Garza, Juan Jr.
Date Filed2014-12-29
DocketPD-1557-14
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
PD-1557-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/19/2014 4:25:58 PM
Accepted 12/29/2014 10:30:09 AM
ABEL ACOSTA
PD-1557-14 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
_________________________________________________
JUAN GARZA, JR.
APPELLANT
December 29, 2014
vs.
THE STATE OF TEXAS
APPELLEE
_________________________________________________
FROM THE SIXTH COURT OF APPEALS
CAUSE NO. 06-14-00054-CR
APPEAL FROM CRIMINAL DISTRICT COURT NO. 2
OF DALLAS COUNTY, CAUSE NO. F12-30953-1,
THE HONORABLE DONALD C. ADAMS PRESIDING
_________________________________________________
APPELLANTâS PETITION FOR
DISCRETIONARY REVIEW
_________________________________________________
BRUCE ANTON SORRELS, UDASHEN & ANTON
State Bar No. 01274700 2311 Cedar Springs, Suite 250
ba@sualaw.com Dallas, Texas 75201
214-468-8100 (office)
BRETT ORDIWAY 214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com Counsel for Appellant
Ground for Review
Whether, in light of this Courtâs opinion in
Gutierrez v. State, 36 S.W.3d 509 (Tex. Crim.
App. 2001), the court of appeals erred in deter-
mining Garzaâs complaint was not preserved for
review because he obtained no adverse ruling
without considering whether the trial court made
an implicit ruling on Garzaâs objection.
2
Table of Contents
Ground for Review ...................................................................................... 2
Index of Authorities .................................................................................... 4
Identity of Parties and Counsel ................................................................. 5
Statement Regarding Oral Argument ....................................................... 6
Statement of the Case and Procedural History ........................................ 7
Argument .................................................................................................... 9
In light of this Courtâs opinion in Gutierrez v. State, 36 S.W.3d 509
(Tex. Crim. App. 2001), the court of appeals erred in determining
Garzaâs complaint was not preserved for review because he obtained
no adverse ruling without considering whether the trial court made
an implicit ruling on Garzaâs objection. ................................................. 9
I. The court of appealsâs incomplete analysis ................................... 9
II. For over 17 years, explicit rulings have not been required to
preserve a complaint for appeal ....................................................... 10
III. There was, at the very least, a question of whether the trial
court implicitly ruled on Garzaâs objection ...................................... 12
Certificate of Service ................................................................................ 20
Certificate of Compliance ......................................................................... 20
Appendix ................................................................................................... 21
3
Index of Authorities
Cases
Davis v. State, 104 S.W.3d 177, 180(Tex. App.âWaco 2003, no pet.) .. 19 DeRusse v. State,579 S.W.2d 224, 235
(Tex. Crim. App. [Panel Op.] 1979) ................................................................................................ 10, 13 Frazier v. Yu,987 S.W.2d 607
, 609â10 (Tex. App.âFort Worth 1999, pet. denied) ............................................................................................ 11 Garcia v. State,887 S.W.2d 862, 871
(Tex. Crim. App. 1994)................ 13 Garza v. State, No. 06-14-00054-CR,2014 WL 5490947
(Tex. App.â Texarkana Oct. 30, 2014) ............................................................. passim Gutierrez v. State,36 S.W.3d 509
(Tex. Crim. App. 2001) . 2, 9, 12, 13, 19 Jones v. State,111 S.W.3d 600, 606
(Tex. App.âDallas 2003, pet. refâd) ............................................................................................................... 19 Pescaia v. State, No. 06-04-00042-CR,2004 WL 2359305
, at *2 (Tex. App.âTexarkana 2004) ........................................................................ 12 Rey v. State,897 S.W.2d 333, 336
(Tex. Crim. App. 1995) ..................... 18 State v. Kelley,20 S.W.3d 147
, 153 n. 3 (Tex. App.âTexarkana 2000, no
pet.) .................................................................................................. 11, 12
Statutes
TEX. GOVâT CODE § 73.001..................................................................... 8, 13
TEX. PEN. CODE § 22.02(a)(2) ...................................................................... 7
Rules
TEX. R. APP. P. 33.1(a)(2)(A) ..................................................................... 11
TEX. R. APP. P. 52(a) ................................................................................. 11
4
Identity of Parties and Counsel
For Appellant Juan Garza, Jr.:
LAWRENCE PATRICK DAVIS
Trial counsel of record
LAW OFFICE OF L. PATRICK DAVIS, PLLC
115 North Henderson Street
Fort Worth, Texas 76102
BRUCE ANTON
BRETT E. ORDIWAY
Appellate counsel of record
SORRELS, UDASHEN & ANTON
2311 Cedar Springs, Suite 250
Dallas, Texas 75201
For Appellee the State of Texas:
RONTEAR FARMER
Trial counsel of record
DALLAS COUNTY DISTRICT ATTORNEYâS OFFICE
133 North Riverfront Boulevard
Dallas, Texas 75207
KIMBERLY J. DUNCAN
Appellate counsel of record
DALLAS COUNTY DISTRICT ATTORNEYâS OFFICE
5
Statement Regarding Oral Argument
The Texarkana Court of Appealsâs error was both glaring and
simple. Accordingly, Garza does not believe oral argument will be help-
ful to this Courtâs understandingâitâs all on the page.
