Jesse Rincon v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-01-00565-CR
Jesse RINCON,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2000CR6381A
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 19, 2003

AFFIRMED

Jesse Rincon was convicted of murder and sentenced to life imprisonment and a $10,000 fine. On appeal, Rincon argues that the trial court erroneously allowed the State to elicit hearsay testimony, that it erred in permitting inadmissible victim-impact evidence during the punishment phase, and that the State impermissibly commented on the failure of Rincon to testify during the punishment phase of the trial. We overrule all three issues and affirm the judgment of the trial court.

Background

In the early morning hours of April 28, 2000, Rincon was driving his Ford Ranger pickup truck north on Bandera Road in Bexar County, Texas. Accompanying Rincon was Felix Rodriguez, who was sitting in the passenger seat. Following Rincon's vehicle was Monica Gonzalez, Rincon's cousin, and Yvonne Rincon, Rincon's sister. The foursome had left the annual Fiesta celebration in downtown San Antonio and were traveling north on Bandera Road on their way to a relative's home. Because of construction on Bandera Road, the road narrowed to a single lane. A black Pontiac Trans Am was moving slowly immediately in front of Rincon's pickup truck. According to Rodriguez, Rincon was angry because the driver of the Trans Am was driving too slowly. Rincon tailgated the Trans Am until Bandera Road opened up to three lanes of traffic. Rincon then drove his pickup truck into the left lane, while Sandra Villarreal, the driver of the Trans Am, drove her car into the middle lane. Accompanying Sandra Villarreal were Mark and Michael Roman. Both cars then stopped at a stop-light at the intersection of Bandera Road and Interstate Loop 410.

According to Rodriguez, Rincon yelled and cursed at Villarreal for driving so slowly. The windows of both vehicles were down. The occupants of Villarreal's car yelled back. The male occupants from both vehicles then got out from their respective vehicles and began fighting in the middle of the street. According to Rodriguez and Rincon, one of the male occupants of Villarreal's car threatened to get a gun. Villarreal, however, testified that Rodriguez yelled for Rincon to give him a gun. Rincon climbed back into the pickup truck while Rodriguez kicked the side panel of Villarreal's Trans Am before also getting back into the pickup. In retaliation for this kick, Michael Roman began to walk toward the pickup truck when it drove off, running the red light at the intersection.

After driving through the intersection, Rincon did not continue driving but, instead, stopped his pickup truck underneath Loop 410's overpass. Rodriguez then got out of the pickup truck and walked across the street, holding a crowbar in his hands. When the light turned green, Villarreal drove the Trans Am through the intersection and under the overpass. As the Trans Am passed him, Rodriguez threw the crowbar at the windshield, breaking it. Villarreal then pulled off to the side of the road to check the damage to the Trans Am. Villarreal, Michael Roman, and Mark Roman exited the car. As they were standing on the side of the road, the pickup truck accelerated quickly, moving to the right from the left side of the street, and struck Villarreal, Michael Roman, and Mark Roman. Rincon was driving the pickup truck. As a result of his injuries, Mark Roman died.

Excited Utterance

Texas Rule of Evidence 803(2) provides that 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" is an exception to the hearsay rule "even though the declarant is available as a witness." Tex. R. Evid. 803(2). In determining whether a statement is an excited utterance, the pivotal inquiry is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event." King v. State, 953 S.W.2d 266, 269 (Tex. Crim. App. 1997). The time elapsed between the occurrence of the event and the utterance is only one factor considered in determining the admissibility of the hearsay statement. Id.; Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995). We review the trial court's admission of this evidence under an abuse of discretion standard and will uphold the decision as long as it falls within the "zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).

Rincon argues that the trial court erred in overruling his objection to Officer Rudolph A. Smith testifying about an unidentified witness's statements. Officer Smith testified that on the night of the incident, he was at a restaurant located very close to the intersection in question. He had just sat down when a man approached him and informed him that there had been some kind of accident and that somebody had been struck by a vehicle. Smith quickly left the restaurant and ran across the parking lot to the scene of the incident. About fifteen minutes after he arrived on the scene, he spoke with a witness, who according to Smith, was "agitated, hyped up, you know, frantic." Over Rincon's objection, Smith then testified about what the witness said at the scene:

When I first found out he was a witness to this, I asked him where he was at. And he told me he was over here - there's an Exxon station - there's an Exxon station right over here by the access road. He told me he was parked in the parking lot here, and when he looked southbound on Bandera, which was going this way, he observed a vehicle coming this way here, which appeared to be either a green or black small pickup truck, which he thought was a Ford Ranger, because he said he had one like that. He said he saw the vehicle going northbound and intentionally run into the car that was parked on the side of the road.... He said the vehicle accelerated from the parked position to as fast as the vehicle would run. He accelerated to the highest possible...

The prosecutor then asked Smith whether the witness indicated if the vehicle had swerved in any manner before it struck the three victims. Smith responded, "No sir. He said it made a direct line to the vehicle." According to Smith, the witness then stated that he had not heard screeching that tires make when the driver is trying to stop the vehicle quickly. All the witness heard was acceleration. After the pickup truck struck the victims, it continued northbound on Bandera.

