Maria De Los Santos v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00459-CR

Maria DE LOS SANTOS,

Appellant

v.

The STATE of Texas ,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-8810

Honorable Bert Richardson , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Alma L. L pez , Chief Justice

Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: August 16, 2006

AFFIRMED

Maria de los Santos was found guilty of murder by a jury and sentenced to seventy-five years imprisonment. On appeal, she argues that the trial court erred by: (1) failing to charge the jury on the lesser-included offense of criminally negligent homicide, (2) denying her the right to cross-examine witnesses and to present a defense, (3) permitting "false" testimony, (4) admitting an oral statement made without the benefit of Miranda (1) warnings, and (5) improperly commenting on the weight of the evidence. We affirm the judgment of the trial court.

On June 7, 2003, appellant and her family gathered at an ice house to celebrate a relative's graduation from high school. After the ice house closed, the party moved to a vacant lot owned by Lee and Janie Garcia. Many of the people at the after-party were related to appellant either by blood or by marriage. Several witnesses testified to varying accounts of what ultimately led to the shooting death of David Fonseca, IV.

Lesser-Included Offense

We will first address appellant's fourth issue, in which she maintains the trial court erred in denying her requested jury charge on the lesser-included offense of criminally negligent homicide. The Court of Criminal Appeals has implemented a two-step test to determine whether a charge on a lesser-included offense should be given. Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). The first step is to determine whether the offense is actually a lesser-included offense of the offense charged. Id.; see also Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981) (defining lesser-included offense). Criminally negligent homicide is a lesser-included offense of murder. Burnett v. State, 865 S.W.2d 223, 228 (Tex. App.--San Antonio 1993, pet. ref'd). Thus, the first prong is satisfied.

The second step of the test requires that the record contain some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Feldman, 71 S.W.3d at 750. A person acts with criminal negligence when she ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex. Pen. Code Ann. 6.03(d) (Vernon 2003); Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). The risk must be such that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under the circumstances viewed from the actor's viewpoint. Tex. Pen. Code Ann. 6.03(d). Before a charge on criminally negligent homicide is proper, the record must contain "some" evidence that the defendant did not intend the resulting death, or know that it was reasonably certain to occur. Burnett, 865 S.W.2d at 229. If such evidence is present, the record must then be examined to see if it indicates whether the defendant was aware or unaware of the risk that her conduct could result in the unintentional killing of the deceased. Id. A defendant is entitled to a charge on criminally negligent homicide only if she is unaware that her conduct created a substantial and unjustifiable risk of injury or death. Mendieta v. State, 706 S.W.2d 651, 653 (Tex. Crim. App. 1986).

It is well established that if evidence from any source raises the issue of a lesser-included offense, a charge on that offense must be included in the court's charge. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). The credibility of the evidence and whether it conflicts with other evidence must not be considered in deciding whether the charge on the lesser offense should be given. Lugo, 667 S.W.2d at 147. Thus, regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders, 840 S.W.2d at 391.

In the instant case, all of the State's witnesses testified that appellant waived a rifle in a crowd of people and fired several times, before the gun was wrestled from her. The defense witnesses testified that appellant and her nephew, Mark Anthony de los Santos, struggled for control of the rifle, and that during or after the struggle, shots were fired. Domingo Serna, the victim's cousin, testified that he had not noticed any fights at the party until he saw a group of people moving in the same direction. He then saw two people fighting with each other but he could not tell who they were. When he looked to his left, he saw a flash and a woman shooting a gun. Serna then saw David Fonseca fall to the ground.

Both of appellant's daughters, Rosie and Isabel de los Santos, testified that there was some fighting at the lot that night, and that they saw appellant struggling with Mark Anthony over the gun. Both girls testified that the gun discharged after Mark Anthony had hit appellant with the gun and knocked her to the ground, bleeding.