6
Statement of the Case and Procedural History
The complainantâs neighbor observed her walking down the side-
walk in her nightgown. (RR6: 18-19). She was bruised, swollen, had
dried blood underneath her nose, and was âvisibly shaken up.â (RR6:
18-19, 22). The neighbor approached her, and she told him âthat she
had been beaten up by [her boyfriend, Garza,] who âhad a weapon.â
(RR6: 21). The neighbor called 9-1-1, and the responding police officer,
too, perceived the complainant to be âshaken,â âvery upset.â (RR6: 22-
23, 118; SX1). The complainant told him that Garza had returned home
intoxicated and assaulted her. (RR6: 119-20). The complainant further
stated that Garza had pointed a gun at her and threatened to kill her.
(RR6: 122).
Garza was indicted for aggravated assault with a deadly weapon.
(RR6: 107; CR: 19); see TEX. PEN. CODE § 22.02(a)(2). Specifically, the
indictment alleged that Garza intentionally, knowingly, and recklessly
caused bodily injury to the complainant by striking her âwith a hand
and hands and by grabbing and squeezing [her] neck with a hand and
hands.â (CR: 19). The indictment further alleged that Garza âuse[d] and
exhibit[ed] a deadly weapon; to wit, a firearm, during the commission of
7
the assault.â (CR: 19). Garza pleaded not guilty, but at the conclusion of
his trial the jury found him guilty and sentenced him to 35 yearsâ im-
prisonment and a $10,000 fine. (RR5; RR6: 14, 138, 180; RR7: 25; CR:
163).
Garza appealed his conviction on three grounds. Garza v. State,
No. 06-14-00054-CR, 2014 WL 5490947(Tex. App.âTexarkana Oct. 30, 2014). The Texas Supreme Court ordered the appeal transferred to the Texarkana Court of Appeals in order to balance the courts of appealsâs dockets. See TEX. GOVâT CODE § 73.001. That court rejected each of Gar- zaâs other grounds, though, and affirmed his conviction, and no motion for rehearing was filed. Garza,2014 WL 5490947
.
8
Argument
In light of this Courtâs opinion in Gutierrez v.
State, 36 S.W.3d 509 (Tex. Crim. App. 2001), the
court of appeals erred in determining Garzaâs
complaint was not preserved for review because
he obtained no adverse ruling without consider-
ing whether the trial court made an implicit rul-
ing on Garzaâs objection.
! ! !
I. The court of appealsâs incomplete analysis
In Garzaâs second ground of error on appeal, he urged the Texar-
kana Court of Appeals that the trial court erred in admitting a police
officerâs testimony referring to Garzaâs âviolent history.â1 Garza v. State,
No. 06-14-00054-CR, 2014 WL 5490947, at *4 (Tex. App.âTexarkana Oct. 30, 2014). The court of appeals noted that Garza had, indeed, âob- jected under Rules 401, 402, 403, and 404(b) and also asked for a mis- trial,â and that a âhearing was held outside the presence of the jury.âId.
From the transcript of that hearing, though, the court determined that the âtrial court denied Garzaâs objection under Rule 403 and denied his 1As the court of appeals rightly noted, though this point of error in Garzaâs brief was erroneously stylized as âthe trial court erred in failing to give an instruction to disregard evidence of an extraneous assault,â the substance of the argument raised a claim for erroneous admission of extraneous-offense evidence in violation of Rule 404(b) of the Texas Rules of Evidence. See Garza,2014 WL 5490947
at *4 n. 2.
9
motion for mistrial, but never ruled on his objections under Rules 401,
402, or 404(b).â Pointing to this Courtâs 1979 opinion in DeRusse v.
State, 579 S.W.2d 224, 235(Tex. Crim. App. [Panel Op.] 1979), which held that a âcomplaining party must obtain an adverse ruling from the trial courtâ in order to preserve the issue for appeal, the court deter- mined that Garza had thus failed to preserve the issue for review. Gar- za,2014 WL 5490947
at *4.
II. For over 17 years, explicit rulings have not been required
to preserve a complaint for appeal
To be sure, prior to the enactment of the ânewâ appellate rules,
which became effective September 1, 1997, a party had to âobtain a rul-
ingâ or object to the courtâs refusal to rule in order to preserve error for
appellate review. See Frazier v. Yu, 987 S.W.2d 607, 609â10 (Tex.
App.âFort Worth 1999, pet. denied) (comparing TEX. R. APP. P. 52(a)
with TEX. R. APP. P. 33.1(a)(2)(A)). But revised rule 33.1(a)(2)(A), for-
merly rule 52(a), relaxes that requirement, and now, to preserve any er-
ror, the trial court must rule either expressly or implicitly on the objec-
tion, or refuse to rule with the complaining party objecting to the re-
fusal. See TEX. R. APP. P. 33.1(a)(2)(A); Frazier, 987 S.W.2d at 609â10
(error preserved as long as record indicates in some way that trial court
10
ruled on objection either expressly or implicitly). Thus, â[i]n some in-
stances, a party need not get an express ruling on an objection, motion,
or request to preserve error.â State v. Kelley, 20 S.W.3d 147, 153 n. 3 (Tex. App.âTexarkana 2000, no pet.). âAppellate courts will generally find that a trial court made an implicit ruling on an objection when the objection was brought to the trial court's attention and the trial courtâs subsequent action clearly addressed the complaint.âId.
Of course, an appellate court will not find that the trial court
made an implicit ruling on an objection where the record does not re-
flect that the objection was ever brought to the trial courtâs attention.
