Ricardo Munguia v. The State of Texas--Appeal from 79th Judicial District Court of Jim Wells County

No. 04-97-00811-CR
Ricardo MUNGUIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 79th District Court, Jim Wells County, Texas
Trial Court No. 97-05-9534-CR
Honorable Harry Lewis, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 25, 1998

AFFIRMED

Appellant appeals his conviction of aggravated assault, a sentence of seventeen years and a $2,500 fine. Munguia raises thirteen issues on appeal. Issues one and thirteen assert that the evidence presented at trial was both legally and factually insufficient to sustain the verdict. Issues two through five, eight and eleven assert that the trial court erred in denying appellant's requested instructions on trespass, expert testimony and subjective certitude. Issues six and seven assert that the trial court erred in giving a dynamite charge to the jury. Issues nine to ten assert that the trial court erred in admitting a prior conviction for indecent exposure. Finally, issue twelve asserts that the trial court erred in not properly instructing the jury on taking notes. We overrule all issues raised by appellant and affirm the ruling of the trial court.

Statement of Facts

On April 26, 1997, the body of Maria Linda Garibay was found in a ditch with a fatal shotgun wound to the left side of the neck. Ricardo Munguia, appellant, turned himself in to the Jim Wells County Sheriff's Office on that same day and confessed to shooting Garibay. Munguia was indicted for the murder. At trial, Munguia testified in his own defense. Munguia testified that he drank approximately eighteen beers prior to going to bed the night of April 25, 1997. Around 3:00 a.m., Garibay came to his door and entered the house. Munguia stated that Garibay entered his home and immediately disrobed. According to Munguia's testimony, he repeatedly told Garibay to leave. Munguia contended that Garibay slapped him and went after him with his own shotgun. According to Munguia, Garibay shot at him twice. Investigative officers found evidence of only one shot being fired in the home. A .410 shotgun found in Munguia's home contained one spent shell casing. The jury convicted Munguia on the lesser included charge of aggravated assault and was fined $2,500. Discussion and Analysis

1. Legal and Factual Sufficiency

When determining the legal sufficiency of the evidence, "the reviewing court must view the evidence in the light most favorable to the prosecution, [that] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clewis v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996). The reviewing court must render a judgment of acquittal if it determines that the evidence is legally insufficient. Clewis, 922 S.W.2d at 133. On the issue of factual insufficiency, the reviewing court must consider all the evidence and determine whether the judgment goes against the great weight and preponderance of the evidence to be clearly unjust and wrong. Clewis, 922 S.W.2d at 135. Where the issues on appeal challenge the legal and factual sufficiency of the evidence, legal sufficiency must first be decided. Id.; See Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.).

On appeal, Munguia argues that no evidence exists to support intent. At trial, the State admitted into evidence a voluntary statement made by Munguia the day of the murder. The statement contained the following:

I kept telling her to leave. At one time she grabbed the shotgun and I took it from her. I told her that if she do [sic] not leave that I would kill her. And she said 'kill me.' And I did. I shot her with a .410 single shotgun.

At trial, testimony from the arresting officer indicated that he did not see any evidence of more than one shot being fired. One spent shell casing was found in the gun. No residue pellets could be found in the walls or ceiling of the house indicating shots were fired in the bedroom or kitchen. In addition, the State showed that only Munguia knew what time Garibay entered the ranch and whether she entered without permission.

A person commits an aggravated assault where they intentionally, knowingly, or recklessly cause serious bodily injury to another. See Tex. Penal Code Ann. 22.01-22.02(a) (Vernon 1994). A person acts intentionally with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Penal Code Ann. 6.03(a) (Vernon 1994). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. It is important to note, that the State need not prove intent to cause death or serious bodily injury where the weapon used is a firearm. See Torres v. State, 905 S.W.2d 440, 442 (Tex. App.--Fort Worth 1995, pet. denied) (stating that a firearm qualifies as a deadly weapon per se); Tex. Penal Code Ann. 1.07(a)(17)(A) (Vernon 1994); Burnett v. State, 865 S.W.2d 223, 230 (Tex. App.--San Antonio 1993, pet. ref'd).

