Eduardo Catarino Palacios A/K/A "Chino" v. The State of Texas--Appeal from 49th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-03-00200-CR
Eduardo Catarino PALACIOS,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2001CRN146
Honorable Manuel R. Flores, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Anglelini, Justice

Delivered and Filed: November 10, 2004

AFFIRMED

Eduardo Catarino Palacios was found guilty of murder and was sentenced to fifty years imprisonment and a $10,000 fine. He appeals his conviction in seven issues. We overrule all issues and affirm the judgment of the trial court.

Background

On January 31, 2001, at around 2:00 a.m., Arturo Vela, a patrol officer for the Laredo Police Department, received a call regarding a shooting in the 4200 block of Salinas. Officer Vela arrived at the 4200 block of Salinas mere seconds later. About a half block from where the shooting occurred, Officer Vela saw two males running northbound on Salinas. The males then turned on Ortiz Street. When Officer Vela caught up to them, he noticed that the males appeared to be trying to conceal something at their waist lines. They also appeared to be exchanging something. One of the males, later identified as Palacios, stumbled and fell down. The other male, later identified as Omar Escobedo, ran into a nearby vacant lot. Officer Vela arrested Palacios. Another officer found Escobedo in the vacant lot and arrested him. Both a .25 caliber semi-automatic pistol and .380 caliber pistol were found in the vacant lot. The .25 caliber pistol was the murder weapon.

Escobedo entered into a plea-bargain agreement with the State. In exchange for his testimony, Escobedo would serve ten years in prison. At Palacios's trial, Escobedo testified to the following: He was at Palacios's house for a "cook-out," eating carne asada and drinking beer. Palacios and Escobedo went to Jose Luis Palomares Gallegos's house because Palacios thought that Gallegos had stolen something from him. Both Palacios and Escobedo had guns tucked in the front of their pants. Escobedo had a .380 caliber pistol; Palacios had a .25 caliber pistol. When Palacios and Escobedo knocked on the door, a woman answered. Palacios and Escobedo went inside the house and were met by Gallegos in the living room. Palacios and Gallegos began arguing and then fighting. Palacios shot Gallegos in his midsection with the .25 caliber gun. Gallegos ran outside toward the street and then fell on the ground. Palacios shot Gallegos again. When his gun stopped firing, Palacios began hitting Gallegos on the head with the butt of the gun. Palacios then grabbed Escobedo's gun and went back into the home, looking for the woman who had answered the door. Palacios and Escobedo heard sirens and began running away from the scene. Escobedo grabbed both guns from Palacios. When they saw Officer Vela approaching, Palacios took his .25 caliber pistol from Escobedo. Officer Vela caught up with them and Palacios fell and was apprehended by Officer Vela. Escobedo threw the .380 caliber pistol "halfway" in the vacant lot and then ran into the vacant lot to hide. The police found Escobedo's hiding spot and apprehended him.

Sufficiency

In his first issue, Palacios argues that the evidence is legally and factually insufficient. When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). If we determine that the evidence is legally insufficient, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

In conducting a factual-sufficiency review, rather than viewing the evidence in the light most favorable to the prosecution, our review is a neutral one of the evidence. Zuniga v. State, No. 539-02, 2004 WL 840786, at *4 (Tex. Crim. App. Apr. 21, 2004). Under traditional factual sufficiency standards, we determine if a finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at *7. There is only one question to be answered in a factual-sufficiency review: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Id.

According to Palacios, the "State proceeded on the premise that [Palacios] was the primary actor in killing the victim and that co-defendant Escobedo was merely guilty as a party to the offense." The jury was instructed that a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. The application paragraph, however, did not apply the law of parties to the facts. Thus, according to Palacios, to be legally and factually sufficient, the evidence must show that he was the primary actor, not a party to the murder.

In essence, Palacios is arguing that there is a variance between the jury charge and the evidence. See Fuller v. State, 73 S.W.3d 250 (Tex. Crim. App. 2002). However, because the evidence is legally and factually sufficient to support Palacios acting as the primary actor, there is no such variance. Escobedo testified that Palacios shot and killed Gallegos. The evidence would be sufficient with just Escobedo's testimony if he were not an accomplice witness.

