Delgado, Elias v. The State of Texas--Appeal from Crim Dist Ct 5 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ELIAS DELGADO,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-01-00428-CR

Appeal from the

Criminal District Court No. Five

of Dallas County, Texas

(TC# F-0054953-NL)

O P I N I O N

On February 25, 2004, this Court issued an opinion which overruled all four of Appellant s issues and affirmed Appellant s murder conviction. On October 6, 2004, the Court of Criminal Appeals issued an opinion vacating this Court s opinion and remanding the cause to this Court. The Court of Criminal Appeals noted that the United States Supreme Court s decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) had issued after the issuance of this Court s opinion. The Court of Criminal Appeals directed this Court to review our holding that a statement made by an individual to a police officer responding to the scene of the offense was admissible. We are to review our holding in light of the holding in Crawford that testimonial statements made to police during interrogation are inadmissible under the Confrontation Clause notwithstanding prior holdings regarding exceptions to the rule on hearsay. // We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On October 19, 2000, Maria Pab on, a 911 operator, received a call about an incident at 4109 Avondale in Dallas, Texas. The caller identified himself as Manuel Carrillo and he stated that he wanted to speak in Spanish. After seeking and obtaining assurances that he would not be deported, Carrillo stated that his roommate was soliciting his help to kill an individual named Elvis Gomez. Pab on testified that Carrillo was very excited and he seemed afraid. During a second call to inquire why the police had not arrived, Carrillo stated that he was nervous.

Dallas police officer Jay Angelino stated that he received Pab on s dispatch and he responded to the address. He was met by a man who identified himself as Manuel Carrillo. He was very excited and the officer had to calm him down. Carrillo stated that he had called 911 twice. He told Officer Angelino in English that his roommate, Elias Delgado, was going to kill his ex-lover s new boyfriend to win the ex-boyfriend back. This was to occur in the bathroom of their apartment. After a backup officer arrived, Carrillo took both officers to the apartment and they knocked on the door. Appellant asked who was at the door and they responded that they were police. Appellant told them to wait a minute. After five minutes, Appellant opened the door. He was shirtless, and his only visible hand was bleeding. He had red welts on his body which led Officer Angelino to believe there had been a fight. Appellant stated that the officers could not enter until he had spoken to his lawyer. As Officer Angelino thought that Appellant might have a weapon because he would not show his other hand, he kicked the door open.

Officer Angelino left Appellant with the backup officer and he went into Appellant s bathroom. A shower curtain was drawn around the bathtub, and a foot clad in a tennis shoe was hanging outside the curtain. The officer noticed blood on the floor and he saw the dead body of an individual in the tub.

Forrest Smith testified that he was a detective with the Physical Evidence Section of the Dallas Police Department. Smith took a number of photographs at the crime scene. These photographs depicted a dead individual in the bathtub with cuts on his hands. There was signs drawn in shoe polish on the bathtub. Smith stated that the signs appeared to be associated with a mystical religion practiced by some in the Hispanic community. A Wyoming brand hacksaw and a pair of rubber gloves were found near the body. Also, an extra blade for the hacksaw was found in the bathroom sink. A container of ammonia cleaner was near the body. There were blood stains around the bathroom sink and a buck knife was found in the sink. Shoe polish, candles, a bag of soil, and a roll of duct tape were found in portions of the apartment. The decedent s school identification card and passport, both showing the name and photograph of Elvis Gomez were found in the apartment.

In Appellant s bedroom, there were several cut lengths of duct tape which were positioned on a chair. There were also five cut strands of string on another chair. A deck of tarot cards and heavy duty garbage bags used for contractor clean up were found in the living room. There were credit card receipts in the apartment indicating that Appellant s American Express credit card was used to purchase from Outdoor World a sportsman s knife and a Wyoming hacksaw. Both were dated October 18, 2000. There was also a receipt from the same credit card showing a purchase from Home Depot, dated October 19, 2000, for garbage bags. Detective Smith testified that Appellant s fingerprints were found on the shoe polish kit and on the outside packaging of the hacksaw.

The medical examiner, Dr. Jill Urban, stated that the decedent, Elvis Gomez, died as a result of a deep stab wound which severed his jugular vein and his carotid artery; thereby causing him to bleed to death. The deceased had blunt force injuries on his shoulder and he had sustained twenty-three incised wounds to his neck, cheeks, lip, fingers, and hands. The witness characterized the cuts on the fingers and hands as being consistent with defensive wounds. She stated that the fatal injuries on the decedent could have been made by the knife that was admitted into evidence. On cross-examination, the medical examiner stated that it was possible that the decedent could have been originally holding the knife with which he was stabbed and he suffered the incised wounds during a struggle for the knife or he could have suffered the wounds from existent broken glass. She also indicated that it would not have required a great deal of force to inflict the fatal wound.

