Juan Garza, Jr. v. The State of Texas Appeal from Criminal District Court No. 2 of Dallas County (memorandum opinion )

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In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-14-00054-CR JUAN GARZA, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court No. F-1230953-1 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Juan Garza, Jr., was indicted in Dallas County, Texas, 1 for aggravated assault with a deadly weapon involving family or dating violence and was found guilty by a jury. He pled true to the enhancement allegation of a prior felony conviction, and after a punishment hearing to that same jury, the enhancement allegation was found true. Diaz was sentenced to thirty-five years confinement and assessed a $10,000.00 fine. On appeal, Garza argues that the trial court erred (1) by permitting testimony which Garza maintained was an assertion by another witness that the alleged victim s statements were truthful, (2) by failing to instruct the jury to disregard evidence of an extraneous offense, and (3) by admitting victim-impact testimony during the guilt/innocence phase of the trial. By way of cross-appeal, the State asks this Court to modify the judgment so as to reflect the existence of the enhancement and the finding of family violence. I. Factual Background On the morning of May 5, 2012, about 6:30 or 6:45 a.m., Richard Berna was in his yard preparing to hold a garage sale when he encountered a woman, later identified as Kelly Moore, walking down the sidewalk. The woman was dressed in a nightgown, was visibly shaken up, and carried a small dog. Berna saw that Moore had bruising and swelling on her face and dried blood underneath her nose. When Berna approached Moore and asked if he could help her, she told him that she had been beaten up by her boyfriend (later identified as Garza) and that she had 1 Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 2 to wait until he fell asleep before she could leave the house and get help. Moore went on to relate to Berna that her assailant, Garza, had a weapon. Berna telephoned the emergency 9-1-1 number and twenty or thirty minutes later, Grand Prairie Police Officer Michael Diaz arrived on the scene. Diaz saw that Moore had marks on her face and chest, and he described her as shaken, very upset, and carrying a small dog. She told Diaz that at about 2:30 that morning, Garza had come home very angry and possibly intoxicated and that he had beaten her for hours. Moore related that during the course of the beating, Garza had pointed a gun at her and threatened to kill her. Because he believed Garza was then armed, Diaz did not immediately go to Garza s residence. About a month later, on June 6, Garza was arrested and later indicted for aggravated assault with a deadly weapon involving family violence. Specifically, the indictment alleged that Garza had intentionally, knowingly and recklessly cause[d] bodily injury to KELLY MOORE, hereinafter called complainant, by STRIKING COMPLAINANT WITH A HAND AND HANDS AND BY GRABBING AND BY SQUEEZING COMPLAINANT S NECK WITH A HAND AND HANDS, and said defendant did use and exhibit a deadly weapon, to-wit: a FIREARM, during the commission of the assault, and further, the said defendant has and has had a dating relationship with the said complainant and the said defendant was a member of the complainant s family and household . . . . Garza s jury trial began December 3, 2013. During the trial, Moore testified that she and Garza had dated intermittently for nine years. At the time of the incident, they were living together, and she even called him her spouse. She testified that at about 2:30 a.m. May 5, 2012, Garza came home intoxicated and seemingly 3 angry. He struck her in the temple with his hands and ordered her to give him the handgun she kept for protection. Garza then used the gun to add extra weight to his punches, before pointing it at her and threatening to kill her, then trying to suffocate her. The physically abusive conduct continued for hours until Garza fell asleep at about sunrise. When Garza fell asleep, Moore retrieved the small dog she was pet-sitting that night, left the residence, and began walking down the street. Moore was taken to a hospital, where she was diagnosed with having suffered a concussion, two breaks in her nose, and damaged teeth. Later, at the direction of the police, Moore recorded a telephone conversation with Garza during which he asked her to drop the criminal charges. The telephone conversation was played for the jury. Garza called no witnesses in his defense and rested, after which the jury found him guilty as charged. Garza pled true to the enhancement paragraph that alleged a prior felony conviction, and Garza and the State made their cases to the jury for punishment. The jury assessed Garza s punishment at thirty-five years confinement and a $10,000.00 fine, and the trial court sentenced him accordingly. This appeal has ensued. II. Analysis A. Testimony Regarding Truthfulness of Complainant In his first point of error, Garza contends that the trial court erred in admitting what Garza maintains was a statement by Berna that Moore was truthful in her statements to him. We review the trial court s admission of evidence for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. 