Gilbert Rodriguez IV v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed and Memorandum Opinion filed February 19, 2008

Affirmed and Memorandum Opinion filed February 19, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00307-CR

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GILBERT RODRIGUEZ IV, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 1052781

M E M O R A N D U M O P I N I O N

A jury convicted appellant, Gilbert Rodriguez IV, of capital murder and the trial court imposed a life sentence. Appellant raises three issues on appeal, claiming that: (1) the trial court erred by permitting the State to impeach him with an impermissible hearsay telephone conversation; (2) the trial court erroneously allowed the State to question his wife after she invoked the husband-wife privilege; and (3) the Texas statutory scheme is unconstitutional because it permits the State to seek a life sentence without parole. We affirm.

Background

Because appellant has not challenged the sufficiency of the evidence, we discuss the facts only briefly here to provide context and then as necessary throughout the opinion to address appellant=s issues.

In the early morning hours of January 7, 2006, appellant, his wife Samaria Rodriguez, Julio Falcon, and Falcon=s former girlfriend, 14-year-old Xochitl Diaz, were arguing at appellant=s house about an alleged sexual relationship between appellant and Diaz. Appellant and Falcon decided to Atake care of@ Diaz. Diaz was shoved into the trunk of appellant=s car and appellant and Falcon drove off. Diaz escaped from the trunk but was immediately captured and thrown back into the trunk. Later, appellant and Falcon stopped the car at the intersection of a subdivision. As Diaz was laying in the street, she was kicked numerous times, shot twice in the head, and then left dead and partially clothed in the street. At trial, there was conflicting evidence as to whether appellant or Falcon fired the shots that killed Diaz.

Analysis

1. Hearsay

In his first issue, appellant contends the trial court erred by permitting the State to impeach his co-defendant Falcon with prior inconsistent statements regarding the nature of appellant=s participation in Diaz=s murder. At trial, Falcon claimed that he shot Diaz; however, during a jailhouse telephone conversation with his aunt recorded months before trial, Falcon denied having shot Diaz himself and claimed he was Ajust a party@ to the shooting.

Appellant argues that Falcon never denied making the prior statements when confronted by the State during trial;instead, Falcon insisted he did not remember making them. Appellant also claims that the State impermissibly used Falcon as a Astrawman@ solely to impeach Falcon with otherwise inadmissible statements on a collateral matter when those statements were not mentioned on direct examination.

We review a trial court=s evidentiary ruling for abuse of discretion. Hammons v. State, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007). As long as the trial court=s ruling is within the zone of reasonable disagreement, we will not intercede. Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). A party may impeach a witness with evidence of a prior inconsistent statement if the party first presents the witness with the existence of the statement; describes the details and circumstances surrounding the statement; and then gives the witness an opportunity to explain or deny the statement. Tex. R. Evid. 613(a). If the admission is partial, qualified, or otherwise equivocal, or if the witness disclaims any memory of making the statement, then the prior statement is admissible for impeachment purposes. Ruth v. State, 167 S.W.3d 560, 566 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d); see also Tex. R. Evid. 613(a); McGary v. State, 750 S.W.2d 782, 786 (Tex. Crim. App. 1988).

The defense called Falcon as a witness. On direct examination, Falcon asserted that appellant did not know of Falcon=s plan to kidnap and kill Diaz. During cross-examination, Falcon again stated that appellant was an unwilling participant who knew nothing about Falcon=s plan to kidnap and shoot Diaz. The State then cross-examined Falcon about statements he made while in jail in February 2007 during a recorded telephone conversation with his aunt. The following exchange occurred before the trial court allowed the State to play a tape of the telephone conversation:

THE STATE: And you spoke to her after you took the plea bargain for B that included a plea of guilty and a capital life sentence, correct?

WITNESS: Yes, ma=am.

THE STATE: And do you recall B and that was on February 2nd, 2007, right?

WITNESS: I think so.

THE STATE: You know that your phone calls there at the jail are recorded?

WITNESS: Yeah, I know.