Appellant also testified at trial in her defense. She stated that she left the party at the ice house to take her sick mother home. She was at her mother's when someone came to tell her that her son Ruben, who was at the after-party at the vacant lot, had a gun pointed to his head. (2) After arriving at the lot, appellant located her son and pulled the gun back. "It shot and I looked back and I said, 'Oh, fuck.' And then I turned back and they knocked me out and I don't know what happened after this."

Appellant's version of the facts merely describes the shooting as an accident. An allegation of accidental discharge does not necessarily raise the issue of criminally negligent homicide. See Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985); see also Simpkins v. State, 590 S.W.2d 129, 133 (Tex. Crim. App. 1979) (evidence of accidental discharge does not necessarily raise the issue of criminally negligent homicide, although it may raise the defense of accident). Evidence of accidental discharge may raise an inference that the defendant did not perceive a risk of injury or death, but only if there is also evidence that the defendant was unaware that the gun was loaded. Levan v. State, 93 S.W.3d 581, 585 (Tex. App.--Eastland 2002, pet. ref'd). Here, there was no evidence that appellant was unaware that the gun was loaded. Just because part of the conduct may be "involuntary," a defendant is not relieved of responsibility and culpability for the entire action. Thomas, 699 S.W.2d at 850. Accordingly, appellant's testimony does not support the submission of the lesser-included offense.

Appellant claims the facts of this case are analogous to those in Moore v. State, 574 S.W.2d 122, 124 (Tex. Crim. App. [Panel Op.] 1978), where the court held the defendant was entitled to an instruction on criminally negligent homicide. The Moore court, however, based its holding on the defendant's testimony that she was unfamiliar with firearms and had fired a gun only once, twenty years previously. Id. at 124. Additionally, the defendant testified that she had only intended to scare the deceased, but did not intend to point the gun at him or pull the trigger, and could not believe that the gun had actually discharged. Id. She further testified that she had never seen the shotgun before and thought it was unloaded. Id. Thus, the court held that the jury, if it believed this evidence, could have found that the defendant ought to have been, but was not, aware that her conduct would create a substantial and unjustifiable risk resulting in the death of the deceased. Id. In the instant case, there was simply no testimony from appellant to this effect.

Apart from her testimony, appellant argues in her brief that she is entitled to a charge on the lesser-included offense because "the jury could have reasonably concluded that her action in waiving a loaded rifle in a crowd of people constituted criminal negligence." We disagree. Before a charge on criminally negligent homicide is required, the record must contain evidence showing an unawareness of the risk. Mendieta, 706 S.W.2d at 653. If the defendant is aware of the risk of death or injury that might result from firing a gun into a crowd, then the conduct amounts to recklessness and is outside the bounds of criminally negligent homicide. See Ortiz v. State, No. 06-98-00280-CR, 1999 WL 1054694, at *2 (Tex. App.--Texarkana Nov. 23, 1999, pet. filed) (not designated for publication); see also Conroy v. State, 843 S.W.2d 67, 71 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd) ("the mental states of recklessness and criminal negligence cannot co-exist"). Here, there was no evidence that appellant was unaware of the risk of death or injury that could result from waiving a loaded rifle into a crowd of people. Appellant has failed to direct this court to any evidence that would allow a rational jury to find that if she was guilty, she was guilty only of criminally negligent homicide. Therefore, the trial court did not err in denying appellant's request for an instruction on criminally negligent homicide. Appellant's fourth issue is overruled.

Denial of The Right to Present a Defense

In her first issue, appellant broadly complains the trial court abused its discretion when it denied her due process, the constitutional right of cross-examination, and the right to present a defense. For the sake of clarity, we will address appellant's argument in three subissues: 1) appellant argues she was improperly precluded from impeaching a witness with prior inconsistent statements; 2) appellant argues she was improperly denied admission of gang related evidence; and 3) appellant complains she was denied the right to cross-examine a witness.