An accomplice is a person who participates in an offense before, during, or after its commission, to the extent that the person can be charged with the offense or with a lesser-included offense. Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). A prosecution witness indicted for the same offense as the accused is an accomplice as a matter of law. Id. As an accomplice, Escobedo's testimony must be "corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979).

It is not necessary for the corroborating evidence to directly link the accused to the crime. Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993). Nor is it necessary for the corroborating evidence to be sufficient in itself to establish guilt beyond a reasonable doubt. Id. And, "[p]roof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction." Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984). Also, apparently insignificant incriminating circumstances may afford satisfactory corroboration. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). Finally, evidence that an accused was in the company of the accomplice at or near the time or place of a crime is proper corroborating evidence to support a conviction. Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997).

Here, Officer Vela testified that he saw Palacios running alongside Escobedo about a half a block from the scene of the murder. Palacios and Escobedo appeared to be concealing something at their waistlines and appeared to be exchanging something. This corroborates Escobedo's testimony that he and Palacios exchanged the guns as they were running away. Michael Martinez, a trace evidence analyst for the Bexar County Crime Lab, testified that eight microscopic particles of substances consistent with gunshot residue were present on Palacios's hand. Martinez, thus, concluded that Palacios had either "discharged a firearm, handled a discharged firearm, or was in close proximity to a discharged firearm." Officer Vela's and Martinez's testimony tends to connect Palacios to the murder. We hold, therefore, that the evidence is legally sufficient.

With regard to factual sufficiency, Palacios points to various problems with Escobedo's credibility. Escobedo was also charged with the murder. Instead of being tried for murder, he entered into a plea-bargain agreement with the State. The murder weapon was found in the vacant lot near where the police arrested Escobedo. Escobedo had gun-powder on the back of his hands, which is consistent with firing a weapon. Escobedo testified that Palacios shot Gallegos in the house. However, Police Investigator Hinojosa testified that there were no empty bullet casings or bullet holes found in the residence. Further, Palacios emphasizes that Escobedo testified that Palacios shot Gallegos at close range when the autopsy report states that there is "no evidence of close range firing."

It was the jury's province to judge Escobedo's credibility. On appeal, we only have a cold record to review. And, while Escobedo did have one microscopic particle of substances consistent with gunshot residue on the back of his right hand, the palm of his right hand, and the back of his left hand, respectively, Palacios had eight microscopic particles of substances consistent with gunshot residue on the palm of his right hand, and one microscopic particle of substances consistent with gunshot residue on the palm of his left hand. Further, two empty bullet casings were found near the body, and Escobedo testified that after Gallegos fell down in the street, Palacios shot Gallegos again. Considering all of the evidence in a neutral light, we hold that a jury could be rationally justified in finding that Palacios committed murder as the primary actor beyond a reasonable doubt.

We overrule Palacios's first issue.

Duty to Disclose Exculpatory Evidence

In his second issue, Palacios argues that the State violated its duty to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83 (1963). A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). In determining whether a prosecutor's actions have violated Brady, we consider whether the prosecutor failed to disclose evidence favorable to the accused and whether the evidence is material, meaning there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id.

Palacios points to "three instances in which material evidence . . . was put beyond the reach of [Palacios] by the State":

1. "Probably the most important item of evidence to which reference is made, was the statements of material witness Patricia "Tricia" Salazar who witnessed the events in question and made statements to the police to the effect that co-defendant Escobedo - not [Palacios] - shot and killed the deceased."

2. "The loss or destruction of [an] audio tape of an interview with eye-witness Patricia "Tricia" Salazar which presumably echoed the substance of her written statement."

3. "The withholding of evidence as to the exact location where the murder weapon was found, in relationship to State witness Omar 'Homer' Escobedo."

With regard to the first two accusations, at first glance, it appears that Palacios is arguing that the State withheld Salazar's statement and audio tape. However, instead of briefing these first two accusations, (1) Palacios argues that the State intentionally withheld Salazar, herself:

At various stages during the proceedings, the State represented to the Court and to Appellant's counsel that the said the said [sic] Tricia Salazar was in custody and would be produced by the State as a witness at the time of trial. As the trial approached, however, the State made it known to defense counsel that the witness had been released and could not be located. Defense counsel diligently tried to locate her, but to no avail.

