects--Rivero, Juan Corral, and Juan Ojeda.  The El Paso Police learned of Corral through the Mexican Police.  They reported that a woman dropped Corral off at a Juarez hospital with a gunshot wound on the day of the murder.  Corral was eventually convicted in Mexico of Resendez=s murder.

Ojeda was still at the scene of the murder when the police arrived.   He claimed that he just happened upon the scene and had nothing to do with the murder.  He told the police that there was no woman involved in the murder.  Zimmerly thought that Ojeda=s story Adidn=t make sense.@

Zimmerly testified that Rivero drove a red Dodge Shadow.  On the day of the murder, the police searched for Rivero at her place of employment, but she had called in sick.  They went to her house, spoke to her housekeepers, and learned that she had not been at home that day and that it was unusual for her not to be there.

Zimmerly testified about some of the other people he interviewed.  Araceli Corral, a friend of Resendez, described a woman she had seen with him. The woman was heavy-set, with bleached blond hair and light skin and eyes.  She thought the woman=s name was Mary Ellen.

Zimmerly also talked to Ojeda=s girlfriend, Lupe Barraza.  The police searched her house and found nothing incriminating.  While Barraza was at the police station, Resendez=s nephew saw her and said she looked like the woman who was involved in the murder, Abut that=s not her.@

A neighbor and friend of Resendez identified Rivero in a photographic line-up.   He had gone with Resendez to the insurance office where Rivero worked and had bought insurance from her.

Zimmerly testified that Rivero turned herself in on July 11, 1994.  At that time, she was Aheavier-set@ than at the time of trial and her hair was Areddish@ or Ableached blond.@ Rivero does not have light-colored eyes.

Discussion

Rivero=s argument centers on Galindo=s identification of her.  She points out that Galindo:  (1) did not tell the police that she saw the woman outside the kitchen window; (2) did not look at Rivero when identifying her in court; (3) had not seen the woman involved before the day of the murder; (4) told the police that the woman was already waiting in the car when Resendez fell; and (5) admitted that the events happened very fast and that she was very frightened.^[1]  All of these points relate to Galindo=s credibility and the weight that should be accorded to her testimony. Under the circumstances of this case, we believe the jury was in a better position to determine the weight and credibility of Galindo=s testimony.  See Johnson, 23 S.W.3d at 8.

Besides Galindo=s testimony, the State presented additional evidence linking Rivero to the murder:  she had pointed out Resendez=s apartment to two or three men about a week before the murder; she had threatened to kill him; and her car matched the description of the getaway car.  Other evidence was favorable to Rivero: Ojeda said that no woman was involved in the murder; Ojeda=s girlfriend looked like the woman who was involved; and there were some inconsistencies in the physical description of the woman involved and a woman who had been seen with Resendez.  Having reviewed and considered all of the evidence, we do not believe that the proof of Rivero=s guilt is so obviously weak as to undermine confidence in the jury=s determination or that the proof of her guilt is greatly outweighed by contrary proof.  Id. at 11.

Rivero=s fourth issue is overruled.

Speedy Trial

In her third issue, Rivero argues that the trial court erred by denying her motion to dismiss for lack of a speedy trial.

Standard of Review

We analyze state and federal speedy trial issues using the familiar four-factor balancing test established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed. 2d 101 (1972).  See Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). The four factors are:  (1) the length of the delay; (2) the reason for the delay; (3) the defendant=s assertion of the right to a speedy trial; and (4) the prejudice to the defendant resulting from the delay.  Barker, 407 U.S. at 530, 92 S.Ct. at 2192.

We apply a bifurcated standard of review:  an abuse of discretion standard for the factual components, and a de novo standard for the legal components.  Zamorano, 84 S.W.3d at 648. This means that we independently weigh and balance the Barker factors, but we presume the trial court resolved any disputed fact issues in a manner that supports its ruling.  See id.; State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

Length of the Delay

The first factor, the length of the delay, is measured from the time the defendant is arrested or formally accused.  Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).  This factor entails a two-part analysis.  First, it acts as a triggering mechanism for consideration of the other factors.  Barker, 407 U.S. at 530, 92 S.Ct. at 2192.  Until there is a delay that is presumptively prejudicial, there is no need to consider the other factors.  Id., 92 S.Ct. at 2192.  In general, delay approaching one year is sufficient to trigger consideration of all the Barker factors.  Shaw, 117 S.W.3d at 889.  Second, if consideration of all the factors has been triggered, the court must then consider, as one factor among several, the extent to which the delay stretched beyond the bare minimum needed to trigger judicial examination of the speedy trial claim.  Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, 120 L. Ed. 2d 520 (1992). The presumption that pretrial delay has prejudiced the defendant intensifies over time.  Id., 112 S.Ct. at 2691.

