Ricardo Garza Lopez v. State
Date Filed2010-12-30
Docket13-09-00585-CR
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
NUMBER 13-09-00585-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI â EDINBURG
RICARDO GARZA LOPEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Ricardo Garza Lopez, guilty of capital murder, and
because the State did not seek the death penalty, the trial court assessed punishment
at life imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. See TEX. PENAL CODE ANN. §§ 12.31(a)(2), 19.03(a)(2) (Vernon Supp. 2010).
By eight issues, Lopez contends that: (1) the evidence is legally and factually
insufficient to support his capital murder conviction; (2) the âtrial court committed
reversible error by instructing the jury abstractly on the law of parties respecting [Texas
Penal Code section] 7.02(b), but not meaningfully including that abstract theory of
criminal responsibility in the subsequent application paragraphâ; (3) the âtrial court
committed reversible error by including an unsubstantiated and prejudicial comment on
the weight of the evidence in [the] application paragraph [of the jury charge] by simply
denominating, or characterizing, two unnamed persons as conspiratorsâ; (4) the trial
court erred by including four lesser-included offenses in the jury charge; (5) the trial
court abused its discretion in allowing hearsay testimony from several investigators; (6)
âthe trial court abused its discretion in allowing . . . [Investigator Max] Cantu to testify
about an ultimate issue of fact for the juryâ; and (7) âthe trial court abused its discretion
in overruling [Lopezâs] bolstering objection to . . . [Investigator] Fernando Tanguma.â
We affirm.
I. BACKGROUND
On June 8, 2008, eighty-three-year-old Elena Ayala was shot as she rode in the
backseat of her daughter and son-in-lawâs black Chrysler 300.
Modesta Diaz testified that at 9:30 p.m., she and her husband, Jesus Mario Diaz,
picked up her mother, Ayala, of whom they were the primary caretakers, from the home
of Margarita Esparaza, one of Ayalaâs daughters. The trio proceeded to the Diazesâs
residence with Jesus in the driverâs seat, Modesta in the front passengerâs side seat,
and Ayala in the back passengerâs side seat. Around 9:50 p.m., Modesta noticed a
vehicle, which she later described as a âvanâ or âsmall Blazerâ pass and âcut[] in frontâ of
her familyâs Chrysler 300 as they drove on Depot Road near the Monte Cristo
2
intersection in Edinburg, Texas. The vehicle stopped, and Jesus honked. Modesta saw
a man âwith his face coveredâ exit the back passengerâs side door of the vehicle with âa
pistolâ in his hand. Modesta told Jesus, âLetâs get out of here. Letâs go speeding fast.
Letâs get out of here.â Jesus reversed, accelerated backwards, and told Modesta âto get
down on the floorboard.â Modesta then heard one gunshot. Jesus turned the Chrysler
around and drove away from the shooter, south towards McAllen, Texas. Modesta
testified that at the time of the shooting, she did not know why someone had shot at the
Chrysler.
Modesta testified that as they drove away, Ayala stated, âI got shot.â Modesta
tried to calm her mother and told her that the sound was only âa fire cracker,â but Ayala
protested, âNo, my daughter. It was a shot. I got hit.â Modesta turned on the Chryslerâs
interior light, saw blood, and confirmed that Ayala had been shot. Modesta called 911.
According to Modesta, the 911 dispatcher âtold me . . . not to moveâfor me to stay
there. Well, we didnât want to stay there so we drove all the way to 10th [Street] and
[Highway] 107 at the Valero, and thatâs where we waited.â An ambulance arrived at the
Valero and transported Ayala to a nearby hospital where she was pronounced dead.
Norma Jean Farley, M.D., the chief forensic pathologist for both Hidalgo and
Cameron Counties, performed the autopsy on Ayalaâs body. Dr. Farley recalled that
Ayalaâs injuries were consistent with a âperforating gun[]shot,â which she defined as a
gunshot that âwent through the body, and there was no bullet recovered.â Dr. Farley
observed that a bullet had travelled âalmost straight throughâ Ayalaâs torsoâentering on
the left lateral side of Ayalaâs chest and exiting on the rightâpuncturing her abdomen,
3
diaphragm, stomach, and liver. Dr. Farley concluded that the cause of death was a
gunshot wound to Ayalaâs chest and abdomen.