1. Prior Inconsistent Statements

State's witness Anna Avilos gave two written statements to police in June and September 2003 regarding the events of June 7, 2003. The defense sought to show that not only were these two statements conflicting, they also differed from the testimony Avilos gave at trial. During cross-examination, appellant attempted on several occasions to impeach Avilos. (3) Each time, the State objected that the impeachment was improper, and the court sustained the objections because counsel was attempting to read from statements that had not been admitted into evidence.

Rule 613(a) of the Texas Rules of Evidence permits a party to impeach a witness with a prior inconsistent statement. Tex. R. Evid. 613(a); Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). To allow extrinsic evidence of a prior inconsistent statement, the statement must be identified to the witness, and the witness must be afforded an opportunity to explain or deny the statement. Tex. R. Evid. 613(a). If the witness unequivocally admits having made the statement, no extrinsic evidence of the statement is permitted. Id. To qualify for admission under Rule 613(a), the court must be persuaded that the statements are indeed inconsistent. Lopez, 86 S.W.3d at 230. The trial court's evidentiary rulings are reviewed for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will not intercede so long as the trial court's ruling is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

Because Avilos admitted making the June statement, its admission would have been improper under Rule 613(a). The trial court did not abuse its discretion in excluding the statement.

2. Denial of Gang Evidence

Appellant also argues she was precluded from presenting a defense when the trial court denied the admission of certain evidence. In a pre-trial motion, appellant requested that evidence be admitted showing that the presence of rival gang members at the after-party led to the shooting. The trial court denied the request, stating that the prejudicial value of mentioning gang membership clearly outweighed any probative value, given the fact that neither the murder victim nor the appellant were gang members. See Tex. R. Evid. 403 (stating relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice). The trial court specified that the ruling stood until such time as the evidence demonstrated that gang testimony would be relevant.

Domingo Serna unequivocally testified outside the jury's presence that he was not, and never had been, a gang member. Appellant then told the court that she did not want to raise any type of gang involvement before the jury. Mark Anthony de los Santos was also questioned by appellant outside the jury's presence. He admitted to last being in a gang in 1997. Because the murder occurred in 2003, the trial court did not allow this evidence to go before the jury. Mark Anthony admitted that his cousins, Able and Ruben de los Santos, were gang members. However, when asked if there was a gang-related fight at the after-party, Mark Anthony replied that he had not seen any gang members fighting that night. The trial court ruled that this evidence was inadmissible.

Questions of admissibility of evidence under Rules of Evidence 402, 403, and 404(b) are assigned to the trial court, and reviewed on appeal only for abuse of discretion. See Montgomery,810 S.W.2d at 378-79. There was simply no evidence in the record demonstrating that gang membership or gang affiliation prompted the shooting. Therefore, admission of gang evidence would certainly have been more prejudicial than probative, if it was even relevant at all. We cannot say the trial court abused its discretion in refusing to allow evidence of gang affiliation.

3. Denial of Cross-Examination

Lastly, appellant maintains she was not permitted to cross-examine witness Janie Garcia concerning her hearsay knowledge of appellant's reputation for violence. (4) During appellant's cross-examination of Garcia, the attorneys approached the bench and the court warned appellant's attorney that he was opening the door to appellant's prior record. The following exchange occurred:

Court: You have pretty much opened the door to everything by your line of questioning with this witness.

Defense: I'll stop it at this point - -

Court: At some point it reaches the point of being ineffective and I have to deal with that when it comes back on appeal. I'm admonishing you, unless there's a trial strategy to do it, then don't do it.

Defense: That's fine, Judge.

Court: If you want to ask it[,] go ahead.

Defense: That's fine, Judge.

Court: Bring [the jury] back in.

Defense: No further questions, your honor.

