CARLOS MENDOZA RIVERA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed August 10, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00678-CR
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CARLOS MENDOZA RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F05-00789-UWY
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OPINION
Before Justices Morris, Wright, and FitzGerald
Opinion By Justice Wright
        Carlos Mendoza Rivera appeals his conviction for engaging in organized crime.   See Footnote 1  After the jury found appellant guilty, it assessed punishment at 28 years' confinement and a $1000 fine. In nine issues, appellant generally contends: (1) the trial court erred by improperly amending the indictment; (2) the evidence is legally and factually insufficient to support his conviction; (3) the trial court improperly charged the jury; (3) the trial court erred by denying appellant's motion to suppress his written statement; (4) the State's closing argument was improper; (5) the trial court erred by allowing certain evidence; and (5) the cumulative harm of these errors resulted in an unfair trial. We overrule appellant's issues and affirm the trial court's judgment.
 
Background
        Eight-year-old J.P. and his younger brother, G.P., were in their apartment coloring when J.P. heard what he thought were firecrackers. According to J.P., the next thing he remembers is having “a hole in my stomach.” G.P. testified that before J.P. was shot, G.P. heard “some guys . . . talking about . . . shooting people. And doing drugs.” A short time later, he heard loud “bang bangs.” When he heard the bangs, he started to cry and ran “in front of the refrigerator.” G.P. heard J.P. make a noise and saw him holding his stomach. G.P. was scared because he knew his brother had been shot.
        Nestor Ramirez testified that he had been a member of the Vario Northside gang for several years. He was standing outside at the North Haven Apartments talking with two of his friends and a fellow gang member, when some rival gang members drove by in a red Ford Taurus. The people in the Taurus displayed the hand sign for the Surenos, or Southside gang. Ramirez and his fellow gang member responded by showing the Northside hand sign. When they did so, one of the Surenos pulled a gun. Ramirez and his friends ran. As they did so, the Sureno seated on the right side of the back seat fired the gun five times.
        Mario Rivas testified he was “hanging out” with his friends outside his apartment when a red car with five people inside drove by “showing their 13,” the gang sign for the Surenos. After showing the gang sign, the driver turned around and drove back by Rivas and his friends. One of his friends, David, went toward the car showing the Northside gang sign. As he did so, the right rear passenger pulled out a gun and then shot the gun “about four times.”
        Officer Antonio Aleman testified he is a gang unit officer with the Dallas Police Department. Two days after the shooting, Aleman went to a known Sureno “hangout” and spoke with some members of the Surenos. Thereafter, he went to appellant's apartment. Aleman obtained consent to search the apartment from Carmen Mendoza.   See Footnote 2  She indicated one of the bedrooms was appellant's, but the bedroom did not appear to belong to appellant. At that time, Aleman learned appellant had been taken into custody, and, a short time later, appellant was brought to the apartment. After reading appellant the consent to search warnings, appellant agreed to let the police search the apartment. During the search, Aleman found several items-including clothing, a video cassette, a belt, and a photo album-that, in Aleman's opinion, linked appellant with the Surenos. After the apartment was searched, appellant was taken to the police station where he gave a statement to Officer Daniel Torres admitting “[he] took some shots at the Northerners and there was a small child, several children there, by accident. The child is not guilty. I had the gun and we shot it from the road on Denis.”
        Appellant testified that although he was in a red Taurus with members of the Southside gang the night of the shooting, they did not go to the North Haven Apartments and he did not shoot a gun at a group of men standing outside the apartments. According to appellant, when he spoke with Torres, he did not admit to being a gang member and he did not initially admit to being the shooter. Appellant explained he eventually gave the statement because he felt pressured and that “they would lock me up whether [he said] it or not.” Additionally, appellant said he signed the statement because Torres told him that it would benefit appellant if he did.
        After hearing this and other evidence, the jury found appellant guilty. This appeal followed.
 
