Orlando T. Morales v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

Nos. 04-99-00017-CR & 04-99-00018-CR

Orlando MORALES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court Nos. 96-CR-4514A & 96-CR-4515A
Honorable Sharon MacRae (1) & Honorable Bill M. White (2), Judges Presiding
OPINION ON APPELLANT'S MOTION FOR REHEARING

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 8, 2000

APPELLANT'S MOTION FOR REHEARING DENIED; AFFIRMED

Orlando Morales has filed a motion for rehearing in which he argues that both our analysis and ultimate rejection of his contention that the trial court erred in denying his motion for new trial without an evidentiary hearing are faulty. Although we deny Morales' motion for rehearing, we withdraw our opinion of January 26, 2000, and substitute this one in its place for the sole purpose of clarifying our treatment of that issue.

A jury convicted Morales for the offenses of aggravated assault and murder. In multiple issues on appeal, Morales challenges the factual sufficiency of the evidence and several evidentiary rulings by the trial court. We overrule Morales' challenges and affirm the judgments of the trial court.

Factual and Procedural Background

On April 23, 1996, Joe Mata, a member of the Big Time Kings (BTK) gang, met appellant Morales at Morales' home and planned to shoot Crespin Donnell, a member of a rival gang. Mata disliked Crespin because Crespin's cousin dated Mata's younger sister. Several witnesses overheard Morales state that he would drive Mata in his vehicle to shoot Crespin at a relative's house on Lombrano Street. Close to nine o'clock in the evening, Rogelio and Sonia Lozano returned with their two small children to their home on Lombrano. As they exited their vehicle, multiple shots were fired. Rogelio was fatally wounded and Sonia was shot in the leg. The bullets recovered from the scene and the victims matched the gun which witnesses testified Mata possessed that evening. Two days later, Mata shot Crespin on Lombrano Street. A jury found Morales guilty of aggravated assault and murder, sentencing him to a suspended sentence of community supervision for ten years for the assault and fifteen years incarceration for the murder conviction.

Factual Sufficiency

In his first issue, Morales argues the evidence is factually insufficient to support his conviction because no direct evidence exists that he drove the vehicle involved in the shooting outside the Lozano residence.

We review challenges to factual sufficiency in criminal cases without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Deference should be given to the trial court so that the appellate court is not merely substituting its judgment. Id. at 135. Even in factual sufficiency reviews, the jury, as trier of fact, remains the sole judge of witness credibility. Anderson v. State, 895 S.W.2d 756, 757 (Tex. App.-Texarkana 1994, no pet.).

Turning to the instant case, a review of the record reveals that several witnesses testified that Morales agreed to drive his vehicle with Mata as a passenger to shoot Crespin. Chris Sandoval testified that on the night of the shooting, several people gathered at Morales' house to smoke marijuana and drink beer. He testified that Mata stated he wanted to shoot Crespin and Morales volunteered to drive. Sandoval further testified that Mata revealed his anger at hitting the wrong person on the night the Lozanos were shot. He testified that Morales and Mata discussed how to get rid of Morales' car "just in case anybody saw." Eddie Lopez, also present at Morales' home the night of the shooting, corroborated Sandoval's testimony. Lopez stated that Morales agreed to drive Mata to shoot Crespin. Lopez also testified that he heard Morales and Mata discuss trading in Morales' car to cover any identification problems. Lopez later observed Morales driving a different car. In light of this testimony, it does not appear that the jury's finding was manifestly unjust, demonstrated bias, or shocked the conscience. Clewis, 922 S.W.2d at 135. Point of error number one is overruled.

Evidentiary Rulings In his second through fifth issues, Morales challenges the trial court's admission of evidence that Mata shot Crespin two days after the Lozano shooting. Morales complains the trial court erred in admitting this evidence because it was irrelevant, improper character evidence, unduly prejudicial, and in violation of notice requirements specified in the rules of criminal procedure.

