In The Matter of L.A.--Appeal from 73rd Judicial District Court of Bexar County

No. 04-97-00434-CV
In the Matter of L.A.
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 94-JUV-00452
Honorable Frank Montalvo, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice (concurring in the judgment only)

Delivered and Filed: December 30, 1998

AFFIRMED

On March 4, 1997, appellant, L.A., was found guilty of delinquent conduct for committing capital murder and was sentenced to forty years. A subsequent release/transfer hearing was held and L.A. was transferred to the Texas Department of Criminal Justice - Institutional Division. L.A. raises four issues on appeal: (1) the trial court erred in depriving the appellant an adequate statement of facts pursuant to Texas Family Code 54.09; (2) the trial court erred by not properly admonishing appellant as required by Texas Family Code 54.03; (3) the trial court lacked jurisdiction by finding the appellant engaged in delinquent conduct without proper proof of age; and (4) the trial court erred in admitting co-defendant's confession in violation of the Sixth and Fourteenth Amendments of the U.S. Constitution. We deny all issues raised by L.A. and affirm the judgment of the trial court.Statement of Facts

On January 30, 1994, L.A. participated in a drive-by shooting which led to the death of a four year-old child, Reymundo Diaz. L.A. and his friend M.R., both juveniles, were members of the same gang, Say Town Posse (STP). The house in which Reymundo Diaz was killed was the home of a rival gang member, Manuel Romero. The victim was Romero's nephew. Both juveniles were arrested and charged with capital murder. L.A. pled not true to the charge. At trial, the juveniles were tried jointly. L.A. waived his right to take the stand. During trial, the voluntary statements of both juveniles were read to the jury and admitted into evidence by the trial court.

Standard of Review

Appellant's first three issues require this court to interpret Title 3 of the Texas Family Code. The issues raised are questions of law which we review de novo. In the Matter of A.D.D., 974 S.W.2d 299, 304 (Tex. App.--San Antonio 1998, no writ).

Discussions and AnalysisA. Reporter's Record

Section 54.09 provides the following:

All judicial proceedings under this chapter except detention hearings shall be recorded by stenographic notes or by electronic, mechanical, or other appropriate means. Upon request of any party, a detention hearing shall be recorded.

Tex. Fam. Code Ann. 54.09 (Vernon 1996). L.A. generally asserts that the record is replete with notations by the court reporter where the proceedings could not be heard, and discussions were held off the record. L.A. cites three omissions in the record which occurred during a pre-trial motion hearing to suppress, jury selection, and trial. L.A. argues that these omissions in the record violated 54.09.

In response, the State contends that electronic recordings were made of the proceedings in the trial court below. However, the record does not indicate that the proceedings were in fact electronically recorded. Currently, where a dispute concerning the reporter's record arises after the appeal has been filed, the reviewing court may submit the dispute to the trial court. Tex. R. App. P. 34.6(e)(3). Under the former rule, where a dispute regarding the statement of facts arose after appeal, the reviewing court had to submit the case to the trial court. Tex. R. App. P. 55(a) (Vernon 1996); (1) See Taylor v. State, 938 S.W.2d 754 (Tex. App.--Waco 1997, no pet.); Davis v. State, 932 S.W.2d 127 (Tex. App.--Houston [1st Dist.] 1996, no pet.).

L.A. relies on S.S. v. State for the proposition that any omission in the statement of facts would require reversal and a new trial. S.S. v. State, 879 S.W.2d 395 (Tex. App.--Eastland 1994, no writ) (ordering a new trial where court reporter was unable to provide a record of oral arguments). However, in that case, a new trial was ordered because the appellant was prevented from making a proper presentation in the case under the former Rule 81(b).(2) In S.S., recordings of the closing argument were entirely omitted based on a court policy which would record proceedings only when requested to do so. Id. at 397. We do not interpret S.S. as mandating reversal in all juvenile cases where omissions or gaps occur in the record. Especially, where such omissions are not related to issues raised on appeal. Such a strict interpretation of 54.09 would require reversal in all cases where omissions in the reporter's record exist.