Id.But where an objection is made, and âthe trial court [does] not ex- pressly rule on the objection, [an appellate court] must determine whether the trial court implicitly ruled on the objection.â Pescaia v. State, No. 06-04-00042-CR,2004 WL 2359305
, at *2 (Tex. App.â Texarkana 2004) (emphasis added) (citing Kelley,20 S.W.3d at 153
n.
3).
This Court affirmed as much in Gutierrez v. State, 36 S.W.3d 509
(Tex. Crim. App. 2001). In that case, like this one, the court of appeals
stated that in order to preserve an alleged error for appellate review
11
under Rule of Appellate Procedure 33.1, the record must reflect that the
complaint was made to the trial court and that an adverse ruling was
obtained. Id. at 510; Garza,2014 WL 5490947
at *4. And in that case, like this one, the court of appeals pointed to pre-1997 case law in sup- port. Gutierrez,36 S.W.3d at 510
(citing Garcia v. State,887 S.W.2d 862, 871
(Tex. Crim. App. 1994)); Garza,2014 WL 5490947
at *4 (citing DeRusse,579 S.W.2d at 235
).
This Court swiftly and unanimously vacated the court of appealsâs
judgment and remanded the case to that court to consider whether the
trial court had nonetheless implicitly ruled on the appellantâs com-
plaint. Gutierrez, 36 S.W.3d at 511. This Court noted âthe obvious lin- guistic differences between Rule 33.1(a) and Rule 52(a),â the former âal- low[ing] for a ruling by the trial court âeither expressly or impliedlyâ while Rule 52(a) simply required that the party obtain âa ruling.ââId.
In only addressing whether âthe trial court made an express ruling on ap- pellantâs motion,â then, the court of appeals erred.Id.
III. There was, at the very least, a question of whether the trial
court implicitly ruled on Garzaâs objection
Unless the trial court here indisputably failed to rule on Garzaâs
objection, then, the court of appeals was bound to consider whether he
12
did so implicitly before dismissing Garzaâs complaint as unpreserved.
And here, the record is, at the very least, unclear.
At Garzaâs trial, the first-responding police officer testified that he
did not make contact with Garza because of âhis violent history.â (RR6:
126). Trial counsel immediately objected under Texas Rule of Evidence
404(b) and âask[ed] for a ruling.â (RR6: 126). Thus began an extensive
back-and-forth. First, the court suggested, âWell, why donât you with-
draw your question or re-ask.â (RR6: 126). Garzaâs counsel then re-
quested, and received permission, to approach the bench. (RR6: 126).
The jury was excused, and the following occurred:
Court: Do you have an objection?
Counsel: Yeah. I do have an objection. Object to
404(b), 403, 402, 401. I ask the Court for a
ruling on 404(b) first.
Court: Wellâ
Counsel: Violent history. This witnessâand before
the Court rules, letâs make it very, very
clear for the Fifth Court of Appeals.2 This
witness is a police officer. He knows better.
Heâs a sergeant on top of that. Heâs testified
before. Iâm not going to ask him how many
2The Texas Supreme Court ordered the appeal transferred from the Fifth Court of
Appeals in order to balance the courts of appealsâs dockets. See TEX. GOVâT CODE §
73.001.
13
times heâs testified. But nowâheâs talked
about a 2009, incident. Now, heâs talked
about the violent history, and he knows bet-
ter, Judge.
He knows a lot better, and I donât think his
captain would be too happy with the way
heâs come down here and messed this trial
up.
Judge, now the jury has heard about a vio-
lent history, a 2009 incident, involving my
client and Ms. Moore. This same juryâ
Judge, move for a mistrial. Grant me a mis-
trial.
Court: Denied.
Counsel: 404(b). Okay. 404(b).
Court: Weâre going toâ
Counsel: I ask for a ruling.
Court: âfinish this case.
(RR6: 127-28). The court then questioned whether the officer had said
anything even potentially objectionable:
Court: Nothing has come out that I can hear that
he statedâ
Counsel: I heard it. I heard it. 402.
Court: What did he say? What did he say thatâsâ
14
Counsel: Violent history. Based on his violent histo-
ry. Based on his violent history. Trust me,
[the court reporter] has got it. Go ahead,
Counsel.
Prosecutor: He did, Your Honor. He said based on his
violent history.
Court: Okay.
(RR6: 128-29). The court then asked the State if it had any response:
Prosecutor: The Stateâs response is: They have not been
given the opportunity to clear up what the
officer testified to.
Furthermore, the Stateâs response will be
that Defense counsel, himself, stated that
his client is going to testify. And that is in-
formation that would come out that.
Counsel: That is ridiâ
Prosecutor: In the voluntary manslaughter, would abso-
lutely come out.
Counsel: Not at this juncture, though, Judge.
Prosecutor: And the Stateâsâ
Counsel: Not at this juncture. Thatâs crazy.
Prosecutor: And the Stateâs position is that they can
remedy what the officer testified to and ask
the Judge to ask the jury to disregardâ
Court: All right.
15
Prosecutor: âwhat was said.
Court: All right. And if you were to ask that, I
might do that.
Prosecutor: âand not go into it further.
Court: All right.
Counsel: How are they going to disregard that,
Judge?
Court: All right.
Counsel: Thatâs like having a naked woman run
through your courtroom right now.
Court: Okay.
Counsel: Could you disregard that?
