Duran, Jarrod v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JARROD DURAN, ) No. 08-01-00109-CR

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Appellant, ) Appeal from

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v. ) 243rd District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 970D03833)

O P I N I O N

Jarrod Duran appeals his convictions for aggravated assault and deadly conduct. A jury found Appellant guilty of aggravated assault (Count II) and the lesser-included offense of deadly conduct (Counts III through VIII). With respect to Count II, the jury assessed punishment at a fine of $10,000 and imprisonment for a term of eight years. With respect to Counts III through VIII, the jury assessed punishment at a fine of $1,000 and confinement in the county jail for one year. We affirm.

FACTUAL SUMMARY

In April 1997, Appellant traveled to El Paso from Trinidad, Colorado to help his brother move into their father=s home. On April 22, Appellant went to the residence of Deborah Connelly, Francis Connelly, and their son Francis Pearl Connelly (Pearl).[1] He had coffee and smoked two marihuana cigarettes with Francis and Pearl. Although Pearl and his father had no unusual reaction, Appellant began feeling strange and feared that he had been Adrugged@ and hypnotized. He left suddenly and ran to his father=s house which was a few blocks away. Because he had left their house in Athe wrong shape of mind,@ Deborah and Pearl followed Appellant to check on him. Appellant demanded that they leave. As they walked away from the house, Appellant shot Deborah in the shoulder with an SKS Chinese model assault rifle. They got in the car, but before they could get out of the driveway, a second shot came through the windshield and struck Deborah in the opposite shoulder. The Connellys drove home and called an ambulance.

The El Paso County Sheriff=s Department SWAT team and the Socorro Police Department also responded to the call. Appellant barricaded himself in the residence and would not respond to the efforts of law enforcement negotiators to communicate with him. Consequently, the SWAT commander determined that they would enter the house forcibly in order to arrest Appellant. As six members of the SWAT team entered the residence to effect the arrest, Appellant fired his rifle. One of those officers heard the bullets strike the ceiling above him and another officer saw a bullet hole appear in the wall next to him. The SWAT team returned fire and followed Appellant into the kitchen where they disarmed him of the SKS assault rifle and took him into custody. During a subsequent search, they found another assault rifle, other weapons, and ammunition. Additionally, they found drug paraphernalia and a large amount of currency under a furnace.

Appellant testified at trial that he became paranoid after he smoked the marihuana. He believed the Connellys had Adrugged him@ and Ahypnotized@ him. He retrieved the gun because he knew the Connellys would be coming to get him. He repeatedly yelled at them to leave and fired warning shots. He did not immediately know that he had hit Deborah. After the Connellys got into the car, he saw them reaching for what he believed might be a weapon, so he fired a shot into the vehicle. At that point, he realized he had shot Deborah. After the police arrived, Appellant told them he did not want any problems and hid in the house. He claimed to have been asleep when the officers removed the screen door. Frightened that they would harm him, he fired warning shots into the ceiling. He threw down his weapon when the officers entered the house.

A grand jury returned an eight count indictment against Appellant for the attempted murder of Deborah Connelly (Count I), the aggravated assault of Deborah Connelly (Count II), and the attempted capital murder of six members of the SWAT team (Counts III through VIII). Because the jury found Appellant guilty of Count II, the State dismissed Count I. With respect to Counts III through VIII, the jury found him guilty of the lesser-included offense of deadly conduct.

PUNISHMENT EVIDENCE

In Issue One, Appellant argues that the trial court abused its discretion in admitting Aextraneous offense@ evidence regarding a Colorado murder and the drug paraphernalia in Appellant=s residence. He contends the evidence should have been excluded because it is irrelevant and its probative value is outweighed by its prejudicial impact. Additionally, he urges that the two witnesses were incompetent to testify about the prior bad acts.

Testimony of Thomas Lucas

Prior to trial, the State provided Appellant with written notice of its intent to introduce evidence of several adjudicated and unadjudicated extraneous offenses. Pertinent to this point of error, the State gave notice that A[o]n or about January 28, 1993, in the County of Las Animas, Colorado, Defendant committed or was implicated in the offense of Murder against Michael Zuniga by shooting Michael Zuniga with a firearm, which offense was investigated by the Las Animas County Sheriff=s Department under case no. 93-012, and for which Defendant was never adjudicated.@ Additionally, the State intended to introduce evidence showing that A[o]n or about July 23, 1999, in the County of Las Animas and State of Colorado, Defendant committed the offenses of Manslaughter and Assault against Ben Velasquez, was found guilty of Assault in the 3rd Degree on or about February 1, 2000, and sentenced on or about March 8, 2000 to serve 18 months.@[2]

