FELIPE ESQUIVEL LUCAS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 3, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01268-CR
............................
FELIPE ESQUIVEL LUCAS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F05-48271-J
.............................................................
OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Bridges
        Appellant Felipe Esquivel Lucas appeals his murder conviction and sentence of twenty years confinement and a $5,000.00 fine. We affirm.
        Appellant raises five issues in his brief on appeal. First, he contends the trial court erred in failing to give an instruction on criminally negligent homicide in the jury charge over defendant's objection when evidence was presented that would substantiate the instruction. Next, appellant argues the trial court erred by allowing Detective Lopez's testimony regarding his conversations with witness Gutierrez, which constitutes backdoor hearsay. In his third issue, appellant argues that Detective Lopez's testimony regarding his conclusion as to whether or not witness Gutierrez was being truthful or not is improper, should have never been allowed, and is harmful to appellant. In his fourth issue, appellant contends witness Gutierrez's testimony of what appellant's brother told him about appellant's tendencies when he drinks was pure hearsay and went to the crux of the defensive theory and, therefore, the trial court erred by overruling appellant's objections. Finally, appellant contends the trial court erred in allowing the State to question appellant on arrests of which the State had knowledge of, but did not notify appellant pursuant to a properly filed request. Appellant does not challenge the sufficiency of the evidence.
Background
 
        On January 12, 2005, appellant, the victim, and others gathered at the apartment of Oscar, appellant's brother, and drank whiskey. A fight broke out between appellant and the victim. During the course of the fight, appellant and other witnesses testified that the victim broke a whiskey bottle over appellant's head causing facial lacerations and significant bleeding. Witnesses also testified that, after the bottle was broken on appellant's head, appellant kicked the victim in the head and neck multiple times while wearing steel-toed boots.
        Two of the men in the apartment were told to move the victim outside. Oscar's girlfriend, who was present at the time of the altercation, testified that when she was later outside of the apartment, she saw the victim crawling in the hallway and asking for help. She did not call an ambulance or seek help. The same men later moved the victim again by dragging him to a different location.
        Construction workers in a vacant apartment complex called police after discovering the victim's body. During their investigation, police officers recovered appellant's steel-toed boots from appellant. The boots were later determined to have both the blood of appellant and the victim on them. After police talked with several witnesses and examined the scene, appellant was arrested and charged with murder.         Appellant chose to testify at trial and, during his trial testimony, he denied kicking the victim. Other witnesses at trial testified that appellant kicked the victim in the head and neck area multiple times. The medical examiner stated that the victim's fatal injuries were consistent with being stomped or kicked in the head and neck area. The jury found appellant guilty of murder and this appeal ensued.
Discussion
 
        With regard to appellant's first issue, a two-part test is used to determine whether a lesser included offense must be submitted to a jury. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004) (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)); see also Royster v. State, 622 S.W.2d 442 (Tex.Crim.App. 1981). First, to be considered a lesser included offense, the lesser offense must be included within the proof necessary to establish the offense charged. Id. Second, some evidence must exist in the record that would permit a jury to rationally find that if appellant is guilty, he is guilty only of the lesser offense. Id. (emphasis in original).
        Criminally negligent homicide is a lesser included offense of murder, Hunter v. State, 647 S.W.2d 657 (Tex.Crim.App. 1983), so the only question presented here is whether this record contains evidence that appellant is guilty only of criminally negligent homicide. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). In determining whether the trial court erred in failing to give a charge on the lesser included offense, we review all of the evidence presented at trial. Rousseau, 855 S.W.2d at 673. A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Penal Code Ann. § 19.01 (Vernon 2008). On the other hand, a person commits the lesser included offense of criminally negligent homicide if a person causes the death of an individual by criminal negligence. Tex. Penal Code Ann. § 19.04 (Vernon 2008).
         A review of the evidence presented at trial reveals that appellant had been drinking whiskey prior to the time of the incident and was intoxicated. Witnesses also testified that appellant, while wearing steel-toed boots, kicked the victim in the face and head several times. One witness also testified that appellant kicked the victim in the throat. Another witness described appellant's conduct as “stomping and kicking” the victim. Although appellant denied kicking the victim, he testified that he felt like he “stomped” the victim with his hands. At trial, a forensic biologist testified that appellant's boots were recovered with the blood of both the appellant and the victim on them. The medical examiner testified that the victim's fatal injuries were consistent with being stomped or kicked in the head and neck area. She testified that the victim had impact wounds on both sides of his head and that the dense hemorrhaging into the muscle that is on the side of the head and tissue overlying the skull was consistent with someone being kicked in the head. In addition, the medical examiner explained that the injuries to the neck were consistent with someone being kicked in the neck area and only consistent with direct injury to the neck itself. We cannot conclude that the foregoing evidence supports appellant only being found guilty of criminally negligent homicide.   See Footnote 1  Thus, we overrule appellant's first issue on appeal.
        Next, appellant argues the trial court erred by allowing Detective Lopez to testify regarding his conversations with witness Gutierrez, which constitutes backdoor hearsay. We review a trial court's decision to admit evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007); Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). We will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Casey, 215 S.W.3d at 879; Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001).
        Specifically, appellant challenges the following exchange between the prosecutor and Detective Lopez:
 
