Benavides, Juan Carlos Navarro v. The State of Texas

 
AFFIRM; Opinion Filed June 21, 2012.
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-11-00273-CR
............................
JUAN CARLOS NAVARRO BENAVIDES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-60424-P
.............................................................
OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
 
Juan Carlos Navarro Benavides appeals the trial court's judgment
convicting him of murder. The jury assessed punishment of life
imprisonment. Benavides raises two issues on appeal: (1) the trial court
erred by admitting into evidence an eyewitness's statements that were
irrelevant and unfairly prejudicial, and (2) the trial court erred by
failing to properly instruct the jury regarding the requirements of
accomplice testimony. We decide against Benavides on both issues. The
trial court's judgment is affirmed.
 
I. FACTUAL AND PROCEDURAL BACKGROUND
 
During the early morning hours of August 30, 2008, Sergio
Alanis, Jessie Ortiz, and Benavides were walking from the El Sandia bar
to Alanis's car, parked in the bar's parking lot. While in the parking
lot, Alanis was stabbed and died as a result of his injuries. Ortiz and
Benavides were charged with Alanis's murder.
On August 31, 2008, Benavides telephoned his estranged sister
 
and told her he needed to retrieve a bag because it contained evidence
that he was in a fight the night before. That same day, Benavides
telephoned his sister-in-law and requested that she give him money so he
could buy a bus ticket and travel to Houston. His sister-in-law
testified at trial that he needed to leave town because he had been in a
fight the previous night. When she questioned him about the fight,
Benavides told her that he “sent somebody to the hospital.”
When police questioned Benavides, he denied being at the El
Sandia bar on the night of the offense.
Margaret Ingram, an acquaintance of Ortiz, testified that, at
the time of the offense, she was in another person's car in the El
Sandia parking lot and saw Ortiz hit Alanis over the head. Then, Ingram
said she saw Benavides stab Alanis. A few days after the offense, police
interviewed Ingram where she was shown a photographic lineup of six
individuals and was asked if she recognized anyone in the lineup. Ingram
made a positive identification of the photo of Benavides as being a
picture of the individual that stabbed Alanis and also told the officer
Benavides would kill her for identifying him. At the officer's request,
Ingram wrote down the comments she had made to the officer. She wrote:
“Thats [sic] Carlos. he looks to [sic] skinny his hair is long. He will
kill me.” The interview was also videotaped.
At trial, when the prosecution questioned Ingram about her
interview with police, the prosecution showed Ingram a copy of the photo
lineup as well as the comments she made during her interview. Then, the
 
prosecution offered the photo lineup and written comments as evidence,
but the defense objected. The court excused the jury and held a hearing
to determine the admissibility of the two documents. The defense
specifically objected to Ingram's written comments, in which Ingram had
written that Benavides would kill her. The defense claimed that comment
was bolstering, not relevant, and, alternatively, unduly prejudicial.
The court asked the defense how the admission of Ingram's statement in
written form was any more prejudicial than Ingram orally testifying to
that statement in court. The defense responded that, if such testimony
were elicited, she would object to that as well. The court overruled the
defense's objection and admitted the evidence.
After the hearing, the jury returned to the courtroom and the
prosecution continued questioning Ingram about her interview with
police. After Ingram stated she made a positive identification of
Benavides's picture, the prosecution asked “did you make a comment at
that time?” Ingram responded, “Yes. I was afraid to pick him because I
was afraid he'd kill me too.” No objection was raised.
On cross-examination, the defense offered as evidence the
police's videotaped interview with Ingram, which included Ingram's
statement to police that she was afraid to identify Benavides's photo
because she was afraid he would kill her. Without objection from the
State, it was admitted.
Jesus Guzman, a patron of the El Sandia bar, testified that on
the night of the alleged offense, he saw Benavides with two men in the
 
El Sandia parking lot. A forensic pathologist testified that Alanis died
as a result of “one stab wound on the right side of the neck.” A
forensic biologist testified that material found from under Alanis's
fingernails indicated a mixture of at least two people-Alanis and
Benavides.
Benavides and Ortiz were both indicted for the capital murder of
Alanis. During the guilt/innocence phase of the trial, the State called
Ortiz, among others, to testify. The court's charge contained an
instruction regarding the law of parties, but did not contain an
accomplice-witness instruction. Neither side objected to the charge. The
jury found Benavides guilty of the lesser- included offense of murder
and sentenced him to life imprisonment.
 