In this case, Rivero turned herself in or was arrested in July 1994, but her trial did not begin until almost eight years later, in April 2002. This delay was sufficient to trigger a speedy trial inquiry.  Moreover, this delay is far longer than the minimum required to trigger the inquiry. Accordingly, the first Barker factor weighs heavily in favor of finding a speedy trial violation.  See Shaw, 117 S.W.3d at 889.

Reason for the Delay

The State bears the burden of justifying the delay.  Id. at 889 n.3.  Different weights are assigned to different reasons for delay.  Barker, 407 U.S. at 531, 92 S.Ct. at 2192.  A deliberate attempt to delay trial to hamper the defense is weighed heavily against the State.  Id., 92 S.Ct. at 2192.  More neutral reasons, such as negligence or crowded dockets, are also weighed against the State, but less heavily than deliberate delay.  Id., 92 S.Ct. at 2192. Valid reasons are not weighed against the State at all.  Id., 92 S.Ct. at 2192.  And delay that is attributable in whole or in part to the defendant may constitute a waiver of the speedy trial claim.  Munoz, 991 S.W.2d at 822. When the record is silent as to the reason for the delay, we may presume neither a valid reason nor a deliberate attempt to prejudice the defense.  Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).  Therefore, when the record is silent, the second Barker factor weighs against the State, but not heavily.  Id.

In this case, Rivero was indicted on December 15, 1998.  The State concedes that the nearly four-and-a-half year delay between arrest and indictment must be attributed to the State. At the hearing on the motion to dismiss, Detective Ruiz testified that sometime in November 1998, he received a phone call from a federal official, who mentioned that Rivero had been investigated for murder and requested information about her. Ruiz located Rivero=s case among the cold case files, reviewed the case, and presented it to the district attorney on approximately November 12, 1998.  He testified that to his knowledge, the case had not been worked on since 1994.  According to Ruiz, there was no indication that the State delayed the case to harm Rivero.  He stated that he could not explain why the case ended up among the cold cases.

Thus, the record reflects that the delay between Rivero=s arrest and her indictment was due to negligence.  There is no evidence that the State deliberately delayed the indictment to hamper the defense.  We therefore weigh this delay against the State, but not heavily.

Rivero was indicted approximately one month after the case was presented to the district attorney.  There is no explanation in the record for the delay from December 15, 1998, which was the date of the indictment, to at least October 4, 1999, which was apparently the first trial setting.^[2]  Although the State is entitled to a reasonable time to prepare for trial, this delay was at least ten months.  Cf. Shaw, 117 S.W.3d at 889-90 (refusing to count a three-month interval between indictment and trial against the State).  Therefore, we presume from this delay neither a valid reason nor a deliberate attempt to prejudice the defense, and we weigh this delay against the State, but not heavily.

It appears that the delay from at least January 27, 2000 to the commencement of trial on April 2, 2002, was attributable almost entirely to continuances sought by Rivero.  Accordingly, we weigh this delay against Rivero.^[3]

Assertion of the Right

The defendant=s assertion of her right to a speedy trial is entitled to strong evidentiary weight in determining whether she has been deprived of the right.  Barker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93.  Failure to assert the right in a timely and persistent manner will make it difficult for a defendant to prove that she was denied a speedy trial.  Id. at 529, 532, 92 S.Ct. at 2193; see also Thompson v. State, 983 S.W.2d 780, 785 (Tex. App.--El Paso 1998, pet. ref=d). This failure weighs more heavily against the defendant as the delay gets longer; the longer the delay, the more likely a defendant who really wants a speedy trial would take some action to obtain it.  Dragoo, 96 S.W.3d at 314.  But the failure to assert the right may weigh less heavily against a person who is not represented by counsel.  See Barker, 407 U.S. at 529, 92 S.Ct. at 2191.  Seeking a dismissal, rather than a trial, may attenuate the strength of a speedy trial claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983).

