Nunez, Joel Garcia v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOEL GARCIA NUNEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-00-00433-CR

Appeal from the

Criminal District Court No. 2

of Dallas County, Texas

(TC# F-9946647-RI)

O P I N I O N

Appellant Joel Garcia Nunez appeals his ninety-nine year sentence for first degree felony murder. We affirm.

Facts

 

Nunez had a common law marriage with Berrios. The two had a son, and Nunez also supported Berrios=s son by another marriage. Berrios and Nunez lived together for seven years and Nunez considered Berrios to be his wife. At the time of the crime in question, Nunez and Berrios were separated, although Nunez frequently returned to Berrios=s apartment to see the children and still stayed some nights with Berrios including the night of the killing we consider here.

At some point, Nunez became suspicious that Berrios was having an affair. Another man, Manuel Martinez, began to call their home late at night. Nunez testified these incidents, including Martinez taunting him that he was not man enough for his wife, angered him. Nunez also had several run-ins with Martinez including an incident where Martinez threatened to kill him. These incidents scared Nunez and he began to carry a gun.

On the night of the murder, Nunez returned the children to Berrios=s apartment after spending the day with them. The door to the apartment was locked. When Berrios finally opened the door, Nunez demanded to know what was going on. Berrios refused to answer. Martinez appeared from inside the apartment. When Nunez saw Martinez, he drew his gun and shot Martinez in the head at point blank range. Nunez fled the scene and was apprehended several months later.

Nunez was indicted for Martinez=s murder. Nunez=s attorney orally moved for a trial continuance because he had just finished a two-week trial and new evidence had been produced by the prosecution which he had not had time to review and investigate. The trial court denied the motion to continue.

 

Nunez chose to plead guilty and the case was submitted to a jury only on the punishment phase of trial. During that trial, Nunez was cross-examined by the State. In the course of that cross-examination, Nunez was asked whether he had ever beaten his wife. Nunez denied that accusation but did testify that his wife had been beaten in January 1999 by two men in a car. At the end of Nunez=s testimony the defense rested.

The next day the State called Nunez on rebuttal in an attempt to impeach him with some pictures taken of his wife after the January assault. Nunez=s counsel objected to Nunez being called to the stand in the following fashion:

YourHonor, we would object to the reasons why they want to call Mr. Nunez back to testify. The State wants to re-cross him having already passed the witness and finished the cross-examination. The only reason they want to cross him now is to ask him about some pictures they didn=t have yesterday and they could have had them yesterday, and we would object to him being recalled as a witness. It=s not for rebuttal, but to finish off what they couldn=t do yesterday.

The trial court denied the objection.

Ultimately, Nunez refused to recant his story concerning his wife=s assault by other men. He did acknowledge that the pictures produced by the State were an accurate representation of how his wife looked after she was beaten. The State also proffered evidence of two 1992 felony convictions for possession and delivery of a small amount of cocaine.

On closing the State argued:

And let=s look at the similarities between the two offenses that you heard of--okay? Look at the similarities. We=ve got two very violent crimes committed by a violent person. Two violent crimes. What else is similar about them? Each time he takes off and is nowhere to be found.

Any testimony you heard that Manuel was a violent man comes from the mouth of a confessed killer, comes from the mouth of a convicted felon.

 

You=ve got no evidence whatsoever that Manuel was a violent man, quite the contrary. Quite the contrary. The only person who had no respect for family, who beat the mother of his child, who killed the father of a three year old boy.

He=s a violent man. So, what do you do with a violent man who commits these type [sic] of crimes, who has these prior first degree and second degree felony possession and delivery of cocaine? Not just possession, but delivery--unlawful delivery of cocaine. First degree and second degree. So, he=s had a first and he=s had a second chance already and you know what he does with second chances. What do you do with somebody who has such disrespect for human life?

The jury rendered a verdict of ninety-nine years of incarceration and a $10,000 fine.

Nunez challenges his conviction with four points of error. First, that the trial court erred by allowing the State to impeach Nunez on a collateral matter and then permitting the State to contradict Nunez=s testimony by calling him as a witness on rebuttal. Second, that the State should not have been permitted to call Nunez on rebuttal. Third, that the trial court failed to conduct a side bar hearing to determine whether its extraneous offense evidence was proved beyond a reasonable doubt. Fourth, that Nunez was denied effective assistance of counsel.