II. ADMISSION OF EYEWITNESS'S STATEMENT TO POLICE
 
In his first issue, Benavides argues the trial court erred by
admitting into evidence, over his objection, statements from Ingram, who
told police she was afraid to identify Benavides during the photo lineup
because she was afraid he would kill her. Benavides asserts this
testimony was irrelevant and unfairly prejudicial. The State disagrees.
Further, the State contends that even if the trial court did err in
admitting the evidence, any alleged error was harmless because
appellant's counsel offered as evidence and moved to publish to the jury
the videotape of Ingram, which included Ingram's comment that she was
afraid of Benavides.
 
A. Standard of Review
 
 
 
When reviewing a trial court's ruling on the admission of
evidence, an appellate court applies an abuse of discretion standard of
 
review. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh'g). A trial court abuses its discretion when its decision
lies outside the zone of reasonable disagreement. Green v. State, 934
S.W.2d 92, 101-02 (Tex. Crim. App. 1996).
 
B. Applicable Law
 
 
Relevant evidence is that which has any tendency to make the
existence of any consequential fact more or less probable than it would
be without the evidence. Tex. R. Evid. 401. Generally, all relevant
evidence is admissible. Tex. R. Evid. 402. However, relevant evident may
be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. Tex. R. Evid. 403. “Rule 403 favors
admissibility of relevant evidence, and the presumption is that relevant
evidence will be more probative than prejudicial.” Montgomery v. State,
 810 S.W.2d 372, 389 (Tex. Crim. App. 1990).
If a party believes the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice, it is his
duty to object to the admission of that evidence. Id. In deciding how to
rule on this objection, a trial court should consider its inherent
probativeness; the potential of the evidence to impress the jury in some
irrational, but nevertheless indelible way; the time the proponent needs
to develop the evidence; and the proponent's need for the evidence. Id.
at 389-90.
 
 
C. Application of Law to Facts
 
 
Benavides argues the trial court erred in admitting irrelevant
and unfairly prejudicial evidence of Ingram's comments made to the
 
officer during her interview that she was afraid to identify Benavides
in a photo lineup because she feared he would kill her. The State
responds that Ingram's written comments were relevant not unfairly
prejudicial.
First, we address Benavides's relevance argument. When deciding
whether a particular piece of evidence is relevant, a trial court should
ask whether a reasonable person would believe that evidence is helpful
in determining the truth or falsity of any consequential fact to the
suit. See id. at 376. When shown a photo lineup, which included
Benavides, Ingram told the officer questioning her that she was afraid
to select the photo of Benavides. This statement by Ingram was relevant
because it showed that she identified Benavides as the person that
perpetrated Alanis's murder. Cf. Cantu v. State, 738 S.W.2d 249, 252
(Tex. Crim. App. 1987) (stating that police may sometimes show a witness
a particular suspect's photograph numerous times because the “witness
recognizes a suspect but fears to identify his photograph”).
Next, Benavides argues that Ingram's testimony as to her fear of
identifying a photograph of him from a photo lineup was unfairly
prejudicial and “excites negative emotions against [him].” The State
responds that, although the jury heard Ingram's testimony that she was
scared to pick Benavides's photo out of the lineup, there was no
testimony or evidence presented as to Ingram's prior contacts with
Benavides that would cause her to be scared. This identification of
Benavides by Ingram is highly probative evidence for the State, and
 
while certainly prejudicial to Benavides, we cannot say it is “unfairly
prejudicial.” See Caballero v. State, 919 S.W.2d 919, 922 (Tex.
App.-Houston [14th Dist.] 1996, pet. ref'd) (stating that testimony
which emphasizes the human impact of a crime may be prejudicial to the
defense, but does not necessarily rise to unfair prejudice).
Accordingly, we c on clude the trial court did not abuse its discretion
in admitting the testimony into evidence. Benavides's first issue is
decided against him.
In addition, we note the record shows that when the prosecution
sought to admit Ingram's written comments into evidence, the defense
objected, and the trial court overruled the objection. However, soon
after the court admitted those written comments into evidence, the
prosecution asked Ingram if she made a comment regarding her
identification of Benavides's photo. She replied: “Yes. I was afraid to
pick him because I was afraid he'd kill me too.” While Benavides's
counsel objected to the admission of the written comment in the police
records, there was no objection raised when the prosecutor subsequently
asked Ingram about her comment while on the witness stand. “[I]t is well
settled that an error in admission of evidence is cured where the same
evidence comes in elsewhere without objection; defense counsel must
object every time allegedly inadmissible evidence is offered.” Hudson v.
State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).
 