On April 6, 1999, Rivero filed her only motion asserting her right to a speedy trial. The only relief requested in the motion was dismissal of the case.  No hearing was conducted on the motion until January 11, 2000, and there is nothing in the record to show that Rivero attempted to obtain an earlier hearing.  The record contains no other assertion of the right to a speedy trial.  Rivero retained counsel no later than June 1997, when she filed a motion related to her bond. Moreover, after the trial court denied her motion to dismiss, Rivero sought a series of continuances.  Because Rivero only asserted her right once during the nearly eight years between her arrest and trial and then only sought a dismissal of the charge, the third Barker factor weighs heavily against finding a speedy trial violation.

Prejudice

Prejudice must be assessed in light of the interests a speedy trial is designed to protect.  Barker, 407 U.S. at 532, 92 S.Ct. at 2193.  These interests are:  (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.  Id., 92 S.Ct. at 2193.  Of these three, the most serious is the last, because the inability of the defendant to prepare a defense skews the fairness of the entire system.  Id., 92 S.Ct. at 2193.

In this case, the first two interests do not weigh in favor of finding a speedy trial violation.  Although Rivero testified at the hearing on her motion to dismiss, she did not mention experiencing anxiety or concern.  Her testimony reveals that she had been incarcerated for no more than nine days on this charge, and during much of that time she did not even have to report regularly to maintain her bond.

Regarding the third interest, affirmative proof of prejudice is not essential to every speedy trial claim, because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify.  Shaw, 117 S.W.3d at 890.  But this presumption of prejudice is extenuated in this case by Rivero=s acquiescence to the delay.  See id.

At the hearing on the motion to dismiss, Rivero claimed that her defense was prejudiced because of missing witnesses. When the defendant claims her defense was prejudiced by missing witnesses, she must demonstrate that the witnesses were unavailable at the time of trial, that their testimony may have been material to the defense, and that she exercised due diligence in attempting to locate them.  Johnson v. State, 975 S.W.2d 644, 652 (Tex. App.--El Paso 1998, pet. ref=d).

An investigator testified that he was retained by Rivero=s counsel several months before the January 2000 hearing to locate and interview potential witnesses.  He named six potential witnesses whom he was unable to locate.  Two of those witnesses testified at trial; thus, they were not unavailable.  One of the witnesses, Ojeda, was incarcerated in Texas.  The investigator acknowledged that the defense could have requested a bench warrant for him, but there is nothing in the record to show that the defense pursued this option.  The trial court could have determined that Rivero failed to show unavailability or due diligence regarding this witness. Ojeda was the only witness that the investigator could definitely identify as favorable to Rivero.  The investigator conceded the other witnesses= statements were not favorable to the defense, but he asserted that he might have been able to elicit favorable information from them if he had a chance to interview them.  The trial court could have determined that Rivero failed to establish that these witnesses were material to her defense.  We conclude that the fourth Barker factor does not weigh in favor of finding a speedy trial violation.^[4]

Balancing the Factors

The length of the delay weighs in favor of finding a speedy trial violation in this case.  But the length of the delay is attenuated by the facts that a good portion of the delay was attributable to the defense, there is no evidence of deliberate delay, Rivero largely acquiesced to the delay, and she failed to show prejudice resulting from the delay.  We therefore conclude that the trial court did not err by denying Rivero=s motion to dismiss for lack of a speedy trial.  Rivero=s third issue is overruled.

Effective Assistance of Counsel

In her first issue, Rivero argues that her trial counsel was ineffective in failing to object to in-court and out-of-court identifications of her as a party to the offense and in failing to object to inadmissible hearsay from Sergeant Hinojosa and Detective Zimmerly.

Standard of Review

A two-pronged test governs our review of ineffective assistance of counsel claims. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, we must determine whether counsel=s performance was deficient.  Id. To establish that counsel=s performance was deficient, the defendant must show that the performance fell below an objective standard of reasonableness.  Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson, 9 S.W.3d at 812.  Second, we must determine whether counsel=s deficient performance prejudiced the defendant.   Thompson, 9 S.W.3d at 812.  To establish prejudice, the defendant must show that there is a reasonable probability that the result of the proceedings would have been different but for counsel=s deficient performance.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812.