 The Use of Nunez=s Cross-Examination Answers for Rebuttal

 

Nunez first asserts the trial court committed reversible error by allowing the State to cross-examine him on a collateral matter in an effort to impeach him, and then using that testimony to impeach him on rebuttal.[1] As with all rulings concerning the admission of evidence, we employ an abuse of discretion standard of review. Allridgev. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831, 114 S. Ct. 101, 126 L. Ed. 2d 68 (1993); Villalobos v. State, 999 S.W.2d 132, 134 (Tex. App.--El Paso 1999, no pet.).

We focus this discussion with a brief review of the facts. Nunez testified on direct that he stayed with his wife at her mother=s home the evening before Martinez=s murder. When he left the house that morning, Berrios was upset because they had argued about the separation caused by Martinez.

On cross-examination and in the absence of any objection by Nunez, the prosecutor accused Nunez of lying about the reason for the separation from Berrios and posited that the real reason for the break-up was because Nunez allegedly beat Berrios two months before Martinez=s murder. Nunez denied the accusations. The stated purpose for the cross-examination was thus to demonstrate to the jury that Nunez was a liar. At the end of the State=s cross-examination the defense rested.

 

The next day the State called Nunez on rebuttal using pictures of his wife taken after the alleged beating to impeach the testimony from his cross-examination. Defense counsel made the following objection to Nunez being called as a rebuttal witness:

YourHonor, we would object to the reasons why they want to call Mr. Nunez back to testify. The State wants to re-cross him having already passed the witness and finished the cross-examination. The only reason they want to cross him now is to ask him about some pictures they didn=t have yesterday and they could have had them yesterday, and we would object to him being recalled as a witness. It=s not for rebuttal, but to finish off what they couldn=t do yesterday.

The trial court denied the objection.

Nunez refused to recant his denial that he had beaten his wife or that their separation was caused by the beating. He did acknowledge the pictures produced by the State were an accurate representation of how his wife looked after she was beaten. On closing the State argued that Nunez was a liar and a person capable of violent crime based on the rebuttal testimony. The trial court=s charge contained a limiting instruction to the jury requiring it to refuse to consider extraneous offense or bad acts evidence introduced at trial unless they found that the State proved up that evidence beyond a reasonable doubt.

 

As a general rule, witnesses may not be impeached regarding collateral matters. Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990); Poole v. State, 974 S.W.2d 892, 905 (Tex. App. -Austin 1998, pet. ref=d). However, when a witness gives misleading testimony to create a false impression about a collateral matter, the witness may be impeached on that matter in order to correct the false impression. Poole, 974 S.W.2d at 905; see Ramirez, 802 S.W.2d at 676; Hammett v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986). This kind of impeachment is only permissible when the witness voluntarily testifies to the collateral matter. Lopez v. State, 928 S.W.2d 528, 531 (Tex. Crim. App. 1996). A party therefore cannot seek to impeach a witness by soliciting a misleading response to a collateral matter on cross examination. Id. Indeed, the Court of Criminal Appeals has held that A[t]he State may not rely on its own questioning on cross-examination to contradict the defendant and get in evidence collateral matters . . . which would otherwise be inadmissible.@ Shipman v. State, 604 S.W.2d 182, 185 (Tex. Crim. App. 1980); Lopez, 928 S.W.2d at 531-32.

Two cases illustrate the application of these principles. In Shipman, the defendant was asked by the prosecution on cross whether he had been intoxicated in the last two or three years. The defendant responded, AI don=t think so.@ Shipman, 604 S.W.2d at 183. The State was then permitted to impeach the defendant by showing he had been convicted of a DWI in the last two years. Id. The Court of Criminal Appeals found that the false impression exception did not apply because the defendant=s misleading response was elicited by the State on cross-examination. Shipman, 604 S.W.2d at 184-85. Under those circumstances, the Court of Criminal Appeals held the State=s use of the DWI conviction to contradict the defendant=s testimony on cross was harmful error and reversed and remanded the case.

 

Similarly in Lopez, the State sought to correct an allegedly false impression left by the defendant on direct concerning his use of drugs by introducing evidence of an incident where he jumped naked into his ex-girlfriend=s bed while on drugs. Lopez, 928 S.W.2d at 531-32. The State also claimed the evidence demonstrated the defendant=s motive for the murder for which he was being tried. Id. at 532.

