Jemini Barrera v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-96-00971-CR
Jemini BARRERA,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-5888
Honorable Susan Reed, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Karen Angelini, Justice

Delivered and Filed: October 14, 1998

AFFIRMED

Jemini Barrera was convicted of murder and sentenced by a jury to sixty years in prison. He appeals, arguing the trial court erred in admitting evidence that he was a member of a gang, in permitting the trial to proceed after previously undisclosed exculpatory evidence was discovered, and in refusing to let him change his clothes before the third day of trial. We affirm.

Factual and Procedural Background

Early one morning, Randy Sifuentes was at a party at Vincent Uresti's house. He and another friend walked two of the female party guests to a nearby store. They left the girls at the store and started walking back toward Uresti's house. Meanwhile, Barrera and four of his friends were riding down the street in a car. When they saw Sifuentes and his friend, they called them over to the car to ask them where the party was. Sifuentes approached the car, introduced himself as "Pee Wee," and a friendly exchange followed. The tone of the conversation soon changed from friendly to hostile, with Sifuentes challenging Barrera to get out of the car and fight him. There is a dispute regarding what caused Sifuentes's change in attitude. According to one witness, Sifuentes had recently insulted one of Barrera's friends, and Barrera had promised the friend that he would "take care of it." Barrera testified that Sifuentes became angry when he heard Barrera whisper something to the driver. The passengers of the car gave three different versions of what Barrera said to the driver. One passenger testified that he said something about "shooting the fool," another passenger testified that Barrera said he wanted to "get this guy," and another passenger testified that Barrera said he was going to "blast him." Barrera testified on direct that he said, "let's leave." During cross-examination, he admitted that after Sifuentes challenged him he said something like he was going to "blast the guy." Barerra refused to get out of the car. Instead, by his own admission, he retrieved a gun from the floorboard of the car and fired it twice toward Sifuentes. Sifuentes died a short time later from massive bleeding. Barrera claims that before he fired, he saw Sifuentes reach for a gun, saw other people in the area, and heard gunshots. None of the other witnesses who were in the car saw a gun on Sifuentes or heard the additional shots.

Gang-Membership Testimony

In his first point of error, Barrera argues that the trial court erred by allowing the State to elicit testimony that he was a member of a gang. He asserts that the testimony was inadmissible "prior bad act" evidence. See Tex. R. Evid. 404(b). The State asserts that Barrera failed to preserve this issue.

At the beginning of trial, the prosecutor stated that he believed, based on comments made by defense counsel during voir dire, that the defense might attempt to introduce evidence that some of the witnesses were gang members. He therefore made a motion in limine that the defense be required to approach the bench and establish relevance before presenting such evidence. The court granted this motion.

Despite the motion in limine, testimony regarding gang membership was admitted without objection, beginning with the State's direct examination of Vincent Uresti. When the prosecutor asked Uresti how he knew Sifuentes, Uresti answered, "We were in the same gang together." Then, during its cross-examination of Uresti, the defense asked several questions regarding Uresti's and Sifuentes's gang affiliation. Uresti disclosed that the party at his house was a "gang party," that he was a member of the Klan gang, that one of the girls whom Sifuentes walked to the store was dating a member of the Ambrose gang, that he thought the Ambrose gang might show up at the party, and that if the Ambrose gang had come to the party, "there would have been a big shooting." Uresti also gave the gang nicknames of some of his party guests.

In an attempt to attack the credibility of prosecution witness Jessica Salinas, Barrera testified on direct that she had been his girlfriend and that after he became involved with someone else, she threatened to "get the boyfriend that she had, which was in a gang called the Ambrose, to go by our house and shoot at us."

Before cross-examining Barrera, the prosecutor asked to take up a matter outside the presence of the jury. After the jury was removed, the prosecutor argued that based on Barrera's testimony regarding Jessica Salinas's boyfriend, the State should be allowed to inquire into Barrera's gang membership. After some discussion among the court, the prosecutor, and the defense, the court ruled that the inquiry would be allowed. Barrera's counsel objected on the grounds that gang membership was irrelevant and unduly prejudicial. The trial court responded, "Okay."