Hidalgo County crime scene specialist, Eduardo Aleman, testified that a bullet
entrance hole was found on the back driverâs side of the Chrysler and that one bullet
was recovered from inside the vehicle. He also testified that one spent casing was
recovered at the scene of the shooting and that the evidence supported the theory that
only one shot was fired at the Diazâs Chrysler.
In August 2008, Texas Ranger Robert Matthews met with and questioned
Lopezâs friend, Oziel Gutierrez, about the June 8 shooting. Gutierrez testified that he
gave a statement to Ranger Matthews that Lopez âhad come to my house
and . . . [Lopez] started talking to me about a murder that had taken place. And that he
was likeâyou knowâsomewhat involved, because he had loaned the gun to some
people . . . .â Gutierrez denied knowing the names of the people to whom Lopez lent
the gun, but stated that Lopez had lent them the gun â[t]o steal some rimsâ for âa
vehicle,â and Lopez drove a Chrysler 300.
On August 22, 2008, Ranger Matthews and Investigator Fernando Tanguma
went to Lopezâs home. Lopez agreed to go to the Hidalgo County Sheriffâs Office to
speak with the officers. While en route to the sheriffâs office, the officer stopped at a
âmobile unit.â1 Lopez told the officers that he planned to speak to an attorney before
giving a statement. At that point, the officers stopped questioning Lopez and decided to
continue to the sheriffâs office. Investigator Tanguma testified that as they drove to the
sheriffâs office, Lopez told him that âhe knew what I [Investigator Tanguma] was talking
about. He told me that it was a .40 caliber handgun. He told me that the gun was
1
Investigator Tanguma defined a âmobile unitâ as a âportableâ sheriffâs office.
4
located underneath his house.â2 The officers drove back to Lopezâs residence, and
Lopez consented to the search of his house. Investigator Tanguma testified that Lopez
resided in a frame home that was lifted off the ground by blocks. Investigator Tanguma
recalled, â[Lopez] pointed out where the gun was. . . . He walked to the corner of the
residence and pointed . . . he told me âIf you stick your hand under there you can grab
the gun, and itâs wrapped in a newspaper, and itâs there in the corner.ââ Investigator
Tanguma complied and recovered the firearm.
Forensic firearms and tool-marks examiner, Richard Hitchcocks, conducted a
comparative analysis between the bullet, cartridge, and firearm recovered by police.
Based on his analysis, Hitchcocks opined that the cartridge recovered near the
intersection of Depot Road and Monte Cristo was fired from the firearm located under
Lopezâs house. Hitchcocks was unable to conclusively determine whether the bullet
recovered from the Diazâs Chrysler was fired from the firearm found under Lopezâs
home; however, he âcould not eliminate that firearm as the one that that bullet may have
been fired from.â
At the conclusion of the trial, a jury convicted Lopez of capital murder and
punishment was assessed at life imprisonment in the Institutional Division of the Texas
Department of Criminal Justice. See id. Lopez filed a motion for new trial. A hearing
was held, and the motion was subsequently denied by the trial court. This appeal
ensued.
II. SUFFICIENCY OF THE EVIDENCE
2
On appeal, Lopez does not challenge the voluntariness of his statements to police.
5
By his first and second issues, Lopez contends that the evidence is legally and
factually insufficient to support the juryâs verdict. Specifically, Lopez asserts that the
evidence is insufficient to support Lopezâs conviction âeither as a principal and/or a party
and/or a conspiratorâ to capital murder.
A. Standard of Review
The Court of Criminal Appeals has recently held that there is âno meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis
factual-sufficiency standardâ and that the Jackson standard âis the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.â Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *8, *14
(Tex. Crim. App. Oct. 6, 2010) (plurality opinion). Accordingly, we review Lopezâs
claims of evidentiary sufficiency under âa rigorous and proper applicationâ of the
Jackson standard of review. Id. at *11.
Under the Jackson standard, âthe relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.â Jackson v.
Virginia, 443 U.S. 307, 319(1979); see Brooks,2010 WL 3894613, at *5
(characterizing the Jackson standard as: âConsidering all of the evidence in the light most favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt.â). â[T]he fact[-]finderâs role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.â Jackson,443 U.S. at 319
(emphasis in original);
6
see TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979) (âThe jury, in all cases, is the
exclusive judge of facts proved and the weight to be given to the testimony . . . .â);
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (âThe jury is the
exclusive judge of the credibility of witnesses and of the weight to be given testimony,
and it is also the exclusive province of the jury to reconcile conflicts in the evidence.â).