The Court of Criminal Appeals held that although defendant had answered questions concerning drugs on direct, he did not volunteer any information about his personality while on drugs, or the specific incident with his girlfriend. Id. The Lopez court therefore reversed and remanded for a harm analysis with regard to the prior misconduct because the Afalse impression@ created by defendant=s testimony on cross arose because of Aprompting or maneuvering@ by the State. Id.

 

The controlling legal principle we extract from these cases is straightforward. When the defendant Avoluntarily . . . [and] without any prompting or maneuvering by the prosecutor@ testifies on either direct or cross as to prior criminal behavior, the State may correct any false impression created by that testimony concerning that behavior. Martinez v. State, 728 S.W.2d 360, 361-62 (Tex. Crim. App. 1987); Lopez, 928 S.W.2d at 532; see Shipman, 604 S.W.2d at 185; but see Grigsby v. State, 653 S.W.2d 43, 44 (Tex. Crim. App. 1983) (Miller, J. dissenting) (false impression testimony can only be elicited on direct, not cross, relying on Shipman); Pylesv. State, 755 S.W.2d 98, 114-15 (Tex. Crim. App. 1988) (en banc) (direct testimony triggers State=s right to cross-examine on collateral matters).

Here, Nunez never volunteered information about the specific episode where he allegedly beat his wife. See Lopez, 928 S.W.2d at 531-32; Pyles, 755 S.W.2d at 115 (State permitted to introduce collateral matters evidence because defendant created false impression as to his violent tendencies on direct). Furthermore, his direct testimony that Martinez created a rift between him and his wife that led to their separation did not create a false impression concerning any other prior criminal activity, especially because there was no evidence that Nunez=s separation from his wife was the result of the alleged assault two months prior to Martinez=s murder.

Lastly, because we cannot overturn a trial court=s decision to admit evidence if that evidence was admissible for any other reason, we address the State=s contention that the photographs of Berrios after the alleged beating were admissible to undercut Nunez=s sudden passion defense or to demonstrate his state of mind when he murdered Martinez. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We find no logical connection between Nunez allegedly hitting his wife after a marital argument, not the murder victim, with a telephone, not a gun, two months prior to Martinez=s murder. This conclusion is reinforced by the fact that the circumstances under which the two incidents occurred were completely dissimilar. See Lopez, 928 S.W.2d at 532.

 

For these reasons, we are inclined to find that the State=s use of collateral matters was improper and that it did work harmful error in the trial. Without the disputed testimony, the State would not have been able to argue that Nunez had violent propensities and was not being truthful with the jury. Such testimony was clearly damaging and resulted in reversible error in the punishment phase.

Nevertheless, we are constrained from reversing and remanding this case because Nunez did not object to the introduction of the collateral matters on cross-examination, did not lodge an appropriate objection concerning the State=s use of the photographic evidence on rebuttal, and did not ask for a side bar hearing to determine whether the State had proven its extraneous evidence beyond a reasonable doubt. Although Nunez now raises all these issues on appeal, his failure to do so in the trial court divests us of the authority to provide him redress on those bases. Point of Error One is thus overruled.

Allowing the State to Call Nunez on Rebuttal

In Point of Error Two, Nunez asserts that the State violated his constitutional rights against self-incrimination by calling him on rebuttal after the defense rested. We assume for the purposes of this discussion that Nunez=s objection to the introduction of the photographic evidence on rebuttal properly preserved this point for our review.

 

It is fundamental that the State may not call the defendant as a witness, nor may the defendant be compelled to testify at trial and give evidence against himself or herself. Newton v. State, 629 S.W.2d 206, 207 (Tex. App.--Dallas), rev=d on other grounds, 641 S.W.2d 530 (Tex. Crim. App. 1982); Bryan v. State, 837 S.W.2d 637, 643 (Tex. Crim. App. 1992). However, the defendant=s Fifth Amendment right may be waived as long as that waiver is knowingly, voluntarily, and intelligently made. Bryan, 837 S.W.2d at 643; Brumfield v. State, 445 S.W.2d 732, 735 (Tex. Crim. App. 1969).