In accordance with the court's ruling, the prosecutor asked Barerra on cross-examination whether he was a member of a gang called the Klan. Barrera responded that he had been a member years before the murder, but he was no longer a member. No objection was lodged to this questioning. When trial resumed the next day, the State called a police detective and Jessica Salinas as rebuttal witnesses. The detective testified, without objection, that a few weeks after Sifuentes was killed Barrera admitted to him that he was a member of the Klan. Salinas testified, also without objection, that Barrera was a member of the Klan at the time of the murder.

Preservation of Error

To preserve error regarding the admission of evidence, a party must make a timely objection and obtain a ruling. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Generally, an objection must be contemporaneous with the offer of evidence. See id. But when a party objects to specific, offered evidence outside the jury's presence, the objection is deemed to apply to the evidence when it is introduced before the jury without the necessity of repeating the objection. See id.; see also Tex. R. Evid. 103(a)(1) (formerly Tex. R. App. P. 52(b)). A party must continue to object each time inadmissible evidence is offered; an error in the admission of evidence is cured when the same evidence comes in elsewhere without objection. See Ethington, 819 S.W.2d at 858; see also Rodriguez v. State, 955 S.W.2d 171, 175 (Tex. App.--Amarillo 1997, no pet.) (appellant waived complaint about prosecutor referring to him as a gang member because he did not object every time a reference to his gang membership was made). An objection that evidence is not relevant is ordinarily sufficient to preserve error in the admission of evidence prohibited by Rule 404(b). See Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh'g).

Barrera's relevance objection, made outside the presence of the jury, was sufficient to preserve his argument that the cross-examination regarding gang membership violated Rule 404(b). See Ethington, 819 S.W.2d at 858; Montgomery, 810 S.W.2d at 387; see also Guzmon v. State, 697 S.W.2d 404, 410-11 (Tex. Crim. App. 1985) ("Okay" sufficient to constitute a ruling). Barrera failed, however, to object when the State offered the rebuttal testimony of Salinas and the detective. He has therefore failed to preserve any error in the admission of this testimony. Moreover, because the rebuttal testimony established the same fact sought to be established in Barrera's cross-examination--that Barrera was a gang member--any error in allowing the cross-examination of Barrera on this issue was cured by the unobjected-to rebuttal testimony. See Ethington, 819 S.W.2d at 858; Gillum v. State, 888 S.W.2d 281, 284-85 (Tex. App.--El Paso 1994, pet. ref'd); Rawlings v. State, 874 S.W.2d 740, 743 (Tex. App.--Fort Worth 1994, no pet.); cf. Posey v. State, 738 S.W.2d 321, 325-26 (Tex. App.--Dallas 1987, pet. ref'd) (error preserved where defendant objected both to improper cross-examination and to improper rebuttal evidence offered for impeachment).

Harm

Even were we to find that Barrera preserved his objection to the gang-membership testimony and were we to assume that the testimony was inadmissible,(1) we would find any error in its admission harmless.

To determine whether the erroneous admission of evidence is harmless, we consider the source of the error, the nature of the error, whether or to what extent it was emphasized by the State, the probable collateral consequences of the error, how much weight the jury probably placed on the error, and whether declaring the error harmless would encourage the State to repeat it with impunity. See Pondexter v. State, 942 S.W.2d 577, 584-85 (Tex. Crim. App. 1996); Garza v. State, 963 S.W.2d 926, 930 (Tex. App.--San Antonio 1998, no pet.).