In the present case, omissions cited by appellant related to off the record discussions between the court and the attorneys. The State correctly states that these discussions were not directly germane to any issue on appeal. In addition, L.A. does not attempt to show how these discussions may relate to the substantive issues raised on appeal.(3) Moreover, under Rule 34.6(f) a new trial would be required only where a significant portion of the recordings were lost or destroyed. Tex. R. App. P. 34.6(f). Significant portions of the record in this appeal are not missing. Therefore, the circumstances in this case would not warrant reversal for a new trial. We overrule appellant's first issue.

B. Trial Court Admonishments

Pursuant to 54.03, the trial court must explain, prior to adjudication, the charges against the juvenile and the consequences of those charges. Tex. Fam. Code. Ann. 54.03(b). L.A. asserts that the trial court merely read the indictment and did not explain the charges to him. Appellant specifically cites the admonishments given to him by the trial court at a preliminary hearing prior to defendant's motion to suppress hearing. The court read the charges and asked L.A. whether he understood the charges. The court further explained the consequences if a jury found the charges to be true. Finally, the court asked L.A. if he had any questions, to which he responded that he did not.

Admonishments under 54.03 are mandatory and an appellant does not have to object at trial to preserve error.(5) G.K.G. v. State, 730 S.W.2d 182, 183-184 (Tex. App.--San Antonio 1987, no writ). The trial court commits fundamental error when explanations are not offered regarding all elements listed under this section. In the Matter of A.L.S., 915 S.W.2d 114, 116 (Tex. App.--San Antonio 1996, no writ ) (holding fundamental error where the record did not reveal that charges were read); P.L.W. v. State, 851 S.W.2d 383, 385 (Tex. App.--San Antonio 1993, no writ) (reading of allegations by prosecutor and failing to inform juvenile that juvenile record was admissible was error). Error can still occur where a court fails to explain the charge and the elements of the charge in plain words. In the Matter of J.M., 930 S.W.2d 820, 821 (Tex. App.--Corpus Christi 1996, no writ). If the court's admonishments had been limited to the exchange at the motion to suppress hearing, the trial court would have committed error.

The record reflects that L.A. was admonished prior to the commencement of the trial. The exchange occurred as follows:

Q: [The Court] Okay. . .do you understand you have the right to remain silent?

A: [L.A.] Yes, sir.

Q: Do you understand that you have the right to an attorney?

A: Yes, sir.

Q: Do you understand that you have the right to have your lawyer question the witnesses that the DA is going to call in this case?

A: Yes, sir.

Q: Do you understand that you have the right to have your lawyer call witnesses on your behalf?

A. Yes, sir.

Q: Okay. . . I'm going to read the charges against you. And I need to make sure that you understand it. Okay? The charge against you . . . is as follows: That on or about the 30th day of January, 1994, here in the county of Bexar, the [S]tate of Texas, you, [L.A.], hereinafter called Respondent, did then and there knowingly and intentionally cause the death of an individual, by shooting the said complainant with a deadly weapon, to wit, a firearm, and the said complainant was then younger than six years of age, that said act on your part, the [R]espondent, is an offense against the State of Texas of the grade of felony set out and defined as such in Section 19.03 of the Texas Penal Code.

Do you understand that to be the charge against you . . .?

A: Yes, sir.

Q: Okay. . .do you understand that you have a right to have a jury trial in this case?

A: Yes, sir.

Q: And, do you want to have a jury trial in this case?

A: Yes, sir.

Q: [L.A.] do you understand that if a jury finds you [sic] true to the charge, you will be committed to the Texas Youth Commission with a possible transfer to the Institutional Division of the Texas Department of Corrections for a term of up to 40 years. Do you understand that?

A: Yes, sir.

Q: Okay, Larry of all the questions I have asked you, is there any of them that you don't understand?

A: No, sir.

Q: Do you have any questions of me?

A: No, sir.