When the defendant voluntarily testifies before a jury, he is subject to the same rules that govern the direct and cross-examination of any other witness. Bryan, 837 S.W.2d at 643. He may therefore be Acontradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying, except where there are overriding constitutional or statutory prohibitions.@ Brown v. State, 617 S.W.2d 234, 236 (Tex. Crim. App. 1981); Bryan, 837 S.W.2d at 643.

The record in this case demonstrates that Nunez knowingly, voluntarily, and intelligently took the stand on his own behalf in a unitary proceeding, the punishment phase of the trial. Bryan, 837 S.W.2d at 643-44 (waiver may be reclaimed if defendant reasserts Fifth Amendment rights in another phase of trial). Under such circumstances, Nunez effectively waived his protections against self-incrimination. Point of Error Two is therefore overruled.

Failure to Conduct an Evidentiary Hearing

In his third point of error, Nunez contends the trial court committed reversible error by failing to hold a hearing to determine if the State could prove beyond a reasonable doubt that Nunez beat his wife. The State contends this error was waived for lack of a timely request by Nunez to hold such a hearing.

 

We cannot consider a complaint on appeal that was not first raised before the trial court in a timely and specific manner. Tex. R. App. P. 33.1. Nunez did request that a hearing outside the presence of the jury be held if the State sought to introduce any extraneous offense materials via a motion in limine, and the trial court did grant that request. However, the record is clear that no request for a hearing or other objection was made by Nunez to the introduction of the extraneous offense evidence either before the State began its cross-examination, or after the State sought introduction of the photographs on rebuttal.[2] Because Point of Error Three was not preserved, it is overruled.

Ineffective Assistance of Counsel

Nunez=s fourth point of error raises an ineffective assistance of counsel claim. He urges that counsel=s failure to ask for a hearing on the admissibility of the extraneous offense evidence or object properly constitutes a Asingle error [that] so permeated the proceedings@ that his sentence should be reversed and the punishment phase remanded for a new determination. Jackson v. State, 766 S.W.2d 504, 506 (Tex. Crim. App. 1985).

 

The Asingle error@ cases cited by Nunez do not support his position because the Court of Criminal Appeals has consistently held that ineffective assistance of counsel claims cannot be reviewed if there is no record to demonstrate counsel=s strategy at trial. Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). The record is silent on this point, and Nunez did not request a post-verdict hearing on the matter. See, e.g., Jackson, 766 S.W.2d at 505-06. Without a record, Nunez cannot rebut the presumption that his counsel employed a sound trial strategy and was not deficient in his performance at trial. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Point of Error Four is therefore overruled.

Conclusion

Nunez=s sentence is therefore affirmed.

SUSAN LARSEN, Justice

August 22, 2002

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

 

[1]Significantly, Nunez did not challenge the relevance or admissibility of the evidence at trial. Had he done so, the State would have had to satisfy the trial court that the extraneous offense evidence was relevant apart from its character conformity value, in this case, the State=s contention that Nunez was a liar and a violent person. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990); Roberts v. State, 29 S.W.3d 596, 600-01 (Tex. App.--Houston [1st Dist.] 2000, pet. ref=d). On appeal the State asserts the disputed evidence also rebutted Nunez=s sudden passion defense by demonstrating the relationship between the parties and Nunez=s state of mind at the time he killed Martinez. Proper rebuttal evidence in this context can include the introduction of similar extraneous offenses if they have Acommon characteristics with the offense for which the defendant was on trial.@ Roberts, 29 S.W.3d at 601; Mares v. State, 758 S.W.2d 932, 936 (Tex. App.--El Paso 1988, pet. ref=d). Under either analysis, we find the alleged evidence that Nunez beat his wife two months before Martinez=s murder irrelevant because the time frame for the two events is too attenuated and because the two events lack of common characteristics.

[2]Although a bench conference apparently did take place prior to the State=s cross-examination, it is not contained in the record. Errors demonstrated by facts not in the record, must be preserved by a motion for new trial. Tex. R. App. P. 21.2. Nunez=s sole point in his motion for new trial challenged the verdict as contrary to the law and the evidence. If the side bar discussion was about the evidence in dispute in this case, it is therefore not preserved for our review. Mata v. State, 867 S.W.2d 798, 803 (Tex. App.--El Paso 1993, no pet.).