In the present case, the jury charge included general instructions on the concept
of criminal responsibility under the law of parties. See TEX. PENAL CODE ANN.
§ 7.02(a)(2) (Vernon 2003); id. § 7.02(b) (providing that a party is criminally responsible
for the conduct of another â[i]f, in the attempt to carry out a conspiracy to commit one
felony, another felony is committed by one of the conspirators, all conspirators are guilty
of the felony actually committed, though having no intent to commit it, if the offense was
committed in furtherance of the unlawful purpose and was one that should have been
anticipated as a result of the carrying out of the conspiracyâ). The application paragraph
applied the law of the parties under section 7.02(a)(2), but did not apply the section
7.02(b) concept of criminal responsibility for the anticipated result of a conspiracy.
The sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394, 404(Tex. Crim. App. 2000); Adi v. State,94 S.W.3d 124, 131
(Tex. App.âCorpus Christi 2002, pet. refâd). Because a hypothetically correct jury charge in this case would authorize the jury to convict on either section 7.02(a)(2) or 7.02(b), we must determine whether the evidence is sufficient under either of these alternative theories of liability. See Garza Vega v. State,267 S.W.3d 912, 915-16
(Tex. Crim. App. 2008).
B. Applicable Law
7
Under section 7.02(a)(2), â[a] person is criminally responsible for an offense
committed by the conduct of another if . . . acting with intent to promote or assist the
commission of the offense he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense.â TEX. PENAL CODE ANN. § 7.02(a)(2). An act is
committed intentionally when it is the actorâs conscious objective or desire to engage in
the conduct which causes the result. Id. § 6.03(a) (Vernon 2003). A person acts
knowingly when he knows that the conduct is reasonably certain to cause the result. Id.
§ 6.03(b). Intent may âbe inferred from circumstantial evidence[,] such as acts, words,
and the conduct of the appellant.â Guevara v. State, 152 S.W.3d 45, 50(Tex. Crim. App. 2004); see also Hart v. State,89 S.W.3d 61, 64
(Tex. Crim. App. 2002) (stating that a fact-finder may infer both knowledge and intent from the defendantâs acts, words, or conduct and from the nature of the wounds inflicted on the victim); Ledesma v. State,677 S.W.2d 529, 531
(Tex. Crim. App. 1984) (noting that the requisite culpable mental
state may also be inferred from the surrounding circumstances).
A person may be found guilty of capital murder under the law of parties. Johnson
v. State, 853 S.W.2d 527, 535(Tex. Crim. App. 1992) (en banc); see also Vega v. State, No. 13-05-007-CR,2010 WL 2966861
, at *3 (Tex. App.âCorpus Christi July 29,
2010, pet. refâd) (mem. op. on remand, not designated for publication). A person
commits capital murder if he or she intentionally or knowingly causes the death of an
individual while in the course of committing or attempting to commit, among other
things, robbery. TEX. PENAL CODE ANN. §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(2). âIn
determining whether a defendant participated in an offense as a party, the fact[-]finder
may examine the events occurring before, during, and after the commission of the
8
offense and may rely on actions of the defendant that show an understanding and
common design to commit the offense.â Frank v. State, 183 S.W.3d 63, 73(Tex. App.â Fort Worth 2005, pet. refâd). Furthermore, â[c]ircumstantial evidence may be used to prove one is a party to an offense.â Cordova v. State,698 S.W.2d 107, 111
(Tex. Crim.
App. 1985).
C. Analysis
Lopez argues that the evidence is insufficient to support his conviction because
the State failed to prove, beyond a reasonable doubt, that âhe harbored a specific intent
that a murder be committed,â because the evidence showed that âmurder was not part
of [his] planâ and, instead, was âthe result of something gone wrong.â
Gutierrez testified Lopez âhad come to my house and . . . [Lopez] started talking
to me about a murder that had taken place. And that he was likeâyou knowâ
somewhat involved, because he had loaned the gun to some people . . . .â Gutierrez
also testified that Lopez loaned the gun to unidentified individuals â[t]o steal some rimsâ
for âa vehicle,â and Lopez drove a Chrysler 300. There was evidence that on the night
of June 8, 2008, Ayala was shot as she rode in the backseat of a Chrysler 300. When
Lopez was later questioned about the June 8 shooting, he told investigators that he
âknew what [they were] talking aboutâ and led them to a firearm wrapped in newspaper
and concealed under his home. There was evidence that a cartridge found at the scene
of the June 8 shooting was discharged from the firearm located under Lopezâs home.