When viewing the evidence in the light most favorable to the prosecution, including the confession admitted into evidence, it cannot be said that the jury could not have found the elements of aggravated assault beyond a reasonable doubt. On appeal, Munguia asserts that the State failed to prove intent. However, in his voluntary statement, Munguia admitted to telling Garibay that he would kill her if she did not leave. At trial, Munguia testified differently. He asserted that the gun went off when Garibay grabbed it after he attempted to remove it from the room. Dr. Lloyd White, the Nueces County Medical examiner who conducted the autopsy on Garibay, testified that Garibay's hands showed no visual signs of gun residue or soot. Residue or soot would be indicative of an individual grabbing a gun that was being fired. In addition, the gunshot wound projected downward and appeared to have resulted from a shot that was fired more than five feet away. Dr. White testified that the wound was not consistent with a shooting occurring less than a foot away. Police investigators found no other evidence to suggest that more than one shot was fired in the home. Based on this evidence, a rational trier of fact could have found that Munguia possessed the necessary intent for aggravated assault beyond a reasonable doubt.

In challenging the factual sufficiency of the evidence, Munguia asserts that evidence was presented to show Garibay trespassed onto his land. Both Munguia and his sister-in-law testified that "no trespass" signs were posted on the property. In addition, Munguia testified that Garibay entered the house and proceeded to slap him when he told her to leave. Garibay then grabbed the shotgun and shot at Munguia twice. Munguia testified that she shot at him once in the bedroom and once in the kitchen. Munguia stated that he threw away two of the shell casings after the shooting. Munguia's sister-in-law, Linda Munguia, testified she saw holes in the walls of the house that were not present before the shooting. Pictures of the holes were taken by her and admitted into evidence.

An appellate court should not set aside a jury verdict merely because the court feels that a different result is more reasonable. Clewis, 922 S.W.2d at 135. The contrary evidence in this case does not outweigh the evidence used in support of the verdict. The only potentially conflicting evidence in this case was the assertion by Munguia that Garibay shot at him. No conclusive evidence was established indicating that a hole in the kitchen was the result of a gunshot. Officer Juan Barrera, one of the arresting officers, testified that a close inspection of a hole in the kitchen did not reveal any shotgun pellets. Texas Ranger Ray Ramon, who was also at the scene, testified that there were no indications that more than one shot was fired in the home. When considering all the evidence, it does not appear that the judgment goes against the great weight and preponderance of the evidence. We overrule appellant's first and thirteenth issue.

2. Denied InstructionsA. Trespass

Munguia asserts that the trial court erred in denying him an instruction on the issue of trespass. Munguia argues that the instruction was necessary to his defense. He contends that there was ample evidence at trial to show that Garibay was a trespasser. Thus, an instruction on trespass was warranted. We disagree, and hold that the trial court did not err in denying the requested instruction on trespass.

The State correctly argues that there is no case law to support the contention that trespass is a defensive issue. Two instructions were given addressing self-defense and the accidental discharge of a firearm in the jury charge. By requesting the instruction on trespass, Munguia was asserting an affirmative defense for shooting Garibay. Munguia argues that Garibay trespassed onto his property and proceeded to attack him in his home. The critical element to Munguia's argument is not that Garibay entered without permission, but that she attacked him once inside his home. Garibay's attack raised the affirmative defense that Munguia had a justification for shooting her. Saxton v. State, 804 S.W.2d 910, 912 n. 5, 913 n. 7 (Tex.Crim.App.1991) (stating that self-defense is an affirmative defense, which a defendant must prove by a preponderance of the evidence); see Tex. Penal Code Ann. 2.04(d) (Vernon 1994).

In this case, a proper charge concerning self-defense was given by the trial court. Application paragraphs in the jury charge incorporated self-defense and instructed the jurors to vote "not guilty" if they found reasonable doubt on the charges alleged. In addition, the court provided a charge on the accidental discharge of a deadly weapon. The trial court was not required to give an instruction on this defensive issue. Lynn v. State, 860 S.W.2d 599, 602 (Tex. App.--Corpus Christi 1993, pet ref'd). An instruction on trespass was not necessary or required, because the court incorporated instructions of self-defense and the accidental discharge of a weapon in the jury charge. We overrule appellant's second issue.