(citations omitted). Thus, it appears that Palacios is arguing that the State violated Brady by hiding Salazar from the defense and preventing her from testifying at trial.

There is, however, no evidence to support such an accusation. Salazar was being held in Dallas County pending possible revocation of her probation. The State informed the defense of this fact. Salazar was then released. The State also informed the defense of this fact. The defense seems to believe that the State had a duty under Brady to hold Salazar until trial. We can find no support for this assertion.

Instead of a Brady violation, it appears that Palacios is arguing that his right to compulsory process was violated because Salazar did not appear for trial. Under both federal and state law, an accused has the right to compulsory process for obtaining witnesses. See Wash. v. Tex., 388 U.S. 14, 18 (1967); Gonzalez v. State, 714 S.W.2d 19, 25 (Tex App.--Houston [1st Dist.] 1985, no pet.); see also U.S. Const. amend. VI; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). A guarantee of compulsory process for obtaining witnesses means that the accused is entitled to invoke the aid of the law to compel the personal attendance and actual presence of a witness at his trial when his presence is obtainable. Sigard v. State, 537 S.W.2d 736, 739 (Tex. Crim. App. 1976). This guarantee of compulsory process does not require that the State be successful in trying to subpoena witnesses. Id. at 740. All that is required is that the process issue and due diligence be exercised in a good faith attempt to secure service of the process. Id.

Here, the State attempted to secure Salazar's attendance at trial. On July 3, 2002, seven months before trial, the State filed an application for attachment, requesting that the trial court issue a writ of attachment for Salazar. The next day, the trial court issued a writ of attachment. There is no evidence in the record that due diligence was not exercised in a good faith attempt to secure service of the process.

Further, on September 9, 2002, the defense issued a subpoena for Salazar that was returned unexecuted on September 16, 2002. Thus, the defense was also allowed to invoke the aid of the law to compel Salazar's attendance.

As such, there is nothing in the record to support Palacios's accusation that the State violated Brady. (2)

In addition to Salazar's absence from trial, Palacios argues that part of a police report written by Officer Edgar Martinez was altered. On cross-examination, Officer Martinez testified that on his report, there was a sentence relating to where he found a pistol. In that sentence, the word before "pistol" had been "whited out." On re-direct, Officer Martinez explained that he sometimes uses liquid paper to correct his reports.

Any federal constitutional duty to preserve evidence is limited to evidence that might be expected to play a significant role in the suspect's defense. California v. Trombetta, 467 U.S. 479, 488 (1984). "To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489 (citation omitted). "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Here, Palacios has made no showing of bad faith. Although Officer Martinez agreed that a word in his report had been "whited out," he also explained that he routinely uses liquid paper to correct his reports.

We overrule Palacios's second issue.

Evidentiary Issues

In his third, fourth, fifth, and sixth issues, Palacios argues that the trial court erred in (1) excluding evidence of statements made by Tricia Salazar, (2) excluding evidence of Officer Martinez's police report, (3) admitting extraneous offense testimony from Escobedo, the accomplice witness, and (4) allowing a police officer to give opinion testimony. We overrule all issues.

We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).

First, Palacios argues that the trial court abused its discretion in not allowing him to admit evidence of Tricia Salazar's statements under the excited utterance exception to the hearsay rule. See Tex. R. Evid. 803(2). Outside the presence of the jury, Officer Salinas testified that he took a statement from Salazar at the police station about an hour after the incident. According to Salinas, Salazar was excited at the scene and wanted to know where the individuals that had been apprehended were. However, an hour later at the police station, Salazar was calm and collected. Officer Salinas did not ask her any questions at the scene. Instead, he took her statement an hour later at the police station.

