Diaz, Jesus Manuel v. State

Motion for Rehearing Overruled, Opinion of July 3, 2002, Withdrawn; Affirmed and Opinion on Motion for Rehearing filed October

Motion for Rehearing Overruled, Opinion of July 3, 2002, Withdrawn; Affirmed and Opinion on Motion for Rehearing filed October 24, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-01217-CR

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JESUS MANUEL DIAZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 827,579

O P I N I O N   O N   M O T I O N F O R   R E H E A R I N G

We withdraw our opinion of July 3, 2002, and substitute the following opinion.  A jury convicted appellant, Jesus Manuel Diaz, of possession with intent to deliver cocaine weighing at least 400 grams and sentenced him to forty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  On appeal, appellant complains (1) the evidence is factually insufficient to support the jury=s verdict, (2) the trial court abused its discretion by limiting appellant=s voir dire in violation of his constitutional right to counsel, (3) the trial court erred in refusing to permit appellant to impeach one of the State=s witnesses with two prior convictions, (4) the trial court erred in overruling appellant=s objection to improper jury argument by the State, and (5) the trial court abused its discretion by failing to hold a hearing on appellant=s motion for new trial.  We affirm.

On October 28, 1999, Officer Mark Boyle of the Houston Police Department, Narcotics Division, received information about a potential drug deal later that day.  Officer Boyle asked the informant, Antonio Flores, to arrange a meeting with the seller.  Boyle then set up surveillance across the street from a tire shop where the sale was scheduled to take place.  Officer Boyle testified that around 6:45 p.m., he watched as Flores approached appellant in the tire shop.  Appellant was holding a bag containing a heavy, square-shaped object consistent with the appearance of a brick of cocaine.  Boyle then saw appellant place the bag in the back seat of a red Ford Mustang. Officer Boyle watched these events with binoculars through the back window of his unmarked truck.

Shortly thereafter, Flores called Boyle and told him that appellant had shown him a bag containing cocaine and then put the bag in the back seat of his car.  Concerned that appellant might try to flee, Officer Boyle and a patrol officer in a marked police car approached the tire shop.  As the officers approached, Boyle testified that appellant tried to Awalk off real fast,@ but the officers stopped him. In the back seat of the Mustang, Officer Boyle spotted the bag, which was later determined to contain approximately half a kilogram of cocaine.

Flores, the informant, also testified at trial. According to Flores, when he arrived at the tire shop, he was taken by another man to see appellant, who was sitting in the driver=s seat of a red Ford Mustang.  When Flores asked to see Athe stuff you got,@ appellant reached into the back seat and showed Flores a brick of cocaine wrapped in aluminum foil. After showing it to Flores, appellant then returned the cocaine to the back seat while Flores left, ostensibly to get money to complete the sale.  Flores then called Officer Boyle.

Appellant was arrested and charged with possession with intent to deliver.  A jury convicted appellant, and he timely appealed.

In his first issue, appellant contends the evidence is factually insufficient to support the jury=s verdict.  We conduct a factual-sufficiency review by reviewing all the evidence in a neutral light to determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination or (2) the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We may set aside the jury=s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Although we review the fact finder=s weighing of the evidence, and we are authorized to disagree with the fact finder=s determination, our evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony.  Johnson, 23 S.W.3d at 7.  In particular, we must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence, because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for jurors who were in attendance when the testimony was delivered. Id. at 8.

Appellant claims the evidence identifying him as the individual in possession of the cocaine is too weak to sustain his conviction. Both Officer Boyle and Flores positively identified appellant as the person they saw holding a bag containing a brick of cocaine.  Both witnesses said they saw appellant place the bag in the back seat of a red Ford Mustang, which is where the cocaine was found following appellant=s arrest.  Appellant questions the reliability of this identification evidence based on the conditions under which the two eyewitnesses each viewed the suspectCfor a brief time, in poor lighting conditions, and, in Officer Boyle=s case, through a tinted window across a busy intersection.  Appellant also claims the witnesses= credibility is suspect for several reasons, including:

$          there were inconsistencies between the two witnesses= accounts of the transaction, primarily whether the suspect was sitting in a car or standing next to the car when he showed the cocaine to Flores;

$          photographs that could have corroborated Officer Boyle=s claim that appellant was the only African-American present at the scene were missing from Officer Boyle=s file;

$          appellant=s fiancée testified that, outside the courtroom, she heard Flores tell Officer Boyle that Flores was not sure he could identify appellant, but he was reassured by Officer Boyle that appellant would be Athe only one up there@;

$          Flores=s credibility was impeached because of his status as a paid informant and evidence that he had a pending misdemeanor charge; and

$          a local attorney expressed her opinion that Officer Boyle has a very bad character for truthfulness.

The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  Likewise, reconciliation of any conflicts in the evidence is within the exclusive province of the jury.  Id. Both Officer Boyle and Flores unambiguously identified appellant as the seller of the cocaine, and the jury obviously believed them.  We cannot say that the jury=s verdict is clearly wrong and unjust.  We overrule appellant=s first issue.

In his second and third issues, appellant claims the trial court abused its discretion by limiting his counsel=s time to conduct voir dire, thus preventing his counsel from asking certain questions in violation of his right to counsel.  The constitutionally guaranteed right to counsel^[1] encompasses the right to question prospective jurors in order to intelligently and effectually exercise peremptory challenges and challenges for cause during the jury selection process.  Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App. 1990). This right must be harmonized with the trial court=s right to impose reasonable restrictions on the exercise of voir dire examination. McCarter v. State, 837 S.W.2d 117, 119-20 (Tex. Crim. App. 1992).  We therefore review a trial court=s decision to limit the time for questioning during voir dire to determine whether the trial court abused its discretion.  McKay, 819 S.W.2d at 482.

In this case, however, appellant failed to preserve error.  The trial court=s docket sheet indicates that appellant conducted voir dire for fifty minutes, which covered fifty pages of the reporter=s record.  Twenty-nine pages into the transcript of appellant=s voir dire, the trial court gave appellant=s counsel a five-minute warning.  Nine pages later, the trial court told appellant=s counsel to Awrap it up.@  After another six pages, the court told her, A[Y]our time is up.  You need to hurry up.@  Finally, six pages later, the court instructed appellant=s counsel to stop.  At no time did appellant=s counsel object to the court=s admonitions to finish her voir dire, nor did she ever request additional time. Although appellant=s counsel later asked to Amake a record on some questions I didn=t get to,@ appellant never specifically objected to the court=s imposition of time limits on voir dire examination.  Accordingly, appellant did not preserve his complaint for appeal.  See Tex. R. App. P. 33.1(a).

The facts of this case are distinguishable from those in Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996), where the court held error was preserved on a claim of improper limits on voir dire.  Here, appellant=s counsel did not advise the court in any way that she had questions she did not get to ask until after thanking the jury and after sitting down.  At no point did appellant=s counsel actually ask for more time. Additionally, not until after the court and parties had made their strikes for cause did she advise the court what those unasked questions were.^[2]       

Even if appellant=s complaint had been preserved, we do not find error under this record.  The trial court=s broad discretionary power to control voir dire examination is well-established.  See McCarter, 837 S.W.2d at 120.  This discretion includes the ability to place reasonable limits on the voir dire Afor various reasons, among them to curb the prolixity of what can become the lengthiest part of a criminal proceeding.@  Guerra v. State, 771 S.W.2d 453, 467 (Tex. Crim. App. 1988).  AA skilled lawyer can always find more questions that are proper to ask prospective jurors.  The fact that counsel can think of one more proper question should not transform a reasonable time limit to an unreasonable one.@  Whitaker v. State, 653 S.W.2d 781, 782 (Tex. Crim. App. 1983) (plurality opinion).