(emphasis added). Based on this exchange, the trial court properly admonished L.A. Every required instruction under 54.03 was given regarding the following: (1) the charges; (2) the consequence of the charges; (3) the right against self-incrimination; (4) the right to an attorney; and (4) the right to a jury trial. See Tex. Fam. Code Ann. 54.03 (Vernon 1996). Clearly, the record shows that L.A. was properly admonished.(6)

In addition, L.A. asserts that the trial court erred by improperly implicating L.A. as the trigger man. L.A. contends that the indictment, as read by the trial court, left him wondering why he was indicted as the trigger man. The State correctly argues that the trial court, prior to trial, could not possibly know the role which L.A. played in the shooting which would warrant an explanation. A reading of 54.03 does not require the trial court to explain the theory on which the State will prove its case. See In the Matter of O.L., 834 S.W.2d 415, 420 (Tex. App.--Corpus Christi 1992, no writ) (stating that a trial court properly admonishes a juvenile when allegations are made plain to the juvenile by stating the offense and its elements pursuant to 54.03); see also In the Matter of J.M., 930 S.W.2d at 821. For these reasons, we overrule appellant's second issue.

C. Jurisdiction

Proceedings governed by Title 3 include "all cases involving the delinquent conduct or conduct indicating a need for supervision engaged in by a person who was a child within the meaning of [the] title at the time he was engaged in the conduct. . . ." Tex. Fam. Code Ann. 51.04(a) (Vernon 1996). The Code defines a "child" as a person who is ten years of age or older and under 17 years of age. Tex. Fam. Code Ann. 51.02(2) (Vernon 1996).

Appellant asserts that the only proof submitted on age by the State were its allegations and his own testimony. The record, however, does show that a juvenile probation officer, Edwina Andrade, testified regarding L.A.'s age. According to Andrade's testimony, she received a signed and notarized verification from L.A.'s parents. The verification indicated that L.A's date of birth was April 20, 1979. Thus, when the crime was committed on January 30, 1994, L.A. was fourteen years of age. Counsel for L.A. did not object to Andrade's testimony and waived cross-examination of Andrade.

As a general rule, any objection regarding the jurisdiction of the court because of the child's age, under Title 3, must be raised at trial or it is waived. Tex. Fam. Code Ann. 51.042 (Vernon 1996). Because the delinquent conduct in this case arose before the effective date of 51.042, that section is inapplicable. See Act of May 31, 1995, 74th Leg., R.S., ch. 262, 106, 1995 Tex. Gen. Laws 2517, 2591 (stating that the application of this act addresses conduct arising on or after January 1, 1996); In the Matter of A.D.D., 974 S.W.2d at 302 (addressing the same issue). Thus, contrary to the State's assertion, L.A. did not waive this issue on appeal.

As noted above, the applicability of the juvenile justice code depends on whether the accused is a child within the meaning of Title 3. See Tex. Fam. Code Ann. 51.04(a) (Vernon 1996). Under the code, the juvenile board in each county must designate one or more district, criminal district or county court as a juvenile court. Tex. Fam. Code. Ann. 51.04(b) (Vernon 1996). The power of a juvenile court to act is derived exclusively from this statutory grant of authority. In the Matter of A.S., 875 S.W.2d 402, 402 (Tex. App.--Corpus Christi 1994, no writ). However, with respect to jurisdiction, there is not a presumption of jurisdiction where a court exercises special statutory powers. A.D.D., 974 S.W.2d at 303. The enforcement of a judgment by a court of special jurisdiction, such as a juvenile court, requires a showing of subject matter and personal jurisdiction.Id. Subject matter jurisdiction is a court's power to hear a particular controversy. See Federal Underwriters Exch. v. Pugh, 141 Tex. 539, 541, 174 S.W.2d 598, 600 (1943). Personal jurisdiction, on the other hand, refers to the court's ability to bind a particular party to its decision or judgment. CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996).

Under Title 3, a court petition asserting delinquent conduct requires that the State only plead general information regarding the accused to invoke subject matter jurisdiction. Tex. Fam. Code. Ann. 53.04(d)(2) (Vernon 1996). This information includes age. Id. The statute does not require that the State prove age. A.D.D., 974 S.W.2d at 303. In the present case, the State properly pled that L.A. was born on April 20, 1979 and was fourteen years of age in its original petition in the 73rd District Court, Bexar County, Texas. The 73rd District Court is a juvenile court. See Tex. Gov't. Code Ann. 24.175 (Vernon Supp. 1998) (stating that "[t]he 73rd District Court shall give preference to civil cases and to cases and proceedings under Title 3, Family Code"). Given these facts, the trial court in this case properly exercised subject matter jurisdiction over the proceedings in this case.