(RR6: 129-30). The court then instructed the bailiff to bring the jury in,
and that â[i]f you want to make thatâweâll sustain the objection.â (RR6:
130). There is no indication to which objection the court referred, and
counsel then asked:
Counsel: Youâve overruled both of my objections on
404(b), correct? Youâve overruled those?
Court: Well, I meanâ
Counsel: Motion for a mistrial. You heard that. Did
you overrule it?
Court: I denied the motion for a mistrial.
16
Counsel: Okay. Object under 404(b) to the violent
history by Sergeant Diaz.
Court: I don't know that we got that much out of it,
butâ
Counsel: We did. We did.
Court: Soâwell, maybe you think so, but Iâ
Prosecutor: If the State could be given an opportunity to
remedy what was said by Sergeant Diazâ
Counsel: Oh. No. No. No. If they get into that, weâre
going to object under 404(b) again.
Court: Well, letâs bring in the jury. And, you know,
if you want to make all your objections in
the record, thatâs fine, but weâre going to
move on with this case.
Counsel: Sergeant, you need to stay away from that.
Counsel, stay away from it. Donât make it
worse. Letâs move on. I'm with the Judge.
I'm with Judge Adams.
Prosecutor: I think I know how to do my job.
Counsel: I know. Iâm with Judge Adams, so letâs move
on.
Court: Letâs get thisâletâs get this case over with.
Counsel: Letâs get it going, get this train moving.
17
(RR6: 130-31). The jury then entered the courtroom, and the matter was
not further addressed. (RR6: 131-32). The jury was not told to disregard
the officerâs testimony. (RR6: 132).
Even before the appellate rulesâ amendment in 1997, this Court
recognized this scenario as one in which an implicit ruling was made.
See Rey v. State, 897 S.W.2d 333, 336(Tex. Crim. App. 1995) (defend- antâs motion âimplicitly overruledâ when he twice requested the court to make a ruling and then stated that the court had denied his motion and neither the court nor the State corrected that statement). And certainly, the courts of appeals have since recognized this scenario as one in which an implicit ruling was made. See, e.g., Davis v. State,104 S.W.3d 177, 180
(Tex. App.âWaco 2003, no pet.) (implicit ruling found where appel- lantâs counsel made an offer of proof, excepted to the courtâs âruling,â and neither the court nor the State contradicted or corrected counselâs statement); Jones v. State,111 S.W.3d 600, 606
(Tex. App.âDallas
2003, pet. refâd) (admission of evidence objected to implicitly overrules
the objection).
At the very least, there is a âquestion . . . whether the trial courtâs
ruling was implicit.â Gutierrez, 36 S.W.3d at 511. Accordingly, just as
18
this Court did in Gutierrez, Garza respectfully requests it to grant his
petition so that it may vacate the judgment of the Texarkana Court of
Appeals and then remand the case to that court to consider whether the
trial courtâs ruling was implicitly made.
Respectfully submitted,
/s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
ba@sualaw.com
/s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)
Attorneys for Appellant
19
Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of
the foregoing Appellantâs Petition for Discretionary Review was served
via U.S. Mail to the Dallas County District Attorneyâs Office and the
State Prosecuting Attorney on December 19, 2014.
/s/ Bruce Anton
BRUCE ANTON
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:
1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
this petition contains 1,971 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4(i)(1).
2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
style requirements of TEX. R. APP. P. 9.4(e) because this brief has
been prepared in a proportionally spaced typeface using Microsoft
Word 2011 in 14-point Century Schoolbook.
/s/ Bruce Anton
BRUCE ANTON
20
Appendix
21
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00054-CR
JUAN GARZA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court No. F-1230953-1
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Juan Garza, Jr., was indicted in Dallas County, Texas, 1 for aggravated assault with a
deadly weapon involving family or dating violence and was found guilty by a jury. He pled
âtrueâ to the enhancement allegation of a prior felony conviction, and after a punishment hearing
to that same jury, the enhancement allegation was found true. Diaz was sentenced to thirty-five
yearsâ confinement and assessed a $10,000.00 fine.
On appeal, Garza argues that the trial court erred (1) by permitting testimony which
Garza maintained was an assertion by another witness that the alleged victimâs statements were
truthful, (2) by failing to instruct the jury to disregard evidence of an extraneous offense, and
(3) by admitting victim-impact testimony during the guilt/innocence phase of the trial.
By way of cross-appeal, the State asks this Court to modify the judgment so as to reflect
the existence of the enhancement and the finding of family violence.
I. Factual Background
On the morning of May 5, 2012, about 6:30 or 6:45 a.m., Richard Berna was in his yard
preparing to hold a garage sale when he encountered a woman, later identified as Kelly Moore,
walking down the sidewalk. The woman was dressed in a nightgown, was âvisibly shaken up,â
and carried a small dog. Berna saw that Moore had bruising and swelling on her face and dried
blood underneath her nose. When Berna approached Moore and asked if he could help her, she
told him that she had been beaten up by her boyfriend (later identified as Garza) and that she had
1
Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOVâT CODE ANN. § 73.001 (West 2013). We
are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
to wait until he fell asleep before she could leave the house and get help. Moore went on to
relate to Berna that her assailant, Garza, âhad a weapon.â
Berna telephoned the emergency 9-1-1 number and twenty or thirty minutes later, Grand
Prairie Police Officer Michael Diaz arrived on the scene. Diaz saw that Moore had marks on her
face and chest, and he described her as âshaken,â âvery upset,â and carrying a small dog. She
told Diaz that at about 2:30 that morning, Garza had come home very angry and possibly
intoxicated and that he had beaten her for hours. Moore related that during the course of the
beating, Garza had pointed a gun at her and threatened to kill her. Because he believed Garza
was then armed, Diaz did not immediately go to Garzaâs residence.