Our review is highly deferential and presumes that counsel=s actions fell within a wide range of reasonable professional assistance.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813.  The defendant bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and an allegation of ineffectiveness must be firmly founded in the record.  Thompson, 9 S.W.3d at 813.  Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.  Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.  2003).  When the record is silent as to the motivations underlying counsel=s tactical decisions, the appellant usually cannot overcome the strong presumption that counsel=s conduct was reasonable.  Mallett, 65 S.W.3d at 63.  For this reason, A[a] substantial risk of failure accompanies an appellant=s claim of ineffective assistance of counsel on direct appeal.@ Thompson, 9 S.W.3d at 813.

Opportunity for Trial Counsel to Explain

In this case, trial counsel has not been afforded an opportunity to explain his failure to object to the evidence and the record is silent as to why he did not object.  Therefore, Rivero=s claims of ineffective assistance must fail.  See Rylander, 101 S.W.3d at 110 (acknowledging that the record raised questions as to the wisdom of and rationale for certain trial strategy decisions, but rejecting ineffective assistance claim because trial counsel had not had an opportunity to respond to the claim); Thompson, 9 S.W.3d at 814 (holding that because the record was silent as to why counsel failed to object to inadmissible hearsay, the appellant failed to rebut the presumption that counsel=s conduct was reasonable).

Identification Evidence

Moreover, regarding trial counsel=s failure to object to the identification evidence, we note that when a claim of ineffective assistance is founded on the failure to object to evidence, the appellant must show that the evidence was inadmissible.  Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1901, 155 L. Ed. 2d 824 (2003).  Rivero has failed to make this showing.

Rivero=s argument is based on what she considers to be an impermissibly suggestive photographic line-up.  A photographic line-up may be impermissibly suggestive because (1) the police use improper procedures, such as pointing out the suspect or telling the witness that the suspect=s photo is included in the array, or (2) the content of the array itself is suggestive, such as when the suspect=s photo is the only one that closely resembles the witness=s description.  See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995).  An impermissibly suggestive line-up can render evidence of both an out-of-court and an in-court identification inadmissible.  See Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999).

In this case, Sergeant Hinojosa presented the array to Galindo the day after the murder.  He testified that he told Galindo that the perpetrator might not be in the line-up.

Hinojosa explained how he composed the array.  He testified that he obtained a description of the female suspect from Galindo the same morning that the murder occurred.  Galindo said that the suspect was a Alight-complected Hispanic female in her late 20s with shoulder-length hair, sort of like orangish or reddish in color, combed to the side.@ Hinojosa developed Rivero as a suspect and obtained a color photograph of her.   He reproduced the photograph in black and white and included it in the array along with black-and-white photographs of five other women.

Hinojosa testified that he put the array together from what he had to work with at the time.  After viewing the array at the trial, he stated that he was not satisfied with it. He acknowledged that Rivero=s photograph and some of the other photographs stood out from the rest. When Rivero=s counsel suggested that her photograph looked like a AGlamour Shot,@ Hinojosa replied that some of the other ones looked like AGlamour Shots@ as well.

Regarding the first type of suggestiveness, there is no evidence that Hinojosa followed an improper procedure in presenting the array to Galindo. Rather than saying anything to encourage her to pick Rivero, he told her that the suspect=s photo might not be in the array.

Regarding the second type of suggestiveness, there is no evidence that the array itself was impermissibly suggestive.  A photocopy of the array is included in the appellate record.  It consists of six black-and-white head shots of smiling women with medium-length dark hair.  A photographic line-up should consist of persons with physical features that are similar enough to provide a reasonable test of the witness=s capacity to identify the perpetrator.  Johnson v. State, 901 S.W.2d 525, 535 (Tex. App.--El Paso 1995, pet. ref=d).  The array in this case satisfies this requirement.

Because Rivero has failed to show that the photographic line-up was impermissibly suggestive, she has also failed to establish that Rivero=s out-of-court and in-court identifications of her were inadmissible or that trial counsel was deficient in failing to object to the identification evidence.

Hearsay Evidence

Regarding trial counsel=s failure to object to hearsay evidence from Hinojosa and Zimmerly, the record indicates that this failure may have resulted from a reasonable strategic decision.  Before the State called its first witness, defense counsel indicated that he intended to question the investigating officers regarding Corral=s conviction in Mexico for this murder and Ojeda=s statements to the officers.  One of the prosecutors argued that the proposed testimony would be hearsay.  The trial court, with the encouragement of defense counsel, ruled that the testimony would be admissible as long as the officers acquired the information in the course of their investigation.