4 Crim. App. 2003); Harris v. State, 133 S.W.3d 760, 770 (Tex. App. Texarkana 2004, pet. ref d). An abuse of discretion occurs only when the trial court s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Harris, 133 S.W.3d at 770 71 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)). We will uphold the trial court s ruling if it is reasonably supported by the record and is correct under any applicable legal theory. Dixon, 206 S.W.3d at 590. Berna testified that Moore had told him that her boyfriend had beaten her up and that he had a gun. The State asked Berna, What did you learn next, if anything?, and Berna testified that [b]ased on what [he] could see, [he] believed that she was telling the truth. Garza objected under Rule 608 of the Texas Rules of Evidence, and the trial court overruled the objection. Garza moved for a mistrial, and the trial court overruled that as well. Berna testified that he then called 9-1-1, and his wife brought Moore into their home, offered her breakfast, coffee, whatever [they] could give her at that time. Nonexpert testimony may be offered to support the credibility of a witness in the form of opinion or reputation, but the evidence may refer only to character for truthfulness or untruthfulness. TEX. R. EVID. 608(a)(1). A lay witness may not, under Rule 608, testify as to the complainant s truthfulness in the particular allegations. See Schutz v. State, 957 S.W.2d 52, 72 (Tex. Crim. App. 1997); Fuller v. State, 224 S.W.3d 823, 832 33 (Tex. App. Texarkana 2007, no pet.). Further, evidence of truthful character may only be offered after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. TEX. R. EVID. 608(a)(2). 5 Here, Berna testified to Moore s truthfulness. The State contends that Berna s statement was offered as an explanation as to why Berna helped Moore a complete stranger by calling 911 and inviting her into his home. However, the trial court could not have rested its ruling on Berna s statement to be an explanation for why he helped Moore because the trial court overruled Garza s objection before Berna testified to calling 9-1-1, helping Moore, or bringing her into his home. Therefore, we find the trial court erred in admitting the testimony. The erroneous admission of evidence for the purpose of demonstrating the nature of a witness character for truthfulness is nonconstitutional error. Rhodes v. State, 308 S.W.3d 6, 10 (Tex. App. Eastland 2009, pet. dism d, untimely filed). Thus, we disregard the error unless it affected appellant s substantial rights. See TEX. R. APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after reviewing the record as a whole, the appellate court has fair assurance that the error either did not influence or had only a slight effect on the finder of fact. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In weighing harm, we consider everything in the record, including the evidence, the character of the alleged error and how it might be considered together with the other evidence in the case, the jury instructions, the State s theory, any defensive theories, closing arguments, voir dire, and whether the evidence of guilt is overwhelming. Id. at 355 58. In making that determination, this Court is not concerned with whether there was sufficient evidence on which Garza could have been convicted, but rather, whether there is a reasonable possibility the impermissible testimony might have contributed to the conviction. Lopez v. State, 288 S.W.3d 148, 178 (Tex. App. Corpus Christi 2009, pet. ref d). 6 Garza argues that Berna s testimony essentially bolstered [Moore s] credibility, arguing further that to believe Berna s testimony was not harmful strains credulity. Here, Garza s defensive theory was that although Moore did not lie about the fact that an assault occurred, she did lie regarding the seriousness of or the extent of the assault, arguing that [s]omething happened, just not this, not to this magnitude . . . . While Berna did testify to Moore s credibility, Moore had yet to testify, and Berna s testimony did not reference the extent of the assault. Later in the case, Moore herself testified regarding the assault s extent, duration, and results. Moore testified that Garza, with a gun in his hand, repeatedly struck her in the head and choked her. The jury saw photographs of Moore s injuries taken the morning after the assault as well as photographs taken a few days later. The medical records show that Moore suffered a concussion, and her nose was broken