About a month later, on June 6, Garza was arrested and later indicted for aggravated
assault with a deadly weapon involving family violence. Specifically, the indictment alleged that
Garza had
intentionally, knowingly and recklessly cause[d] bodily injury to KELLY
MOORE, hereinafter called complainant, by STRIKING COMPLAINANT
WITH A HAND AND HANDS AND BY GRABBING AND BY SQUEEZING
COMPLAINANTâS NECK WITH A HAND AND HANDS, and said defendant
did use and exhibit a deadly weapon, to-wit: a FIREARM, during the
commission of the assault,
and further, the said defendant has and has had a dating relationship with the said
complainant and the said defendant was a member of the complainantâs family
and household . . . .
Garzaâs jury trial began December 3, 2013.
During the trial, Moore testified that she and Garza had dated intermittently for nine
years. At the time of the incident, they were living together, and she even called him her spouse.
She testified that at about 2:30 a.m. May 5, 2012, Garza came home intoxicated and seemingly
3
angry. He struck her in the temple with his hands and ordered her to give him the handgun she
kept for protection. Garza then used the gun to add âextra weightâ to his punches, before
pointing it at her and threatening to kill her, then trying to suffocate her. The physically abusive
conduct continued for âhoursâ until Garza fell asleep at about sunrise. When Garza fell asleep,
Moore retrieved the small dog she was pet-sitting that night, left the residence, and began
walking down the street.
Moore was taken to a hospital, where she was diagnosed with having suffered a
concussion, two breaks in her nose, and damaged teeth. Later, at the direction of the police,
Moore recorded a telephone conversation with Garza during which he asked her to drop the
criminal charges. The telephone conversation was played for the jury.
Garza called no witnesses in his defense and rested, after which the jury found him guilty
as charged. Garza pled true to the enhancement paragraph that alleged a prior felony conviction,
and Garza and the State made their cases to the jury for punishment. The jury assessed Garzaâs
punishment at thirty-five yearsâ confinement and a $10,000.00 fine, and the trial court sentenced
him accordingly. This appeal has ensued.
II. Analysis
A. Testimony Regarding Truthfulness of Complainant
In his first point of error, Garza contends that the trial court erred in admitting what
Garza maintains was a statement by Berna that Moore was truthful in her statements to him.
We review the trial courtâs admission of evidence for an abuse of discretion. State v.
Dixon, 206 S.W.3d 587, 590(Tex. Crim. App. 2006); Zuliani v. State,97 S.W.3d 589, 595
(Tex.
4
Crim. App. 2003); Harris v. State, 133 S.W.3d 760, 770(Tex. App.âTexarkana 2004, pet. refâd). An abuse of discretion occurs only when the trial courtâs decision ââwas so clearly wrong as to lie outside that zone within which reasonable persons might disagree.ââ Harris, 133 S.W.3d at 770â71 (quoting Cantu v. State,842 S.W.2d 667, 682
(Tex. Crim. App. 1992)). We will uphold the trial courtâs ruling if it is reasonably supported by the record and is correct under any applicable legal theory. Dixon,206 S.W.3d at 590
.
Berna testified that Moore had told him that her boyfriend had beaten her up and that he
had a gun. The State asked Berna, âWhat did you learn next, if anything?,â and Berna testified
that â[b]ased on what [he] could see, [he] believed that she was telling the truth.â Garza objected
under Rule 608 of the Texas Rules of Evidence, and the trial court overruled the objection.
Garza moved for a mistrial, and the trial court overruled that as well. Berna testified that he then
called 9-1-1, and his wife brought Moore into their home, offered her breakfast, coffee,
âwhatever [they] could give her at that time.â
Nonexpert testimony may be offered to support the credibility of a witness in the form of
opinion or reputation, but âthe evidence may refer only to character for truthfulness or
untruthfulness.â TEX. R. EVID. 608(a)(1). A lay witness may not, under Rule 608, testify as to
the complainantâs truthfulness in the particular allegations. See Schutz v. State, 957 S.W.2d 52,
72(Tex. Crim. App. 1997); Fuller v. State,224 S.W.3d 823
, 832â33 (Tex. App.âTexarkana
2007, no pet.). Further, evidence of truthful character may only be offered âafter the character of
the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.â
TEX. R. EVID. 608(a)(2).
5
Here, Berna testified to Mooreâs truthfulness. The State contends that Bernaâs statement
âwas offered as an explanation as to why Berna helped Mooreâa complete strangerâby calling
911 and inviting her into his home.â However, the trial court could not have rested its ruling on
Bernaâs statement to be an explanation for why he helped Moore because the trial court
overruled Garzaâs objection before Berna testified to calling 9-1-1, helping Moore, or bringing
her into his home. Therefore, we find the trial court erred in admitting the testimony.
