Cynthia Tate Villegas v. The State of Texas--Appeal from 79th Judicial District Court of Jim Wells County

OPINION
No. 04-02-00866-CR
Cynthia Tate VILLEGAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 79th Judicial District, Jim Wells County, Texas
Trial Court No.01-06-10713-CR
Honorable Ricardo H. Garcia , Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice (concur in judgment only)

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: January 14, 2004

AFFIRMED

Appellant Cynthia Tate Villegas was indicted on a single count of murder. Following a jury trial, Villegas was convicted and sentenced to twenty years' imprisonment. Villegas now appeals her conviction in three issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In her first issue, Villegas contends the trial court erred in allowing evidence of her failure to appear at a pre-trial hearing to be presented at trial. The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990); Avila v. State, 18 S.W.3d 736, 739 (Tex. App.--San Antonio 2000, no pet.). As long as the trial court's ruling was within the zone of reasonable disagreement, there is no abuse of discretion and the trial court's ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996); Avila, 18 S.W.3d at 739.

Although Villegas was present for a continuance hearing in January of 2002, on February 8, 2002, her surety and attorney of record filed an affidavit, stating that he had unsuccessfully attempted to reach Villegas numerous times and had been informed by Villegas's family that she had left the jurisdiction of the court and had no intention of returning for trial. The court subsequently issued a warrant for Villegas's arrest as prescribed under the Texas Code of Criminal Procedure on February 11, 2002. Tex. Code Crim. Proc. Ann. art. 17.19 (Vernon 2003). On February 14, 2002, a judgment nisi was issued. Villegas was arrested in Webb County on May 25, 2002. Trial began on September 16, 2002. At trial, Villegas objected to the introduction of the court's order issuing the warrant, order issuing the alias capias, and the judgment nisi. Counsel for Villegas claimed that, because she did not have actual notice of the February 14th hearing, evidence of her absence should not have been introduced to the jury. The court expressly overruled Villegas's objections. (1)

Evidence of flight is admissible as a circumstance from which an inference of guilt may be drawn. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Cantrell v. State, 731 S.W.2d 84, 92 (Tex. Crim. App. 1987); Suarez v. State, 31 S.W.3d 323, 327 (Tex. App.--San Antonio 2000, no pet.). Evidence of flight, unlike many other extraneous offenses, shows a consciousness of guilt of the crime for which the defendant is on trial. Bigby, 892 S.W.2d at 884. However, to support the admission of evidence of flight it must appear that the flight have some legal relevance to the offense under prosecution. Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982). To have such evidence excluded under a relevancy challenge, the burden shifts to the defendant to show affirmatively that the flight was directly connected to some other transaction and further that it was not connected with the offense at trial. Id.

Villegas failed to affirmatively show that her flight to Mexico was directly connected to some other transaction and not to the offense at trial. The only argument presented was lack of notice. The trial court's ruling, therefore, was not outside of the zone of reasonable disagreement. See Rachal, 917 S.W.2d at 807; Avila, 18 S.W.3d at 739. The trial court did not abuse its discretion in allowing the evidence of Villegas's flight to be presented to the jury. We overrule Villegas's first issue.

2. In her second issue, Villegas argues the trial court erred in refusing to allow her the right to testify in her own defense. Although Villegas did, indeed, testify at trial, the court did not allow her statement regarding an incident related to her by the victim, who was her husband at the time of the murder, which involved him holding his first wife and children at gunpoint. The court disallowed the testimony on the grounds that it was hearsay and based on statements others had told Villegas, rather than on her own experience. Villegas argued that the statement of the victim should be admitted in order to show her state of mind at the time of the murder. The court nevertheless sustained the objection. Immediately following Villegas's testimony, the defense fully questioned the victim's first wife regarding the incident. The exclusion of this statement, argues Villegas, was in violation of Texas Code of Criminal Procedure article 38.36 and denied her the right to a fair trial.

As stated above, the admission or exclusion of evidence is a matter within the sound discretion of the trial court. Montgomery, 810 S.W.2d at 378; Avila, 18 S.W.3d at 739. Article 38.36 of the Texas Code of Criminal Procedure provides:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at time of the offense.

Tex. Code. Crim. Proc. Ann. art. 38.36 (Vernon 2003). Article 38.36, however, does not extend the rules of evidence to allow hearsay testimony that would otherwise be inadmissible. Werner v. State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986). Hearsay statements, other than those made by the declarant while testifying at trial, offered to prove the truth of the matter asserted are generally inadmissible. See Tex. R. Evid. 801(d), 802.

Even assuming the statement was not offered to prove the truth of the matter asserted but only to show the defendant's state of mind, and the trial court then wrongly excluded the statement, Villegas has failed to show that the error adversely affected her substantial rights. An appellant's substantial rights are implicated 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). An appellant bears the burden of demonstrating that the trial court's error had this effect. Merritt v. State, 982 S.W.2d 634, 636-37 (Tex. App.--Houston [1st Dist.] 1998, pet. filed). In light of the ex-wife's testimony, Villegas has failed to meet this burden. We overrule her second issue.

3. In her third and final issue, Villegas avers the evidence presented at trial was factually insufficient to prove her guilt beyond a reasonable doubt. We review the sufficiency of the evidence under traditional standards of review, examining the evidence impartially and setting aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

At trial, the State presented the testimony of the victim's neighbor, Valentine Flores; Villegas's sister, Candace Wright; Villegas's friend and one-time boyfriend, Isaul Guerra; Nueces County Medical Examiner, Dr. Lloyd White; and Villegas's friend, Candie Lynn Garcia, among others. The testimony showed that Villegas hid her car before entering the victim's house, that she made at least two lengthy phone calls subsequent to the shooting without mentioning self-defense or the danger posed by the victim, that the gun used to kill the victim was owned by Villegas, that at least two wounds were inflicted in a manner inconsistent with her self-defense explanation, and that she had previously made numerous threats against the victim. The State also presented evidence of Villegas's bond forfeiture and her move to Mexico.

Villegas argued self-defense and testified on her own behalf. She provided an explanation for the positioning of her truck and related her version of the events that transpired that evening. Specifically, Villegas claimed she and the victim had argued, and she eventually attempted to leave. He would not let her and stated he would "never let her leave." Villegas testified that the victim had headed for the head of the bed where she knew he kept his gun. She beat him to the gun; he demanded she return it and started walking toward her. She claimed the gun went off and then the victim advanced, tackling her and causing the gun to go off again, killing him.

Viewing the evidence in an impartial light, the jury's verdict is not so against the great weight of the evidence as to be clearly unjust. The evidence clearly shows that Villegas shot and killed the victim. In addition, the evidence of guilt beyond a reasonable doubt is not outweighed by the contrary proof of self-defense. The evidence is factually sufficient to support the jury's verdict. We overrule Villegas' third issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

Do Not Publish

1. On appeal, the State argues Villegas did not object with sufficient specificity as required by Texas Rule of Appellate Procedure 33.1(a)(1)(A). We disagree. Villegas specifically countered the introduction of the evidence with the lack of notice argument, impliedly referring to the relevancy of the documents in this situation.