We review the trial court's exclusion of evidence under an abuse of discretion standard. Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832 (1997). A trial judge abuses his discretion if he acts arbitrarily and unreasonably, without reference to any guiding rules or principles. See Breeding v. State, 809 S.W.2d 661, 663 (Tex. App.-Amarillo 1991, pet. ref'd).

Even if we assume that the trial court abused its discretion in admitting the evidence of Mata's subsequent shooting of Crespin, the error is harmless. We must disregard a non-constitutional error, such as a violation of an evidentiary rule, that does not affect substantial rights of the defendant. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (treating violation of rules of evidence as non-constitutional error). A substantial right is 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). Factors relevant to our determination of whether the error affected Morales' substantial rights include the quantum of evidence properly admitted, the extent to which the improper evidence was emphasized by the prosecution, and whether the prosecutor sought to improperly taint the jury's mind before the court could act. See Rodriguez v. State, 974 S.W.2d 364, 370 (Tex. App.-Amarillo 1998, pet. ref'd).

We first consider the quantum of evidence properly admitted. See King, 953 S.W.2d at 272; accord Rodriguez, 974 S.W.2d at 370. Here, the State presented testimony from two key witnesses who testified that Morales agreed to drive Mata to shoot Crespin on the night the Lozanos were shot. The jury heard testimony from Sandoval, who stated that while he was at Morales' house, he heard Morales, Mata, and a third co-actor, Gilbert Ortiz, planning to shoot Crespin on the night the Lozanos were shot. The day after the Lozanos were shot, he testified that he discussed the shooting with Mata in the presence of Morales. Sandoval testified that Mata was angry "because he hit the wrong person." Sandoval stated that at no time during the discussion did Morales deny his involvement in the shooting. Further, Sandoval heard Morales and Mata discuss how to dispose of Morales' car. The jury also heard testimony from Lopez who also attended the gathering outside Morales' house on the night of the Lozano shootings. Lopez corroborated Sandoval's testimony that Morales agreed to drive Mata. He testified that he observed Morales get into the driver's seat of his car, Mata take the passenger side, and Ortiz and Elias Gomez occupy the backseat. Approximately fifteen to twenty minutes after the group left Morales' house, Lopez heard gunshots. Soon thereafter, he encountered Gomez, who Lopez testified appeared sweaty, out of breath, and nervous. Consistent also with Sandoval's testimony, Lopez later overheard Morales and Mata discuss how to trade Morales' car. Lopez also testified that during this cover-up discussion he heard Morales state, "get the story straight." Morales contests the credibility of these witnesses on the grounds of contradiction during cross-examination. Morales takes issue with conflicts over where these discussions at Morales' house took place, specifically, whether they took place under the carport or on a porch. We classify these distinctions as merely semantics noting that regardless of the specific location on Morales' drive, the discussions took place. In any event, we decline to second-guess the jury's role as arbiter of credibility issues. See Anderson, 895 S.W.2d at 757. Further, the jury is entitled to draw reasonable inferences from the facts introduced at trial. Kapuscinski v. State, 878 S.W.2d 248, 249 (Tex. App.-San Antonio 1994, pet. ref'd).

In addition to the degree of testimony introduced, we note that evidence of the subsequent shooting was not emphasized by the prosecution throughout the course of the trial. Although the State did question several witnesses concerning their knowledge of the subsequent shooting, the point was not belabored throughout the course of the trial. Rather, a review of the record reveals the focus of the trial centered on Morales's involvement in the shooting at the Lozano residence. Thus, with respect to our third consideration, we do not believe that the State sought to improperly taint the jury's mind. Regardless, we hold that the introduction of this evidence was harmless when weighed against the countervailing testimony which linked Morales to the Lozano shootings. Points of error numbers two through five are overruled.