Q. Okay. And after you survey the scene, do your investigation, at some point do you talk to Carlos Gutierrez?
 
 
 
A. Yes, sir.
 
 
 
Q. Okay. And did-what-without saying what Carlos Gutierrez told you, did that help you in forming I guess, ideas as to what happened at this offense location?
 
        
 
A. Yes, sir, it did.
 
 
 
Q. Okay. And with what Carlos Gutierrez told you, did the evidence of what you found at that location match up with what he was telling you?
 
        
 
        
 
Mr. Hill: Object to hearsay.
 
 
 
        
 
The Court: Overruled.
 
 
 
A. Yes, sir.
 
Appellant relies on Head v. State, 4 S.W.3d 258 (Tex.Crim.App. 1999), and Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App. 1989), for the proposition that the answer of Detective Lopez constitutes backdoor hearsay. In Schaffer, the appellant's defense was that he was acting as a police informer. 777 S.W.2d at 112. The Texas Court of Criminal Appeals considered the following disputed testimony:
 
Q. Officer Segovia, when was the first time you heard the name of-a person by the name of Jimmy Seals?
 
 
 
A. This morning.
 
 
 
Q. And who, if anybody, informed you of that name?
 
 
 
A. You did, sir.
 
 
 
Q. And were you able to contact Officer Seals?
 
 
 
A. Yes, sir.
 
 
 
Q. And when was this?
 
 
 
A. This morning.
 
 
 
Q. And did you have occasion to talk to him?
 
 
 
A. Yes, sir, I did.
 
 
 
Q. Without telling us what he told you, Officer Segovia, would you, at this time, ask the State to drop charges against Mr. Schaffer?
 
 
 
A. No, sir.
 
Id. The Schaffer court held that “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.” 777 S.W.2d at 114. In the Schaffer case, the inescapable conclusion was that Officer Seals had indicated the appellant was not a police informer. Id. By allowing the testimony, the trial court permitted the out- of-court statement to be offered for the truth of the matter which was hearsay. Id. at 115.
        In the Head decision, the Court of Criminal Appeals reaffirmed the holding of Schaffer, but distinguished it under the facts. 4 S.W.3d 258. In Head, the defendant was accused of sexually assaulting the fourteen year-old daughter of his girlfriend. Id. at 259. After revealing defendant's actions to her aunt, the daughter made a statement to an investigator from the district attorney's office. Id at 259-60. At trial, the State called the victim, the victim's aunt, and the investigator to testify. The investigator testified as follows:
 
Q. Were the statements [the victim's aunt and the victim's mother] gave consistent with-
 
 
 
        Defense Counsel: Objection, your honor. Calls for hearsay.
 
 
 
        The Court: Overruled.
 
 
 
Q. Were the statements they gave to you consistent with the facts related to you by [the victim]?
 
 
 