Amendment of the Indictment
        In his first and second issues, appellant claims the trial court erred by: (1) improperly amending the indictment on the day of trial over his objection; and (2) charging the jury under the amended indictment. After reviewing the record, we disagree.
        Appellant was indicted for engaging in organized crime. The indictment originally read as follows:
On or about the 15th day of February A.D., 2005 in the County of Dallas and said State, [appellant] did unlawfully, with the intent to establish, maintain and participate as a member of a criminal street gang, commit aggravated assault of Justin Parker, by shooting at Justin Parker with a deadly weapon, to wit: a firearm.
        The day of trial, the State filed a motion seeking to strike the word “at” from the first paragraph of the indictment, changing the indictment from “shooting at Justin Parker” to “shooting Justin Parker.” Appellant objected to the State being permitted to amend the indictment on the day of trial. The trial court orally denied the State's motion, but later signed an order granting the motion. The face of the indictment is altered to delete the work “at,” and the trial court charged the jury under the indictment as altered.
        An indictment may be amended after the trial on the merits commences if the defendant does not object. Tex. Code Crim. Proc. Ann. art. 28.10(b) (Vernon 2006). However, it may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced. Id., art. 28.10(c).
        An amendment to an indictment is a change that affects the substance of the indictment, while an abandonment, even if effected by a physical change in the indictment, does not affect its substance. Eastep v. State, 941 S.W.2d 130, 132-33 (Tex. Crim. App. 1997), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000). An alteration to the charging instrument that constitutes abandonment, rather than amendment of the instrument, does not invoke the requirements of article 28.10. See id. at 133.         An abandonment is appropriate in the following situations: (1) changing the ways or means of committing the offense; (2) reducing the charge to a lesser-included offense; and (3) eliminating surplusage. Mayfield v. State, 117 S.W.3d 475, 476 (Tex. App.-Texarkana 2003, pet. ref'd). Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument. Eastep, 941 S.W.2d at 134; see also Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000). An indictment alleging the offense of engaging in criminal activity by engaging in aggravated assault as a member of a criminal street gang need not allege the manner and means of committing the underlying offense of aggravated assault. See Lucario v. State, 658 S.W.2d 835, 837 (Tex. App.-Houston [1st Dist.] 1983, no pet.).
        Here, the State filed a motion on the day of trial seeking to strike the word “at” from the first paragraph of the indictment. The trial court altered the indictment from “shooting at Justin Parker” to “shooting Justin Parker.” Because the word “at”did not furnish an allegation legally necessary to describe the offense of engaging in criminal activity by engaging in aggravated assault, we conclude it was surplusage. Thus, the alteration to the indictment constituted an abandonment and not an amendment, and the trial court did not abuse its discretion in granting the State's motion to strike the word “at.” We overrule appellant's first issue. Due to our disposition of appellant's first issue, we need not address appellant's second issue.
Motion to Suppress
 
        In his third issue, appellant contends the trial court erred by denying his motion to suppress his written statement. Specifically, appellant maintains that his statement should be excluded because he was induced to make his statement when Torres advised him that it would be to his benefit to sign the statement. After reviewing the record, we cannot agree.
        An accused's statement may be used against him “if it appears that the same was freely and voluntarily made without compulsion or persuasion.” Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). For a promise to render a confession invalid under article 38.21, the promise must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). An improper inducement must be of an exceptional character before it will invalidate an otherwise voluntary confession. Espinosa v. State, 899 S.W.2d 359, 364 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). General statements about how a confession might result in more lenient treatment will not invalidate the confession. Id. (citing Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983)).
        Here, Torres testified he did not promise appellant anything in exchange for making his statement. According to Torres, he simply told appellant it would “be good to be honest, as it would be for anyone.” Appellant, on the other hand, testified Torres told him it would benefit him if appellant signed the statement. The trial court was free to believe Torres and disbelieve appellant, concluding Torres did not promise appellant anything in exchange for his statement. Moreover, even if Torres's statement were interpreted as a promise of leniency, such a general statement is not the type of statement that would invalidate appellant's confession. See Drake v. State, 123 S.W.3d 596, 603 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd); Espinosa, 899 S.W.2d at 364. We overrule appellant's third issue.
 