Having failed in their attempt to keep out the defense=s hearsay evidence, the prosecutors apparently decided to Aturn a lemon into lemonade@ by using the court=s ruling to elicit hearsay testimony beneficial to the State.  The hearsay that Rivero complains of on appeal came in through questioning about what the officers learned in the course of their investigation.  Given that defense counsel encouraged the court to admit evidence obtained in the course of the investigation, counsel could have rationally concluded that he was in no position to object to the State=s hearsay testimony regarding what the officers learned through their investigation.  See Ortiz, 93 S.W.3d at 94 (noting that counsel=s use of an extraneous offense to impeach a witness was trial strategy and that once that strategy was invoked, counsel could have rationally believed he was not in a position to prevent evidence of the defendant=s involvement from being admitted).

The record does not show that counsel=s strategy was unreasonable.  Counsel may have been unable to secure the appearance of Corral and Ojeda at trial, or he may have had reasons not to call these witnesses, both of whom had criminal records.^[5]  Moreover, while cross-examining the officers, defense counsel was able to elicit, without objection, the testimony that he sought regarding Corral and Ojeda, as well as other hearsay testimony that was beneficial to the defense.  Because Rivero has failed to rebut the presumption that her counsel=s strategy was reasonable, she has also failed to show that counsel was deficient in failing to object to the State=s hearsay evidence.

Rivero=s first issue is overruled.

Hearsay

In her second issue, Rivero argues that the trial court erred by overruling her hearsay objection to Hinojosa=s testimony that Rivero had threatened to kill Resendez.

Standard of Review

In reviewing a trial court=s ruling on the admissibility of evidence, we must determine whether the court abused its discretion.  Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002); Head v. State, 4 S.W.3d 258, 262 n.4 (Tex. Crim. App. 1999). This means that we must uphold the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case.  Willover, 70 S.W.3d at 845. Furthermore, we must consider the trial court=s ruling in light of what was before the trial court when the ruling was made. Id.

Discussion

As noted in our discussion of Rivero=s first issue, her counsel did not object to most of the investigating officers= hearsay testimony.  Counsel did object, however, when a prosecutor asked Hinojosa how Rivero had threatened Resendez.  He argued that Hinojosa=s answer would be based on information received from a witness and would therefore be hearsay.  The prosecutors argued that the testimony was admissible pursuant to the court=s ruling on the admissibility of evidence obtained in the investigation. The trial court agreed and overruled the objection.  Hinojosa then testified, AThe threat that I remember is that he was going to . . . get killed if he didn=t pay . . . the money that he owed.@

 Admission of hearsay evidence is harmless when the same or similar evidence is admitted without objection.  Thomas v. State, 621 S.W.2d 158, 164 (Tex. Crim. App. 1981); Nixon v. State, 940 S.W.2d 687, 690 (Tex. App.--El Paso 1996, pet. ref=d).  Immediately before Hinojosa gave the objected-to testimony, he testified without objection that there was Abad blood@ between Rivero and Resendez and that Resendez apparently Aowed some money to . . . Rivero, and he had been threatened by her.@ Additionally, Detective Zimmerly testified on direct examination, without objection, that Rivero became a suspect in this case because Ashe knew the victim, and . . . there had been threats before.@  Because Rivero did not object to this similar testimony, the admission of the objected-to testimony was harmless.

Furthermore, a party may not turn a ruling she induced into an appellate error. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999).  As we have explained, defense counsel encouraged the trial court to admit evidence obtained in the course of the investigation.  The court determined that the objected-to testimony was admissible under that theory.

We overrule Rivero=s second issue.

Lesser-Included Offense

In her fifth issue, Rivero argues that the trial court erred by refusing to instruct the jury on the lesser-included offense of criminally negligent homicide.

Standard of Review

To determine whether the trial court should have given a charge on a lesser-included offense, we apply a two-pronged test.  First, the lesser offense must be included within the proof necessary to establish the offense charged.  Second, some evidence must exist in the record that would permit a rational jury to find that if the defendant is guilty, she is guilty only of the lesser offense.  Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Licon v. State, 99 S.W.3d 918, 927 (Tex. App.--El Paso 2003, no pet.).