We review a court=s decision to limit voir dire questioning according to an abuse-of-discretion standard.  McCarter, 837 S.W.2d at 120.  Specifically, in reviewing a contention that the trial court abused its discretion in terminating voir dire during collective questioning of the venire, we must examine (1) whether counsel attempted to prolong voir dire and (2) whether the court prohibited proper questions. Id. at 121-22.  Here, the voir dire transcript reveals that appellant=s counsel chose to ask open-ended, discussion-type questions about Awhy we are here,@ following the rules, Awhat is important to you,@ the Aability to make decisions without hesitation,@ and Awhat type of evidence was expected.@  She also made editorial comments about a television show featuring lawyers.  Many questions were so open-ended that venire responses often strayed from eliciting information that would be material to the informed exercise of challenges in a drug-delivery case.  The trial court warned appellant=s counsel three times that she was running out of time; she could have heeded the court=s warning and adjusted her voir dire examination to accommodate the court=s parameters.^[3]  The record supports the conclusion that appellant=s counsel attempted to prolong voir dire; as a result, the court did not abuse its discretion in limiting appellant=s time for voir dire. See Godine v. State, 874 S.W.2d 197, 202 (Tex. App.CHouston [14th Dist.] 1994, no pet.) (finding no abuse of discretion in voir dire time limit where appellant=s counsel did not effectively budget his time). Accordingly, appellant=s second and third issues are overruled.

In his fourth issue, appellant claims the trial court erred by refusing to permit him to impeach one of the State=s witnesses with two prior convictions.  The use of a prior conviction to attack the credibility of a witness is governed by Texas Rule of Evidence 609.  Where, as here, more than ten years have elapsed since the witness was released from confinement, evidence of the conviction is not admissible unless the trial court determines, in the interest of justice, that the probative value of the conviction substantially outweighs its prejudicial effect.  Tex. R. Evid. 609(b).  We will not reverse the trial court=s decision regarding the admissibility of prior convictions absent a clear abuse of discretion.  Morris v. State, 67 S.W.3d 257, 262 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d).

Convictions over ten years old generally do not have much probative value on the issue of character, which is why Rule 609(b) requires a high showing of relevance for admission of an old conviction.  Hernandez v. State, 980 S.W.2d 652, 652 (Tex. Crim. App. 1998) (Womack, J., concurring in the refusal of discretionary review) (citing Comm. on the Judiciary, S. Rep. No. 93-1277, Federal Rule of Evidence 609).  Remote convictions are generally inadmissible because of a presumption that a person is capable of rehabilitation and that his character has reformed over a period of law-abiding conduct.  Morris, 67 S.W.3d at 263 (citing Cathleen C. Herasimchuk, Texas Rules of Evidence Handbook 587 (4th ed. 2001)).  Appellant has not demonstrated specific facts and circumstances showing that the probative value of these prior convictions substantially outweighs their prejudicial effect.  See Hernandez v. State, 976 S.W.2d 753, 756 (Tex. App.CHouston [1st Dist.]), pet. ref=d, 980 S.W.2d 652 (Tex. Crim. App. 1998).  Accordingly, we conclude the trial court did not abuse its discretion in refusing to admit evidence of these convictions.  We overrule appellant=s fourth issue.

In his fifth issue, appellant argues the trial court erred by overruling his objection to the State=s improper jury argument. During the prosecution=s closing argument, the following exchange occurred:

[PROSECUTOR]:                . . . .  It=s your choice.  You want to live in a society that allows people to distribute drugs throughout your community right across the street from schools and churches and people who are just working and doing good.  You have a choice, whether you want to ride down the elevator with this defendant B

[DEFENSE COUNSEL]:     Objection, Your Honor, that=s improper argument.

THE COURT:                       Overruled.

[PROSECUTOR]:                B or whether you=ll find him guilty of the crime that he is charged with and I ask you to choose to find him guilty.