Lopez relies on Tippett v. State, to support his argument that the evidence is
insufficient to support his conviction. 41 S.W.3d 316, 324(Tex. App.âFort Worth 2001, no pet.), disapproved of on other grounds by Hooper v. State,214 S.W.3d 9, 15
(Tex.
9
Crim. App. 2007). In Tippett, the evidence was insufficient to support a capital murder
conviction under both sections 7.02(a)(2) and 7.02(b) where the evidence established
that the appellant and the alleged co-conspirator agreed only to rob the victim and there
was no evidence that the appellant knew that the alleged co-conspirator had a gun in
his possession during the commission of the underlying robbery. Id. at 324-25. The
present case is distinguishable because the evidence showed that Lopez asked two
unnamed individuals to commit robbery and provided them with a gun with the intent
that the gun be used in the commission of the offense. A jury may infer intent to kill
from the use of a deadly weapon. See Jones v. State, 944 S.W.2d 642, 647(Tex. Crim. App. 1996); Adanandus v. State,866 S.W.2d 210, 215
(Tex. Crim. App. 1993) (holding that if a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill); Vega v. State,198 S.W.3d 819, 825
(Tex. App.â Corpus Christi 2006), vacated on other grounds,267 S.W.3d 912
(Tex. Crim. App. 2008). Thus, the jury could have reasonably inferred that Lopez intended to promote or assist in murder when he provided two unnamed individuals with a firearm and instructed them to â[t]o steal some rimsâ for âa vehicleâ; see Vega,198 S.W.3d at 825
, and the evidence was sufficient to support Lopezâs conviction under section 7.02(a)(2). See TEX. PENAL CODE ANN. § 7.02(a)(2). Viewing all of the evidence in the light most favorable to the prosecution, we conclude that a rational juror could have found beyond a reasonable doubt that Lopez was guilty of capital murder. See Jackson,443 U.S. at 319
; Brooks,2010 WL 3894613, at *5
. Accordingly, we overrule Lopezâs first and
second issues.
III. CHARGE ERROR
10
By his third, fourth, and fifth issues, Lopez complains of charge error. When we
review a jury charge, we must first determine whether error exists. Middleton v. State,
125 S.W.3d 450, 453(Tex. Crim. App. 2003). If we find error, we apply the appropriate harm analysis depending on whether the error was preserved in the trial court. See Jennings v. State,302 S.W.3d 306, 311
(Tex. Crim. App. 2010) (stating that all jury- charge errors are cognizable on appeal, but unobjected-to error is reviewed for âegregious harm,â while objected-to error is reviewed for âsome harmâ); Almanza v. State,686 S.W.2d 157, 171
(Tex. Crim. App. 1985) (op. on rehâg).
A. Failure to Apply Texas Penal Code Section 7.02(b)
By his third issue, Lopez contends that the trial court erred by failing to apply the
theory of criminal liability found in Texas Penal Code section 7.02(b). See TEX. PENAL
CODE ANN. § 7.02(b). The State concedes that the trial court erred by failing to include
section 7.02(b) in the application paragraph of the charge, even though Lopez Failed to
object to the error at trial. Nevertheless, because he did not object to the omission of
section 7.02(b) at trial, Lopez now asserts that he was egregiously harmed by the trial
courtâs error. See Almanza, 686 S.W.2d at 171. Egregious harm will be found only if the error deprived the defendant of a fair and impartial trial. Ex parte Smith,309 S.W.3d 53, 63
(Tex. Crim. App. 2010) (citing Almanza,686 S.W.2d at 171
).
âThe application paragraph of a jury charge is that which authorizes conviction,
and an abstract charge on a theory of law which is not applied to the facts is insufficient
to bring that theory before the jury.â Campbell v. State, 910 S.W.2d 475, 477(Tex. Crim. App. 1995) (citing Jones v. State,815 S.W.2d 667, 669
(Tex. Crim. App. 1991)).
