HECTOR JAVIER PAEZ v. THE STATE OF TEXAS--Appeal from 339th District Court of Harris County

NUMBER 13-03-231-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

HECTOR JAVIER PAEZ, Appellant,


v.

THE STATE OF TEXAS , Appellee.

On appeal from the 339th District Court of Harris County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Ya ez
Memorandum Opinion by Justice Ya ez

A jury convicted appellant, Hector Javier Paez, of murder and assessed his punishment at twenty years' imprisonment and a $10,000 fine. In five issues, appellant contends the trial court erred by (1) excluding certain evidence regarding the victim's prior violent behavior (issue one), and (2) denying his requests for a mistrial following improper argument by the State (issues two through five). We affirm.

I. Background

The factual background of this case is well known to the parties and will not be repeated at length in this opinion. Appellant was convicted of murdering Alvaro Barretto, owner of the Crystal Nite Club in Houston, Texas. In the early morning hours of December 18, 1997, appellant was at the club drinking with his brother, John Paez, and several other friends. Appellant testified that he was talking to a friend in the rear hallway of the club when Barretto confronted him and angrily accused him of arguing in the club. Barretto was accompanied by Jaime Ross, a bouncer at the club. Barretto ordered Ross to escort appellant and John out the club's back door to the alley. According to appellant, Barretto then attacked John and started beating him. At some point, Ross grabbed John with one hand and raised his other hand (which held a "black object") to hit John. Appellant pulled a knife from his pocket and stabbed Ross. As Barretto was charging toward John, appellant stepped between them and Barretto knocked him to the ground. Accoridng to appellant, Barretto hit him several times; appellant tried to defend himself by "swinging back" with the knife in his hand. As appellant and Barretto continued to fight on the ground, appellant testified that the knife "made contact" with Barretto. When Barretto released him, appellant and John ran away from the club. Barretto later died from the stab wounds.

II. Standard of Review and Applicable Law

A trial court has discretion to decide the admissibility of evidence and, absent an abuse of discretion, its rulings will not be overturned. (1) To determine whether a trial court has abused its discretion, this Court will consider "whether the [trial] court acted without reference to guiding rules and principles; that is, whether the court acted arbitrarily or unreasonably." (2) If a trial court's decision is correct under any theory of law, the decision should not be disturbed even if the trial court gave the wrong reason for its ruling. (3)

A defendant may present reputation or specific act evidence to show a victim's character and demonstrate that either the defendant had a reasonable fear of the victim, or the victim was, in fact, the aggressor. (4) However, such evidence is admissible only if it has relevance apart from its tendency to prove the deceased acted in conformity with his character, and in so far as it tends to explain the deceased's outward aggressive conduct at the time of the killing. (5) In the context of proving the deceased was the first aggressor, specific, violent acts are relevant to the extent that they demonstrate the deceased's intent, motive, or state of mind. (6) In a murder prosecution where a defendant claims self-defense, the deceased's prior threats may be admitted, even though those threats were not directed at the defendant, "[a]s long as the proffered [threats] explain the outward aggressive conduct of the deceased at the time of the killing, and in a manner other than demonstrating character conformity only." (7)

Exclusion of evidence does not result in reversible error unless the exclusion affects a substantial right of the accused. (8) An error affects an appellant's substantial right when it has a "substantial and injurious" effect or influence in determining the jury's verdict. (9)Thus, even if the trial court erred in excluding evidence offered by the appellant in the present case, we must affirm appellant's conviction if, after examining the record as a whole, we are left with the fair assurance that the error did not influence the jury or influenced the jury only slightly. (10)

III. Analysis
A. Excluded Testimony

In his first issue, appellant contends the trial court erred by excluding certain testimony offered by appellant concerning several instances of violence committed by Barretto. Appellant contends the excluded testimony was critical in establishing his reasonable fear of Barretto and that Barretto was the aggressor. The trial court limited appellant's testimony to specific acts of violence by Barretto that appellant had witnessed and incidents that he was told about by others who had witnessed or experienced such incidents. At the close of testimony, appellant presented a bill of exception specifying that he would have testified as to the following prior acts of violence by Barretto: (1) a 1992 incident in which Barretto beat up George Giaconna in front of the Crystal Night Club; (2) a 1996 incident in which Barretto beat up "Little Fernando;" (3) a 1996 incident in which Barretto and his brother severely beat up a man named "Willy;"(4) a 1997 incident in which Alex Hamilton was taken outside and beaten by Barretto and bouncers at the club; and (5) an incident that occurred sometime between 1995 and 1997 in which Barretto shot his father-in-law. Appellant's counsel argued that the excluded testimony was "relevant and admissible for purposes of showing [appellant's] knowledge and state of mind." The State objected that (1) the probative value of the testimony was substantially outweighed by its unfair prejudice under rule 403 (11) and (2) other witnesses had presented testimony regarding "issues that would go to [appellant's] state of mind." The court noted that the testimony regarding "someone named Willy," Alex Hamilton, and the "alleged shooting of the father-in-law" was "rank hearsay" and "incompetent evidence."