Motion for New Trial

In his final point of error, Morales argues the trial court erred in denying his motion for new trial without conducting an evidentiary hearing. As a preliminary matter, the State argues Morales failed to file a motion for new trial and waived any error. The record contains Morales' motion along with the trial court's denial, thus this issue is preserved for our review.

In his motion for new trial, Morales alleges that the State withheld exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Within his motion, Morales included an affidavit from Reynaldo Martinez, an investigator. In his affidavit, Martinez explains that he had a conversation with Eddie Lopez, one of the State's key witnesses, who made the following statements:

(1) "the District Attorney told him not to talk to anybody;"

(2) "the D.A.'s office told him that Elias stated that it was Eddie and Daniel who shot and killed Mr. Lozano;" and

(3) "the D.A.'s office kept pressure on him to sign his statement or go to jail."

Morales argues that he is entitled to a hearing on his motion for new trial in light of Lopez's statements contained in Martinez's affidavit. See McIntire, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985). In response, the State contends none of the statements entitle Morales to a new trial because they are inadmissible hearsay and have no bearing on the ultimate outcome of the trial. We agree with the State's position.

The right to a hearing on a motion for new trial is not an absolute right. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). We review the trial judge's decision to deny a hearing on a motion for new trial under an abuse of discretion standard. State v. Gonzales, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). When a motion for new trial presents matters that are not determinable from the record, the trial judge abuses his discretion by failing to hold a hearing. Reyes, 849 S.W.2d at 816. Because an unrestricted requirement of holding hearings on matters not determinable from the record could lead to "fishing expeditions," the motion must be supported by an affidavit of the defendant or someone else, specifically showing the truth of the grounds alleged as a basis for a new trial. Id. The trial court need not consider an affidavit that contains inadmissible evidence. See Martin v. State, 823 S.W.2d 391, 393 (Tex. App.-Texarkana), pet. ref 'd, 830 S.W.2d 137 (Tex. Crim. App. 1992).

Here, although Morales' motion for new trial alleged matters not determinable from the record, we are unable to conclude that the trial court abused its discretion in failing to hold a hearing on his motion in which he complained about the withholding of exculpatory evidence. Exculpatory evidence is evidence which tends to justify, excuse or clear the defendant from alleged fault or guilt. Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992). Statements one and three (3) contained in Martinez's affidavit, even if true, would not excuse or clear Morales of the allegations of committing aggravated assault and murder. That is, the investigative techniques employed by the District Attorney's office had no bearing on the historical facts surrounding Morales' involvement in the shootings at the Lozano residence. The statements are not properly considered exculpatory, and thus the trial court was not required to hold a hearing to develop those issues. Moreover, the statements are hearsay and do not constitute admissible evidence. See Martin, 823 S.W.2d at 393. Lopez's second statement - his contention that "the D.A.'s office told him that Elias stated that it was Eddie and Daniel who shot and killed Mr. Lozano" - likewise did not require the trial court to hold a hearing on Morales' motion because it is hearsay within hearsay, which is clearly inadmissible evidence. See Tex. R. Evid. 805 (requiring that, to be admissible, each part of hearsay within hearsay must conform to hearsay exception); see also Martin, 823 S.W.2d at 393. Neither Lopez nor Martinez, for example, witnessed the shooting, and therefore, any statements either man made regarding the identity of the shooter would be inadmissible under Rule of Evidence 602. See Tex. R. Evid. 602 (providing that witness may only testify to matters of which he has personal knowledge). Because the supporting affidavit was deficient, the trial court did not abuse its discretion by failing to hold a hearing on the motion for new trial. See Jordan, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). Point of error number six is overruled.

The judgments of the trial court are affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. The Honorable Sharon MacRae presided in cause number 96-CR-4514A.

2. The Honorable Bill White presided in cause number 96-CR-4515A.

3. Statement one is Lopez's contention that "the District Attorney told him not to talk to anybody." Statement three is Lopez's contention that "the D.A.'s office kept pressure on him to sign his statement or go to jail."