Raul Eddie Lopez v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Raul Eddie Lopez

Appellant

Vs.                   No.  11-02-00366-CR -- Appeal from Taylor County

State of Texas

Appellee

The jury convicted Raul Eddie Lopez of aggravated sexual assault and aggravated kidnapping. The jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Corrections for a term of 75 years for the aggravated sexual assault conviction and for a term of 99 years for the aggravated kidnapping conviction.  The jury also imposed a fine of $10,000 for each conviction.  Appellant raises two issues on appeal.  We affirm.

The facts giving rise to appellant=s convictions occurred on the night of July 28, 1996, in and around Merkel.  The victim of the offenses, S.M., was appellant=s former girlfriend.  Appellant and S.M. had previously lived together in Dallas. S.M. left appellant in the spring of 1996 to return to Merkel, her hometown.  S.M. encountered appellant on the evening of July 28, 1996, at a relative=s home in Merkel.  S.M. testified that, while giving appellant a ride to a convenience store in her aunt=s car, appellant ordered her to drive out into the countryside.  He threatened S.M. with a gun if she failed to follow his orders.  After instructing S.M. to park the car in a remote area, he forced her to remove her clothing and have sex with him against her will.  S.M. testified that appellant struck her repeatedly during this ordeal. Appellant ultimately forced S.M. to get into the trunk of the car by hitting her with a tire tool.  Appellant then drove the car a short distance with S.M. in the trunk until the car=s engine failed.  Appellant removed S.M. from the trunk and ordered her to Awipe down@ the car of all evidence.  He also ordered S.M. to douche with a concoction of whiskey, Gatorade, and perfume. A passing motorist subsequently transported appellant and S.M. back to Merkel. 

Appellant complains in his first issue that the trial court erred in permitting the State to offer evidence during the guilt/innocence phase of threats allegedly made by appellant to S.M. after the commission of the offenses.  The State did not refer to the threats during the prosecutor=s direct examination of S.M.  On cross-examination, defense counsel asked S.M. about her subsequent conviction for theft.  The theft conviction occurred three years after appellant=s assault and kidnapping of S.M.^[1]  On redirect examination, the State sought to offer evidence of threats made by appellant to S.M. wherein appellant demanded that she drop her allegations against him.

The trial court conducted a hearing outside of the jury=s presence with respect to the threats made by appellant.  Defense counsel objected to the admissibility of any evidence of the threats on the basis that it constituted inadmissible evidence of extraneous offenses under TEX.R.EVID. 404(b).  Defense counsel further argued that the prejudicial effect of this evidence outweighed its probative value.  See TEX.R.EVID. 403.  The trial court overruled these objections  and permitted the State to offer evidence of some of the threats made by appellant. 

S.M. testified before the jury that appellant called her approximately one month after the incident.  Appellant informed her during this conversation that Asomething would happen@ to her if she did not drop the charges.  Later that night, a garage located adjacent to the house in which S.M. resided was set on fire.  S.M. testified that she received a phone call from appellant the next day wherein he advised her that Awhat happened last night could happen again if [she] didn=t drop the charges.@  S.M. also testified about another threat made to her by appellant in September 1999. S.M. was employed as a convenience store manager at the time.   Someone that sounded like appellant called her at work; told her:  AYou=re dead, bitch@; and then hung up.  S.M. testified that she responded to this threat by removing approximately $4,000 from the store=s safe and fleeing the state.  S.M. was convicted of theft as a result of this event.  This is the same conviction for theft to which defense counsel alluded during S.M.=s cross-examination.

Rule 404(b) provides in part:  

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Rule 404(b) incorporates the fundamental tenet of our criminal justice system that an accused may be tried only for the offense for which he is charged and not his criminal propensities. Rankin v. State, 974 S.W.2d 707, 718 (Tex.Cr.App.1996).  In order for an extraneous offense to be admissible, it must be relevant apart from supporting an inference of character conformity.  Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Cr.App.1991).   We review the trial court=s admission of extraneous offense evidence under an abuse of discretion standard.  Rankin v. State, supra at 718. A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules or principles.  See Montgomery v. State, supra at 380.  We will uphold the trial court=s ruling if it was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made.  State v. Ross, 32 S.W.3d 853, 856 (Tex.Cr.App.2000).

The enumerated Rule 404(b) exceptions are neither mutually exclusive nor collectively exhaustive. Montgomery v. State, supra at 377.  Texas courts have held that criminal acts designed to reduce the likelihood of prosecution, conviction, or incarceration for the offense at issue are admissible under Rule 404(b) to show the defendant=s Aconsciousness of guilt.@ See Ransom v. State, 920 S.W.2d 288, 299 (Tex.Cr.App.)(Op. on reh=g), cert. den=d, 519 U.S. 1030 (1996).   Attempts by the accused to suppress the testimony of a witness are admissible under the Aconsciousness of guilt@ exception.  Rodriguez v. State, 577 S.W.2d 491, 493 (Tex.Cr.App.1979); Peoples v. State, 874 S.W.2d 804, 809 (Tex.App. - Fort Worth 1994, pet=n ref=d); Roberts v. State, 795 S.W.2d 842, (Tex.App. - Beaumont 1990, no pet=n). AThreats or other attempts at coercion are >hardly the actions of an innocent accused,= and evidence of such is every bit as probative of guilt as would be flight by the accused.@   Peoples v. State, supra at 809 (quoting in part Rodriquez v. State, supra at 493).   Therefore, Rule 404(b) did not prohibit evidence of appellant=s attempts to coerce S.M. into dropping her accusations against him.

