VALENTIN ORTIZ v. THE STATE OF TEXAS--Appeal from 103rd District Court of Cameron County

NUMBER 13-00-454-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  VALENTIN ORTIZ, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 103rd District Court

of Cameron County, Texas.

__________________________________________________________________

O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Justice Rodriguez

Appellant, Valentin Ortiz, brings this appeal following a conviction for murder. Ortiz was sentenced to fifty years in the Texas Department of Criminal Justice Institutional Division, and assessed a $10,000.00 fine. By four points of error, Ortiz generally contends the trial court erred in denying his motion for mistrial and denying his request for jury instructions. We affirm.

I. FACTS

Ortiz worked as an Aenforcer@ for a drug dealing organization. The victim, Jose Alonso Ramos, worked as a distributor, or Amiddle manager,@ for the organization. On the Saturday night before the incident in question, Ortiz, Ramos, and others associated with the drug organization went to a nightclub in Matamoros, Mexico. At one point during the evening, Ramos told Ortiz not to smoke marijuana while they were at the club. Ortiz became upset and started to yell at Ramos. Ramos left the club and went home.

The next weekend, Ortiz returned to the same nightclub and was approached by a group of men who told him he better Abe cool@ or he would be killed. Ortiz assumed Ramos had the men threaten him because of the events at the club the previous weekend. Ortiz and the men left the club and went to a friend=s house to Aparty.@ At the party, they ran out of beer. Ortiz and his friend, Alberto Sanchez, went to Ramos=s house to get more beer. As Ramos brought beer out to their car, Ortiz approached Ramos and hit him in the head with a beer bottle. Ortiz then put Ramos in the car, and he and Sanchez drove to a vacant lot. Ortiz removed Ramos from the car, Apistol whipped@ him, then shot him fourteen times. Five shots were to Ramos=s head.

II. MOTION FOR MISTRIAL

By points of error one, two, and four, Ortiz contends the trial court erred by denying his motion for mistrial.[1]

Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors, such as an obvious procedural error which would require a reversal or where an impartial verdict cannot be reached. Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A trial court=s denial of a mistrial is reviewed under an abuse of discretion standard. Id.; Cano v. State, 3 S.W.3d 99, 109 (Tex. App.BCorpus Christi 1999, pet. ref=d).

A. State=s Opening Statement

By his first point of error, Ortiz contends the trial court erred in failing to grant a mistrial because of improper remarks made by the State during its opening statement. The code of criminal procedure provides that, A[t]he State=s attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.@ Tex. Code Crim. Proc. Ann. art. 36.01(3) (Vernon 1981 & Supp. 2002). During its opening statement, the State told the jury that Ortiz=s counsel=s job was to confuse them. Ortiz properly preserved error for our review by objecting, asking the court for an instruction to disregard, seeking a mistrial, and obtaining an adverse ruling. See Gallegos v. State, 918 S.W.2d 50, 57 (Tex. App.BCorpus Christi 1996, pet. ref=d).

To constitute reversible error, the State=s comment would have to be so egregious that its prejudicial effect could not be cured by an instruction to disregard. See Lillard v. State, 994 S.W.2d 747, 751 (Tex. App.BEastland 1999, pet. ref=d); Brockway v. State, 853 S.W.2d 174, 176 (Tex. App.BCorpus Christi 1993, pet. ref=d). Although the State=s remark went beyond the proper scope of an opening statement, the statement was not so improper as to be incurable. See Brockway, 853 S.W.2d at 176. We find that the trial court did not abuse its discretion in denying Ortiz=s motion for mistrial on this basis. See Cano, 3 S.W.3d at 109. Accordingly, Ortiz=s first point of error is overruled.

B. Jury Argument

By his fourth point of error, Ortiz contends the trial court erred in denying his motion for mistrial after the State went outside the record during its closing argument.

Proper jury argument falls within one of four areas: (1) summation of evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel; and (4) plea to law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Gallegos v. State, 918 S.W.2d 50, 56 (Tex. App.BCorpus Christi 1996, pet. ref=d). In examining challenges to jury argument, we consider the remark in the context in which it appears. Gaddiss v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). The remarks must have been a willful and calculated effort on the part of the State to deprive Ortiz of a fair and impartial trial. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). To constitute reversible error then, the argument must be manifestly improper or inject new, harmful facts into the case. Jackson, 17 S.W.3d at 673. In most instances, an instruction to disregard the remarks will cure any error. Wesbrook, 29 S.W.3d at 115.

Ortiz complains of the following passage:

State: [Y]ou walk this man on capital murder, then you have endorsed, you have sponsored and approved his way of doing business. You have said all cartels can conduct affairs the way they like. And ladies and gentleman, that is a huge mistake. Because what is one of the best ways of keeping the drug trade going? You intimidate witnesses, we brought you evidence of that.