Texas Rule of Evidence 803(2) exempts hearsay statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Tex. R. Evid. 803(2). To qualify as an excited utterance, the statement must be the product of a startling occurrence; the declarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence; and the statement must be related to the circumstances of the startling occurrence. Couchman v. State, 3 S.W.3d 155, 159 (Tex. App.--Fort Worth 1999, pet. ref'd). Officer Salazar testified that when he took Salazar's statement, she was no longer under the stress of excitement caused by the murder. Under our standard of review, given this testimony, we cannot hold that the trial court abused its discretion.

Second, Palacios argues that the trial court erred in excluding Officer Martinez's report that had been "whited out." When Palacios attempted to admit the report in evidence, the State objected, arguing that the report was hearsay. The trial court sustained the objection. On appeal, Palacios has not argued why the trial court erred in sustaining the hearsay objection. See Tex. R. App. P. 38.1(h). Nor has he provided any legal support. Instead, he has only emphasized how important this piece of evidence was to his case. As such, Palacios has waived this issue. See id.

Third, Palacios argues that the trial court abused its discretion in allowing Escobedo to testify that Palacios went back into the victim's house to shoot Salazar. Generally, evidence of other criminal acts or wrongful acts is not admissible to prove a person's guilt. Tex. R. Evid. 404(b). Here, Escobedo's testimony of Palacios going back into the house to shoot Salazar was admitted under the "same transaction contextual evidence exception" to rule 404(b). "Same transaction contextual evidence" refers to other offenses connected with the primary offense and is admissible when the evidence is necessary for the state to logically present evidence of the charged offense. Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim. App. 1992); Garza v. State, 2 S.W.3d 331, 335 (Tex. App.--San Antonio 1999, pet. ref'd)). The evidence is admissible to enable a jury to hear all relevant facts surrounding the circumstances of the charged offense. Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996). "Where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony ... of any one of them cannot be given without showing the others," the evidence is considered "same transaction contextual evidence" and is admissible as an exception to rule 404(b). Id. (alteration in original).

Here, the trial court did not abuse its discretion in admitting Escobedo's testimony. On cross-examination, Palacios's attorney questioned Escobedo about several .380 caliber bullets that were recovered inside the house:

Q: Did you know, Mr. Escobedo, that there were several .380 bullets recovered there from inside of the house? Are you aware of that or not?

A: Not really.

Q: You don't know that?

A: No.

Q: Well, can you tell us how those bullets that were recovered from inside of the house from your pistol, how they got there?

A: Yeah.

Q: How did they get there?

A: Eddie went back inside the house.

Q: Oh, Eddie had your pistol?

A: Yeah. When we were in the street.

Q: And Eddie threw those bullets there; not you, right?

A: He went back inside the house.

Q: Because now he had that pistol?

A: Yeah. When we went in the street, he got the gun.

Q: How did he get the pistol?

A: He asked me for it and got it.

Q: Oh, he asked you: Would you please let me have your .380 pistol?

A: No. He said, "Give me the gun."

Q: He just told you, "Give me the gun," and at that point in time, where did you have the gun?

A: In my, in my waist.

Q: In your waist. And did you pull it out of your waist and hand it to him?

A: Yes.

Then, on re-direct, the prosecuting attorney questioned Escobedo about why Palacios took the gun from him and went back into the house:

Q: I'll ask you again, Mr. Escobedo. When Eddie took the .380 from you and went back in the house, do you know why? (3)

A: Yes.

Q: Why?

A: He wanted to shoot the lady [Salazar] that was in there.

Q: Do you know why he wanted to shoot her?

[intervening objections]

A: He said something about, you know, I don't want her to say anything, or something like that.

Because of the defense's questioning of Escobedo, why Palacios returned to the home became relevant and necessary same transaction contextual evidence. The trial court, therefore, did not abuse its discretion.