Thus, because the jury charge did not apply Texas Penal Code section 7.02(b) to the
11
facts of the present case, section 7.02(a)(2) was the only theory of criminal
responsibility for anotherâs conduct that was properly before the jury. See id.We have already held that the evidence is sufficient to support Lopezâs conviction pursuant to section 7.02(a)(2); thus, we cannot conclude that Lopez was egregiously harmed by the trial courtâs failure to place section 7.02(b)âan alternative theory of liabilityâproperly before the jury. See Greene v. State,240 S.W.3d 7, 15-16
(Tex. App.âAustin 2007, pet.
refâd). We overrule Lopezâs third issue.
B. Comment on the Weight of the Evidence
By his fourth issue, Lopez contends that the trial court âcommitted reversible
error by including an unsubstantiated and prejudicial comment on the weight of the
evidenceâ in the jury charge âby simply denominating, or characterizing, two unnamed
persons as conspirators.â Specifically, Lopez complains of the following language:
If you find from the evidence beyond a reasonable doubt that on or about
JUNE 8, 2008, in Hidalgo County, Texas, JOHN DOE 1 and JOHN DOE
2 (hereinafter referred to as Conspirators) . . . .
(Emphasis added.) The charge then authorized the jury to find Lopez guilty of capital
murder if it found that he âacted with intent to promote or assist the commission of the
offense by conspirators by encouraging, directing, aiding or attempting to aid
conspirators to commit the offense of robbery which resulted in the death of Elena
Ayala . . . .â At trial, Lopez did not object to the inclusion of the above language as a
comment on the weight of the evidence; therefore, we must determine whether the
charge was erroneous and, if so, whether that error caused egregious harm. See
Jennings, 302 S.W.3d at 311; Almanza,686 S.W.2d at 171
.
12
A charge that assumes the truth of a controverted issue is a comment on the
weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex.
Crim. App. 1986); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007) (providing
that a trial court shall deliver to the jury âa written charge distinctly setting forth the law
applicable to the case; not expressing any opinion as to the weight of the evidence, not
summing up the testimony, discussing the facts or using any argument in his charge
calculated to arouse the sympathy or excite the passions of the juryâ). Lopez asserts
that the charge was erroneous because it authorized the jury âto assess Appellantâs
criminal culpability as a party and/or a conspirator with two persons whoâif the
instruction in that regard were to be followed . . . âwere conspirators.â
Assuming, without deciding, that referring to the unnamed individuals as
âconspiratorsâ was erroneous, such a reference did not cause Lopez egregious harm.
The application paragraph authorized the jury to find Lopez guilty of capital murder if it
found, beyond a reasonable doubt, that Lopez: (1) acted with intent to promote or
assist the commission of the offense; and (2) encouraged, directed, aided or attempted
to aid in the commission of the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2). Thus,
the usage of the term âconspiratorsâ to refer to the two unnamed individuals does not
necessarily implicate Lopez as a conspirator. Even if the jury believed that the two
unnamed individuals were âconspirators,â in order to find Lopez guilty, the jury,
nevertheless, had to find that the elements of section 7.02(a)(2) were proven beyond a
reasonable doubt. See id. Under the facts of the present case, there is no indication
that the trial courtâs error, if any, in referring to the unnamed individuals as
13
âconspiratorsâ caused Lopez egregious harm. See Almanza, 686 S.W.2d at 171. We
overrule Lopezâs fourth issue.
C. Lesser-Included Offenses
By his fifth issue, Lopez asserts that the trial court reversibly erred in overruling
his objection to the jury chargeâs inclusion of murder, aggravated robbery, and robbery
as lesser-included offenses.3 The State asserts that, under the facts of the present
case, neither robbery nor aggravated robbery constitutes a lesser-included offense.
However, even assuming, without deciding, that the trial court erred by including these
offenses in the jury charge, we would not conclude that such error amounts to reversible
error because Lopez was not harmed. See id.