Dallas Police Department Detective Rick Berry testified that he arrived on the scene at 3:10 p.m. Detective Berry stated that Manuel Carrillo was in an excited state at that time. He stated that Carrillo was an illegal alien and the detective believed that Carrillo was in Mexico at the time of trial. As a result of his inspection of the apartment, the detective determined that a struggle had occurred in the bathroom. The knife in the sink has been placed under running water. Detective Berry opined that the markings in the bathroom were associated with Satanism. He did not see any marks or scratches on Appellant s body. However, the witness stated that the wounds on Appellant s hands were consistent with the type of wounds that occur where a knife-wielding assailant s hand slips on the knife as it is thrust into the victim. On the other hand, the decedent s hand wounds appeared to be defensive wounds usually inflicted when a victim tries to ward off a knife attack. It was the detective s opinion, based upon his viewing of the crime scene, that Appellant killed the decedent and had planned to dismember his corpse and haul the body away in construction-weight garbage bags.

Detective Berry interviewed an individual named Steven Long approximately a week after the offense occurred. Long stated to the detective that Appellant was very jealous and angry about Long s relationship with the decedent. About a month prior to the killing, Long and Appellant had what Long characterized as a romantic dinner and during the dinner, Appellant stated to Long that the decedent was using Long as a toy.

Steven Long, a disbarred attorney, testified during the defense portion of the trial. He stated that the decedent, a citizen of Panama, had been living in the country illegally. Long was the decedent s homosexual boyfriend. Long had a sexual relationship with Appellant which ended when Long began a relationship with the decedent. Long testified that Appellant and the decedent got along well together although the decedent was at one time jealous of Long s continued friendship with Appellant. The decedent once threatened to kill Appellant if he found out that Long and Appellant had resumed their sexual affair. The decedent also worried that Long and Appellant were conspiring to have him deported back to Panama. Long testified that Manuel Carrillo was a self-described witch who used to draw witchcraft symbols that were similar to the drawings on the side of the bathtub.

Long testified that when he told Appellant that he was in love with the decedent, Appellant responded that it would be difficult for him to accept. Appellant had stated in various communications that he loved Long and complained of their sexless relationship. The witness stated that when he was interviewed by Detective Berry, he thought it was clear that Appellant had plotted to kill the decedent. However, at trial he took the position that the decedent had an aggressive nature and that Appellant would only have killed the decedent in self-defense.

After the defense presented the testimony of several character witnesses who stated Appellant was not a violent person, Appellant testified in his own behalf. Appellant testified that he had allowed his roommate, Manuel Carrillo, to purchase the buck knife and the saw found in the apartment with his credit card. Appellant stated that he was a devout Catholic and it was Carrillo who explored mystical religions.

Appellant testified that on the afternoon of the killing, he had taken the decedent to a Kroger store in order to pay an electric bill, and then the two had lunch. They later returned to Appellant s apartment for the decedent to retrieve some of his property that was at the apartment. As they arrived, Carrillo was smoking outside of the apartment. The decedent proceeded to use Appellant s computer in the bedroom. Later, when Appellant went into the bedroom, the decedent pushed him onto the bed and a struggle ensued. At some point, the decedent pushed Appellant into the bathroom where the decedent grabbed the knife and a struggle ensued for control of the knife. As they fought, they fell into the bathtub. Appellant testified that the decedent was killed in self-defense and he had no intention to kill the decedent.

II. DISCUSSION

In Issue No. Two, Appellant contends that the court erred in admitting a statement made to the police officer who responded to the scene. We review a trial court s decision to admit evidence over objection under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). The trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement. Id. In deciding the constitutional issue presented, we review the trial court s ruling de novo. Muttoni v. State, 25 S.W.3d 300, 304 (Tex. App.--Austin 2000, no pet.).