During the punishment phase, Sergeant Thomas Lucas of the Sheriff=s Department in Trinidad, Colorado testified that he has known Appellant for approximately two years and is familiar with his reputation in the community for being violent or peaceful and law-abiding. According to Lucas, Appellant has a reputation for being violent. Further, Lucas is of the opinion that Appellant is not law-abiding. In 1999, Lucas investigated three related assaults involving Appellant. Appellant and his girlfriend were fighting in a storeroom of a tavern in Trinidad when Kristine Kirsch, Ben Velasquez, and Paul Williams attempted to intervene. Appellant became angry at Kirsch and attempted to attack her. When Velasquez tried to protect Kirsch, Appellant shoved Velasquez, who fell and struck his head on a metal door. Appellant later told the officers that he shoved Williams but did not strike Velasquez. Velasquez subsequently died of his injuries. A jury convicted Appellant of manslaughter but the case was reversed on appeal and is currently awaiting retrial.

During cross-examination, Appellant=s counsel attempted to show that Lucas did not have a sufficient basis for his testimony regarding Appellant=s reputation for being violent. When Lucas stated that his opinion was based upon discussion with other police officers and Appellant=s arrest record, Appellant questioned him about some of the prior arrests, including the assault of his girlfriend and Velasquez. On re-direct, the State elicited additional testimony regarding Appellant=s arrest record. Finally, the prosecutor asked Lucas whether he knew about Appellant=s Ainvolvement in the murder of Michael Zuniga, if anything?@ Lucas replied that he knew only that Appellant drove Michael Zuniga to the residence of Rick June, who subsequently killed Zuniga. He explained that Appellant was never charged with that murder. Appellant objected to the testimony and the court conducted a hearing outside the presence of the jury. During this hearing, Lucas did not provide any other details of the offense or Appellant=s purported involvement in it. Appellant argued that the State had not established a link between Appellant and the offense, and therefore, the evidence lacked relevance and was more prejudicial than probative. The prosecutor initially responded by stating that Appellant was implicated in the shooting as a party by having driven Zuniga to the residence. Later, however, the prosecutor explained to the court that the evidence was relevant to Appellant=s character because Athis guy is around people who kill and he, himself, tries to kill.@ The trial court overruled Appellant=s objections and admitted the testimony.

Testimony of James Reuter

Detective James Reuter of the El Paso County Sheriff=s Department testified over Appellant=s objections about drug paraphernalia found in the residence where Appellant barricaded himself. According to Reuter, a large amount of currency was found under the house=s furnace. Additionally, they found a cellophane baggie containing a white powdery substance and a bent Coca-Cola can with a spoon. These items are commonly associated with drug usage. The Coke can also had a white powdery substance inside of it but the officers did not test it to determine whether it was a controlled substance.

Standard of Review

A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. Davis v. State, 68 S.W.3d 273, 282 (Tex.App.--Dallas 2002, pet. ref=d);Moreno v. State, 1 S.W.3d 846, 861 (Tex.App.- Corpus Christi 1999, pet. ref=d). Article 37.07 of the Code of Criminal Procedure authorizes the trial court to admit evidence relating to any matter deemed relevant to sentencing, including but not limited to:

[T]he prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

See Tex.Code Crim.Proc.Ann. art. 37.07, ' 3(a)(1)(Vernon Supp. 2003).

At the punishment phase, relevant evidence is that which assists the fact finder in determining the appropriate sentence given the particular defendant in the circumstances presented. Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999); Davis, 68 S.W.3d at 282-83. Relevant evidence is not limited to evidence of other crimes or bad acts nor is it limited to the circumstances of the offense. Evidence of the defendant=s conduct, background, and character may be admissible even if it does not constitute an extraneous offense or bad act. Thompson v. State, 33 S.W.3d 847, 853 (Tex.App.--Tyler 2000, no pet.); Henderson v. State, 29 S.W.3d 616, 626 (Tex.App.--Houston [1st Dist.] 2000, pet. ref=d); see Murphy v. State, 777 S.W.2d 44, 63 (Tex.Crim.App. 1988)(opinion on reh=g)(stating that possession of the fullest information possible concerning the defendant=s life and characteristics is highly relevant, if not essential, to selection of an appropriate sentence). Even relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R.Evid. 403; Davis, 68 S.W.3d at 283. As used in Rule 403, Aunfair prejudice@ means the undue tendency of the evidence to suggest a decision on an improper basis. Rogers, 991 S.W.2d at 266. We will not disturb a trial court=s determination regarding the admissibility of relevant evidence unless an abuse of discretion has been shown. See Green v. State, 934 S.W.2d 92, 101 02 (Tex.Crim.App. 1996).