While evidence of other wrongs or acts may be relevant for some other permissible purpose, the evidence may be excluded:

[I]f its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Rule 403.  There is a presumption that relevant evidence is more probative than prejudicial. See Montgomery v. State, supra at 389. In evaluating the trial court=s determination under Rule 403, a reviewing court is to reverse the trial court=s judgment Ararely and only after a clear abuse of discretion.@ Mozon v. State, 991 S.W.2d 841, 847 (Tex.Cr.App.1999).

Factors employed in balancing the prejudicial and probative value of an extraneous offense under Rule 403 are: (1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable - a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; (2) the potential the other offense evidence has to impress the jury Ain some irrational but nevertheless indelible way;@ (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; (4) the force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact and is this fact related to an issue in dispute. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Cr.App.1997); Montgomery v. State, supra at 389-90.

As noted previously, appellant=s efforts to suppress S.M.=s allegations of aggravated sexual assault and aggravated kidnapping were relevant under the consciousness of guilt exception. Evidence that appellant attempted to coerce S.M. into dropping her accusations with threats of violence were highly probative that appellant committed the offenses with which he was charged.  The presentation of the evidence regarding appellant=s threats did not take a large amount of time. Furthermore, the evidence of appellant=s threats served a purpose unrelated to supporting an inference of character conformity because it provided an explanation of why S.M. committed the felony theft which defense counsel referenced in an effort to impeach S.M.  We conclude that the trial court did not abuse its discretion in its implicit determination that the probative value of appellant=s threats against S.M. was not substantially outweighed by the danger of unfair prejudice.  Appellant=s first issue is overruled.

Appellant=s second issue addresses the manner in which the trial court responded to two notes received from the jury during the punishment phase.  Appellant contends that the trial court erred by failing to comply with the procedural requirements of TEX. CODE CRIM. PRO. ANN. art. 36.27 (Vernon 1981) when it responded to the two notes from the jury.  Article 36.27 provides, among other things, that the trial court shall:

[A]nswer any such communication [from the jury] in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel for objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.

The text of each note and the trial court=s written response to each are as follows:

                                                                      First Note

Do we sentence for each separate offense? Do they run together?

s/[Jury Foreperson]

Ladies & Gentlemen:

Yes, you assess a punishment for each offense for which you have found the defendant guilty.

If the second question asks, do they run together, I am not allowed to answer that type of question.  (Emphasis in original.)^[2]

s/[Trial Judge]

Waived reading on the record. 

s/[Trial Judge=s initials]

                                                                    Second Note

What is the difference between Alife@ and 99 years?  Is Alife@ subject to parole?  Can  Agood time@ reduce the 30 yr minimum of a, for example, 60 yr term?  (p5, & 2) Who gets $10,000 fine? 

s/[Jury Foreperson=s initials]

Ladies & Gentlemen:

I am not allowed to answer these questions.

s/[Trial Judge]

Waived reading on the record.

The reporter=s record does not contain any reference to the jury=s notes.  Appellant argues that the trial court erred in failing to bring either of the notes to the attention of appellant and his trial counsel as required by Article 36.27.  The record does not support appellant=s contentions in this regard.  The trial court wrote Awaived reading on the record@ on each of the notes.^[3]  This notation indicates that the trial court complied with the requirements of Article 36.27.

Moreover, even if the trial court failed to comply with the procedural requirements of Article 36.27, the trial court did not commit reversible error with respect to the jury=s notes.  The trial court=s response to the first note consisted of two parts.  The first part of the response merely clarified the jury=s task of assessing punishment for each of the offenses upon which it had previously convicted appellant.  The second part of the response did not include an additional instruction because it informed the jury that the trial court could not answer the question.  The Court of Criminal Appeals has held that, where the communication between the trial court and the jury does not amount to additional instructions, noncompliance with the provisions of Article 36.27 does not constitute reversible error. McFarland v. State, 928 S.W.2d 482, 517‑18 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997). 

The trial court=s answer to the second note also informed the jury that the court could not answer the jury=s questions.  Appellant argues that the jury=s note indicated that the jury was considering impermissible grounds for determining his punishment (the application of Agood conduct@ credit and parole to the time that appellant would actually serve in prison). Appellant contends that the trial court should have provided an instruction to the jury which directed it not to consider these elements in its deliberations.  Courts generally presume that the jury follows the trial court=s instructions in the manner presented in the court=s charge.  Colburn v. State, 966 S.W.2d 511, 520 (Tex.Cr.App.1998).  A note from the jury at a preliminary point in its deliberations does not rebut the presumption that the jury ultimately followed the trial court=s instructions in reaching its verdict.  Colburn v. State, supra at 520; Graham v. State, 96 S.W.3d 658, 661 (Tex.App. - Texarkana 2003, pet=n ref=d). Appellant=s second issue is overruled. 

The judgments of the trial court are affirmed.

TERRY McCALL

JUSTICE

February 12, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]Appellant remained at large for several years after the assault and kidnapping occurred.  The trial occurred more than six years after the incident. 

     ^[2]The word Arun@ in the text of the jury=s note was not completely legible.

     ^[3]Appellant does not dispute that the trial court wrote the Awaived reading on the record@ notation on each of the jury=s notes.