B. Reliability of Expert Testimony

Under issues three and eight, Munguia contends that the trial court erred in denying requested instructions regarding the reliability of expert ballistic testimony. The State argues that any instructions on expert testimony would have amounted to an improper comment on the weight of the evidence by the court. See Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983) (stating that singling out specific testimony in jury charge constitutes an improper comment on the weight of the evidence). In addition, in his eleventh issue, Munguia asserts that the trial court erred in denying a mid-trial motion for a limiting instruction pursuant to Rule 105 of the Texas Rules of Evidence.(1)

Munguia relies on Daubert v. Merrell Pharmaceuticals Inc., 509 U.S. 579 (1993), which held that expert witness evidence be both reliable and relevant. See also Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996) (adopting Daubert two-prong standard). Munguia argues that Daubert would require jury instructions on expert testimony regarding ballistics.

The charge to the jury, in this case, included a general instruction which stated the following, "You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given their testimony, but the law you shall receive in these written instructions and you must be governed by these instructions."

Both Officer Juan Barrera and Dr. Lloyd White testified regarding ballistic evidence. Both witnesses testified as to their expert opinion of the shooting. Officer Barrera testified that he had worked for the Jim Wells County Sheriff's Department for twenty years. Prior to that, Officer Barrera testified that he had been with the Alice Police Department for eight years. Officer Barrera was questioned on potential shotgun blasts in the walls of Munguia's home. He testified that a piece of wood was missing from the kitchen. Upon closer inspection, however, he found no evidence of shotgun pellets to indicate that the hole had resulted from a shotgun blast.

Dr. Lloyd White, the coroner, testified regarding the type of shotgun which could have caused the fatal wound. According to Dr. White, no evidence of soot or residue was found on the hands of Garibay to indicate that she had grabbed the gun when it had been fired. In addition, Dr. White testified that the fatal wound on Garibay's neck resulted from a shot that had been fired over five feet away. In his opinion, the fatal shot did not occur less than one foot away. Additional expert testimony was given by a forensic serologist and criminologist. Both testified regarding their respective findings on blood type and DNA analysis tests conducted on blood samples collected from evidence submitted by investigating officers. Both experts testified that blood and DNA types obtained from collected evidence matched the blood and DNA type of Garibay.

Case law sustains the rule that a trial court commits error when certain testimony is singled out and commented upon. Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988). An instruction which instructs the jury on the weight to be given certain evidence is also error. Id. Requested instruction number 7, submitted by Munguia stated, in part, the following:

You are instructed to determine the reliability of the ballistic testimony in this case before considering any ballistic evidence. If from the testimony, you find that the ballistic testimony and evidence is not reliable or if the evidence raises in your mind a reasonable doubt as to whether the ballistic testimony and evidence is reliable, then under those circumstances, you are instructed that you must not consider any ballistic evidence and testimony in this case.

In addition, requested instruction number 8 stated:

You are further instructed that the mere fact that the state used ballistic evidence and testimony in this case and the fact that you were allowed to hear that testimony, does not equate to either this court's voucher as to their accuracy, reliability, or applicability or that such testimony and evidence ought to be accepted as proof beyond a reasonable doubt with regard to ballistic testimony.

A mid-trial Rule 105 motion was also made by Munguia. In that motion, Munguia requested that a limiting instruction be given on the "speculative nature of expert proof, [as such] expert testimony is often speculative to some degree and that the lack of absolute certainty in the testimony of an expert does not preclude the expert from testifying."

Munguia's first requested instruction on ballistic testimony was a misstatement of the law on expert testimony. Expert testimony, when qualified as such, is permitted by the trial court if it would assist the trier of fact. See Tex. R. of Evid. 702. Under Rule 702, the trial court must determine that expert scientific testimony is reliable, as well as relevant, before permitting the jury to hear it. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 572(Tex.1995); see Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App.1992). If the trial judge determines that the testimony is both relevant and reliable, he must then determine whether its probative value is outweighed by the "danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Robinson, 923 S.W.2d at 557; see Kelly, 824 S.W.2d at 572. In this case, the court did not err in denying the requested instruction because the reliability of expert testimony was not within the province of the jury.

