Nathan Bernard Guillory v. The State of Texas--Appeal from 174th District Court of Harris County

Opinion issued October 20, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00076-CR

NATHAN BERNARD GUILLORY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 964311

MEMORANDUM OPINION

Appellant, Nathan Bernard Guillory, was charged by indictment with the felony offense of murder by shooting the complainant with a deadly weapon, namely a firearm. See Tex. Pen. Code Ann. 19.02 (Vernon 2003). The primary offense was enhanced by a prior felony conviction for possession of a controlled substance. Appellant pleaded not guilty to the charge and true to the enhancement. See Tex. Pen. Code Ann. 12.42(c)(1) (Vernon Supp. 2004 2005). A jury found appellant guilty as charged and the trial court assessed punishment at confinement for 60 years in prison.

On appeal, appellant argues that (1) the evidence was factually insufficient to support a conviction, (2) out-of-court statements were admitted as impermissible hearsay evidence, (3) out-of-court statements were admitted in violation of the Confrontation Clause of the United States Constitution, and (4) evidence of gang affiliation was admitted as impermissible character evidence.

We affirm.

Background

On September 18, 2003, the complainant, Lamont Hollie, died of a gunshot wound to the chest. An initial investigation revealed most of the background facts. Earlier that day, Hollie had been sitting on the steps of an apartment complex with a friend. The two were drinking beer and trash-talking to passersby. At one point, a woman identified only as Latasha passed by and Hollie asked her for a cigarette. Latasha said no and Hollie began arguing with her. She got mad and threatened to come back with some friends. Latasha left and Hollie and his friend went to the apartment of Rebecca Tijerna, a resident who sold snacks to other residents. While they were inside buying nachos, they heard voices outside calling them back out, and the two left. Later, Tijerna heard shots, but she did not look to see what had happened.

A few weeks later, Delia Rubio, the daughter of Tijerna, contacted police and told them that she had witnessed the murder. She testified at trial that she waited to notify police because she had been threatened not to speak. Feeling she and her children were in danger, Rubio moved to San Antonio and then contacted police.

At trial, Rubio testified that she had seen the earlier argument between Latasha and Hollie and that she had been outside her mother s apartment when Hollie and his friend were in the apartment buying nachos. She saw appellant, Nathan Bernard Guillory, with Latasha and another man, calling for Hollie and his friend to come out. She went inside and told the two to leave because she was concerned about the safety of her children, who were there. Hollie opened the door, and appellant pulled him outside.

Rubio stepped outside and watched the four men fight. Appellant and Hollie were fighting each other. During the fight, Hollie slipped in the mud and fell. Rubio saw appellant then pull a gun out and shoot Hollie multiple times. Both Hollie and his friend ran away. Eventually, Hollie made his way to a parking lot and collapsed. He was found by local police and taken by ambulance to the hospital where he later died.

Factual Sufficiency

In his first issue, appellant argues that the evidence at trial was factually insufficient to support a conviction.

A. Standard of Review and Applicable Law

In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). We must defer appropriately to the fact-finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481 82. Our evaluation may not intrude upon the fact-finder s role as the sole judge of the weight and credibility accorded any witness s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The fact-finder alone determines what weight to place on contradictory testimonial evidence, as it depends on the fact-finder s evaluation of credibility and demeanor. Id. at 408 09. In conducting a factual-sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).B. Analysis

In support of his argument, appellant contends that (1) the State s main witness had poor credibility; (2) there was no physical evidence linking appellant to the murder; and (3) no additional evidence was provided that linked appellant to the murder.

Appellant s first argument is that the State s main witness, Delia Rubio an eyewitness to the shooting, lacks credibility. Appellant points to inconsistencies in Rubio s testimony and highlights character issues that were raised about her. // Because of the inconsistencies and character issues, appellant argues that Rubio s testimony could not factually support a conviction.