The erroneous admission of evidence for the purpose of demonstrating the nature of a
witnessâ character for truthfulness is nonconstitutional error. Rhodes v. State, 308 S.W.3d 6, 10(Tex. App.âEastland 2009, pet. dismâd, untimely filed). Thus, we disregard the error unless it affected appellantâs substantial rights. See TEX. R. APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after reviewing the record as a whole, the appellate court has fair assurance that the error either did not influence or had only a slight effect on the finder of fact. Motilla v. State,78 S.W.3d 352, 355
(Tex. Crim. App. 2002). In weighing harm, we consider everything in the record, including the evidence, the character of the alleged error and how it might be considered together with the other evidence in the case, the jury instructions, the Stateâs theory, any defensive theories, closing arguments, voir dire, and whether the evidence of guilt is overwhelming.Id.
at 355â58. In making that determination, this Court is not concerned with whether there was sufficient evidence on which Garza could have been convicted, but rather, whether there is a reasonable possibility the impermissible testimony might have contributed to the conviction. Lopez v. State,288 S.W.3d 148, 178
(Tex. App.âCorpus
Christi 2009, pet. refâd).
6
Garza argues that Bernaâs testimony âessentially bolstered [Mooreâs] credibility,â
arguing further that to believe Bernaâs testimony was not harmful âstrains credulity.â Here,
Garzaâs defensive theory was that although Moore did not lie about the fact that an assault
occurred, she did lie regarding the seriousness of or the extent of the assault, arguing that
â[s]omething happened, just not this, not to this magnitude . . . .â While Berna did testify to
Mooreâs credibility, Moore had yet to testify, and Bernaâs testimony did not reference the extent
of the assault. Later in the case, Moore herself testified regarding the assaultâs extent, duration,
and results. Moore testified that Garza, with a gun in his hand, repeatedly struck her in the head
and choked her. The jury saw photographs of Mooreâs injuries taken the morning after the
assault as well as photographs taken a few days later. The medical records show that Moore
suffered a concussion, and her nose was broken in two places. The jury also heard a recorded
telephone conversation between Garza and Moore in which Garza stated he wanted her to be
okay and he did not know what made him snap. During this conversation, when Moore told
Garza that she thought he would kill her during the assault, he replied, âI know . . . . It was a bad
deal.â In addition to the recorded telephone call, there were several text messages from Garza to
Moore introduced in which Garza was urging Moore to drop the charges and change her story.
One of the text messages included the statement, âYour thing is in the trunk of your car.â When
the car trunk was searched, the police found the gun used by Garza in the assault. The State did
not otherwise emphasize Bernaâs statement of his belief in the story told him by Moore.
We have a fair assurance that Bernaâs statement that he believed Moore to have been
telling him the truth about the nature of the assault had either only a very slight influence or no
7
influence on the deliberations of the jury. Even ignoring Bernaâs statement entirely, there was
ample evidence that confirmed for the jury the veracity of Mooreâs version of the assault. The
error in allowing Bernaâs statement about the truthfulness of Mooreâs statement was harmless.
Accordingly, we overrule this point of error.
B. Evidence of Extraneous Offense
In his second point of error, Garza contends that the trial court erred by admitting Diazâ
testimony regarding an extraneous offense committed by Garza. 2
While Diaz was testifying regarding Mooreâs oral offense report, he stated that Moore
had told him that Garza â[w]oke her up. And then started beating her as he was screaming at her
about a 2009 case.â Garza objected under Rules 401, 402, 403, and 404(b) of the Texas Rules of
Evidence 3 and requested a mistrial. The trial court overruled his objections and denied his
motion.
On appeal, Garza argues that Diazâ testimony regarding the 2009 case was inadmissible
evidence of an extraneous offense under Rule 404(b) of the Texas Rules of Evidence.
Extraneous offenses or bad acts are not admissible to prove the defendant acted in conformity
with his criminal nature. TEX. R. EVID. 404(b); Abdnor v. State, 871 S.W.2d 726, 738 (Tex.
Crim. App. 1994). The reference to a 2009 case is not testimony implicating Garza in an arrest,
2
In Garzaâs brief, this point of error contends that the trial court erred by âfailing to give an instruction to disregard
evidence of an extraneous offense,â but the substance of his argument raises a claim for erroneous admission of
extraneous-offense evidence in violation of Rule 404(b) of the Texas Rules of Evidence.
3
Rule 401 defines ârelevant evidence,â Rule 402 says generally that relevant evidence is usually admissible whereas
irrelevant evidence usually is not, Rule 403 spells out some circumstances wherein some evidence (though relevant)
should be barred, and Rule 404(b) provides that a personâs prior bad conduct is not admissible for the purpose of
showing that a personâs later actions are made in conformity with that personâs prior bad conduct.
8
crime, or bad act. There is nothing the jury heard to illustrate precisely what was meant by the
reference to a â2009 case.â Although that reference might have been to another crime of which
Garza had been accused, it could just as easily have been a reference to a civil case or to a case
involving only Moore. Under these circumstances, Diazâ reference to a 2009 case is a simple
mystery, too vague to rise to the level of an extraneous bad act under Rule 404(b). Therefore,
the testimony raises no issue for our review.
Later in Diazâ testimony, he was asked whether, after speaking to Moore at Bernaâs
house, he went to Mooreâs home to speak with Garza. Diaz replied that he did not do so because
of âhis violent history, as she portrayed it to me -- .â As before, Garza objected under Rules 401,
402, 403, and 404(b) and also asked for a mistrial. A hearing was held outside the presence of
the jury, during which Garza not only objected to the statement, he asked for a mistrialâ
skipping over a request for the intermediate relief of an instruction for the jury to disregard. The
trial court denied Garzaâs objection under Rule 403 and denied his motion for mistrial, but never
ruled on his objections under Rules 401, 402, or 404(b).