Munguia's second instruction on ballistic testimony commented on the weight of the evidence. In his requested instruction, Munguia would have had the trial court address its voucher of the accuracy, reliability and applicability of the expert testimony on ballistics. Such an instruction, if approved by the trial court, would have constituted a comment on the weight of the evidence by the trial court. Appellant's mid-trial motion for limiting instructions pursuant to Rule 105 would have also been an improper comment on the weight of the evidence. The use of an instruction which cautions the jury as to the "speculative nature of the expert proof" clearly comments on the weight the jury should give to that evidence. Thus, it was not improper for the court to deny Munguia's requested instructions. See Florio v. State, 532 S.W.2d 614, 618 (Tex. Crim. App. 1976) (holding that instruction telling the jury that they were not bound to accept expert opinion and that reliability of the expert opinion was in their sole province was an improper comment on the weight of the evidence); see also Russell, 749 S.W.2d at 79 (holding that a trial court improperly commented on the weight of the evidence by providing instructions which informed the jury they were not bound by expert testimony and were the exclusive judges of witness credibility). Accordingly, appellant's third, eighth and eleventh issues are overruled.

C. Expert Testimony as Hearsay

In his fourth issue, Munguia argues that the trial court erred in denying his requested instruction stating that crime lab reports, relied upon by expert witnesses, were hearsay. Rule 705(d) states the following:

When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction shall be given on request.

Tex. R. Evid. 705(d). The State contends that the reports were never determined to be inadmissible by the trial court. The record does show that the reports in question were never admitted as evidence. Therefore, it is the State's assertion that Rule 705(d) was never applicable.

Three expert witnesses testified during the proceedings below. A forensic serologist, a criminologist and the coroner. Appellant contends that the limiting instruction was necessary regarding the serologist's testimony and the coroner's testimony. Lisa Moreno, the serologist, testified that her job involved processing biological fluids and evidence in cases, and she would "present the facts in a report and testify in court." In this case, Moreno testified that she tested twelve individual pieces of evidence to determine if blood obtained from the evidence matched Garibay's blood type and found that nine items of blood evidence matched Garibay's blood type. Munguia asserts that Dr. White's observations of the injuries sustained by Garibay were hearsay. Dr. White testified as to the trajectory of the shotgun wound in Garibay's neck and other visible observations he made of the wound.

The admissibility of an expert's report and the admissibility of the expert's testimony are distinguishable. Cole v. State, 839 S.W.2d 798, 813-814 (Tex. Crim. App. 1990) (Maloney, J., concurring). The purpose of 705(d), which has no federal counterpart, is to prevent the danger that the jury will consider otherwise inadmissible facts or data as substantive evidence rather than merely the underlying basis of an expert's opinion. Id. at 815. Thus, the threshold inquiry with respect to the fact or data of expert testimony is whether the facts or data are inadmissible. Simply put, were the revealed underlying facts and data admitted to prove the truth of the matter being asserted? Id. Based on the record, we do not find they were. Moreno's purpose in conducting blood tests was to analyze the evidence for a matching blood type. Dr. White testified merely to the description of the injuries he observed. We do not find that the expert testimony was inadmissible and warranted a limiting instruction under 705(d). Consequently, we overrule appellant's fourth issue.

D. Instruction on Subjective Certitude

In addition, Munguia argues that the trial court erred in denying his instruction which stated the following: "You are required to vote not guilty, if you have not reached a subjective state of near certitude of the guilt of the accused, do all of you understand this [?]" He asserts that an instruction on reasonable doubt mandates an additional instruction on subjective certitude. The State argues that the standard instruction on reasonable doubt properly protected the rights of Munguia.

