Rene Gerardo De Leon v. The State of Texas--Appeal from 341st Judicial District Court of Webb County

MEMORANDUM OPINION
Nos. 04-03-00365-CR; 04-03-00366-CR; 04-03-00367-CR & 04-03-00368-CR
Rene Gerardo DE LEON,
Appellant
v.
The STATE of Texas,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court Nos. 18,113; 18,114; 18,115 & 18,116
Honorable Elma T. Salinas Ender, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 15, 2004

AFFIRMED

Rene Gerardo De Leon was convicted by a jury of three counts of murder and one count of engaging in organized criminal activity. De Leon presents three issues on appeal contending: (1) trial counsel was ineffective in failing to object to hearsay testimony; (2) the trial court erred in refusing to permit De Leon to recall a witness for rebuttal/impeachment purposes; and (3) the evidence is legally insufficient to support a finding that De Leon committed the offenses. We affirm the trial court's judgments.

Background

Chief Agustin Dovalina, III began his employment with the Laredo Police Department as a detective in 1978. Chief Dovalina was later promoted to captain and became chief of police in July of 1996. On June 30, 1981, Chief Dovalina was assigned the responsibility of investigating a triple homicide that occurred at Jeanie's Bar.

One of the victims was transported to the hospital for treatment but later died. A neck chain with a gold lion figure was recovered at the scene. During the course of the investigation, Chief Dovalina determined that the defendants involved in the shooting belonged to a family with the last name of De Leon. Most of the De Leon family members wore either a ring or a neck chain with a lion figure. Chief Dovalina admitted on cross-examination that no prints from the neck chain were linked to De Leon; however, he stated that taking prints from the neck chain and figure would be "next to impossible." Chief Dovalina also stated that during the course of the investigation, a photograph was obtained of De Leon wearing a chain with a pendant identical to the one recovered at the crime scene.

Three witnesses were secured at the scene. One of the witnesses, Virginia Riojas, was an employee at the bar; the second witness, Virginia Paredes, was the owner of the bar, and the third witness, Miguel Arredondo, was Paredes's son. The witnesses were very frightened and somewhat unwilling to provide information. Chief Dovalina took statements at the scene; however, none of the witnesses identified De Leon. In addition, none of the physical evidence recovered from the crime scene could be linked to De Leon by fingerprint analysis.

The witnesses were shown mug shots which led to the identification of several suspects. Riojas specifically identified one individual as a suspect; however, it was later determined that she previously had been involved in a relationship with the individual, and the identification was an effort to "get back at him." In addition to interviewing the witnesses, Chief Dovalina investigated the backgrounds of the victims and their phone records. Based on the phone records, Chief Dovalina discovered that the victims placed several calls to Ramiro De Leon and Pedro Martinez. An investigating team was sent to canvass area bars to determine if the victims or suspects had visited any other bar, and it was determined that several of the individuals had visited Roberto's Lounge, which was approximately eight blocks away from Jeanie's Bar. Further investigation revealed that one of the suspects had "taken off with a load of - of narcotics without paying [one of] the victims for [the] particular load." This contact provided a motive for the shooting.

At some point during the investigation, a female called and gave information leading the investigating team to Pedro Martinez. Chief Dovalina spoke with Martinez, and Martinez identified De Leon, De Leon's brother and cousin, and another suspect as being at the scene with guns on the night of the shooting. Martinez admitted that he had made contact with one of the victims, and he called the De Leon brothers and told them that he had been threatened by that victim. Immediately after the trial of another suspect at which Martinez was supposed to be a witness, Martinez was found dead "with his head bashed in, almost severed."

De Leon was the only suspect identified as having a beard. On cross-examination, Chief Dovalina admitted that he had seized guns from De Leon's property but none matched the shell casings recovered at the crime scene. Chief Dovalina also stated that defendants normally discard guns used in a crime and do not keep them in their house.

De Leon surrendered himself for arrest but later posted bond. After posting bond, De Leon stopped appearing at court hearings at some point. As a result, the State foreclosed on the property securing the bond, and the proceeds from the sale (approximately $200,000) were used to pay the State to settle the bond. For over twenty years after De Leon failed to appear in court, the Laredo Police Department sent out flyers and communicated with various law enforcement agencies in an effort to locate De Leon.