III. ACCOMPLICE-WITNESS JURY INSTRUCTION
 
 
In his second issue, Benavides argues the trial court erred when
 
it failed to instruct the jury regarding accomplice-witness testimony.
The State agrees failure to include this instruction constituted error,
but argues any error was harmless because the omission of the
instruction did not egregiously harm Benavides.
 
A. Standard of Review
 
 
An appellate court reviews a trial court's submission of jury
instructions under an abuse of discretion standard. Slott v. State, 148
S.W.3d 624, 632 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd)
(citing Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)).
 
B. Applicable Law
 
 
“Texas law requires that, before a conviction may rest upon an
accomplice witness's testimony, that testimony must be corroborated by
independent evidence tending to connect the accused with the crime.”
Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (citing Tex.
Code Crim. Proc. Ann. art. 38.14). An accomplice is a person who
participates in an offense, before, during, or after the commission of a
crime and acts with the required culpable mental state. Cocke v. State,
 201 S.W.3d 744, 748 (Tex. Crim. App. 2006); Paredes v. State, 129 S.W.3d
530, 536 (Tex. Crim. App. 2004); Herron v. State, 86 S.W.3d 621, 631
(Tex. Crim. App. 2002). To participate in an offense, the accomplice
witness must affirmatively act to promote the commission of the offense.
Cocke, 201 S.W.3d at 748; Paredes, 129 S.W.3d at 536. When a co-indictee
testifies for the State against the accused, he or she is an accomplice
witness as a matter of law. East v. State, 702 S.W.2d 606, 616 (Tex.
Crim. App. 1985).
 
If the witness is an accomplice as a matter of law, the trial
court has the duty to instruct the jury of this fact and of the
necessity of corroborative evidence. See Cocke, 201 S.W.3d at 747-48.
Failing to so instruct is error. Herron, 86 S.W.3d at 631.
If an appellate court finds that the trial court erred in
failing to instruct the jury and no objection was made during trial, it
will reverse only if the error is so egregious and created such harm
that the appellant was denied a fair and impartial trial. Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). “[T]he omission of an
accomplice witness instruction is generally harmless unless
corroborating (non-accomplice) evidence is 'so unconvincing in fact as
to render the State's overall case for conviction clearly and
significantly less persuasive.'” Herron, 86 S.W.3d at 632 (quoting
Saunders v. State, 817 S.W.2d 688, 689 (Tex. Crim. App. 1991)).
 
C. Application of Law to Facts
 
 
Because Benavides and Ortiz were both indicted for the capital
murder of Alanis and Ortiz testified for the State against Benavides,
Ortiz was an accomplice as a matter of law. See East, 702 S.W.2d at 616.
Accordingly, the failure of the trial court to instruct the jury of this
fact and the necessity of corroborative evidence was error. Herron, 86
S.W.3d at 631. Because no objections were raised to the failure to
properly instruct the jury, we next consider whether the trial court's
error was egregiously harmful. Almanza, 686 S.W.2d at 171.
The following corroborating (non-accomplice) evidence was
 
adduced at trial: (1) Guzman testified that he saw Benavides with two
men in the El Sandia parking lot on the night of the offense; (2) Ingram
stated she saw Ortiz hit Alanis and saw Benavides stab Alanis; (3)
Benavides admitted via telephone that he “sent somebody to the hospital”
the night of the alleged offense; (4) Benavides told a police detective
that he was not at the El Sandia bar the night of the offense; (5)
according to medical testimony, Alanis died as a result of one stab
wound to the neck; and (6) forensic DNA evidence gathered from the scene
of the crime showed a mixture of at least two people, one of which
corresponded with that of Benavides. Based on this record, we cannot say
the corroborating evidence is “so unconvincing in fact as to render the
State's overall case for conviction clearly and significantly less
persuasive.” Herron, 86 S.W.3d at 632. Accordingly, we conclude the
trial court's error in failing to include an accomplice-witness
instruction to the jury did not egregiously harm Benavides. Benavides's
second issue is decided against him.
 
IV. CONCLUSION
 
 
We conclude the trial court did not err in admitting as evidence
Ingram's written comments. Further, we decide the trial court's error in
failing to instruct the jury regarding accomplice witness testimony did
not egregiously harm Benavides. The trial court's judgment is affirmed.
 
 
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110273F.U05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JUAN CARLOS NAVARRO BENAVIDES, Appellant
No. 05-11-00273-CRV.
 
THE STATE OF TEXAS, AppelleeAppeal from the 203rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No. F08- 60424-P).
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald
participating.
Based on the Court's opinion of this date, the judgment of the
trial court is AFFIRMED.
Judgment entered June 21, 2012.
/Douglas S.
Lang/
DOUGLAS S. LANG
JUSTICE
 
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