In this case, a proper instruction on reasonable doubt was given to the jury in the charge. This charge followed the wording as laid out by the Court of Criminal Appeals in Geesa v. State, 820 S.W.2d 154,162 (Tex. Crim. App. 1991). Appellant cites Jackson v. Virginia, 443 U.S. 307 (1979), in support of his instruction. Munguia fails to note that in Jackson the court found an instruction on reasonable doubt to be the functional equivalent of "impressing upon the factfinder the need to reach a subjective state of near certitude." Jackson, 443 U.S. at 315. Thus, in the present case, when the court instructed the jury on reasonable doubt, it implicitly instructed the jury to reach a subjective state of near certitude. Munguia's requested instruction was not necessary. We overrule appellant's fifth issue.

E. Dynamite Charge

In issues six and seven, Munguia argues that the trial court erred by giving a dynamite charge to the jury. An erroneous jury charge will not result in an automatic reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Under the Code of Criminal Procedure, review of a jury charge is a two-step process. First, the reviewing court must see if error in the charge exists. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). Next, it must determine whether sufficient harm resulted from the error to require reversal. Id. The standard on review depends on whether or not the appellant objected at trial. Abdnor, 871 S.W.2d at 732. A reviewing court must search for "some harm" to the appellant when a timely objection is made at trial concerning the jury charge. Id. If the appellant raised error in the charge for the first time on appeal, the reviewing court will look for egregious harm. Id. In the present case appellant's sole objection to the jury charge was based on his assertion that it was a dynamite charge. If error occurred, this Court must determine whether some harm resulted from the error.

The instruction stated the following, "In order to return a verdict, each juror must agree thereto, but jurors have a duty to consult with one another and to deliberate with a view of reaching an agreement, if it can be done without violence to individual judgment." (emphasis added). This instruction, Munguia argues, impressed upon the jury that it had a duty to decide the case. The State contends that the charge given to the jury in this case did not amount to a dynamite charge.

A dynamite charge is usually given to a deadlocked jury in an attempt to reach a unanimous verdict. Griffith v. State, 686 S.W.2d 331, 332 (Tex. App.--Houston [1st Dist.] 1985, no pet.) (citing Allen v. United States, 164 U.S. 492 (1896)). It is typically given in response to a jury's specific request to the trial court regarding deadlock. Jackson v. State, 753 S.W.2d 706, 712 (Tex. App.--San Antonio 1988, pet ref'd). Case law reveals that instructions similar to that in the present case have been upheld. See Arrevalo v. State, 489 S.W.2d 569, 572 (Tex. Crim App. 1973) (approving a charge as non-coercive which stated, in part, "you are instructed to continue deliberation in an effort to arrive at a verdict which is acceptable to all members of the jury"). Moreover, similar instructions have not been deemed coercive where they are given in the initial jury charge. See Loving v. State, 947 S.W.2d 615, 619 (Tex. App.--Austin 1997, no pet.) (citing federal cases); Love v. State, 909 S.W.2d 930, 937 (Tex. App.--El Paso 1995, pet. ref'd) (finding no authority condemning an Allen charge in a trial court's initial jury charge).

We find that the charge given to the jury in this case was not an Allen or dynamite charge. First, unlike the jury in Griffith, the jury in the present case was not deadlocked. The charge given was the initial charge. Second, a singular possible inference that the jury would be violating its duty or oath if an agreement was not reached, when reading the charge as a whole, does not amount to being coercive. Third, the record does not reveal, and Munguia does not assert, that coercion in fact occurred. See Love, 909 S.W.2d at 936 (stating that the accused must show that misconduct or coercion in fact occurred); Jackson, 753 S.W.2d at 712. We find that the trial court did not give a dynamite charge, and thus, did not err in the jury charge. For this reason, we overrule appellant's six and seventh issues.

F. Instructions on Jury Note-Taking

Munguia also asserts that the trial court erred in not providing instructions on jury note-taking. The record shows that Munguia initially requested the charge at the beginning of trial. The State argues that the trial court did not err in failing to instruct the jury, as there was no evidence on the record to show that the jury participated in note-taking.