Texas law generally presumes that the jury follows the trial courtâs instructions in
the manner presented. See Thrift v. State, 176 S.W.3d 221, 224(Tex. Crim. App. 2005) (citing Colburn v. State,966 S.W.2d 511, 520
(Tex. Crim. App. 1998); Williams v. State,937 S.W.2d 479, 490
(Tex. Crim. App. 1996); Waldo v. State,746 S.W.2d 750, 753
(Tex. Crim. App. 1988); Gardner v. State,730 S.W.2d 675, 696
(Tex. Crim. App. 1987)). The jury charge instructed the jury to determine whether the evidence proved beyond a reasonable doubt that Lopez was guilty of capital murder before considering whether he was guilty of any of the lesser-included offenses included in the charge. Because the jury found Lopez guilty of capital murder, we presume that it did not consider the other offenses. Seeid.
Thus, the trial courtâs error, if any, in the inclusion of the offenses of murder, aggravated robbery, and robbery in the jury charge did not harm Lopez. See Almanza,686 S.W.2d at 171
. We overrule Lopezâs fifth issue.
IV. EVIDENTIARY RULINGS
3
The alleged lesser-included offenses were included in the jury charge at the Stateâs request.
14
In his sixth, seventh, and eighth issues, Lopez urges that the trial court abused
its discretion by allowing the admission of certain evidence. We review a trial courtâs
evidentiary rulings under an abuse-of-discretion standard. Klein v. State, 273 S.W.2d
297, 304-05(Tex. Crim. App. 2008). To constitute an abuse of discretion, the trial courtâs decision must fall outside the zone of reasonable disagreement. Wead v. State,129 S.W.3d 126, 129
(Tex. Crim. App. 2004).
A. âInvestigator Exceptionâ
By his sixth issue, Lopez asserts that the trial court abused its discretion by
crafting an âinvestigator exceptionâ to the hearsay rules, âwhich permitted [Investigators
Tanguma and Cantu, as well as Deputy Salvador Arguello (herein collectively referred
to as âthe investigatorsâ)] to tell jurors what they heard from other testifying and non-
testifying sources.â Additionally, Lopez complains that the trial courtâs admission of the
investigatorsâ testimony violates the Confrontation Clause.4 See Crawford v.
Washington, 541 U.S. 36, 53-54 (2004).
1. Disputed Testimony
Specifically, Lopez complains of the admission of Deputy Arguelloâs testimony,
which follows in pertinent part:
[The State]: On August 18th, 2008, did you receive any
information that was relevant to this investigation?
[Deputy Arguello]: Yes.
4
The State urges that Lopezâs sixth issue is multifarious and therefore presents nothing for
review. See Taylor v. State, 190 S.W.3d 758, 764(Tex. App.âCorpus Christi 2006), revâd on other grounds,233 S.W.3d 356
(Tex. Crim. App. 2007). Out of an abundance of caution, and because we may elect to consider multifarious issues if we are able to determine, with reasonable certainty, the alleged error about which the complaint is made, we elect to address Lopezâs sixth issue. See Stults v. State,23 S.W.3d 198, 205
(Tex. App.âHouston [14th Dist.] 2000, pet. refâd); see also Dilworth v. State, No. 13-07- 00520-CR,2008 WL 5732155
, at *3 n.3 (Tex. App.âCorpus Christi Dec. 4, 2008, pet. refâd) (mem. op.,
not designated for publication).
15
[The State]: Okay. Did that information that you received indicate
a potential suspect for this crime?
[Deputy Arguello]: Yes.
[The State]: Did you pass that information on to the investigating
officers?
[Deputy Arguello]: Yes.
[The State]: All right. Who was the potential witness that was
identified?
[Defense Counsel]: Your Honor, again, my objection is as to hearsay.
This is back door hearsay. This witnessâs
investigative techniques have not been challenged,
and I believeâ
The Court: The objection is overruled.
[The State]: Deputy, did that information provide you with a name
for a potential suspect?
[Deputy Arguello]: Yes.
[The State]: All right. Who was that person?
[Deputy Arguello]: Ricardo, Ricardo Lopez.
Lopez also complains of the admission of the following testimony provided by
Investigator Tanguma:
[The State]: Now, sir, at this point did you have information
whichâor let me put it this way: Did you
obtain information which led you to believe that
Ricardo Lopez was involved in this actual
caseâthe murder?
[Defense Counsel]: Objection, Your Honor. It calls for hearsay. It
is backdoor hearsay, that was previously
stated.
The Court: Overruled.
[The State]: You may answer, sir.
16
[Investigator Tanguma]: Yes, I did.
....
[The State]: Do you know what type of vehicle Mr. Lopez
wanted the rims for?