Ortiz again properly preserved error. See Gallegos, 918 S.W.2d at 57. Even though the State made an improper jury argument by going outside of the record, the trial court followed Ortiz=s objection with an instruction to disregard. We presume the jury followed the trial court=s instructions in the manner provided. See Wesbrook, 29 S.W.3d at 116; Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Only offensive or flagrant error warrants reversal when there has been an instruction to disregard, and, in this case, the comment was not so flagrant that the instruction to disregard was ineffective. Wesbrook, 29 S.W.3d at 116; see Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App. 1994). Thus, the trial court did not abuse its discretion in denying the motion for mistrial on this basis. See Cano, 3 S.W.3d at 109. Accordingly, Ortiz=s fourth point of error is overruled.

III. JURY INSTRUCTIONS

By his third point of error, Ortiz contends the trial court erred in failing to grant his request for jury instructions.

A. Lesser-Included Offense

Ortiz first argues that the trial court erred by denying his request to include an instruction for the lesser-included offense of assault. A defendant is entitled to an instruction on a lesser- included offense if: (1) proof of the charged offense includes the proof required to establish the lesser-included offense; and (2) there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001); Moore v. State, 999 S.W.2d 385, 403-04 (Tex. Crim. App. 1999).

We need only address the second prong as the State has conceded that assault is a lesser- included offense of capital murder. See Holiday v. State, 14 S.W.3d 784, 788 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d), cert. denied, 532 U.S. 960 (2001). As to the second prong, the evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser-included offense charge. Ferrel, 55 S.W.3d at 589.

In determining whether the trial court erred in failing to give a charge on a lesser-included offense, all of the evidence presented by the State and Ortiz must be considered. Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995). Entitlement to a jury instruction on a lesser-included offense must be determined according to the particular facts of each case. Livingston v. State, 739 S.W.2d 311, 336 (Tex. Crim. App. 1987).

To be entitled to a charge on the lesser-included offense of assault, the evidence must show that Ortiz caused or threatened bodily injury to Ramos, but did not cause, or intend to kill him. See Tex. Pen. Code Ann. '19.02 (definition of murder) (Vernon 1994); Id. ' 19.03 (Vernon 1994) (definition of capital murder); Id. ' 22.01 (Vernon 1994 & Supp. 2002) (definition of assault); see also Holiday, 14 S.W.3d at 788. Having reviewed the record as a whole, we conclude there is no evidence that would permit a jury rationally to find that if Ortiz is guilty, he is guilty only of assault. Ferrel, 55 S.W.3d at 589. The State presented overwhelming evidence that Ortiz not only caused substantial bodily injury, but caused the death of Ramos. The record shows that Ortiz hit Ramos with a beer bottle and then proceeded to hit him while riding in the back seat of a vehicle. Once Ortiz arrived at the vacant lot, the record shows Ortiz took Ramos out of the vehicle, walked him to the back of the lot, and then shot Ramos fourteen times. There is no evidence to show Ortiz would be guilty of only the lesser-included offense of assault. Mathis, 67 S.W.3d at 925. The trial court did not err in refusing Ortiz=s requested instruction.

B. Defenses of Alibi and Mutual Combat

Ortiz next argues that the trial court erred in denying his requested instructions for the defenses of alibi and mutual combat.

Defendants are not entitled to defensive instructions on alibi because an alibi is not an enumerated defense in the penal code. Soloman v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001). The issue of an alibi is adequately accounted for within the general charge to the jury. See Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998). Including a special instruction on an alibi would draw unwarranted attention to evidence that appellant was at another place when the crime was committed and would constitute an improper comment on the weight of the evidence. Id. Accordingly, this argument has no merit.

The issue of mutual combat arises out of an antecedent agreement to fight. Carson v. State, 89 Tex. Crim. 342, 230 S.W. 997, 998 (1921). There must be evidence of an agreement between the two parties. See Lujan v. State, 430 S.W.2d 513, 514 (Tex. Crim. App. 1968); cf. Daniel v. State, 171 Tex. Crim. 30, 344 S.W.2d 164, 165 (1961) (accepting invitation to come outside and fight constituted an agreement to engage in combat). In this case, there is no evidence that Ramos consented or agreed to engage in any type of altercation with Ortiz. Ortiz=s third point of error is overruled.

Accordingly, the trial court=s judgment is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed

this 13th day of June, 2002.

[1]We note that Ortiz is only seeking review of the trial court=s denial of his motions for mistrial in points of error one, two, and four. Even though Ortiz has many contentions in those points of error that pertain to alleged trial error, we will only address the arguments that pertain to the trial court=s denial of Ortiz=s motion for mistrial. See Wilson v. State,71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (complaint on appeal must comport with the objections made at trial); Jeffley v. State, 38 S.W.3d 847, 861 (Tex. App.BHouston [14th Dist.] 2001, pet. ref=d) (same). Because none of the complaints in point of error two correspond with the trial court=s denial of any motions for mistrial, the complaints are waived. See Jeffley, 38 S.W.3d at 861. Accordingly, Ortiz=s second point of error is overruled.