Closing Statement
        In his fourth issue, appellant contends the State's closing argument during guilt-innocence was improper because it asked the jury to step into the shoes of the victim and the victim's family. In particular, appellant complains about the following statement by the State: I want you to think about [J.P. and G.P.] I want you to remember the way that they were in their little apartment. [J.P. and G.P.] playing on the floor coloring pictures. Like [G.P.] said, they were drawing faces, minding their own business, when they hear a pop. Think about in your mind when little [G.P.] got up and ran to the refrigerator to hide. Imagine what it was like when the shooting stopped and [G.P.] walked in to see his brother . . .
 
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Imagine what it was like when [G.P.] walked out of the kitchen and saw [J.P.] standing there with his hands on his stomach . . . [a]nd he fell to his knees and gasped for air. Imagine what it was like for that family to travel to the hospital at Children's to learn that their son, their brother, was in surgery fighting for his life. Imagine the joy on [G.P.'s] face when he learned, my brother is going to be okay.
 
        After reviewing the record, we conclude we need not determine whether the State's argument was improper because, assuming it is, we cannot conclude it was reversible error. Erroneous rulings regarding improper comments during jury argument are non-constitutional or “other error” under rule of appellate procedure 44.2(b). See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Rule 44.2(b) requires us to examine error in relation to the entire proceeding to determine whether it 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). Stated another way, a “criminal conviction should not be overturned for non-constitutional error if the appellate court, after reviewing the record as a whole, has assurance that the error did not influence the jury or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In Mosley, the court of criminal appeals identified the following three factors to analyze the harm associated with improper jury argument and to determine whether reversal is required: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley, 983 S.W.2d at 259.
        The complained-of argument in this case was a summation of evidence that was admitted without objection during trial. Therefore, although the State may have improperly asked the jury to step into the shoes of the victim and his family, the magnitude of the prejudicial effect of the prosecutor's remarks was not great. Because the trial court overruled appellant's objection, no curative action was taken. Finally, the overall strength of the State's case against appellant was strong. Although appellant later denied doing so, appellant admitted to the police he was the shooter. The jury's verdict indicates it believed appellant when he confessed to the shooting rather than his later denial. After reviewing the record as a whole, we are confident that the improper argument had but a slight effect, if any, on the jury's determination of guilt. Accordingly, we find the error, if any, to be harmless. We overrule appellant's fourth issue.
Sufficiency of the Evidence
        In his fifth issue, appellant contends the evidence is legally insufficient to support his conviction. In particular, appellant maintains that the trial court improperly amended the indictment, the original indictment controls, and there is no evidence to show appellant shot at Parker. We have previously concluded the word “at” in the first paragraph of the indictment was surplusage and the alteration to the indictment was not improper. Consequently, appellant's argument that the evidence is legally insufficient to support his conviction because there is no evidence he shot at Parker lacks merit. We overrule appellant's fifth issue.
        In his sixth issue, appellant challenges the factual sufficiency of the evidence. Appellant claims that because no one identified appellant as the shooter and because his statement admitting he shot Parker was impermissibly obtained, the evidence is factually insufficient to show that he committed aggravated assault. Eyewitness identification is not necessary to prove identity. See Greene v. State, 124 S.W.3d 789, 792 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (citing Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986)). And, we have previously concluded appellant was not induced to make his statement. Thus, appellant's claim that his statement was “of no real value in determining the truth of what happened” lacks merit. In his written statement, appellant admitted that he “took some shots at the Northerners and there was a small child, several children there, by accident. The child is not guilty. I had the gun and we shot it from the road on Denis.” Although appellant later testified he was not the shooter, appellant's trial testimony does not render the State's evidence insufficient. It was the role of the jury, not this Court, to resolve conflicts in the evidence and to determine the credibility of any witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002). After considering the evidence presented at trial, the jury choose to believe appellant's initial statement and disbelieve appellant's later testimony. We conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's sixth issue.
Confrontation Clause
 