A basic tenet of factual sufficiency review is that this court may not reweigh the evidence including reviewing the credibility of witnesses. Cain, 958 S.W.2d at 407. It was for the jury to evaluate any inconsistencies or character issues. Id. A jury s decision is not erroneous merely because the jury resolved the inconsistencies in favor of the State. Ray v. State, 106 S.W.3d 299, 302 (Tex. App. Houston [1st Dist.] 2003, no pet.).

Appellant s second and third arguments are that there was no physical evidence linking appellant to the murder and that no additional evidence was provided linking appellant to the murder other than Rubio s eyewitness testimony. Neither is necessary to support a conviction. // The testimony of a single eyewitness, such as Rubio, is sufficient to support a felony conviction. See Bowden v. State, 628 S.W.2d 782, 784 85 (Tex. Crim. App. 1982) (holding that the testimony of a single eyewitness can be factually sufficient to support a felony conviction). The lack of physical or forensic evidence is only one factor for the jury to consider in weighing

the evidence.

Appellant s first point of error is overruled.

Hearsay

In his second point of error, appellant argues that three out-of-court statements were admitted as impermissible hearsay evidence.

A. Standard of Review and Applicable Law

A trial court s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). An appellate court will not reverse a trial court s ruling unless that ruling falls outside the zone of reasonable disagreement. Id.

Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). An extrajudicial statement or writing that is offered for the purpose of showing what was said rather than for proving the truth of the matter asserted does not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Ellis v. State, 99 S.W.3d 783, 788 (Tex. App. Houston [1st Dist.] 2003, pet. ref d).

B. Analysis

Appellant complains of three people being quoted by another person on the stand. Officer Michael Parrie testified to statements he obtained from two people during his investigation of the murder scene one from Rebecca Tijerna and the other from Gabriel Lerma. Rubio testified to a statement made by Latasha, a woman involved in the argument that preceded the murder.

i. Tijerna and Lerma

During Officer Parrie s investigation of the crime scene, he talked to two people about what they knew about the murder. One was Rubio s mother, Rebecca Tijerna. Tijerna ran a small cantina out of her apartment near the scene of the crime. Over objection, Officer Parrie testified that Tijerna told him that two black men had come into her apartment and had just bought some nachos and she heard a voice calling them back out into the courtyard. A short time after that, she heard gunshots.

Officer Parrie also talked to Gabriel Lerma. Lerma had seen the victim shortly before he had been shot to death. The testimony went as follows:

Q. Did he tell you what exactly did he tell you he saw that evening?

A. He said he observed

[Defense Counsel]: Your honor, I d object at this point as to hearsay.

The Court: That will be overruled. I ll let him answer to show what was made in the context it was taken.

You may proceed.

A. Mr. Lerma said he had seen two black males in that area earlier and they were having a verbal confrontation with a young black female. He also said that the two young males were, I guess, trash-talking to anybody that would walk by. They were sitting on the steps drinking beer. Hey, we got out of prison, we re bad, we re not going to take anything from anybody.

Q. Did Mr. Lerma indicate what the altercation with the black female was about?

A. He said he observed let me see what he said. That the female walked back with a pack of cigarettes and the victim, whom Mr. Lerma apparently knew, asked the female for a cigarette. She told him no and the victim called her a ho and she intimated there was going to be trouble.

Appellant challenges both responses by Officer Parrie. The second response, however, was not properly preserved. In order to preserve error in admitting evidence, a party must make a proper objection and obtain a ruling from the court. Tex R. App. P. 33.1; Valle v. State, 109 S.W.3d. 500, 509 (Tex. Crim. App. 2003). The party is then required to continue to object each time the inadmissible evidence is offered or obtain a running objection. Id. While appellant properly preserved his objection for Officer Parrie s first response, he failed to object again or to obtain a running objection before the second response. We therefore limit our consideration of error to Officer Parrie s testimony about Tijerna and the first part of his testimony about Lerma.

The State argues that Officer Parrie s testimony was not offered to prove the truth of the matter asserted, but to establish the course of events that took place during the officer s investigation. An officer is permitted to testify to information upon which he acted. Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). However, the officer should not be permitted to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports on grounds that she was entitled to tell the jury the information upon which she acted. Id. at 115.