THE STATE: And in that telephone call to her on February 2nd, 2007, you told her that you were taking the rap for both you and [appellant] because there was no use in both you going down. Do you remember that?

WITNESS: I think. I don=t know. Not really sure.

THE STATE: You told her that you weren=t even the shooter, that you were just a party to it. Do you remember telling her that?

WITNESS: No, I don=t.

* * *

THE STATE: And that=s what you told your auntie, isn=t it? You said the reason you pled guilty was because you had something to do with it even though you weren=t the shooter; isn=t that right?

WITNESS: No, I don=t recall saying that.

THE STATE: Okay. But it would be on that telephone call that you said you did make, if we had that, right?

WITNESS: I guess.

This exchange confirms that Falcon was told the contents of his prior inconsistent statements, the time and place they were made, and to whom they were made. The State provided Falcon with an opportunity to admit, explain, or deny the prior statements. Falcon=s responses were equivocal. Falcon repeatedly responded that he could not remember making the prior statements. This equivocation establishes a sufficient basis to admit Falcon=s prior statements. See Ruth, 167 S.W.3d at 566.

Appellant also contends the State Abootstrapped@ the hearsay telephone conversation into evidence to impeach Falcon. Appellant argues that the February 2007 telephone conversation was never mentioned by the defense on direct examination, and was only developed through cross-examination regarding an otherwise inadmissible collateral matter. This argument is not preserved because appellant failed to make this argument in the trial court. In any event, nothing in Rule 613(a) requires a witness to discuss his prior inconsistent statements on direct examination to permit impeachment on cross-examination. See Tex. R. Evid. 613(a). Appellant=s further argument that Falcon=s statements concern a collateral matter is without merit and is not supported by the authorities cited in his brief.

Appellant misplaces his reliance on Pruitt v. State, 770 S.W.2d 909, 910-11 (Tex. App.CFort Worth 1989, pet. ref=d), in which the court held the State may not avoid the hearsay rule by calling a hostile witness to elicit otherwise inadmissible impeachment testimony. Appellant likewise misplaces his reliance on Sills v. State, 846 S.W.2d 392, 395-96 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d), in which the court rejected the tactic of calling a witness on direct examination and admitting his written statement to impeach him as an impermissible Aback-door@ effort to introduce facts the witness repeatedly had refused to testify about at trial. Both cases are readily distinguishable because the State chose not to call Falcon as a witness, knowing he would be hostile to the State. Rather, appellant called Falcon as a witness and the State cross-examined him. When Falcon equivocated during cross-examination about a prior statement that described appellant=s role in Diaz=s murder far differently from the description offered on direct examination, the State was entitled to impeach Falcon. Appellant cannot accurately assert that the State called Falcon solely to impeach him. The State did not call Falcon at all.

Lastly, appellant relies on Shipman v. State, 604 S.W.2d 182, 183 (Tex. Crim. App. 1980). There, the Court of Criminal Appeals held that when a witness is cross examined on a collateral matter, the cross examining party may not then contradict the witness=s answer. Id. A matter is collateral if the cross examining party would not be entitled to prove that matter as part of his case tending to establish his plea. Id. at 184.

Here, the State did not cross-examine Falcon on a collateral matter. Instead, the State questioned him regarding appellant=s participation in the murder of Diaz, which is the central issue in the case. The trial court did not err in allowing the State to impeach Falcon with his prior inconsistent statements.

We overrule appellant=s first issue.

2. Husband-Wife Privilege

In his second issue, appellant argues the trial court erroneously permitted the State to question his wife as a witness. Appellant contends that his wife invoked the husband-wife privilege when she responded in the affirmative to the State=s question, AWould it be fair to say you don=t really want to be here testifying against your husband? Is that fair to say?@ In a criminal case, the accused=s spouse has a privilege not to be called as a witness for the State; however, she is not prohibited from testifying voluntarily for the State. Tex. R. Evid. 504(b)(1). The spouse=s privilege not to be called as a witness for the State does not apply in any proceeding in which the accused is charged with a crime against a minor. Tex. R. Evid. 504(b)(4)(A); see also Ludwig v. State, 931 S.W.2d 239, 244 (Tex. Crim. App. 1996); Hernandez v. State, 205 S.W.3d 555, 559 (Tex. App.CAmarillo 2006, pet. ref=d).