in two places. The jury also heard a recorded telephone conversation between Garza and Moore in which Garza stated he wanted her to be okay and he did not know what made him snap. During this conversation, when Moore told Garza that she thought he would kill her during the assault, he replied, I know . . . . It was a bad deal. In addition to the recorded telephone call, there were several text messages from Garza to Moore introduced in which Garza was urging Moore to drop the charges and change her story. One of the text messages included the statement, Your thing is in the trunk of your car. When the car trunk was searched, the police found the gun used by Garza in the assault. The State did not otherwise emphasize Berna s statement of his belief in the story told him by Moore. We have a fair assurance that Berna s statement that he believed Moore to have been telling him the truth about the nature of the assault had either only a very slight influence or no 7 influence on the deliberations of the jury. Even ignoring Berna s statement entirely, there was ample evidence that confirmed for the jury the veracity of Moore s version of the assault. The error in allowing Berna s statement about the truthfulness of Moore s statement was harmless. Accordingly, we overrule this point of error. B. Evidence of Extraneous Offense In his second point of error, Garza contends that the trial court erred by admitting Diaz testimony regarding an extraneous offense committed by Garza. 2 While Diaz was testifying regarding Moore s oral offense report, he stated that Moore had told him that Garza [w]oke her up. And then started beating her as he was screaming at her about a 2009 case. Garza objected under Rules 401, 402, 403, and 404(b) of the Texas Rules of Evidence 3 and requested a mistrial. The trial court overruled his objections and denied his motion. On appeal, Garza argues that Diaz testimony regarding the 2009 case was inadmissible evidence of an extraneous offense under Rule 404(b) of the Texas Rules of Evidence. Extraneous offenses or bad acts are not admissible to prove the defendant acted in conformity with his criminal nature. TEX. R. EVID. 404(b); Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994). The reference to a 2009 case is not testimony implicating Garza in an arrest, 2 In Garza s brief, this point of error contends that the trial court erred by failing to give an instruction to disregard evidence of an extraneous offense, but the substance of his argument raises a claim for erroneous admission of extraneous-offense evidence in violation of Rule 404(b) of the Texas Rules of Evidence. 3 Rule 401 defines relevant evidence, Rule 402 says generally that relevant evidence is usually admissible whereas irrelevant evidence usually is not, Rule 403 spells out some circumstances wherein some evidence (though relevant) should be barred, and Rule 404(b) provides that a person s prior bad conduct is not admissible for the purpose of showing that a person s later actions are made in conformity with that person s prior bad conduct. 8 crime, or bad act. There is nothing the jury heard to illustrate precisely what was meant by the reference to a 2009 case. Although that reference might have been to another crime of which Garza had been accused, it could just as easily have been a reference to a civil case or to a case involving only Moore. Under these circumstances, Diaz reference to a 2009 case is a simple mystery, too vague to rise to the level of an extraneous bad act under Rule 404(b). Therefore, the testimony raises no issue for our review. Later in Diaz testimony, he was asked whether, after speaking to Moore at Berna s house, he went to Moore s home to speak with Garza. Diaz replied that he did not do so because of his violent history, as she portrayed it to me -- . As before, Garza objected under Rules 401, 402, 403, and 404(b) and also asked for a mistrial. A hearing was held outside the presence of the jury, during which Garza not only objected to the statement, he asked for a mistrial skipping over a request for the intermediate relief of an instruction for the jury to disregard. The trial court denied Garza s objection under Rule 403 and denied his motion for mistrial, but never ruled on his objections under Rules 401, 402, or 404(b). As a prerequisite to presenting a complaint for appellate review, an appellant must present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling. TEX. R. APP. P. 33.1(a)(1)(A). The complaining party must obtain an adverse ruling from the trial court. DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.] 1979). Finally, the point of error on appeal must correspond to the objection made at trial. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). 