As a prerequisite to presenting a complaint for appellate review, an appellant must
present to the trial court a timely request, objection, or motion stating the specific grounds for the
desired ruling. TEX. R. APP. P. 33.1(a)(1)(A). The complaining party must obtain an adverse
ruling from the trial court. DeRusse v. State, 579 S.W.2d 224, 235(Tex. Crim. App. [Panel Op.] 1979). Finally, the point of error on appeal must correspond to the objection made at trial. Dixon v. State,2 S.W.3d 263, 265
(Tex. Crim. App. 1998); Thomas v. State,723 S.W.2d 696, 700
(Tex. Crim. App. 1986).
9
On appeal, Garzaâs argument is based upon Rule 404(b); however, regarding Diazâ
reference to Garzaâs âviolent history,â Garza failed to obtain a ruling (adverse or otherwise) on
his objection. Therefore, he failed to preserve this issue for our review. See TEX. R. APP. P.
33.1(a)(1)(A); DeRusse, 579 S.W.2d at 235.
C. Victim Impact Evidence During Guilt/Innocence Phase of Trial
In his final point of error, Garza contends that the trial court erred by admitting victim-
impact testimony during the guilt/innocence phase of the trial.
During the Stateâs examination of Moore, the following exchange took place:
Q. Okay. Tell me how this assault has affected your life.
[GARZAâS ATTORNEY]: Your Honor, this is improper at this
point.
THE COURT: Well, why donât you rephrase your question.
Q. (BY [THE STATE]) Have you had any physical consequences to
the assault? Has there been -- the aftermath of your injuries?
[GARZAâS ATTORNEY]: Asked and answered, Judge.
THE COURT: Overruled.
A. Yes. I -- I just donât have the memory and the -- some cognitive
skills that I have lost.
[GARZAâS ATTORNEY]: Judge, this is all improper --
THE COURT: Overruled.
[GARZAâS ATTORNEY]: -- at this point. This is all improper.
This is all --
A. I lost my job and wages.
10
[GARZAâS ATTORNEY]: -- victim impact?
THE COURT: Overruled.
Q. (BY [THE STATE]) When -- Iâm sorry. We only need one person
talking because the court reporter has to record things.
A. Iâm sorry.
Q. Just let that person talk. And then the Judge will make a ruling,
and then you can talk, okay?
A. Okay.
Q. So you said that you have -- youâve lost some cognitive abilities
and lost your memory. How about your teeth? Or did you have to have any
surgery or repairing to your teeth or your nose?
A. Yeah. I lost two months of work and had to have my dental work
replaced and just scars from the inside.
Outside the context of homicide cases, victim-impact testimony is generally defined as
evidence regarding the physical or psychological effects of a crime on victims themselves. See
Lane v. State, 822 S.W.2d 35, 41(Tex. Crim. App. 1991). Victim-impact evidence may include physical, psychological, or economic effects of crime on a victim or a victimâs family. Espinosa v. State,194 S.W.3d 703, 711
(Tex. App.âHouston [14th Dist.] 2006, no pet.). Although victim-impact testimony may be admissible during the punishment stage, such evidence is generally inadmissible during the guilt/innocence phase because it does not have the tendency to make more or less probable the existence of any fact of consequence with respect to guilt/innocence. See MillerâEl v. State,782 S.W.2d 892, 895
(Tex. Crim. App. 1990) (victimâs
testimony about future hardship as paraplegic was irrelevant on guilt issue and thus inadmissible
over objection); see also TEX. R. EVID. 402 (evidence not relevant is inadmissible). Here, Moore
11
testified regarding the physical, psychological, and economic effects of the crime on her.
Therefore, the testimony was very clearly victim-impact testimony in nature, and the trial court
undoubtedly abused its discretion in allowing its admission at this stage of the proceedings.
Having found error, we must conduct a harm analysis to determine whether the error calls
for reversal of the judgment. TEX. R. APP. P. 44.2. If the error is constitutional, we apply Rule
44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not
contribute to appellantâs conviction or punishment. TEX. R. APP. P. 44.2(a). Otherwise, we
apply Rule 44.2(b) and disregard the error if it does not affect the appellantâs substantial rights.
TEX. R. APP. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259(Tex. Crim. App. 1998). Constitutional error is only present when a ruling is constitutionally required; mere misapplication of the rules of evidence is not constitutional error. Alford v. State,22 S.W.3d 669, 673
(Tex. App.âFort Worth 2000, pet. refâd). Thus, erroneously admitted victim-impact evidence does not amount to constitutional error. Karnes v. State,127 S.W.3d 184, 196
(Tex. App.âFort Worth 2003, pet. refâd); Lindsay v. State,102 S.W.3d 223, 228
(Tex. App.â
Houston [14th Dist.] 2003, pet. refâd). We, therefore, consider whether the error affected
Garzaâs substantial rights. TEX. R. APP. P. 44.2(b).