A. Yes.
 
Id. at 260. The Head court held that this exchange did not constitute backdoor hearsay because the testimony did not produce “an 'inescapable conclusion' that the evidence [was] being offered to prove the substance of an out-of-court statement.” Id. at 262 (quoting Schaffer, 777 S.W.2d at 114). Instead, the “disputed testimony revealed only that the three statements related basically the same facts.” Id.
        We believe the disputed testimony in this case comes closer to that in the Head case. In Schaffer, the problem was that the prosecutor's questioning left the jury with the “inescapable conclusion” that someone other than the declarant was testifying through the witness on the stand. See Schaffer, 777 S.W.2d at 114. This is not the case under our facts. Instead, the facts before us demonstrate the testimony was offered to show how appellant became a suspect and did not leave the jury with the inescapable conclusion that Gutierrez was testifying through Detective Lopez. Head, 4 S.W.3d at 263; see also McCreary v. State, 194 S.W.3d 517, 520-22 (Tex. App.-Houston [1st Dist.] 2006, no writ) (holding the testimony was admissible to demonstrate why the investigation led to appellant). Accordingly, appellant's second issue is overruled.
        In his third issue on appeal, appellant contends Detective Lopez's testimony regarding his conclusion as to whether or not witness Gutierrez was being truthful or not is improper, should have never been allowed, and is harmful to appellant. However, appellant failed to object to this testimony at trial. Therefore, we conclude appellant waived this issue on appeal. Tex. R. App. P. 33.1. Issue three is overruled.         Appellant's fourth issue contends that witness Gutierrez's testimony regarding what appellant's brother told him about appellant's tendencies when he drinks was pure hearsay and went to the crux of the defensive theory and, therefore, the trial court erred by overruling appellant's objections. Although appellant objected to this testimony at one point during Gutierrez's testimony, he failed to object to the testimony the first time it was raised at trial. In particular, the testimony was raised for the first time as follows:
 
Q. What happened next?
A. Well, after that I spoke up, and I said, well, you said if his brother-I was talking to [appellant's brother] at that point. I said if his brother comes, don't let him drink or something, because he gets crazy when he drinks or something like that.
 
 
 
Q. Okay.
 
 
 
A. Well, that's what I remember him saying.
 
 
 
Q. Okay. Now, so [appellant's brother] told you, just don't let his brother drink?
 
 
 
A. Well-
 
 
 
Q. That's a yes or a no?
 
 
 
A. Yes.
 
RR at 134:7-19 (emphasis added). To preserve error, an objection must be made at the earliest possible opportunity. Martinez v. State, 867 S.W.2d 30, 35 (Tex.Crim.App. 1993), cert. denied, 512 U.S. 1246 (1994). Rule 802 places the responsibility for waiver upon the party who fails to object. Fernandez v. State, 805 S.W.2d 451, 455 (Tex.Crim.App. 1991). Here, the responsibility fell upon appellant and his attorney to object to the admission of the hearsay. Id. Having failed to object, appellant must be prepared to accept the consequences that hearsay could be considered by the trier of fact as probative evidence to be considered with other evidence admitted at trial. Id. at 455-56. We, therefore, overrule appellant's fourth issue.
        Finally, appellant contends the trial court erred in allowing the State to question appellant on arrests of which the State had knowledge, but did not notify appellant pursuant to a properly filed request. When questioned by his own attorney during direct examination at trial, appellant testified he had previously been convicted of possession of a controlled substance. Then, the following exchange between appellant and his counsel transpired:
 
Q. And besides that, besides that one arrest, this is your only other brush with the law; is that right?
 
 
 
A. Yes, sir.
 
During cross-examination, the State questioned appellant regarding his DWI conviction arising from the same arrest resulting in the conviction for possession of a controlled substance. Appellant objected, and a hearing was held outside the presence of the jury in which the trial court ruled that appellant had “opened the door” to questions from the State about other unadjudicated arrests when appellant testified he had no other “brushes with the law.” The State then questioned appellant about two other previous arrests.
        “An accused puts his character for veracity (as opposed to his moral character) in issue by merely taking the stand, and thus he may be impeached in the same manner as any other witness.” Prescott v. State, 744 S.W.2d 128, 130 (Tex.Crim.App. 1988) (citing Hammet v. State, 713 S.W.2d 102, 105 (Tex.Crim.App. 1986)). An accused, however, cannot be impeached by a prior offense with which he has been charged unless the charges resulted in a final conviction for either a felony offense or an offense involving moral turpitude, neither of which is too remote. Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Crim.App. 1972). Still, a well-settled exception to the impeachment rules arises when a witness testifies and leaves a false impression as to the extent of his prior arrests, convictions, charges against him, or “trouble” with the police generally. Prescott, 744 S.W.2d at 131.         When an accused leaves a false impression during his direct examination, he is said to have “opened the door” to an inquiry from the State as to the validity of his testimony. Id. Therefore, the State is allowed, during cross-examination, to do what it could not otherwise do: the State may dispel the false impression left by the accused as to his past. Id. In such cases, the State may refute such testimony despite the nature of the conviction used or its remoteness. Ochoa, 481 S.W.2d at 850. We overrule appellant's fifth issue on appeal.
        Having overruled all of appellant's issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061268F.U05
 
Footnote 1 The Court's charge also included the theory of self-defense. However, the jury rejected this defense and found appellant guilty of murder.