9 On appeal, Garza s argument is based upon Rule 404(b); however, regarding Diaz reference to Garza s violent history, Garza failed to obtain a ruling (adverse or otherwise) on his objection. Therefore, he failed to preserve this issue for our review. See TEX. R. APP. P. 33.1(a)(1)(A); DeRusse, 579 S.W.2d at 235. C. Victim Impact Evidence During Guilt/Innocence Phase of Trial In his final point of error, Garza contends that the trial court erred by admitting victimimpact testimony during the guilt/innocence phase of the trial. During the State s examination of Moore, the following exchange took place: Q. Okay. Tell me how this assault has affected your life. [GARZA S ATTORNEY]: Your Honor, this is improper at this point. THE COURT: Well, why don t you rephrase your question. Q. (BY [THE STATE]) Have you had any physical consequences to the assault? Has there been -- the aftermath of your injuries? [GARZA S ATTORNEY]: Asked and answered, Judge. THE COURT: Overruled. A. Yes. I -- I just don t have the memory and the -- some cognitive skills that I have lost. [GARZA S ATTORNEY]: Judge, this is all improper -THE COURT: Overruled. [GARZA S ATTORNEY]: -- at this point. This is all improper. This is all -A. I lost my job and wages. 10 [GARZA S ATTORNEY]: -- victim impact? THE COURT: Overruled. Q. (BY [THE STATE]) When -- I m sorry. We only need one person talking because the court reporter has to record things. A. I m sorry. Q. Just let that person talk. And then the Judge will make a ruling, and then you can talk, okay? A. Okay. Q. So you said that you have -- you ve lost some cognitive abilities and lost your memory. How about your teeth? Or did you have to have any surgery or repairing to your teeth or your nose? A. Yeah. I lost two months of work and had to have my dental work replaced and just scars from the inside. Outside the context of homicide cases, victim-impact testimony is generally defined as evidence regarding the physical or psychological effects of a crime on victims themselves. See Lane v. State, 822 S.W.2d 35, 41 (Tex. Crim. App. 1991). Victim-impact evidence may include physical, psychological, or economic effects of crime on a victim or a victim s family. Espinosa v. State, 194 S.W.3d 703, 711 (Tex. App. Houston [14th Dist.] 2006, no pet.). Although victim-impact testimony may be admissible during the punishment stage, such evidence is generally inadmissible during the guilt/innocence phase because it does not have the tendency to make more or less probable the existence of any fact of consequence with respect to guilt/innocence. See Miller El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (victim s testimony about future hardship as paraplegic was irrelevant on guilt issue and thus inadmissible over objection); see also TEX. R. EVID. 402 (evidence not relevant is inadmissible). Here, Moore 11 testified regarding the physical, psychological, and economic effects of the crime on her. Therefore, the testimony was very clearly victim-impact testimony in nature, and the trial court undoubtedly abused its discretion in allowing its admission at this stage of the proceedings. Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. TEX. R. APP. P. 44.2. If the error is constitutional, we apply Rule 44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not contribute to appellant s conviction or punishment. TEX. R. APP. P. 44.2(a). Otherwise, we apply Rule 44.2(b) and disregard the error if it does not affect the appellant s substantial rights. TEX. R. APP. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Constitutional error is only present when a ruling is constitutionally required; mere misapplication of the rules of evidence is not constitutional error. Alford v. State, 22 S.W.3d 669, 673 (Tex. App. Fort Worth 2000, pet. ref d). Thus, erroneously admitted victim-impact evidence does not amount to constitutional error. Karnes v. State, 127 S.W.3d 184, 196 (Tex. App. Fort Worth 2003, pet. ref d); Lindsay v. State, 102 S.W.3d 223, 228 (Tex. App. Houston [14th Dist.] 2003, pet. ref d). We, therefore, consider whether the error affected Garza s substantial rights. TEX. R. APP. P. 44.2(b). 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). To determine whether the substantial rights of the appellant were affected, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury s consideration, the nature of the evidence supporting the verdict, 12 the character of the alleged error, the arguments, and the voir dire. Motilla v. State, 78 S.W.3d 352, 355 58 (Tex. Crim. App. 2002). A criminal conviction should not be overturned by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Ex parte Henderson, 384 S.W.3d 833, 860 61 (Tex. Crim. App. 2012) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). The strength of the evidence of guilt, especially if it is overwhelming, is a factor to be considered. Motilla, 78 S.W.3d at 357 58. Whether the State emphasized the error can also be a factor in the appellate court s consideration. Id. at 356. If there are grave doubts about whether the error did not