Under Price v. State, 887 S.W.2d 949 (Tex. Crim. App. 1994), a trial court has discretion in allowing jurors to take notes during trial. In that case, the Court of Criminal Appeals outlined a four-part analysis a trial court should undertake regarding jury note-taking. First, the trial court must determine if juror note-taking would be beneficial in light of the factual and legal issues to be presented at the trial. Price, 887 S.W.2d at 954. Second, the trial judge should inform the parties, prior to voir dire, if the jurors will be permitted to take notes. Id. Third, the trial judge should admonish the jury on note-taking. Id. Finally, the trial court should provide appropriate instructions on the jury charge regarding any note-taking which occurred at trial. Id.

The record reflects that Munguia requested instructions on note-taking in a pre-trial motion. The court responded to the motion in the following way:

The Court: Well, I don't -- I don't think it needs to be brought up at this time unless some juror asks for permission to take notes. Usually that's in a complicated civil case or something where--

[Defense Counsel]: It may happen without us knowing it Judge, and in case it does happen I do want to bring it to the Court's attention I did raise the issue.

The Court: I'll ask counsel on both sides, then, either side, or the Court, or anybody else ascertains or notices that a juror or jurors are taking notes, you make mention at the time and the Court will give the proper instruction. Is that satisfactory counsel?

(emphasis added). The record does not show, and appellant does not cite, any instance where either party or the court saw a juror taking notes. Thus, no instructions were given to the jury. The court gave adequate consideration to note-taking and recognized that the case was not complicated enough to warrant an instruction. We overrule appellant's twelfth issue.

3. Admission of a Prior Conviction

In his ninth and tenth issues, Munguia asserts that the trial court erred in allowing a prior conviction for indecent exposure to be brought forth in the punishment stage. Munguia argues the 1992 conviction was too remote in time to be considered by the jury. In addition, Munguia asserts that the State went beyond proving the existence of the conviction by questioning him on details of the conviction. The questions posed by the State on re-cross examination indicated that Munguia had exposed himself at a public pool. Munguia asserts that the question was too detailed and thus prejudicial. The record shows that Munguia's counsel did not object to the State's form of questioning on the prior conviction.

The Code of Criminal Procedure provides that the State may present evidence as to a prior criminal conviction of the defendant at the punishment stage. Tex. Code Crim. Proc. Ann. art. 37.07, 3 (Vernon Supp. 1998). Convictions introduced at the punishment stage are not subject to the remoteness limitations contained in the rules of evidence. Barnett v. State, 847 S.W.2d 678, 680 (Tex. App.--Texarkana 1993, no pet.); see Tex. R. Evid.609(b). Rule 609(b) applies only to convictions introduced for impeachment purposes. Barnett, 847 S.W.2d at 680. Convictions admissible under article 37.07 are not for impeachment purposes, but for assessing punishment. Id. As a general rule, a conviction is not considered too remote in time if it is less than ten years old when calculated from the date of the defendant's release from confinement. Id.; Tex. R. Evid. 609(b).

As a prior conviction, the 1992 conviction for indecent exposure was an appropriate matter to be raised by the State during punishment. On re-direct, Munguia's own counsel questioned him as to the circumstances of the charges for indecent exposure. Munguia testified that he was caught attempting to urinate. Munguia's counsel did not object to the State's question. Counsel's failure to object to the form of the State's question failed to preserve error for prejudicial effect. See Tex. R. App. P. 33.1(a). Given these circumstances, the trial court did not err in allowing the State to raise the prior conviction during punishment.

Conclusion

Having reviewed the record, this Court finds that the trial court did not err in the proceedings below. For this reason, we affirm the judgment of the trial court.

ALMA L. L PEZ

JUSTICE

DO NOT PUBLISH

1. Rule 105 of the Texas Rules of Evidence states, in part, the following:

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. . . ."

The proceedings in this case began before the effective date of the current Texas Rules of Evidence, however, there was no substantial change in the wording of new Rules 105 and 705(d) from the old rules. Accordingly, we decide this issue and Munguia's fourth issue under the current Texas Rules of Evidence.

Return to
4th Court of Appeals Opinions