Waiver

Appellant first argues that the trial court abused its discretion because Lucas and Reuter were not qualified to testify. The State responds that Appellant did not raise this objection in the trial court, or if he did, it was abandoned. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and that the trial court ruled upon it. Tex.R.App.P. 33.1(a)(1) and (2); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999); Richardson v. State, 981 S.W.2d 453, 455 (Tex.App. -El Paso 1998, pet. ref=d).

With respect to Reuter=s testimony, Appellant never objected on the basis that the witness was not qualified or was not competent to testify about the drug paraphernalia. Therefore, his objection is waived.

Appellant initially objected to Lucas=s testimony in the presence of the jury on the grounds of relevance and prejudice. The trial court then excused the jury and Lucas from the courtroom. During the subsequent hearing, Appellant=s counsel continued to argue that the evidence lacked relevance and was more prejudicial than probative, but he also engaged in the following exchange with the trial court:

[Appellant=s counsel]: You never, haven=t had an opportunity to cross examine him on this point, how do we know he has personal knowledge that he even drove the vehicle? I mean, that=s still coming along here and when we get to what goes before the jury, Judge.

[Judge]: I understand. Well, I mean, do you want me to question him?

. . .

[Appellant=s counsel]: Well --

[Judge]: Do you want me to question him outside the presence of the jury then, or do you want --

[Appellant=s counsel]: No, ma=am. What I would like to do is have the Court sustain my objection to the prejudicial tossing of whatever it is there into the jury box there, and I want the Court to grant a mistrial because that=s -- my client can=t get a fair trial, no matter -- you couldn=t give a curative instruction, don=t see pink elephants. That=s what they think about immediately. My client cannot get a fair trial as a matter of law in this, under the facts and circumstances of that prejudicial stuff coming in before them, Judge. [Emphasis added].

By rejecting the trial court=s offer to determine the basis of Lucas= knowledge outside of the presence of the jury, Appellant certainly created the impression that he intended to abandon this objection. Consequently, he has waived this complaint. See Ramos v. State, 819 S.W.2d 939, 942 (Tex.App.--Corpus Christi 1991, pet. ref=d).

Relevance

When examining whether evidence is relevant under Article 37.07, section 3(a)(1), the definition of Arelevant evidence@ found in Rule of Evidence 401[3] is not a Aperfect fit.@ See Rogers, 991 S.W.2d at 265. Sentencing presents different issues than those found in the guilt/innocence phase because the jury or judge chooses from a punishment range, rather than deciding whether a defendant is guilty. Id. Admissibility of evidence at the punishment phase of a non capital felony offense is a function of policy rather than relevancy because, by and large, there are no discrete factual issues at the punishment stage. Rogers, 991 S.W.2d at 265; Miller El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App. 1990). There are simply no distinct facts of consequence that proffered evidence can be said to make more or less likely to exist. Rogers, 991 S.W.2d at 265; Miller El, 782 S.W.2d at 895 96. Rather, deciding what punishment to assess is a normative process, not intrinsically fact bound. Rogers, 991 S.W.2d at 265; Miller El, 782 S.W.2d at 896. Determining what is relevant should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Rogers, 991 S.W.2d at 265.

Appellant argues that the evidence is irrelevant because the State failed to demonstrate beyond a reasonable doubt that he committed the extraneous offenses. The State responds that it did not offer the challenged testimony for the purpose of showing that Appellant committed the murder in Colorado or that he possessed drugs inside of his father=s home. Instead, it sought to provide the jury with information concerning the circumstances of the offense and Appellant=s character as reflected by his association with people who are involved with weapons and murder. We will first consider whether the evidence is relevant as character evidence.

By its enactment of Article 37.07, section 3(a)(1), the Legislature has determined that character evidence is relevant to the issue of punishment. We must decide whether evidence showing a bad act committed by an associate of the defendant is relevant to the defendant=s character. Courts in our state have recognized that where the defendant is charged with an act of violence, membership in an organization with a reputation for violent activities is relevant because it relates to his character, and is therefore admissible during the punishment phase. See e.g., Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim.App. 1995); Anderson v. State, 901 S.W.2d 946, 950 (Tex.Crim.App. 1995); Thompson, 33 S.W.3d at 853; Ybarra v. State, 775 S.W.2d 409, 411 (Tex.App.--Waco 1989, no pet.). It is not necessary for the State to link the accused to the bad acts or misconduct generally engaged in by the organization=s members. Beasley, 902 S.W.2d at 457. In order for such evidence to be relevant character evidence, the State must establish a sufficient link between the defendant and the organization by introducing proof of his membership. See Mason v. State, 905 S.W.2d 570, 577 (Tex.Crim.App. 1995). Additionally, it must offer proof of the organization=s activities and purposes so that the jury can determine whether the defendant=s membership is a positive or negative character trait. Anderson, 901 S.W.2d at 950. We conclude that a similar degree of connection must be shown here in order for Appellant=s association with Rick June to be relevant to Appellant=s character.