affect the outcome, then the error is treated as if it did affect the outcome. Fowler v. State, 958 S.W.2d 853, 865 (Tex. App. Waco 1997), aff d, 991 S.W.2d 258 (Tex. Crim. App. 1999). After examining the record as a whole, we conclude that the admission of Moore s testimony about the ways that the incident has affected her life had only a slight effect, if any, on the jury during the guilt/innocence phase of the trial. The remainder of Moore s testimony, if believed by the jury, was sufficient to prove beyond a reasonable doubt that Garza had severely beaten Moore with his hands and with the pistol and, thus, committed the offense charged. The testimony of Berna and Diaz also supports conviction, as do the text messages from Garza, the recorded telephone conversation, and the medical records. The only reference the State made to the testimony during its closing argument was an oblique mention that Moore was terrorized and still lives with that. The State did not otherwise emphasize the error. We cannot say that we are in grave doubt about whether the error affected the outcome, and we have a fair 13 assurance on this record that the error had little to no effect on the jury s guilty verdict. Given the strength of the evidence of guilt, we find the erroneous admission of the victim-impact testimony harmless. Accordingly, we overrule this point of error. D. State s Cross-Appeal to Modify Findings in Judgment of Conviction As noted before, in its cross-appeal, the State asks this Court to modify the judgment so as to reflect Garza s plea of true to the enhancement, the jury s finding of true to the enhancement, and a finding of family violence. The Texas Rules of Appellate Procedure give this Court authority to modify judgments and correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App. Dallas 1991, pet. ref d). Here, the judgment lists N/A next to the spaces for Plea to 1st Enhancement Paragraph and Findings on 1st Enhancement Paragraph. The record clearly reflects that Garza pled true to the enhancement alleged by the State. The jury found the enhancement true. Article 42.013 of the Texas Code of Criminal Procedure provides that if the trial court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case. TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2006); Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006) ( [T]he trial court is statutorily obligated to enter an affirmative finding of family violence in its judgment, if during the guilt phase of trial, the court determines that the offense involved family violence as defined by TEX. FAM. CODE 14 ANN. § 71.004(1). ); Thomas v. State, 150 S.W.3d 887, 889 (Tex. App. Dallas 2004, pet. ref d) ( [T]he trial court had no discretion in entering a family violence finding once it determined the offense involved family violence. ). Family violence includes dating violence. TEX. FAM. CODE ANN. § 71.004(3) (West 2014). Dating violence includes an act that is committed against a victim . . . with whom the actor has or has had a dating relationship and that is intended to result in assault, or that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault. TEX. FAM. CODE ANN. § 71.0021(a)(1)(A), (a)(2) (West 2014). The indictment and the jury charge each alleged that Garza presently or previously had a dating relationship with Moore and that Garza was a member of Moore s family or household. The application portion of the jury instructions instructed the jury, in pertinent part, Now, bearing in mind the foregoing instructions, if you unanimously find from the evidence beyond a reasonable doubt that on or about May 5, 2012, in Dallas County, Texas, the defendant, Juan Garza, Jr., did unlawfully then and there intentionally or knowingly or recklessly cause bodily injury to Kelly Moore, hereinafter called complainant, by striking complainant with hand or hands, and [Garza] did use or exhibit a deadly weapon, to-wit: a firearm during the commission of the assault, and you further find beyond a reasonable doubt that [Garza] has or has had a dating relationship with the said complainant or [Garza] was a member of the complainant s family or household, then you will find [Garza] guilty of aggravated assault as charged in the indictment. The jury found Garza guilty as charged in the indictment; therefore, the jury found the allegation of family violence to be true. 15 Here, Moore gave undisputed testimony that she and Garza dated and lived together. Despite the evidence provided at trial and the jury s verdict, the judgment fails to include an affirmative finding of family violence. Accordingly, we modify the judgment to include an affirmative finding of family violence and the prior felony enhancement and affirm the judgment, as modified. Bailey C. Moseley Justice Date Submitted: Date Decided: August 28, 2014 October 30, 2014 Do Not Publish 16

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