Tomas Huerta v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

99-00184 Huerta v State of Texas.wpd No. 04-99-00184-CR
Tomas HUERTA,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CR-2396
Honorable Pat Priest, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine M. Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 18, 2000

AFFIRMED

Appellant, Tomas Huerta, was convicted by a jury of the offense of Murder, (1) and sentenced to twenty years confinement in the Institutional Division of the Texas Department of Criminal Justice. Huerta raises four issues on appeal. In his first issue, Huerta complains an improper outburst from a member of the gallery during his trial was inherently prejudicial and therefore requires reversal. Issue two complains extraneous offense evidence presented at the punishment phase of the trial was not proven beyond a reasonable doubt. Issues three and four complain the evidence is legally and factually insufficient to support the jury's verdict.

Issue One

During the State's case in chief, the State offered the testimony of a Bexar County Medical Examiner, Dr. Susanna Dana. Dr. Dana's testimony involved a discussion of several autopsy photographs depicting the stab wounds to the victim in the case. When several of the photographs were offered into evidence, Huerta's attorney examined them. Huerta was sitting at the table with his attorney, and he also looked at the photographs. An unidentified person sitting in the gallery said "Is that fascinating Tomas, how you slashed an unarmed man?" The remark was loud enough to be heard and recorded by the court reporter. The trial court immediately ejected the man from the courtroom. Huerta's counsel moved for a mistrial, which was denied. The trial court instructed the jury to disregard the remark. Later, Huerta's counsel renewed his objection. Although the court overruled his objection a second time, it made a record of the size of the courtroom and the proximity of the unidentified speaker to the jury. The record indicates the courtroom was 24 feet by 32 feet. The unidentified speaker was sitting 8 to 10 feet from the nearest juror. The trial judge noted for the record that some, if not all, of the jurors must have heard the outburst.

Conduct from bystanders which interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows a reasonable probability that the conduct interfered with the jury's verdict. See Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1990). Injury to a defendant is measured on a case-by-case basis. See id.

In Foster v. State, 400 S.W.2d 552 (Tex. Crim. App. 1966) the defendant was on trial for murder. During the cross examination of a deputy sheriff (one of the State's witnesses), defendant's counsel inquired whether the accused disclosed the victim's request to the defendant to "get a colored girl to take her down there for sexual relations, did he tell you that?" See Foster, 400 S.W.2d at 555. At this point, the widow of the victim, who was present in the gallery, stood and in a loud voice said, "[T]hat's a lie. That's a lie. He was trying to protect his skin when he said that God damn liar."[sic] See id. (2) The court instructed the jury to disregard the remark. The following day the defendant moved for a mistrial based on the outburst. The trial court overruled the defendant's request. On appeal, the Court of Criminal Appeals held the failure to grant the defendant's request for a mistrial was not error. See id at 556.

In Ashley v. State, 362 S.W.2d 847 (Tex. Crim. App. 1962), the deceased's widow cried out during the defense counsel's closing argument in a murder trial. The substance of the outburst was that the deceased was with his wife at a certain time on the evening when he was killed. The defense moved for a mistrial which was overruled. The trial court, without request from the defendant, instructed the jury to disregard the remark. The widow was immediately removed from the courtroom. On appeal, the defendant argued the outburst warranted reversal. The Court of Criminal Appeals affirmed the defendant's conviction. The court discussed the outburst in the context of defendant's trial strategy and emphasized that the outburst did not contradict the appellant's testimony regarding his whereabouts at the time of the crime. Further, the court stressed the instruction to the jury to disregard the outburst further mitigated the statement's impact, to the point no reasonable probability of injury to the defendant existed. See Ashley, 362 S.W.2d at 851.

The outburst in this case is similar to the one in Ashley. Huerta's trial strategy was a self-defense theory. Huerta testified he did not see a weapon held by the victim, but the victim was a much larger man, was intoxicated, and was on a rampage, causing Huerta to fear for his life. Although improper, the outburst did not contradict the theory put forward by Huerta. Further, because a limiting instruction was promptly given and the remark was an isolated one, we hold Huerta failed to demonstrate by a reasonable probability the improper remark interfered with the jury's verdict.