Palacios also argues that even if the evidence was admissible under rule 404(b), the trial court should have excluded the evidence under rule 403. Rule 403 excludes relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. In order to determine whether the probative value of the extraneous act is substantially outweighed by the danger of unfair prejudice, we do not engage in a de novo review of the record. Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990). Here, once the defense questioned Escobedo about why .380 bullets were found inside the house, Escobedo's full explanation became extremely important. Without Escobedo's explanation about why Palacios took the gun from him, the State could not adequately explain to the jury why Escobedo's version of the events was credible. Given the importance of Escobedo's explanation, we cannot hold that the trial court abused its discretion. (4)

Finally, Palacios argues that the trial court erred in allowing Investigator Lozano "to give testimony to the effect that his investigation had narrowed the case down to two individuals, [Palacios] and Escobedo." According to Palacios, "witnesses are not allowed to opine as to whether or not they believe that the accused is guilty in any given case." Palacios also notes that Lozano's testimony violated Texas Rule of Evidence 701. Palacios has waived this issue. Tex. R. App. P. 33.1. Investigator Lozano testified that after interviewing witnesses, he was able to "narrow it down to individuals that were suspects." When asked who were those suspects, defense objected: "Your Honor, he's trying to get things in here that are based on hearsay. That is totally improper, illegal, and unconstitutional." The objection was overruled. Investigator Lozano then answered the question: "Yes. Eduardo Palacios and Omar Escobedo." By failing to object to the specific grounds on which he now relies, Palacios has waived this issue.

Prosecutorial Misconduct

In his final issue, Palacios complains of prosecutorial misconduct. First, Palacios complains that the prosecutor during opening statement "misled the jury as to the place where the murder weapon was found by the police, leading them to believe that it was found in close proximity to [Palacios], when in truth and in fact it was not." Palacios, however, failed to object to the prosecutor's statement at trial and thus, has waived any error. See Tex. R. App. P. 33.1; see also Valencia v. State, 946 S.W.2d 81, 82-83 (Tex. Crim. App. 1997) ("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.").

Second, Palacios argues that during closing argument, "the prosecutor clearly misquoted the evidence thereby misleading the jury on the crucial issue of the location of the murder weapon." Here, the prosecutor stated,

The testimony wasn't that the gun was found 20 to 25 feet into the lot. The testimony was from Carlos Adan, investigator Carlos Adan: It was found 20 to 25 feet from the street, not into the lot, which you can see on the chart when you take it in. You'll have that evidence. From the street to the corner of the lot, where the lot begins, where the fence begins, there's about 10 to 12 feet. And you can see that.

A proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and, (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). In reviewing the record, we hold that the prosecutor's statement was a summation of Investigator Carlos Adan's testimony.

Third, Palacios complains that the "prosecutor, as shown in Point of Error No. 2 above, after representing the key witness Tricia Salazar was in custody and would be produced at trial, allowed her to be released, rendering her unavailable as a witness." There is no evidence that the State hid Salazar or otherwise prevented her from testifying at trial.

Finally, Palacios argues that the "prosecutor blocked all attempts to introduce Tricia Salazar's statements which were exculpatory in nature." The State objected to the statements as hearsay, as it has every right to do. Palacios has not shown how such action by the State is misconduct.

We overrule Palacios's final issue.

Conclusion

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

Karen Angelini, Justice

Do not publish

1. Because Palacios did not brief these first two accusations, he has waived them. See Tex. R. App. P. 38.1(h).

2. For support, Palacios cites Garay v. State, 954 S.W.2d 59 (Tex. App.--San Antonio 1997, pet. ref'd). In Garay, the appellant argued that the deportation of the nine men living in complainant's residence, without interviewing the men, constituted destruction of material evidence. Id. at 67. The Garay court held that the appellant had failed to preserve the error for appellate review. Id. Then, the court noted that even if the appellant had preserved the issue on appeal, the appellant had not shown that the deported witnesses' testimony would be "material" evidence. Id.

When a witness is deported, a defendant can establish a violation of his constitutional right to compulsory process by showing that a deported witness's testimony would have been both material and favorable to his defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Here, however, Salazar was not deported; she was merely released from Dallas County jail.

3. Palacios had just objected to this question under rules 404(b) and 403. The trial court overruled the objection.

4. When discussing the above issues, Palacios states in one sentence that "[i]t should be noted also that [Palacios] timely requested notice of any extraneous offense evidence that the State intended to introduce, but State's response made no mention whatsoever relative to the evidence in question." To the extent Palacios was attempting to raise this as an issue, he has waived it by improperly briefing it. See Tex. R. App. P. 38.1(h).