We will first consider if Carrillo s statements to Officer Angelino constituted excited utterances. Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). For hearsay to be admissible, it must fit into an exception provided by a statute or the rules of evidence. Tex. R. Evid. 802. One such exception is that for excited utterances. Tex. R. Evid. 803(2). An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Id.; Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001). In determining whether a hearsay statement is admissible as an excited utterance, the ultimate inquiry is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition when the statement was made. Apolinar, 155 S.W.3d at 186-87. The court may consider factors such as the length of time between the occurrence and the statement, the nature of the declarant, whether the statement is made in response to a question, and whether the statement is self-serving. Id. at 187. However, no single factor is dispositive, but merely bears on our ultimate determination. See Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995); Penry v. State, 903 S.W.2d 715, 750-51 (Tex. Crim. App. 1995).

In the present case, Carrillo identified himself but had to be calmed down before he could continue. The testimony indicates that he believed a murder was occurring or about to occur. We find that the court did not abuse its discretion in admitting the statements to Officer Angelino on the ground that it was an excited utterance.

Regarding the confrontation issue, the United States Supreme Court has handed down its decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which held that without exception, testimonial hearsay statements of witnesses absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is unavailable and where the defendant has had a prior opportunity to cross-examine the declarant. Id. at 57-60, 124 S. Ct. at 1368-69. Testimonial statements include police interrogations and prior testimony at a preliminary hearing, before a grand jury, or at a former trial. Id. at 68, 124 S. Ct. at 1374. These statements are testimonial because they are ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, . . . statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 51-52, 124 S. Ct. at 1364. See Wiggins v. State, 152 S.W.3d 656, 659 (Tex. App.--Texarkana 2004, pet. ref d) (stating that testimonial statements all involve a declarant s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings ).

Statements made to officers responding to a call during the initial assessment and securing of a crime scene are not testimonial. See Spencer v. State, 162 S.W.3d 877, 880 (Tex. App.--Houston [14th Dist.] 2005, pet. filed); see also Key v. State, --- S.W.3d ----, ----, 2005 WL 467167, at *3-5 (Tex. App.--Tyler Feb.28, 2005, pet. ref d). Here, it was clearly the case that the statements were made during just such a situation. Appellant maintains that Carrillo s inquiries concerning his immigration status indicate that he was cognizant that his statements might be used in a future judicial proceeding. However, in this instance we find that Carrillo had been assured that there were no immigration implications by the 911 operator. Further, under the facts in this case, the predominating impulse to give the statements was the fact of the impending murder. We find no abuse of discretion in admitting the statements under the Crawford holding.

Furthermore, we find that any error was harmless. A Confrontation Clause violation is subject to a harmless error analysis. Mendez v. State, 56 S.W.3d 880, 893 (Tex. App.--Austin 2001, pet. ref d). We are required to reverse the conviction when Confrontation Clause error is presented unless we can determine beyond a reasonable doubt that the error did not contribute to the conviction. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967); Mendez, 56 S.W.3d at 893; see also Tex. R. App. P. 44.2(a). In Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991), the Court of Criminal Appeals adopted the Supreme Court s analysis in Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986), for assessing harm in Confrontation Clause cases. See also De la Rosa v. State, 961 S.W.2d 495, 499 (Tex. App.--San Antonio 1997, no pet.). The Van Arsdall analysis is a three-pronged test. First, the reviewing court must assume that the damaging potential of the cross-examination was fully realized. Second, with that assumption in mind, the court must review the error in connection with the following factors: the extent for cross-examination otherwise permitted; the importance of the witness s testimony in the State s case; whether the testimony was cumulative; the presence or absence of evidence corroborating or contradicting material points of the witness s testimony; and the overall strength of the State s case. Finally, in light of the first two prongs, the court determines if the error was harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438; see also Shelby, 819 S.W.2d at 547.

The State presented a strong case which indicated that Appellant had planned to murder the decedent. Articles intended to dispose of the body were purchased with Appellant s credit card. There was substantial evidence that Appellant was disturbed and felt excluded by the relationship between Long and the decedent. While the medical examiner indicated that it was possible that the wound in Appellant s hand resulted from him grabbing the knife away, Detective Berry unequivocally denied that could have been the case. Long had initially indicated to Detective Berry that he thought Appellant had murdered the decedent albeit he changed his view at trial. This prior statement tended to provide corroboration to the facts alleged in Carrillo s statement. We find beyond a reasonable doubt that the error, if any, was harmless beyond a reasonable doubt. Issue No. Two is overruled.

Insofar as the opinion of the Texas Court of Criminal Appeals remanded this cause specifically referencing only the alleged hearsay statement made to a responding officer, we have confined all discussions to Issue No. Two. Issue No. Two is overruled in its entirety and we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

November 3, 2005

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)