Issue Two

Huerta argues evidence of extraneous offenses presented by the State at the punishment phase of his trial was not proven beyond a reasonable doubt. Evidence of extraneous offenses is admissible in the punishment phase of a trial pursuant to Tex. Code Crim. Proc. Ann. art. 37.07 3 (Vernon Supp. 2000). The evidence must be shown beyond a reasonable doubt to have been committed by the accused. If the State fails to adduce sufficient evidence, the trial court should not admit the evidence. See Stewart v. State, 927 S.W.2d 205, 208 (Tex. App.-Fort Worth 1996, pet. ref'd.)

In this case, the extraneous offense evidence presented by the State consisted of testimony from two San Antonio Police Officers. Both officers testified to the circumstances surrounding two prior unadjudicated assaults committed by Huerta. The testimony of both officers was hearsay admitted under Tex. R. Evid. 803(2) (excited utterance).

The testimony of both officers indicated they responded to domestic disturbance calls and encountered women who were visibly injured, excited, and upset. In both instances the women told the officer about the assault that had just occurred. Although the exact time when the assaults occurred was not demonstrated in the record, it is clear both declarants made their statements while they were still under the emotional and physical stress of the assaults committed by Huerta. See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). The initial determination of admissibility under the excited utterance exception to the hearsay rule was proper.

The jury is responsible for determining whether the extraneous offenses have been proven beyond a reasonable doubt. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996). In this case, both officers testified to the details of the assaults. Both officers described the physical injuries of the assault victims, and related the excited utterances of the assault victims. In each case, the victims had related to the officers at the scene that Huerta had caused their injuries. There is clearly enough evidence here to support the jury's finding beyond a reasonable doubt that Huerta committed the extraneous offenses admitted into evidence at the punishment phase of trial. Huerta's second issue is overruled.

Issues Three and Four-Legal and Factual Sufficiency

In his third and fourth issues, Huerta complains the evidence was legally and factually insufficient to support his conviction for murder. Huerta complains only one witness, George Garcia, testified he actually saw Huerta stab the victim. Further, Huerta argues Garcia's testimony was not reliable because Garcia admitted he lied to police officers when he was questioned about the stabbing.

In reviewing legal sufficiency of the evidence, the evidence is viewed in the light most favorable to the judgment. See Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). The critical inquiry is whether, after viewing the entire body of evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The standard of review is the same for both direct and circumstantial evidence. See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991).

When reviewing the factual sufficiency of the evidence, we examine all the evidence, without deference to the prosecution, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We review the fact finder's weighing of the evidence without substituting our judgment for that of the jury. See id. If we disagree with the fact finder's determination and conclude the verdict is so against the great weight of the evidence presented at trial as to be clearly wrong and unjust, we must vacate the conviction and remand the cause for a new trial. See id.

Initially, Huerta complains the jury should not have believed the State's witness, George Garcia, when he said he saw Huerta stab the victim. However, the theory of the case presented by Huerta was not that he did not stab the victim, but that he did so in self defense. Therefore, Huerta's contention on appeal that Garcia lied when he saw Huerta stab the victim is misplaced.

Huerta's complaint can also be construed as an argument that he was not the aggressor, that he attempted to retreat from the confrontation, and that he was in fear for his life because he was fighting with a larger man. However, a factual dispute over whether an actor was justified under a self-defense theory is generally for the jury to resolve. See Puckett v. State, 640 S.W.2d 284, 287 (Tex. Crim. App. 1982). Several witnesses testified at Huerta's trial. All of the witnesses testified there was a fight between Huerta and the victim. Huerta and the victim had been arguing off and on all afternoon. It was clear Huerta initiated the physical confrontation that ended in the stabbing death of the victim by throwing a beer can at the victim's face. There was conflicting testimony regarding whether Huerta attempted to flee, and whether the victim was overpowering him. There was enough evidence for the jury to find Huerta committed the crime as charged. It is not within the province of this court to substitute its judgment for that of the jury. We overrule Huerta's third and fourth issues.

Conclusion

We overrule Huerta's issues and affirm the judgment of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. See Tex. Penal Code 19.02.

2. The record does not reflect whether the defendant testified in his own behalf, or whether the outburst contradicted the defense evidence.