Carlos Garza also was identified as being present at the scene with a gun by Pedro Martinez. When Garza was questioned by Chief Dovalina, Garza admitted that he was involved in the shooting. Garza said that De Leon also had a gun and De Leon also shot the victims. Garza received threats after speaking with Chief Dovalina and was later found dead as a result of "violent circumstances." Garza told Chief Dovalina if he testified "he was a dead man."

Chief Dovalina stated he was reluctant even after twenty years to testify as a witness against De Leon. Chief Dovalina's wife received telephone threats that De Leon "would not be taken in by the law until he visited [Chief Dovalina's] family."

Virginia Riojas testified that the victims were in Jeanie's Bar drinking beer when five or six men came into the bar and shot them. Riojas identified De Leon as being present that night from the photograph taken at the time of his arrest. Riojas admitted that she initially gave the police an incorrect version and identified her old boyfriend as a suspect. Riojas stated that one of the victims said that the De Leons shot him.

Riojas stated that she had seen De Leon in other bars where she had worked. Riojas admitted that she identified other individuals who were not involved in the shooting in addition to her old boyfriend. Riojas further admitted that the De Leons never threatened her after the incident. Riojas never identified De Leon as being involved in the shooting until the Friday before trial in response to questions from the district attorney's office. Riojas admitted that when she met with the prosecutors before trial, she was not shown pictures of any of the suspects other than De Leon. On re-direct examination, Riojas admitted that the only thing the district attorney's office asked her to testify to was the truth. On final re-cross examination, Riojas was asked, "The truth that you did not remember until they reminded you of what it was. Right?" Riojas responded yes.

Miguel Arredondo was thirteen at the time of the shooting. He was at the bar waiting for his mother to finish working. Because only three people were in the bar, Miguel was pestering his mother to close the bar so they could go home. Miguel heard a door slam open as if there was a fight. Miguel looked out a one-way mirror from the back of the bar and saw approximately five to six individuals shooting the three people who were in the bar. Miguel clearly saw a person with a beard and a rifle shooting the three people. After the men left, Miguel called the police and went into the bar area. Miguel heard one of the victims whispering or gasping De Leon. During the course of the investigation, Miguel was placed under hypnosis and a composite sketch was done with the description he gave. Miguel identified De Leon's photograph from the time of his arrest as accurately depicting the sketch that was drawn.

During cross-examination, Miguel did not remember identifying another person by the name of Raymond Juarez in comparing the sketch to photographs. Miguel did not recall telling the police that the victim was gasping Ramiro. Before trial, Miguel was interviewed by the district attorney's office and shown a photograph of De Leon. Miguel stated that he had not been shown photographs when he was interviewed after the shooting, but he could have identified De Leon if he had been shown photographs.

Ineffective Assistance of Counsel

In his first issue, De Leon contends trial counsel was ineffective in failing to object to the following hearsay testimony: (1) Chief Dovalina's testimony regarding Martinez's admission that he was present at the murder scene and that De Leon was one of the shooters; (2) Chief Dovalina's testimony regarding Garza's admission that he was present at the murder scene and that De Leon was one of the shooters; (3) Chief Dovalina's testimony regarding the death threats his wife received; (4) Riojas's testimony regarding one of the victim's stating that the De Leons shot him; and (5) Arredondo's testimony that a victim was gasping De Leon. (1) The State responds that the record is insufficient to overcome the presumption of reasonableness and that the testimony was admissible under exceptions to the hearsay rule.

To prevail on an ineffective assistance claim, De Leon must show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). In addition, De Leon must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814.

The record reflects that trial counsel made numerous objections, including objections to hearsay testimony, and engaged in rigorous cross-examination to discredit the witnesses. No motion for new trial was filed; therefore, the record does not reflect the reasons trial counsel chose not to object to the specific testimony referred to by De Leon in his brief. Since the record is silent, De Leon cannot overcome the presumption that trial counsel's decisions during trial fell within the wide range of reasonable professional assistance. Id. Accordingly, De Leon's first point of error is overruled.

Rebuttal Witness

In his second issue, De Leon complains that the trial court erred in not allowing him to recall Riojas on rebuttal to impeach her with inconsistent statements she made at the time of the shooting that were recorded in a police report and to recall Chief Dovalina to prove those inconsistencies. De Leon relies on Love v. State, 861 S.W.2d 899 (Tex. Crim. App. 1993), to support his contention.