We also find that Andrade's testimony constituted sufficient proof to establish L.A. was a juvenile within the meaning of 51.02(2) at the time of the shooting and during the adjudication. This evidence established the trial court's personal jurisdiction. See A.D.D., 974 S.W.2d at 304.This case is distinguishable from the case of In re A.S., 875 S.W.2d 402 (Tex. App.--Corpus Christi 1994, no writ), which appellant relies on in his argument. Unlike the record in the present case, the record in A.S. contained no evidence to support the juvenile's age. Id. at 403. It was the lack of any evidence to support the juvenile's age which required the reviewing court to reverse and remand to the trial court. See A.D.D., 974 S.W.2d at 304. For the reasons stated above, we overrule appellant's third issue.

D. Admission of Co-defendant Statement

1. Standard of Review

Evidentiary matters in juvenile proceedings are governed by the Rules of Criminal Evidence and Chapter 38 of the Code of Criminal Procedure. Tex. Fam. Code Ann. 51.17. It is within the trial court's discretion to decide whether evidence should be admitted or excluded. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) (op. on reh'g). Thus, the standard of review would be an abuse of discretion standard. Id. A harmless error analysis is applied by the reviewing court when a trial court makes an erroneous evidentiary ruling. In the case of determinate sentencing, we review the disposition phase of a juvenile proceeding with a criminal harm analysis. In the Matter of D.V., 955 S.W.2d 379, 380 (Tex. App.--San Antonio 1997, no writ). Accordingly, in the case of a constitutional error that is subject to a harmless error review, we must reverse the judgment of the trial court unless we can determine that the error did not contribute to the conviction beyond a reasonable doubt. Tex. R. App. P. 44.2(a) (formerly Tex. R. App. P. 81.1(b)(2)).(7) The entire record must be reviewed. Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989).

2. Error in Admitting Confession

On appeal, L.A. asserts that the reading of the confessions negated any attempt by the court to limit one confession from implicating the other defendant. By reading the confessions back-to-back, the jury was able to consider incriminating extra-judicial statements of M.R. in determining L.A.'s guilt. This, according to L.A., violated his right of cross-examination under the Sixth and Fourteenth Amendments. See Bruton v. United States, 391 U.S. 123 (1968).

Under Bruton, the confession of a non-testifying defendant at a joint trial cannot be used to implicate a non-confessing co-defendant by name. Bruton, 391 U.S. at 126-28. A confession which omits the name of the co-defendant can be admitted with a proper limiting instruction where the confession, coupled with the non-confessing defendant's trial testimony, incriminated the non-confessing defendant. Richardson v. Marsh, 481 U.S. 200 (1987). More recently, the Supreme Court has held that redacted confessions which merely replace the name of the non-confessing defendant with a blank space, or other similar alteration, closely resemble Bruton's unredacted statements and warrant the same legal results. Gray v. Maryland, __ U.S.__, 118 S. Ct. 1151, 1153 (1998) (holding Bruton applicable where name of non-confessing defendant was replaced with the word "deleted" or blank spaces).

In Gray v. Maryland, two defendants, Gray and Bell, were tried jointly for murder. At trial, the State was permitted to introduce and admit into evidence a redacted version of the confession made by Bell. Blank spaces, set off by commas, indicated where Gray's name was included in the confession. In addition, at trial, an investigating detective was permitted to read Bell's confession. References to Gray's name were substituted with the word "delete." The trial court provided a limiting instruction to the jury that Bell's confession could only be used against Bell.