Appellant claims the State=s argument was an improper plea for law enforcement, citing Beltran v. State, 760 S.W.2d 353 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d).  In Beltran, the appellate court found improper the prosecutor=s remarks that a verdict of Anot guilty@ would let the defendant Aride down on the elevator with you to rape other children.@  Id. at 355-56.  However, the argument in Beltran was improper because it suggested to the jury that the defendant would commit future crimes if not convicted.  Id. at 356; see Livingston v. State, 531 S.W.2d 821, 823 (Tex. Crim. App. 1976) (concluding that the prosecutor=s argument was improper when it suggested that if a DWI defendant was permitted to remain at large, he Amay very well go out and kill somebody@).  Here, the prosecutor made no such suggestion.  This court has previously determined that an argument very similar to the State=s argument in this case was proper.  See Martinez v. State, 715 S.W.2d 725, 727 (Tex. App.CHouston [14th Dist.] 1986, pet. ref=d) (concluding that the prosecutor=s argument that a not-guilty verdict would permit the defendant to Ago down that elevator with you@ and Acruis[e] . . . your neighborhood tonight@ was permissible both as a reasonable deduction from the evidence and as a plea for law enforcement). We overrule appellant=s fifth issue.

In his sixth issue, appellant claims the trial court erred in failing to hold a hearing on appellant=s motion for new trial. When a motion for new trial presents matters that are not determinable from the record and that could entitle appellant to relief, the trial court abuses its discretion in failing to hold a hearing.  King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000).  However, the motion must be supported by an affidavit specifically showing the truth of the grounds of attack.  Id. The test is whether the motion and affidavit reflect that reasonable grounds exist for holding that relief could be granted.  Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994).

Appellant timely filed and presented a motion for new trial supported by his counsel=s affidavit.^[4]  One of the grounds appellant raised in his motion was that the State acted in bad faith by failing to preserve potentially useful evidence, resulting in a denial of his right to due process.  See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988). Appellant claims that, because the question of the State=s bad faith was not determinable from the record, he was entitled to a hearing.

Failure to preserve potentially useful evidence does not constitute a denial of due process unless the defendant can show bad faith on the part of the State.  Id.; Ex parte Brandley, 781 S.W.2d 886, 894 (Tex. Crim. App. 1989). With respect to this issue, the affidavit submitted in support of appellant=s motion for new trial merely states (1) Officer Boyle testified that photographs of other individuals were taken at the scene of the arrest and (2) both the police and the district attorney told appellant=s attorney that no such photographs were located in the case file.  Nothing in this affidavit remotely suggests that the State acted in bad faith. Appellant is not automatically entitled to a hearing to conduct a Afishing expedition@ in search of evidence that may support his claim for relief.  See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).  We conclude the trial court did not abuse its discretion in failing to conduct a hearing on appellant=s motion for new trial.  We overrule appellant=s sixth point of error.

We affirm the trial court=s judgment.

/s/            Leslie Brock Yates

Justice

Judgment rendered and Opinion on Motion for Rehearing filed October 24, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.3(b).

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^[1]  See U.S. Const. amend. VI; Tex. Const. art. I, ' 10.

^[2]  At that time, appellant=s counsel informed the court of two questions she Awould have asked if the Court allowed [her] additional time@:

. . . .  One is the issue of punishment, whether or not they would consider the goal of punishment to be rehabilitation or retribution and this is a jury election to B punishment election to the jury.

The other question I needed to ask is whether individually which jurors had personal experiences with drugs or victims B or have been victims themselves of drug-related crimes and whether that would affect their fairness to serve on a drug delivery case.

In its brief, the State concedes that both of these questions would have been proper.

^[3]  We are not judging the effectiveness of the voir dire or counsel=s style of eliciting relevant information from the prospective jurors.  Rather, we conclude that if the two unasked questions were so important to appellant=s strategy in culling unqualified jurors from the jury panel, appellant=s counsel needed to be more judicious with her time during voir dire. While the length of time allowed is not conclusive, we note that appellant had approximately twenty more minutes than the State for a total of about fifty minutes of questioning.  This should have been sufficient time to examine the jury and to enable counsel to intelligently exercise challenges for cause and peremptory challenges.

^[4]  Appellant filed his motion for new trial on September 6, 2000, within 30 days after the date the trial court imposed sentence.  See Tex. R. App. P. 21.4(a).  In its brief, the State argues that nothing in the record indicates appellant presented his motion within ten days of filing, as required by Tex. R. App. P. 21.6.  However, the trial court clerk has since supplemented the record to include a copy of appellant=s motion, file-stamped on September 15, 2000, with the handwritten notation AMtn presented on 9-15-00.@