We review the admission or exclusion of evidence for an abuse of discretion. Goff v. State, 931 S.W.2d 537, 553 (Tex. Crim. App. 1996); Haygood v. State, 127 S.W.3d 805, 812 (Tex. App.--San Antonio 2003, pet. ref'd). To preserve a complaint that the trial court erroneously excluded evidence, the complaining party must bring forward a record indicating the nature of the evidence. See Tex. R. App. P. 33; Tex. R. Evid. 103(a)(2). If the excluded evidence is not apparent from the context of the record, it must be brought forward either through a timely offer of proof or a formal bill of exception. Haygood, 127 S.W.3d at 812. Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review. Id.

In Love, the appellant argued that the trial judge erred in refusing to allow him to call Jesse Blalock, a technical supervisor for the intoxilyzer instrument, as a defense witness when he had not been excused by defense counsel and was available to testify. 861 S.W.2d at 901. At trial, Blalock had testified regarding the internal functions of the intoxilyzer instrument and estimated the defendant's blood alcohol concentration. Id. During cross-examination, defense counsel questioned Blalock regarding the inner workings and reliability of the machine, the breath testing program promulgated by the Texas Department of Public Safety, and the necessity of strict compliance with its requirements. Id. At the conclusion of Blalock's testimony, he was excused. Id. The following morning, the State moved to quash a subpoena issued by the appellant for Blalock on the basis that he had adequate time to cross-examine him at length the previous day. Id. The Texas Court of Criminal Appeals first noted that because the error was predicated on an exclusion of evidence, the appellant was required to make an offer of proof of the proposed evidence. Love, 861 S.W.2d at 901.

Unlike the offer of proof dictated into the record in Love, the record in this case does not contain a sufficient offer of proof. Defense counsel refers to questions he had written in longhand and to tabbed portions of the police record; however, the record contains no offer of proof regarding the questions that were to be asked and does not contain a copy of the tabulated portions of the police report from which the defense counsel intended to draw his questions. Only the first page of the report was introduced by the State, and this does not reveal what portions of the first page defense counsel intended to reference in his questions.

Love is also distinguishable from the instant case because in Love the witness had informed defense counsel that he would be available to testify. In this case, Riojas had been hospitalized for possible appendicitis and was not available. This distinction was noted by the Texas Court of Criminal Appeals in Love to distinguish its decision in Bills v. State, 117 S.W. 835 (Tex. Crim. App. 1909). In Bills, the trial judge was held not to have abused his discretion in denying a request to recall a State's witness for further cross-examination because "the record did not reflect when counsel came into possession of the impeaching testimony, that the witness was accessible, or that the trial proceedings would not have been unnecessarily delayed." Love, 861 S.W.2d at 903. Similar to Bills, the record in the instant case does not reflect that the witness was accessible or that the trial proceedings would not have been unnecessarily delayed. See also Knox v. State, 31 S.W.3d 700, 703 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (distinguishing Love on basis that witness was not readily available).

Because the record in this case does not contain a sufficient offer of proof, De Leon's second point of error is overruled.

Sufficiency

De Leon's final issue on appeal challenges the legal sufficiency of the evidence to support his conviction. Specifically, De Leon contends that the evidence was insufficient to support a finding that he was present and was one of the shooters.

To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case, Chief Dovalina testified that Martinez and Garza identified De Leon as one of the shooters. In addition, Riojas and Arredondo both identified De Leon as one of the shooters. Although De Leon seeks to discredit the testimony, a rational trier of fact could have found from this evidence that De Leon was present and was one of the shooters. De Leon's third point of error is overruled.

Conclusion

The trial court's judgments are affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. De Leon does not raise any constitutional issue with regard to his right of confrontation. See Crawford v. State, 139 S.W.3d 462, 464 (Tex. App.--Dallas 2004, no pet.) (noting error not preserved with regard to right of confrontation despite recent clarification in Crawford v. Washington, --- U.S. ----, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because no objection was made during trial on constitutional grounds); Bunton v. State, 136 S.W.3d 355, 369 (Tex. App.--Austin 2004, pet. ref'd) (same).