Rincon argues that these hearsay statements were inadmissible under the excited utterance exception, because they were made by an unknown declarant and Smith did not testify that the witness was "still under the throes of the event described." While Rincon concedes that statements by unidentified declarants have been admitted as excited utterances, he "submits that it should be another factor for the court to consider in determining if the trial court abused" its discretion. Smith testified that the witness had approached him minutes after witnessing a tragic incident which left three people bloodied in the middle of the road. And, Smith testified that the witness was "agitated," "hyped up," and "frantic." We hold that the trial court did not abuse its discretion in finding that Smith's testimony had sufficiently shown that the declarant was still dominated by the emotions, excitement, fear, or pain of the event.

Even had the trial court abused its discretion in admitting the statements, any error would be harmless. Texas Rule of Appellate Procedure 44.2(b) provides that non-constitutional errors are harmless unless they affect substantial rights. Tex. R. App. P. 44.2(b); Drew v. State, 76 S.W.3d 436, 459 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd). It is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Aguilera v. State, 75 S.W.3d 60, 68 (Tex. App.--San Antonio 2002, pet. ref'd). Felix Rodriguez testified that the black Ford Ranger that Rincon was driving took off "just hauling ass" when it hit the three victims in the Trans Am. April Flaherty, a witness to the incident, testified that she saw a black or dark green pickup truck traveling at a high speed "slam" into the victims. Two other witnesses, Joel Martinez and Gina Carrillo, testified that the pickup truck never slowed down before it hit the three victims. The same facts, therefore, were proved by other properly admitted evidence. We overrule Rincon's first issue.

Victim-Impact Evidence

In his second issue, Rincon argues that the trial court "erred in permitting the State to offer inadmissible evidence at the punishment phase of the trial of the impact of the offense on the victim and their survivors." Rincon concedes that he failed to object to this testimony at trial. Nevertheless, he argues that he has not waived this issue, because the error is fundamental. Generally, counsel must object to preserve error on appeal. Tex. R. App. P. 33.1. However, pursuant to Texas Rule of Evidence 103(d), appellate courts may take "notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Tex. R. Evid. 103(d); see Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality opinion).

Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly.

Blue, 41 S.W.3d at 131 (quoting Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993), overruled on other grounds, by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)).

Examples of these kind of rights are a defendant's right to the assistance of counsel and his right to a jury trial. Marin, 851 S.W.2d at 279. "The State may not successfully put [a defendant] to trial without counsel or jury merely because he voiced no objection to the procedure. Rather, it must first obtain his permission by express waiver--waiver which is not sufficient in contemplation of the law unless it amounts to the intentional relinquishment or abandonment of a known right or privilege." Id. (citations omitted). In Marin, the court of criminal appeals explained that by classifying a right, the court can determine if the right is fundamental:

Rights belonging to litigants in our system of justice may be classified, and are almost invariably implemented, in this way. All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say "that even constitutional guarantees can be waived by failure to object properly at trial," we mean that some, not all, constitutional rights may be forfeited. On the other hand, certain, relatively few, rights must be protected by the system's impartial representatives unless expressly waived by the party to whom they belong. Determining which category a right occupies will usually settle the question of procedural default in the context of a particular case.

Id. Marin then discussed the three types of "rights" in our legal system: (1) absolute requirements and prohibitions that are not waivable (e.g., that the case be tried by a court with jurisdiction); (2) rights of litigants that must be implemented unless expressly waived (e.g., the right to a jury trial); and (3) rights that are implemented on request only (e.g., objections to testimony or evidence). Id. Here, Rincon complains that the victim-impact evidence offered during the punishment phase was irrelevant, being beyond the scope of the punishment hearing. Objections to testimony or evidence fall within the third category of rights, rights that are implemented on request only. Being a right that is implemented on request only, it cannot be a fundamental right. By not objecting to the evidence when it was first presented, Rincon failed to preserve this issue for appeal. Tex. R. App. P. 33.1. We overrule Rincon's second issue.

Jury Argument

Rincon testified during the guilt/innocence phase of the trial, but chose not to testify during the punishment phase. In his final issue, Rincon argues that the prosecutor improperly commented on Rincon's failure to testify at the punishment phase of the trial. Rincon, however, failed to object to these comments. "Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." (1)

Valencia v. State, 946 S.W.2d 81, 82-83 (Tex. Crim. App. 1997). By failing to object, Rincon failed to preserve this issue for appeal. Id.; see Tex. R. App. P. 33.1.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. Before Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), the general rule was that any impropriety in the prosecutorial argument was waived by a defendant's failure to make a proper and timely objection unless the prosecutor's argument was so prejudicial that an instruction to disregard will not cure the harm. This exception, however, was overruled in Cockrell. The Cockrell court held that such an exception could no longer be sustained in view of Rule of Appellate Procedure 52(a) [now Texas Rule of Appellate Procedure 33.1] and its previous decision in Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).