âA substantial right is affected when the error had a substantial and injurious effect or
influence in determining the juryâs verdict.â King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997). To determine whether the substantial rights of the appellant were affected, the
appellate court should consider everything in the record, including any testimony or physical
evidence admitted for the juryâs consideration, the nature of the evidence supporting the verdict,
12
the character of the alleged error, the arguments, and the voir dire. Motilla v. State, 78 S.W.3d
352, 355â58 (Tex. Crim. App. 2002). âA criminal conviction should not be overturned by the erroneous admission of evidence âif the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.ââ Ex parte Henderson,384 S.W.3d 833
, 860â61 (Tex. Crim. App. 2012) (quoting Johnson v. State,967 S.W.2d 410, 417
(Tex. Crim. App. 1998)). The strength of the evidence of guilt, especially if it is overwhelming, is a factor to be considered. Motilla, 78 S.W.3d at 357â58. Whether the State emphasized the error can also be a factor in the appellate courtâs consideration. Id. at 356. If there are âgrave doubtsâ about whether the error did not affect the outcome, then the error is treated as if it did affect the outcome. Fowler v. State,958 S.W.2d 853, 865
(Tex. App.âWaco 1997), affâd,991 S.W.2d 258
(Tex. Crim. App. 1999).
After examining the record as a whole, we conclude that the admission of Mooreâs
testimony about the ways that the incident has affected her life had only a slight effect, if any, on
the jury during the guilt/innocence phase of the trial. The remainder of Mooreâs testimony, if
believed by the jury, was sufficient to prove beyond a reasonable doubt that Garza had severely
beaten Moore with his hands and with the pistol and, thus, committed the offense charged. The
testimony of Berna and Diaz also supports conviction, as do the text messages from Garza, the
recorded telephone conversation, and the medical records. The only reference the State made to
the testimony during its closing argument was an oblique mention that Moore âwas terrorized
and still lives with that.â The State did not otherwise emphasize the error. We cannot say that
we are in âgrave doubtâ about whether the error affected the outcome, and we have a fair
13
assurance on this record that the error had little to no effect on the juryâs guilty verdict. Given
the strength of the evidence of guilt, we find the erroneous admission of the victim-impact
testimony harmless. Accordingly, we overrule this point of error.
D. Stateâs Cross-Appeal to Modify Findings in Judgment of Conviction
As noted before, in its cross-appeal, the State asks this Court to modify the judgment so
as to reflect Garzaâs plea of true to the enhancement, the juryâs finding of true to the
enhancement, and a finding of family violence.
The Texas Rules of Appellate Procedure give this Court authority to modify judgments
and correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; Bigley
v. State, 865 S.W.2d 26, 27(Tex. Crim. App. 1993); French v. State,830 S.W.2d 607, 609
(Tex. Crim. App. 1992); Asberry v. State,813 S.W.2d 526, 529
(Tex. App.âDallas 1991, pet. refâd).
Here, the judgment lists âN/Aâ next to the spaces for âPlea to 1st Enhancement
Paragraphâ and âFindings on 1st Enhancement Paragraph.â The record clearly reflects that
Garza pled true to the enhancement alleged by the State. The jury found the enhancement true.
Article 42.013 of the Texas Code of Criminal Procedure provides that if the trial court
âdetermines that the offense involved family violence, as defined by Section 71.004, Family
Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in
the judgment of the case.â TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2006); Butler v.
State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006) (â[T]he trial court is statutorily obligated to
enter an affirmative finding of family violence in its judgment, if during the guilt phase of trial,
the court determines that the offense involved family violence as defined by TEX. FAM. CODE
14
ANN. § 71.004(1).â); Thomas v. State, 150 S.W.3d 887, 889 (Tex. App.âDallas 2004, pet. refâd)
(â[T]he trial court had no discretion in entering a family violence finding once it determined the
offense involved family violence.â). âFamily violenceâ includes âdating violence.â TEX. FAM.
CODE ANN. § 71.004(3) (West 2014). âDating violenceâ includes an act that is âcommitted
against a victim . . . with whom the actor has or has had a dating relationshipâ and that is
intended to result in assault, or that âreasonably places the victim in fear of imminent physical
harm, bodily injury, assault, or sexual assault.â TEX. FAM. CODE ANN. § 71.0021(a)(1)(A), (a)(2)
(West 2014).
The indictment and the jury charge each alleged that Garza presently or previously had a
dating relationship with Moore and that Garza was a member of Mooreâs family or household.
The application portion of the jury instructions instructed the jury, in pertinent part,
Now, bearing in mind the foregoing instructions, if you unanimously find
from the evidence beyond a reasonable doubt that on or about May 5, 2012, in
Dallas County, Texas, the defendant, Juan Garza, Jr., did unlawfully then and
there intentionally or knowingly or recklessly cause bodily injury to Kelly Moore,
hereinafter called complainant, by striking complainant with hand or hands, and
[Garza] did use or exhibit a deadly weapon, to-wit: a firearm during the
commission of the assault,
and you further find beyond a reasonable doubt that [Garza] has or has had
a dating relationship with the said complainant or [Garza] was a member of the
complainantâs family or household, then you will find [Garza] guilty of
aggravated assault as charged in the indictment.
The jury found Garza guilty as charged in the indictment; therefore, the jury found the allegation
of family violence to be true.
15
Here, Moore gave undisputed testimony that she and Garza dated and lived together.
Despite the evidence provided at trial and the juryâs verdict, the judgment fails to include an
affirmative finding of family violence.
Accordingly, we modify the judgment to include an affirmative finding of family
violence and the prior felony enhancement and affirm the judgment, as modified.
Bailey C. Moseley
Justice
Date Submitted: August 28, 2014
Date Decided: October 30, 2014
Do Not Publish
16