[Investigator Tanguma]: Yes, Heâsâ
[Defense Counsel]: Objection, Your Honor. It calls for hearsay.
....
The Court: The objection is overruled.
[Investigator Tanguma]: Yes, for a Chrysler 300.
Lopez also complains of the following exchange during Investigator Cantuâs
testimony:
[The State]: How was it that Mr. Gutierrezâs information and
statement helped you in the investigation, sir?
[Investigator Cantu]: Through the interview with Mr. Gutierrez, it was
learnedâ
[Defense Counsel]: Again, Your Honor, the objection as to
hearsay.
The Court: The objection is overruled.
[The State]: You may answer.
[Investigator Cantu]: Through the interview with Mr. Gutierrez, it was
learned that he had been a friend of the
defendant for sometime [sic]. The defendant
had confided in himâthat he had provided a
weapon that was used to go steal some rims
for his vehicle, which was a 300 Chrysler,
identicalâor similar to the one that the
deceased was riding in. It was learned that he
was feeling bad about providing that weapon,
and he had knowledge that the weapon that he
provided these individuals to steal these rims
17
had been used to shoot and kill this victimâthe
deceased.
2. Preservation of Error
To preserve an issue for appellate review, a party must make a timely objection
or request to the trial court, sufficiently stating the specific grounds for the requested
ruling, unless apparent from the context, and obtain an adverse ruling. See TEX. R.
APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349(Tex. Crim. App. 2002); Trevino v. State,174 S.W.3d 925, 927
(Tex. App.âCorpus Christi 2005, pet. refâd). Moreover, the objection or request at trial must comport with the complaint presented on appeal. Wilson,71 S.W.3d at 349
. Even constitutional errors may be forfeited by failure to object at trial. Broxton v. State,909 S.W.2d 912, 918
(Tex. Crim. App. 1995); Trevino,174 S.W.3d 927
.
A review of the record demonstrates that Lopez objected to the disputed portions
of the investigatorsâ testimonies on hearsay grounds. A partyâs hearsay objection does
not preserve error on a Confrontation Clause ground. See Reyna v. State, 168 S.W.3d
173, 179(Tex. Crim. App. 2005); see also Nolen v. State, No. 13-08-00526-CR,2009 WL 4051980
, at *4 (Tex. App.âCorpus Christi Nov. 24, 2009, pet. refâd) (mem. op. on rehâg, not designated for publication). Accordingly, in reviewing Lopezâs sixth issue, we will only consider his hearsay arguments, as his Confrontation Clause arguments were not preserved. See Reyna,168 S.W.3d at 179
; see also Nolen,2009 WL 4051980
, at
*4.
3. Analysis
Hearsay is a statement, other than one made by the declarant while testifying at
the trial, which is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d).
18
Nevertheless, â[p]olice officers may testify to explain how the investigation began and
how the defendant became a suspect.â Lee v. State, 29 S.W.3d 570, 577-78(Tex. App.âDallas 2000, no pet.) (citing Dinkins v. State,894 S.W.2d 330, 347
(Tex. Crim. App.1995); Short v. State,995 S.W.2d 948, 954
(Tex. App.âFort Worth 1999, pet. refâd); Thornton v. State,994 S.W.2d 845, 854
(Tex. App.âFort Worth 1999, pet. refâd)); see also Samora v. State, No. 13-09-00587-CR,2010 WL 3279536
, at *7 (Tex. App.â Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for publication). âAn officerâs testimony is not hearsay when it is admitted, not for the truth, but to establish the course of events and circumstances leading to the arrest.â Thornton,994 S.W.2d at 854
. The critical question is whether there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom. See Schaffer v. State,777 S.W.2d 111, 114
(Tex. Crim. App. 1989).
The Stateâs questions to the investigators were not designed to elicit hearsay
testimony; instead the questions allowed the investigators to comment on their
investigations and how Lopez became a suspect. See Dinkins, 894 S.W.2d at 347; Lee,29 S.W.3d at 577-78
. Accordingly, the trial court did not abuse its discretion in overruling Lopezâs hearsay objections. Moreover, even if the complained-of portions of the investigatorâs testimonies had been hearsay, any error in admitting them was harmless because the testimonies were cumulative of Gutierrezâs testimony. See Brooks v. State,990 S.W.2d 278, 287
(Tex. Crim. App. 1999) (providing that âany error
in admitting [hearsay] evidence was harmless in light of other properly admitted
evidence proving the same factâ). We overrule Lopezâs sixth issue.