        In his seventh issue, appellant contends the trial court erred by overruling his objection to Aleman's testimony that, after speaking with someone at a club, Aleman went to appellant's apartment. According to appellant, allowing the complained-of testimony violated his Sixth Amendment right to confront witnesses.
        The proper method to preserve error is to (1) object on specific grounds, (2) request the jury be instructed to disregard the evidence, and (3) move for a mistrial. See Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004). During the complained-of testimony, appellant made several hearsay objections which were sustained by the trial court. In the midst of those objections, appellant stated he had a “right to confront his accusers. This is a conversation based on somebody that is not here, and it is hearsay clearly.” After the trial court sustained appellant's objection, he asked the trial court to instruct the State “not to elicit this type of information.” The trial court then instructed the State not to elicit hearsay. Under these facts, we conclude appellant's objection was not sufficiently specific to alert the trial court to his confrontation clause challenge. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (when defendant's objection encompasses complaints under both Texas Rules of Evidence and Confrontation Clause, objection is not sufficiently specific to preserve error); Austin v. State, 222 S.W.3d 801, 811 (Tex. App.-Houston [14th Dist.] 2007, pet. filed June 7, 2007) (same). Moreover, appellant did not seek an instruction on confrontation grounds nor did he ask for a mistrial. Thus, appellant received all the relief he asked for and failed to preserve error for review. See Boyd v. State, 643 S.W.2d 700, 707 (Tex. Crim. App. 1982). We overrule appellant's seventh issue.
 
Hearsay
        In his eighth issue, appellant contends the trial court erred by overruling his hearsay objections to Aleman's testimony. According to appellant, allowing Aleman to testify that he went to appellant's apartment after speaking to someone at a club was “backdoor hearsay” and indirectly implicated appellant as the shooter. Again, we disagree.
        Where there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). However, testimony often contains both permissible and impermissible hearsay aspects. Id. at 114. For example, police officers may testify about how they got to the scene of the crime or accident, or that they were acting in response to information received. Id. at 114. They may also testify about how a defendant became a suspect in the investigation. See, e.g., Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex. Crim. App. 1995) (appointment book and patient application form containing appellant's name); Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992) (officer repeated several out-of-court statements by another witness implicating appellant that formed basis for arrest warrant); Lee v. State, 29 S.W.3d 570, 577 (Tex. App.-Dallas 2000, no pet.) (officer testified investigation of appellant resulted from interview with victim); Davis v. State, 169 S.W.3d 673, 676 (Tex. App.-Fort Worth 2005, no pet.) (anonymous tips received by police identifying appellant); Cano v. State, 3 S.W.3d 99, 110 (Tex. App.-Corpus Christi 1999, pet. ref'd) (anonymous tips led to investigation focusing on appellant). They are not, however, permitted to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports on grounds they are entitled to tell the jury information upon which they acted. Schaffer, 777 S.W.2d at 114. Whether the disputed testimony violates the hearsay prohibition necessarily turns on how strongly the content of the out-of-court statement can be inferred from the context. Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999).
        In this case, the record shows Aleman testified about an anonymous informant for the purpose of showing how the investigation became focused on appellant. His testimony also explained how he acted in response to information he received after speaking with an unknown person at a club where appellant's fellow gang members were known to frequent. Aleman's testimony did not relate historical aspects of the case or contain specific hearsay statements. The trial court could have reasonably concluded that Aleman's testimony did not lead to any inescapable conclusions as to the substance of his conversation at the nightclub. Thus, we conclude Aleman's testimony was not admitted to prove the content of the informant's testimony or its truth, but rather to explain how appellant became a suspect. As such, it was not inadmissible hearsay. We overrule appellant's eighth issue.
Cumulative Error
        In his ninth issue, appellant asserts the cumulative effect of the complained-of errors warrants reversal of his conviction. A number of errors may be harmful in their cumulative effect. Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002). Nevertheless, after evaluating appellant's complaints, we conclude that cumulative error has not been shown here. We overrule appellant's ninth issue.
        The trial court's judgment recites appellant's name as Carlos Mendoz Rivera, but the record reflects appellant's name is Carlos Mendoza Rivera. Therefore, the judgment is incorrect. We modify the trial court's judgment to recite appellant's name as Carlos Mendoza Rivera. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060678F.U05
 
Footnote 1 Although the indictment and judgment list appellant's name as Carlos Mendoz Rivera, appellant testified his name is Carlos Mendoza Rivera.
Footnote 2 Appellant testified he lived in an apartment with his cousin, Carmela Mendoza Rubio, her husband, and her sister.