The issue on appeal to the Supreme Court was whether the use of deletions and blanks fell within the same type of statements meant to be addressed by Bruton. Gray, 118 S. Ct. at 1153. The Court held that the redacted version of the confession fell within the scope of Bruton because the confession referenced Gray's existence. Id. at 1155 (emphasis added). Where the non-confessing defendant's name was simply replaced with another word, that defendant was linked to the confession in the minds of the jury. The rational of the Supreme Court rested on three reasons. First, a jury would react similarly to an unredacted confession and a confession as it had been redacted in Gray. Id. Second, the obvious deletion called the attention of the jury to the removed name and encouraged speculation by the jurors. Id. at 1155-56. Third, and finally, blanks and similar alterations functioned grammatically the same as if the defendant's name had been inserted. Id. at 1156. As a result, the redactions were "directly accusatory." Id.

Although the trial court did not have knowledge of Gray v. Maryland, nor could it have foreseen the recent decision, we now apply it to the case at hand. References made to L.A. in M.R.'s confession were replaced with the words "my friend, " "he," and "his."(8) In addition, the confession was followed by L.A.'s confession which also used the same words to denote M.R. The result, as argued by appellant, was that the confessions served to incriminate both defendants.

The record shows that the trial court provided a limiting instruction prior to the confessions being read. The trial court instructed the jurors that they were to only consider each statement in relation to the confessor. However, the record shows that these two statements were read back-to-back before the jury by the same witness, the arresting officer. The inclusion of "my friend, " "he," and "his" in M.R.'s confession clearly referenced the existence of another individual. Only one other co-defendant existed in this case, the appellant. Thus, given these circumstances, it could have been easily inferred that the "friend" was the appellant. Clearly, the use of M.R.'s confession is the type of situation which Bruton and Gray intended to address.(9)

The reference to L.A.'s existence is evident for three reasons. First, the use of "friend" and "he" called to the jury's attention the fact that the confession referred to the appellant. Second, these replacement terms encouraged speculation as to who the "friend" might be. Finally, it can be said that the substituting terms functioned grammatically the same as if L.A.'s name had been left in the confession. For these reasons, we find that the trial court abused its discretion in allowing M.R.'s confession to be read before the jury.

3. Harmless Error Analysis

As stated above, the State asserts that a civil harmless error standard should be applied to the case at hand. However, because the error complained of amounts to a constitutional error, we will apply a criminal harmless error standard. In the Matter of D.V., 955 S.W.2d 379, 380 (Tex. App.--San Antonio 1997, no writ); In re D.Z., 869 S.W.2d 561, 566 (Tex. App.--Corpus Christi 1993, writ denied). The State contends that we should look to witness testimony to sustain the verdict of the jury. Such an analysis is one-sided, because by only focusing on witness testimony the question concerning the impact of the error is left unanswered. See Cook v. State, 821 S.W.2d 600, 603 ((Tex. Crim. App. 1991). Under a criminal harmless error standard, we are required to determine the significance of the error apart from the remaining properly submitted evidence. Harris v. State, 790 S.W.2d 568, 585 (Tex. Crim. App. 1989). We do not merely focus on the weight of other evidence that may sustain guilt. Philpot v. State, 897 S.W.2d 848, 853 (Tex. App.--Dallas 1995, pet ref'd). Thus, under a proper criminal harmless error analysis we (1) assess the error and (2) consider the error in light of other evidence. See Henson v. State, 794 S.W.2d 385, 397 (Tex. App.--Dallas 1990, pet. ref'd); Cooper v. State, 961 S.W.2d 222, 227 (Tex. App.--Houston [1st Dist.] 1997, pet ref'd); Denton v. State, 920 S.W.2d 311, 312 (Tex. Crim. App. 1996) (vacating court of appeals judgment for not assessing other evidence in the record and solely focusing on the error); Harris, 790 S.W.2d at 587.The Error

We must first determine whether the error might have prejudiced the juror's decision-making process. Philpot, 897 S.W.2d at 853. This is done by isolating the error. Id. Under Harris, supra, we are directed to consider six factors when assessing the error. These factors include the following: (1) the nature of the error; (2) the course of the error; (3) the extent the State emphasized the error; (4) the weight a juror would place on the error; (5) any collateral implications; and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. Id.; Harris, 790 S.W.2d at 587. It is these factors which we now apply to the trial court's error of admitting M.R.'s improperly redacted statement.