The State was obviously the source of the testimony about Barrera's gang membership. Both the prosecution and the defense discussed gangs in their closing arguments. This was natural since evidence regarding the gang affiliations of the victim and other persons at the scene was admitted without objection from either side. The State referred specifically to Barrera's gang membership twice, both times noting that he had lied about it. But the State also referred to the other way in which it had impeached Barrera's credibility--he testified on direct that he did not know how to handle guns, but he admitted during cross-examination that he had been found in the possession of guns. We doubt that the jury placed much weight on the testimony, given the other evidence presented. See Pondexter, 942 S.W.2d at 585. Barrera admitted that he fired two shots at Sifuentes and Sifuentes sustained wounds from two bullets, both of which entered his body from the back. Barrera's friends testified that Barrera indicated he wanted to shoot Sifuentes to retaliate for his insulting one of Barrera's friends. Any error in the admission of the evidence about Barrera's gang membership was harmless. Barrera's first point of error is overruled.

Brady Violation

In his second point of error, Barrera argues that the State suppressed exculpatory evidence relating to his self-defense theory. The suppression by the prosecution of evidence favorable to the accused is a violation of due process. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Brady requires reversal of a conviction if three elements are met: 1) the prosecution suppressed or failed to disclose evidence; 2) the evidence was favorable to the accused; and 3) the evidence was material. See Harwood v. State, 961 S.W.2d 531, 544 (Tex. App.--San Antonio 1997, no pet.). When, as in this case, the evidence is disclosed during trial, the materiality question turns on whether the defendant was prejudiced by the delayed disclosure. See Yates v. State, 941 S.W.2d 357, 364 (Tex. App.--Waco 1997, pet. ref'd). Furthermore, when Brady evidence is disclosed at trial, the defendant has an opportunity to request a continuance. See id.; Losoya v. State, 636 S.W.2d 566, 571 (Tex. App.--San Antonio 1982, no pet.). This opportunity adequately satisfies the due process requirements of Brady. See Yates, 941 S.W.2d at 364; Losoya v. State, 636 S.W.2d at 571. Consequently, the failure to request a continuance waives any Brady violation. See Yates, 941 S.W.2d at 364.

On the second day of trial, the defense informed the trial court that it had just learned of two witness statements taken by the State. The statements were taken from the two girls whom Sifuentes had walked to the store immediately before the altercation with Barrera. One of the girls stated that Sifuentes was drunk and argumentative, had encouraged someone to beat someone else up, and said he intended to go back to the party to get a gun. Contending that the references to aggressive behavior and to Sifuentes's desire to obtain a gun rendered the statements exculpatory, the defense sought to question the officer to whom the statements were made. The State responded that the witness statements had been in its file all along and the defense had access to the file. Defense counsel disputed this, asserting that the prosecutors first reviewed the file no earlier than a week before trial. The court denied Barrera's request to question the officer because the testimony would violate the hearsay rule. After the conclusion of testimony that day, counsel asked if the court would allow time to find the witnesses and get them to court. The court responded: "Well, it is four o'clock. You can get some subpoenas issued, and we will begin [the next day] at 9:30." The next morning, counsel informed the court that he had attempted to serve subpoenas on the witnesses. One of them had moved over a year and a half ago.(2) The other was not at home and they were unable to determine her whereabouts. Counsel did not request a continuance to locate the witnesses.

We conclude that Barrera has failed to satisfy all the Brady elements. First, we question whether the statements were even favorable to Barrera. Although one of the statements indicates that Sifuentes desired to go back to the party to get a gun, it does not indicate that Barrera ever fulfilled this desire; it is undisputed that he was killed before he made it back to the party. Evidence that is inconclusive does not amount to evidence favoring the accused. See Butler v. State, 736 S.W.2d 668, 671 (Tex. Crim. App. 1987); Ex parte Dixon, 964 S.W.2d 719, 723 (Tex. App.--Fort Worth 1998, pet. ref'd). But because the statement indicates that Sifuentes may have been in an aggressive mood, we will assume the statement was favorable in that it supported Barrera's theory that Sifuentes was the aggressor.