The evidence showed only that Appellant drove Zuniga to June=s home and, at some unspecified point in time, June killed Zuniga. There is no evidence of the nature of the relationship between Appellant and June or Zuniga. Given the lack of connection between Appellant and June, Appellant=s association with June does not reflect either positively or negatively upon his character. The State argues that the evidence is relevant character evidence because Appellant was present when people were killed with weapons. We are unable to address this contention, however, because there is no evidence that Appellant was actually present when Zuniga was killed nor is there any evidence that June killed Zuniga with a weapon. Similarly, there is an insufficient connection between Appellant and the drug paraphernalia found in the home of Appellant=s father. Therefore, we find the evidence pertaining to Zuniga=s murder and the drugs found at the crime scene irrelevant to Appellant=s character and inadmissible under this theory.

The State also argues that this same evidence is relevant to show the circumstances of the offense. We fail to perceive how Appellant=s relationship with June is a circumstance of this offense. Given the lack of detail regarding Appellant=s relationship with June or his connection with the murder of Zuniga, we cannot conclude that the events in Colorado somehow reflect upon the circumstances of this offense. With respect to the drug paraphernalia found in the home of Appellant=s father, there is substantial evidence that Appellant uses illegal drugs and associates with people who engage in the same conduct. Therefore, we find that this evidence is admissible as a circumstance of the offense. But this does not end our inquiry.

Rule 403

The Rules of Evidence prohibit the admission of relevant evidence where its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R.Evid. 403. There was substantial evidence that Appellant uses illegal drugs. Consequently, the probative value of this evidence would not have been substantially outweighed by the danger of unfair prejudice.

Harm Analysis

Having determined that the trial court erred in admitting the evidence of Zuniga=s murder during the punishment phase, we must proceed to a harm analysis. Because this is non constitutional error, the appropriate standard is that found in Rule 44.2(b), which requires us to examine error in relation to the entire proceeding and determine whether it had a substantial and injurious effect or influence in determining the jury=s verdict. Tex.R.App.P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997), citing Kotteakos v. U.S., 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)(discussing federal Aharmless error@ rule containing similar language); Richardson v. State, 981 S.W.2d 453, 457 (Tex.App. El Paso 1998, pet. ref=d). If the record fails to show that the error had such an impact, it cannot be said to affect a substantial right, and therefore, we are mandated to disregard the error. Richardson, 981 S.W.2d at 457. Essentially, we must determine whether the error compromised the fairness of Appellant=s trial.

Appellant contends that the evidence harmed him because the jury was permitted to consider it even though the State failed to prove he committed the extraneous offense beyond a reasonable doubt. He points to the jury=s assessment of a prison sentence rather than community supervision as evidence of harm. The charge instructed the jury to consider extraneous acts only if they were proven beyond a reasonable doubt. We are required to presume that the jury followed this instruction. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998). During final argument, Appellant=s counsel stressed that the jury could not consider this evidence unless it believed beyond a reasonable doubt that Appellant had participated in the murder. The State, on the other hand, never mentioned Zuniga=s murder in final argument. Instead, the prosecutor referred strictly to the facts of the instant case as justifying the maximum punishment. While the jury assessed a prison sentence rather than recommending community supervision, the facts are sufficiently egregious to warrant the sentences imposed. Further, the jury heard additional evidence of several prior arrests, the assaults of Appellant=s girlfriend, Kirsch, and Velasquez, and Appellant=s poor reputation in his community. From this evidence, the jury could have readily determined that Appellant was a poor candidate for community supervision. We conclude that the evidence pertaining to Zuniga=s murder did not have a substantial and injurious effect on the jury=s determination of punishment, and the error must be disregarded. Issue One is overruled.

ADMISSION OF TRANSCRIPT

In Issue Two, Appellant argues that the trial court abused its discretion in admitting a portion of his testimony from the trial in Colorado because it is hearsay. The State responds that Appellant waived his hearsay objection by failing to raise it in the trial court. We agree. Appellant questioned only the relevance of the testimony and made no hearsay objection. Therefore, his complaint on appeal is waived because it varies from the objection made in the trial court. See Fuller v. State, 827 S.W.2d 919, 928 (Tex.Crim.App. 1992); Tex.R.App.P. 33.1. Issue Two is overruled. Having overruled both issues, we affirm the judgment of the trial court.

December 19, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

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

(Do Not Publish)

[1] Deborah is Pearl=s stepmother but she considered him a son since she had raised him from a young age.

[2] Appellant does not challenge the admission of the evidence pertaining to the assault of Velasquez. We include it in this discussion because it forms the context in which the challenged evidence was admitted.

[3] ARelevant evidence@ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Evid. 401.