The source of the error was the State's offer and the trial court's admission of M.R.'s improperly redacted statement. The nature of M.R.'s confession served to prove a critical issue in the case, that L.A. participated in the shooting which led to the death of Reymundo Diaz. The State's emphasis on the statement is evident from the record. M.R.'s statement was read and admitted into evidence amid the State's witness testimony and other evidence. In its closing argument, the State relied on all the evidence and testimony to sustain a true verdict. It even reminded the jury of the limited purpose of the confessions by stating that each confession should only be used against the confessor. However, in the rebuttal portion of the closing argument, the State addressed the confessions in the following way:

They are there. They are detailed. And the confessions were taken before all the facts of the crime were in, remember that, when you're going over those confessions. Because the confessions will tell you everything you need to know. And they were obtained by the police a few days after the crime before the ballistics evidence came in, before the gun was even located.

* * *

[Monica Rubio] gave a statement to the police very soon after the defendant's confessions. And she corroborated everything they say in their confessions. And their confessions corroborate everything Monica told you all. And that's really all you need in this case. The ballistics, the confessions, Monica's testimony, and Paul Garcia's testimony, and that's all you need.

Based on this argument, the State clearly states to the jury that both confessions were key pieces of evidence on which it had built its case. See Philpot, 897 S.W.2d 848, 853 (considering the State's reliance on an erroneous confession in closing argument as evident that the State emphasized the error). The statement was admitted and read to the jury once, and was not brought before the jury again until the closing argument. We would be remiss in not acknowledging the fact that the jurors would, as a result of the State's reliance on the statement, place some weight on the statement. However, we must not hold an error to be harmful by basing our analysis on the fact that the statement addressed a critical issue in the case. See Denton, 920 S.W.2d 311, 312. Determining how much weight a juror would place on the error is the heart of this harm analysis inquiry. See Montgomery v. State, 821 S.W.2d 314, 325 (Tex. App.--Dallas 1991, no pet.). The full effect cannot be calculated without considering the dissipating effect, if any, of other evidence. Id. The Other Evidence

By assessing the existence of other untainted evidence, we calculate the overall probable impact of the error on the jury. Monroe v. State, 864 S.W.2d 140, 144 (Tex. App.--Texarkana 1993, pet. ref'd); Henson, 794 S.W.2d at 385 (stating that an examination of this other evidence be conducted in a neutral, impartial and even-handed manner). If overwhelming evidence exists to dissipate the error's impact on the jury's function, the error is harmless. Harris, 790 S.W.2d at 587. One of the first witnesses to testify was Irene Romero, grandmother of the victim. The jury also heard from Monica Rubio who was with the juveniles the night of the shooting. In addition, the jury heard the testimony of a fellow STP gang member, Paul Garcia, and the arresting officer, Detective Robert Dean Moffitt. The testimony of Rubio, Garcia, and Moffitt was heard by the jury prior to M.R.'s statement being admitted into evidence. Following the admitted statements, the jury also heard expert ballistics testimony from Robert Stengle.(10)

Irene Romero testified that she heard two rounds of gunshots the night of the shooting. The first round she heard came from the back of the house. Romero and her son Manuel inspected the backyard. Later, Romero sat in her kitchen and heard a second round of gunshots. She testified that some shots hit the walls of the house, and that one shot penetrated the sliding glass door facing the backyard. Soon after the gunfire ceased, Romero found her grandson pinned against the wall and bleeding from his head.

Detective Robert Dean Moffitt, testified that he obtained two statements from the appellant. After speaking with L.A., Moffitt began a search for a weapon, specifically, a Norinco SKS assault rifle. According to his testimony, Moffitt discovered a similar weapon in the possession of Ernest Salazar, an STP gang leader. In the house where Salazar was staying, Moffitt recovered an unloaded Norinko Mak-90 rifle. This rifle was admitted into evidence by the State over L.A.'s objection.

Monica Rubio, M.R.'s cousin also testified. According to her testimony, Rubio's house proved to be the departure point for the two young men on the night of the shooting. Rubio testified that M.R. was mad at Manuel Romero, a rival gang member and uncle of the victim. She also testified that M.R. was considering "capping" Romero.(11) M.R. left his cousin's house and returned with the appellant. Rubio testified that the three snorted cocaine at her house and discussed doing a drive-by shooting of Romero's house. In addition, the boys stated that they were going to "cap" Romero's house. While at the house, they stated that they were going to get a gun. The boys left Rubio's house for approximately fifteen to twenty minutes. Rubio testified that during the time the boys were gone, she heard shots in the neighborhood.