Testimony commonly has an impermissible hearsay aspect as well as a permissible nonhearsay aspect. Id. at 114. In the present case, however, there does not appear to be a permissible nonhearsay aspect. As appellant points out, Officer Parrie had no further involvement in the case beyond conducting the initial scene investigation and no suspects were identified as a result of anything Officer Parrie was told at the scene. Furthermore, because Officer Parrie was already on the scene when he received Tijerna s and Lerma s comments, they were not necessary to establish how he became involved in the case. Officer Parrie s testimony of Tijerna s and Lerma s comments were not necessary for the jury s understanding of any action he or anyone else subsequently took. Therefore, we hold that the trial court erred in admitting the testimony.

Next we must consider if the error resulted in harm. The admission of a statement that is hearsay is non-constitutional error subject to a harm analysis under Rule of Appellate Procedure 44.2(b). Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Non-constitutional error must be disregarded unless it affected the defendant s substantial rights. Tex. R. App. P. 44.2(b). A defendant s substantial rights are affected when the error had a substantial and injurious effect or influence in determining the jury s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight influence on the verdict, the error is harmless. See Johnson, 967 S.W.2d at 417.

Appellant argues that the harm created by this error is that it bolstered Rubio s testimony in that it suggested to the jury that she was believable by giving them the impression there were more witnesses on the scene. Even if we assume this is true, this does not demonstrate a substantial and injurious effect on the jury s verdict. The wrongly admitted testimony did not identify the appellant and it did not describe the events at the time of the shooting. Lerma s statement acknowledged only that Hollie was trash-talking and got in an argument with a woman before he was later shot. Tijerna s statement established only that two black men were called out of her apartment before she heard shots. These statements simply provide the background events surrounding the murder. Accordingly, we hold that the error did not affect appellant s substantive rights.

ii. Latasha

During her testimony, the State asked Rubio what she had heard a woman, identified only as Latasha, say during the fight just before the victim was shot. After the trial court overruled appellant s objection, Rubio testified that she heard Latasha say, Yeah, that s what y all n---ers get for f--king with me.

Here there is no matter to assert, so there cannot be hearsay. Dinkins, 894 S.W.2d at 347. The statement was admitted only to show what Latasha said, not to prove the truth of any matters asserted. We hold that the trial court did not err in admitting this statement.

Appellant s second point of error is overruled.

Confrontation Clause

In his third point of error, appellant objects to the same testimony discussed in point of error number two as a violation of the Confrontation Clause of the United States Constitution. U.S. Const. amend. VI. This objection, however, was not raised at trial.

For appellant to have preserved error, the record must show that he made a timely and specific objection to the admission of the complained-of testimony, and that the trial court made an express or implied ruling on the objection. Tex. R. App. P. 33.1; Tex. R. Evid. 103. The point of error on appeal must comport with the objection made at trial. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). At trial, the appellant objected on the grounds of hearsay. A hearsay objection is not an objection to a violation of the right to confront. Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991). The two are neither synonymous nor necessarily coextensive. Id. Because appellant s complaint on appeal does not comport with his trial objection, he has waived this issue. Tex. R. App. P. 33.1; Thomas, 723 S.W.2d at 700.

Appellant s third point of error is overruled.

Character Evidence

In his fourth point of error, appellant argues that evidence of appellant s gang affiliation was admitted as impermissible character evidence. Tex. R. Evid. 404(b). This objection was not raised at trial.

At trial, the State offered the testimony of Derrick Miles. On the witness stand, Miles testified that he and appellant were members of the Black Disciples. He further stated that the Black Disciples was an organization and not a street gang. At all times relevant to this testimony, however, appellant s only objections to the testimony in question was relevance. In order to preserve error, the point of error on appeal must comport with the objection at trial. Tex. R. App. P. 33.1; Thomas, 723 S.W.2d at 700. Appellant has waived this issue.

Appellant s fourth point of error is overruled.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Jennings, and Higley.

Do Not Publish. See Tex. R. App. P. 47.2(b).