Appellant=s invocation of the spousal privilege provides no basis for reversal. The spousal privilege is inapplicable under Rule 504(b)(4)(A) because appellant was charged with the capital murder of Diaz, who was 14 years old at the time of the murder and therefore a minor. Because appellant=s wife could not claim a privilege, the trial court did not err by permitting the State to call appellant=s wife as a witness. Additionally, although the defense initially objected to the State calling appellant=s wife as a witness based on spousal privilege, the defense withdrew that objection before his wife was called. Appellant provides no authority to establish that the trial court had a duty to act sua sponte to prohibit the State from questioning his wife.

We overrule appellant=s second issue.

3. Sentencing

In his third issue, appellant equates the Texas statutory scheme permitting the State to seek a life sentence without parole in a capital murder case with a death sentence that bypasses (1) the Texas statutory provision allowing only a jury to assess a death sentence; (2) a sentencing hearing; (3) a capital defendant=s right to present mitigating evidence to avoid a death sentence; and (4) the right to have the mitigating issue decided by a jury.[1]

A defendant in a criminal case has no constitutional right to have the jury assess his punishment. Laird v. State, 933 S.W.2d 707, 715 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). However, Texas provides a statutory right to have the jury assess punishment. Id. The legislature may alter or abolish the procedure whereby the jury assesses punishment within the bounds of due process and other constitutional strictures. Id. Under Texas law, an automatic life sentence is mandatory when the State does not seek imposition of the death penalty for a capital offense. See Tex. Penal Code Ann. ' 12.31(a) (Vernon 2005); see also Tex. Code Crim. Proc. Ann. art. 37.071, ' 1 (Vernon 2006). When the State waives the death penalty in a capital murder case, it has conceded the punishment question and there is no need for evidence of mitigating factors because no greater punishment than the minimum punishment permitted for the offense may be imposed. See Laird, 933 S.W.2d at 714.

A sentencing scheme that calls for an automatic sentence of life imprisonment, rather than an individualized punishment determination, does not violate the Constitution. See Harmelin v. Michigan, 501 U.S. 957, 995 (1991). It is well-established that the automatic life sentencing provision of the Texas capital sentencing framework is constitutional. See, e.g., Cienfuegos v. State, 113 S.W.3d 481, 495-96 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (imposition of automatic life sentence for conviction as a party to capital murder does not offend Constitution); Barnes v. State, 56 S.W.3d 221, 239 (Tex. App.CFort Worth 2001, pet. ref=d) (imposition of automatic life sentence on juvenile defendant is not unconstitutional); Laird, 933 S.W.2d at 714-15 (same).

Appellant cites no relevant authority supporting his argument. Further, there is no authority to substantiate his claim that a sentence of life imprisonment without parole is equivalent to a death sentence that can be assessed only by a jury. The United States Supreme Court explained that there is a qualitative difference between the death penalty and all other forms of criminal punishment because the death penalty is irrevocable. See Harmelin, 501 U.S. at 995. Because life imprisonment differs from a death sentence, there is no right to an individualized punishment determination with respect to a life sentence. See id. Nor is there any mitigating issue for a jury to decide. And because there is no mitigating issue, there is no need to present mitigating evidence. Appellant received the minimum sentence of life imprisonment. Therefore, we overrule appellant=s third issue and affirm the trial court=s judgment.

/s/ William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed February 19, 2008.

Panel consists of Chief Justice Hedges, Justices Anderson, and Boyce.

Do not publish C Tex. R. App. P. 47.2(b).

[1] Because appellant does not argue or provide authority to establish that his protection under the Texas Constitution differs from or exceeds that provided to him by the United States Constitution, we need not address his state constitutional claim. See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993).