Discussion

The State concedes that criminally negligent homicide is a lesser-included offense of capital murder.  See Gadsden v. State, 915 S.W.2d 620, 622 (Tex. App.--El Paso 1996, no pet.).  The key to criminal negligence is the failure of the actor to perceive the risk.  Licon, 99 S.W.3d at 928.  Therefore, before a charge on criminally negligent homicide is required, the record must contain evidence showing an unawareness of the risk.  Id.

Rivero argues that the jury could have rationally found that she was only guilty of criminally negligent homicide because it is undisputed that she never entered the apartment and Galindo testified that she was waiting in the car when Corral came out of the apartment.  Rivero=s argument seems to be that because she was not present when the shooting occurred, the jury could infer that she was unaware of the risk that Corral would shoot Resendez.

Because it is undisputed that Rivero did not shoot Resendez, her culpability for his murder hinges on the law of parties.  Rivero=s argument ignores this crucial point.  To convict a person under the law of parties, the State must prove:  (1) conduct by the primary actor that constitutes an offense, and (2) an act by the defendant that was done with the intent to promote or assist the primary actor to commit the offense.  Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985); Perry v. State, 977 S.W.2d 847, 850 (Tex. App.--Houston [14th Dist.] 1998, no pet.).  A person cannot be found guilty under the law of parties if she does not know she is assisting in the commission of an offense.  Amaya v. State, 733 S.W.2d 168, 174 (Tex. Crim. App. 1986).  Therefore, if Rivero was unaware that Corral was going to shoot Resendez, she was entitled to be acquitted of this capital murder, not convicted of criminally negligent homicide.  In other words, Rivero=s argument raises a defense, not a lesser-included offense.  Accordingly, the trial court did not err in refusing to give the requested charge.

We overrule Rivero=s fifth issue.

Conclusion

For the reasons stated herein, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

January 8, 2004

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

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^[1]Rivero also argues that Galindo=s identification of her was tainted by an impermissibly suggestive photographic line-up.  In our discussion of Rivero=s first issue, below, we conclude that the line-up was not impermissibly suggestive.

^[2]The docket sheet reflects that on July 26, 1999, the case was set for trial on October 4, 1999.  On August 27, 1999, Rivero filed a motion for continuance, referring to a setting of September 2, 1999.  The motion does not state whether the setting was a trial setting, and the record does not contain a ruling on the motion.  The trial court conducted a hearing on Rivero=s motion to dismiss on January 11, 2000.  The record from that hearing reflects that the case was set for trial on February 7, 2000.  On January 24, 2000, the trial court denied the motion to dismiss, and on January 27, 2000, Rivero filed a motion for continuance, seeking additional time to prepare and referring to a setting on January 28, 2000.

^[3]The court granted Rivero=s January 27 motion for continuance and set the case for trial on August 7, 2000.  The case was reset from August 7, 2000 to October 16, 2000 for reasons unexplained in the record.  On September 6, 2000, Rivero filed a motion for a continuance because her attorney was in the hospital, and on October 13, 2000, she filed another motion for continuance because she had retained new counsel, and he needed time to prepare.  The record does not contain a ruling on these motions.  But on February 8, 2001, Rivero filed a motion for continuance, referring to a trial setting of February 19, 2001, because her counsel needed more time to prepare.  The trial court granted this motion and reset the trial for May 29, 2001. On May 15, 2001, Rivero filed a motion for a continuance from this setting because her counsel=s wife was ill, and on June 7, 2001, she sought a continuance from a September 17, 2001 setting because counsel was scheduled for trial in federal court.

^[4]Rivero argues on appeal that her defense was prejudiced by several purported deficiencies in the State=s investigation and by the use of hearsay from the missing witnesses at trial.  Because these arguments were not raised in the trial court, they do not provide a basis for reversal.  See Dragoo, 96 S.W.3d at 313.  In any event, the record does not establish that the purported deficiencies in the State=s investigation were the result of the delay. The use of hearsay is discussed in our review of Rivero=s first and second issues.

^[5]During the hearing on Rivero=s motion to dismiss, Rivero=s investigator testified that Ojeda was in prison in Texas.  During the arguments regarding admissibility of evidence obtained in the course of the investigation, defense counsel told the trial court that he could not find Ojeda.