We conclude that the trial court did not abuse its discretion in excluding the complained-of testimony. Moreover, because most of the same or similar testimony was presented to the jury either by appellant or other witnesses, appellant cannot show that he was harmed. Appellant was allowed to testify that (1) in 1992, he saw Barretto beat up Javier Pulido in the parking lot of the club; (2) in 1996, he saw Barretto attack a customer with shoulder-length hair in the club; the customer was then escorted outside by bouncers; (3) in 1997, he saw Barretto attack a customer on the sidewalk outside the club; bouncers then escorted the man inside the club; (4) in 1997, he saw another incident involving two customers who were arguing on the sidewalk outside the club; Barretto beat one of the men and bouncers took him inside the club; (5) in 1997, at another club owned by Barretto, the Casa Corsa Club, he saw Barretto fighting with a man in the parking lot; several bouncers took the man inside the club; and (6) in 1997, he saw a second incident at the Casa Corsa Club, in which Barretto attacked a man on the sidewalk; several bouncers joined the fight, which resulted in severe injuries to the man. At the end of his testimony, appellant restated that he witnessed Barretto assaulting customers on at least six different occasions.

Brian Pham, a friend of appellant's who was at the club the night of the killing, testified that he once saw Barretto assault a customer. Valdamar San Miguel testified that in mid-1997, Barretto and several bouncers escorted him out the back door of the club into the alley, where he was beaten.

John testified that in 1996, while in line at the club with a friend, Carlos Masetti, he saw Barretto slap a customer who was challenging the club's dress code. John testified that on another occasion in 1996 at the club, he and appellant saw Barretto hit a Hispanic customer with shoulder-length hair. Shortly thereafter, John and appellant saw two bouncers escort the customer toward the back door of the club. John also testified that in 1992, Bruce Pham told him and appellant about an incident in which Barretto severely beat George Giaconna in front of the club. John testified that in 1996, appellant told him that he heard that "Little Fernando," an acquaintance, was taken to the back of the club by bouncers and beaten by Barretto. John testified that in 1997, he observed Barretto hit a customer of Chinese descent; the bouncers then escorted the customer out the front door of the club. John testified that Barretto had a reputation as a "violent man."

We agree with the trial court that most of the testimony offered in the bill of exception "ha[d] already come out." Because the jury had already heard ample evidence regarding Barretto's reputation for violence, appellant cannot show that he was harmed by the trial court's exclusion of his testimony. (12) We overrule appellant's first issue.

B. Improper Jury Argument

In issues two through five, appellant complains of various instances of allegedly improper jury argument. Appellant contends that during closing argument, the "prosecutor repeatedly injected facts that were not in evidence" in an attempt to defeat appellant's claims of self-defense and defense of a third person. Specifically, appellant complains of the following comments by the prosecutor: (1) a reference suggesting that customers previously beaten by Barretto would have sued the club; (2) a mistaken reference to "Javier Pulido," when referring to the incident involving "Little Fernando;" (3) a suggestion that the customers who were beaten by Barretto may have caused disturbances; and (4) a statement regarding appellant's self-defense claim that "we don't let you bring a knife to a fistfight." In each instance, the trial court sustained appellant's objection, instructed the jury to disregard the comment, and denied appellant's request for a mistrial.

We review a trial court's denial of a motion for mistrial for abuse of discretion. (13) The asking of an improper question, by itself, will seldom call for a mistrial. (14) When the trial court sustains an objection and instructs the jury to disregard but denies a defendant's motion for mistrial, the issue is whether the trial court abused its discretion by denying the mistrial. (15) The determination of whether such an abuse of discretion occurred is made by examining (1) the severity of the alleged misconduct, (2) the curative measures that were taken, and (3) the certainty of conviction absent the improper question. (16) Otherwise, an instruction to disregard generally suffices. (17) Generally, we presume the jury follows the trial court's instructions and that a limiting instruction cures any harm. (18)

The standard of review for improper jury argument is to review the record in its entirety to determine whether any erroneous statements were made, and if so, whether they were so prejudicial as to deprive the appellant of a fair and impartial trial. (19)

Here, two of the comments were directed at impeaching the testimony regarding Barretto's prior violent acts, one comment involved the prosecutor confusing one victim with another, and one comment involved the use of the knife in self-defense. In each case, the trial court promptly instructed the jury to disregard the comment. We conclude that none of the complained-of comments were so manifestly improper and inflammatory that an instruction to disregard could not cure each statement's alleged prejudicial effect. (20) We overrule appellant's second, third, fourth, and fifth issues.

We affirm the trial court's judgment.


LINDA REYNA YA EZ,

Justice


Do not publish. Tex. R. App. P. 47.2(b).


Memorandum Opinion delivered and filed

this the 31st day of August, 2006.

1. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

2. Fox v. State, 115 S.W.3d 550, 558 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd).

3. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

4. See Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998).

5. Id. at 193.

6. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

7. Hayes v. State, 161 S.W.3d 507, 509 (Tex. Crim. App. 2005) (quoting Torres, 71 S.W.3d at 761-62).

8. See Tex. R. App. P. 44.2(b); Wilson v. State, 90 S.W.3d 391, 393 (Tex. App.-Dallas 2002, no pet.).

9. Wilson, 90 S.W.3d at 393.

10. See id.

11. See Tex. R. Evid. 403.

12. We also note that in the punishment phase, the jury found that appellant acted in "sudden passion arising from an adequate cause."

13. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

14. Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994).

15. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Primes v. State, 154 S.W.3d 813, 814 (Tex. App.-Fort Worth 2004, no pet.).

16. Hawkins, 135 S.W.3d at 77.

17. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (noting that ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer); Primes, 154 S.W.3d at 815.

18. Moore, 882 S.W.2d at 847.

19. Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989).

20. See Hawkins, 135 S.W.3d at 77.