Barrera has failed, however, to establish that the evidence was suppressed. The State may fulfill its Brady obligations by opening its file for examination by the defense. See Vega v. State, 898 S.W.2d 359, 362 (Tex. App.--San Antonio 1995, pet. ref'd); Givens v. State, 749 S.W.2d 954, 957 (Tex. App.--Fort Worth 1988, pet. ref'd). The State opened its file in this case. There was a dispute between the defense and the prosecution as to whether the statements were in the State's file. The trial court apparently determined this dispute in favor of the State, and we have no basis for overturning this determination.(3)

Finally, the defense's failure to request a continuance after its unsuccessful attempt to serve the witnesses operates as a waiver of the Brady issue. Barrera's second point of error is overruled.

Change of Clothes

In his third point of error, Barrera complains that he was required to wear the same street clothes on two consecutive days of trial. On the second day of trial, the court increased Barrera's bond and he was taken into custody. The next morning, he requested an opportunity to change clothes, arguing that the jury might infer he had been taken into custody if he were forced to wear the same clothes as he wore the previous day. The trial court denied the request.

Barrera argues that his appearance on the third day wearing the clothes he wore on the second day could have created an impression of guilt in the minds of the jurors because they may have thought he was wearing the same clothes to demonstrate his allegiance to a gang. This was not the basis of the objection below. When the trial objection does not comport with the appellate argument, nothing is preserved for review. See Miranda v. State, 813 S.W.2d 724, 738 (Tex. App.--San Antonio 1991, pet. ref'd).

Assuming the issue has been preserved, we find no error. A defendant should not be compelled to wear prison garb during trial because such clothing might create an impression of guilt in the minds of the jurors. See, e.g., Estelle v. Williams, 425 U.S. 501, 505-06 (1976); Randle v. State, 826 S.W.2d 943, 946 (Tex. Crim. App. 1992). But a defendant does not have a right to appear before the jury in clothes of his choice. See Johnson v. State, 838 S.W.2d 906, 909 (Tex. App.--Corpus Christi 1992, pet. ref'd); see also Bryant v. State, No. 01-95-00370-CR, 1998 WL 223912, *1-2 (Tex. App.--Houston [1st Dist.] April 29, 1998, pet. ref'd) (rejecting argument that wearing the same street clothes to trial two days in a row suggests the defendant is in custody); but cf. Mitchell v. State, No. 04-96-00643-CR (Tex. App.--San Antonio April 22, 1998, pet. granted)

(displaying defendant to jury panel while defendant was wearing distinctive shirt was analogous to compelling a defendant to stand trial in a jail uniform). We overrule Barrera's third point of error.

Conclusion

The judgment of the trial court is affirmed.

Tom Rickhoff, Justice

DO NOT PUBLISH

1. But see Tamez v. State, No. 04-97-00432-CR, slip op. at 2 (Tex. App.--San Antonio September 30, 1998, no pet. h.) (Rickhoff, J., concurring) ("[A]t times character evidence is the most relevant evidence.").

2. Barrera was indicted in November 1995, and the case was tried in November 1996. Thus, the witness had moved before Barrera was indicted.

3. Defense counsel informed the trial court that he would like to take the prosecutor on voir dire regarding this issue. The court stated, "If you want to put him under oath as to what he is saying, that is--you know, that is fine." Counsel and the court then debated whether counsel was calling the prosecutor a liar and the court indicated that counsel should put the prosecutor under oath. The following exchange then occurred:

Defense Counsel: If we could, just to that statement, I will be more than happy to.

The Court: Whatever the case is, you have had it.

Defense Counsel: I have it now.

The court then reiterated that it would not "bend the hearsay rules," an obvious reference to its refusal to allow the defense to call the officer who took the statements as a witness. Counsel did not pursue further his request to question the prosecutor under oath.

On appeal, Barrera suggests that the prosecutor's credibility is questionable. At the beginning of trial, defense counsel requested that the State provide rap sheets on their witnesses and any 404(b) information that it planned to use. In the midst of these requests, counsel noted that the defense had asked for exculpatory evidence, and "they say there is none." The prosecutor did not respond to this statement. Given the context of counsel's comment and the fact that the exculpatory nature of the witnesses' statements is tenuous, we do not construe the prosecutor's silence as a misleading representation that no exculpatory evidence existed.

Return to
4th Court of Appeals Opinions