Monica Rubio testified that the juveniles returned looking nervous and hyper. M.R. entered through the back of the house, and L.A. stood at her bedroom window with a rifle. Rubio testified that she thought the rifle was an AK. She further testified that both boys stated they had shot at Romero's house. In addition, they stated that L.A. drove and M.R. conducted the shooting. The boys left a second time stating that they were going to check on the house. They returned a second time looking hyper and nervous. Both told Rubio that they had shot at the house again. According to Rubio, she gave the boys a shirt to hide the rifle. At trial, Rubio was asked to examine the Norinco Mak-90 recovered by Detective Moffitt and submitted into evidence by the State. She testified that the gun was similar to the one she had seen the night of the shooting. She also testified that she had seen a similar rifle at L.A.'s house about a month before the shooting.

Although extensive, Rubio's testimony contains some gaps. She admitted to not hearing gun shots when the boys left for the second time. It was this second drive-by shooting, according to the record, which led to the shooting death of Reymundo Diaz. Secondly, Rubio did not see what the boys did with the gun after she gave the boys a shirt. However, she did testify about receiving phone calls from both boys the next day. L.A. called to tell her that Manuel's nephew had been shot.

Other evidence at trial included the testimony of a fellow STP gang member, Paul Garcia. He testified that on the same night of the shooting he had gone to L.A.'s house seeking protection. L.A. removed what appeared to be a rifle from a hole in his bedroom wall. The rifle was wrapped in a shirt. The two boys then took the rifle to the house of Ernest Salazar. There L.A. exchanged the rifle for a pistol. L.A. then gave the pistol to Garcia.

As stated above, the admission of M.R.'s statement was followed by the testimony of ballistic expert, Robert Stengle. At the time of his testimony Stengle was retired, however, he had worked as a firearms and tool marks examiner for twenty-three years. During that time, he had worked for the San Antonio Police Department for eleven years and for the county's medical examiner's office for twelve years. As an internal ballistics expert, Stengle's expertise centered on what would happen inside a gun when shots were fired.

In this case, Stengle testified pursuant to his report admitted into evidence, which documented his findings on evidence obtained by investigators. Stengle analyzed spent cartridge casings, bullets, and bullet fragments. Test results from his analysis were admitted into evidence. Stengle was asked to determine whether the cartridge casings, bullets, and bullet fragments were fired from the same gun and whether they were fired from a particular gun. With regards to the bullet fragments, Stengle determined that two bullet fragments had been fired from the Norinco Mak-90 recovered by police. In addition, he determined that six cartridge casings were fired from the same weapon. Stengle also conducted tests duplicating the firing of shots through glass as it had occurred the night of the shooting. The purpose of the test was to determine whether shots were fired at a long or short range distance. From this test, he determined that the shots fired came from a distance of 100 yards. He further confirmed, based on bullet holes found in the house, that the shots came from the back of the Romero house.

When viewing the admission of the improperly redacted statement in light of the other evidence considered by the jury, we do not conclude that the error disrupted the jury's orderly evaluation of the evidence. Based on the nature of the evidence, the overwhelming amount of other evidence and the timing of its admission, we conclude that the jury's consideration of the improperly redacted confession would not have led to an improper verdict. We hold beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

E. Conclusion

We considered all issues raised by the appellant, and we overrule all four issues. The judgment of the trial court is affirmed.

Alma L. L pez

Justice

DO NOT PUBLISH

1. Former rule 55(a) provided the following:

Any inaccuracies may be corrected by agreement of the parties; should any dispute arise, after filing in the appellate court as to whether the statement of facts accurately discloses what occurred in the trial court, the appellate court shall submit the matter to the trial court, which shall, after notice to the parties and hearing, settle the dispute and make the statement of facts conform to what occurred in the trial court. (emphasis added).