B. Ultimate Issue of Fact
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In his seventh issue, Lopez asserts that âthe trial court abused its discretion in
allowing . . . [Investigator] Cantu to testify about an ultimate issue of fact for the jury.â
During the Stateâs direct examination of Investigator Cantu, the State asked whether he
was able to âdetermine why this murder took place.â Lopez objected on the grounds
that the question âinvad[es] the province of the juryâ and âcalls for an ultimate conclusion
of facts.â The trial court overruled the objections, and Investigator Cantu testified:
Through the investigation after reviewing the case itself, it was learned
that the defendant was attempting to get some rims for his vehicle. He
had provided a weapon to two unidentified individuals at this time who in
turn went out to get those rims for him. That weapon that he provided was
located at this residence, and was usedâand was used to shootâand
was the weapon that killed the victim.
âThe doctrine which prohibited testimony that would invade the province of the
jury âis and has been long deadâ as a proposition of law.â Mays v. State, 563 S.W.2d
260, 263(Tex. Crim. App. 1978) (quoting Boyde v. State,513 S.W.3d 588, 590
(Tex. Crim. App. 1974) (citing Hopkins v. State,480 S.W.2d 212, 220
(Tex. Crim. App. 1972))). However, â[t]he repudiation of the âinvasion of the province of the juryâ rule does not mean that an expert or non-expert witness may freely state his opinion in regard to any fact in issue.â Hopkins,480 S.W.2d at 220
. Lopez asserts that the trial
court abused its discretion by overruling his objection and allowing Investigator Cantu
âto testify about an ultimate issue of fact for the jury (which was an opinion as to why
[the Diazâs] car was stopped).â We disagree.
Motive is not a required element in a criminal case. Bush v. State, 628 S.W.2d
441, 444(Tex. Crim. App. 1982). And although âevidence of motive is one kind of evidence [that aids in] establishing proof of an alleged offense,â see Crane v. State,786 S.W.2d 338, 349-50
(Tex. Crim. App. 1990), the evidence of motive within the
20
complained-of statement is cumulative of evidence presented in the testimonies of
Gutierrez, Ranger Matthews, and Investigator Tanguma. Thus, error, if any, by the trial
court in allowing the admission of Investigator Cantuâs testimony is harmless. See
Brooks, 990 S.W.2d at 287. Lopezâs seventh issue is overruled.
C. Bolstering
By his eighth issue, Lopez contends that the trial court âabused its discretion in
allowing the State . . . to bolster [Investigator] Tangumaâs testimony by inquiring whether
he would lose his peace officerâs license if he were to testify falsely.â During the Stateâs
questioning of Investigator Tanguma, the following exchange occurred:
[State]: Investigator Tanguma[,] as a law enforcement
[sic] and an investigator with experience, do
you know that there is a penalty for perjury,
correct [sic]?
[Investigator Tanguma]: Yes, I do.
[Defense Counsel]: Objection, Your Honor. Again, bolstering the
witness.
The Court: The objection is overruled.
[State]: You may answer, sir.
[Investigator Tanguma]: Yes, maâam.
[State]: If you were to commit perjury on the stand,
would you lose your license as a peace officer?
[Investigator Tanguma]: Oh, yes, I would.
[State]: Thank you, sir. Iâll pass the witness.
Lopez lodged an objection to the Stateâs question on whether there was a
penalty for perjury. However, he did not object to the question of which he now
complainsâwhether Investigator Tanguma would lose his peace officerâs license if he
21
were to testify falsely. Thus, Lopez failed to preserve this complaint. See TEX. R. APP.
P. 33.1(a). Even if we were to conclude that Lopezâs objection to the Stateâs first
question preserved a complaint as to the second question, Lopez fails to cite any
authority or advance any argument to support his contention that the trial court erred by
overruling his objection. As such, this issue is inadequately briefed. See TEX. R. APP.
P. 38.1(i) (providing that âthe brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.â). We
overrule Lopezâs eighth issue.
V. CONCLUSION
Having overruled all of Lopezâs issues on appeal, we affirm the trial courtâs
judgment.
________________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
30th day of December, 2010.
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