2. Former Rule 81 stated:

No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of . . . probably prevented the appellant from making a presentation of the case to the appellate court.

Tex. R. App. P. 81(b) (Vernon 1996). Under the new rules, former rules 80(d), 81, and 83 were merged into new Rule 44.

3. The rules of appellate procedure provide that the appellant's brief contain a clear and concise argument with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h).(4)

4. Rule 38(h) addresses the appellant's brief and states the following, "The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."

5. In 1997, the legislature amended 54.03 to require an objection to preserve an error in failing to properly admonish. Tex. Fam. Code Ann. 54.03(i) (Vernon Supp.1998). This new provision does not apply to the present case as the conduct at issue occurred prior to the effective date of the new provision, September 1, 1997. See Act of June 19, 1997, 75th Leg., R.S., ch.1086, 10, 1997 Tex. Gen. Laws 4179, 4199. Appropriately, we decide the issue of proper admonishments under the old law.

6. The record shows that L.A. was admonished a second time during the motion to suppress hearing. The trial court inquired as to L.A.'s right to remain silent, his right to an attorney, and the attorney's ability to call witnesses and cross examine the State's witnesses during the suppression hearing.

7. We do not agree with the State that a civil standard harmless error analysis applies in this case. See In re D.Z., 869 S.W.2d 561, 566 (Tex. App.--Corpus Christi 1993, writ denied) (applying a criminal harm standard in determinate sentencing cases).

8. M.R.'s redacted confession was read at trial. The statement, in part, stated the following:

After we got done eating, me and my friend went back to his house. When we got to his house, he got a rifle. I don't know where he had it because I stayed in the car. When we went to his house, I think it was just his mother, brother and sister at home. I don't think they saw him with the rifle because he went out through the bedroom window with the rifle.

When he went into the house, he went in through the front door. When he came back to the car he told me to scoot over and he told me, you are the one that wants to do it, so he gave me the gun, and it was a rifle, and it was like wood on the part where you grip and stuff. I think it's a Chinese gun because it looks like a hunting gun. The gun didn't have any clip in it. It didn't have any bullets in it when he gave it to me. I had never seen the gun before and it was the first gun I ever used.

He was driving and I was in the passenger seat. We talked about how to do the shooting, and he said -- and said, let's do it through the back. While he was driving, I started loading the gun. I put in seven bullets. I don't know what kind of bullets they were, but they were real long. The gun has a lever that you have to load each bullet after you shoot.

He drove from his house to the front of the house that we hit to see if anybody was home. We are just looking to see who was there, and we saw some people's shadows walking inside the house. Then he drove to the back of Dahlgreen and stopped the car like in the back of the house, but we were still on the street. . . .

I sat on the side of the door with the top part of the me [sic] out of the car. My friend kept the car running so we could get out of there fast. When I was sitting on the door, I had to shoot over the top of the car to shoot at the house. . . .

Then my friend drove a little bit more to the front, and then I shot two more times. On those last two shots, I was aiming at the sliding glass door. I didn't hear nothing, and I didn't know if I hit or not. Then he just drove off and turned the lights on. We had the lights off when I was shooting.

He drove back to his house, and he took the gun and went back to his window and went inside. Then he came back out and he drove the car back to my aunt's house. Me and my friend went inside, and I just started crying. . . . He said you're just like that because it's your first time. . . .We just stayed there for about ten minutes and then I told him I had to go home, and I drove him back to his house. On the way to my friend's house he told me not to say anything to anybody -- to nobody or else our asses are going down.

9. The issue, as stated by the Supreme Court, depends on the type of the inference, not the mere existence of inference. Gray, 118 S. Ct. at 1157. See Richardson, 481 U.S. at 208 (holding Bruton inapplicable where all existence of the defendant was redacted out of co-defendant's confession leaving only an inference that defendant participated in crime charged).

10. On review, L.A.'s confession is not considered because it suffers from the same faulty redaction as M.R.'s confession. References to M.R. in L.A.'s confession were limited to "my friend, "he," and "him." Thus, it is imperative that this court look to other evidence submitted by the State at trial.

11. The record reflects that on direct examination, Rubio testified that "capping" meant shooting Romero's house.

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