Appellant now argues she did not open the door to her prior criminal record, because the questioning of Garcia did not invoke the past or imply that she had never committed a crime. Regardless of whether the questioning resulted in appellant opening the door, appellant failed to object to the trial court's ruling, as evidenced by the prior exchange. A defendant waives his constitutional right to confront witnesses if he does not object at trial. See Jenkins v. State, 912 S.W.2d 793, 815 (Tex. Crim. App. 1993); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Moreover, appellant acquiesced to the trial court's ruling by stating, "That's fine, Judge." Accordingly, we cannot say appellant was denied the right to cross-examine the witness. Appellant's first issue is overruled.

Allegedly False Testimony

Appellant argues in her second issue that the trial court erred in allowing the State to present false testimony. Appellant specifically complains that the prosecutor's questions to witness Anna Avilos about the gun possibly being jammed amounted to the eliciting of false testimony because the State's firearms examiner had already testified that crime lab tests had confirmed that the weapon was operational. Appellant, however, failed to preserve this issue for appellate review. At trial, appellant made no objection that the State was eliciting false testimony; (5) therefore the trial court was not given the opportunity to address the issue and any error was waived. See Tex. R. App. P. 33.1 (requiring a specific objection and a ruling from the trial judge to preserve error for appellate purposes); see also Haliburton v. State, 80 S.W.3d 309, 315 (Tex. App.--Fort Worth 2002, no pet.) (holding a defendant must object to the purportedly false testimony of witnesses to preserve the issue for appellate review). Moreover, there is nothing in the record to show that Avilos gave false testimony when she answered "Yeah" in response to the question, "If [the gun] got jammed could that possibly have been what you were seeing?" See Losada v. State, 721 S.W.2d 305, 312 (Tex. Crim. App. 1986) (discrepancies in testimony alone do not make out a case of perjury); Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983) (to establish perjury or false testimony, record must show that testimony was false or that the State knew of and conspired to present alleged perjury). Accordingly, appellant's second issue is overruled.

Statement Made Without Miranda Warnings

In her third issue, appellant contends the trial court erred in admitting a statement she made to a law enforcement official without the benefit of Miranda warnings. After the shooting, appellant fled to Michigan, where she was apprehended on July 10, 2003. Captain David Chandler of the Berrien County Sheriff's Department testified he had received an email notifying him that the Bexar County Sheriff's Office had received a tip from Crime Stoppers that an individual wanted for murder was in Berrien County. After locating appellant, and prior to executing the arrest warrant, Chandler attempted to verify appellant's identity by asking her name, social security number, and date of birth. He then asked appellant if she knew why he was there. Appellant told Chandler she had shot someone in Texas, but that it was in self-defense (6) because someone had assaulted her son. When this testimony was elicited at trial, appellant objected on the basis of hearsay. The trial court overruled the objection, and no further objections were lodged.

Appellant argues that even though she did not object to the admission of the oral statement based on the absence of Miranda warnings, the error amounted to egregious harm under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g). Almanza explains the standard of analyzing harm from a jury charge error in a criminal setting. See In re M.P., 126 S.W.3d 228, 232 (Tex. App.--San Antonio 2003, no pet.). Appellant, however, has not asserted error in the jury charge, and therefore her reliance on Almanza is misplaced. In addition, failure to raise a specific objection during trial waives error in the admission of evidence. See Tex. R. App. P. 33.1(a); see also Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000) (stating "to preserve error regarding the admission of evidence, a defendant must lodge a timely and specific objection . . . to give the trial court . . . the opportunity to correct the error"). Because she failed to object to the admission of her statement based on the absence of Miranda warnings, we hold appellant failed to preserve her complaint for review. Accordingly, appellant's third issue is overruled.

Comment on the Weight of the Evidence

In her fifth issue, appellant contends the trial court's statements regarding a demonstration proposed by the defense constituted a comment on the weight of the evidence. After the State rested its case, the defense called appellant, who is five feet, three inches tall, to the stand. The defense then called a demonstration witness who stood at five feet, eight inches, the same height as the murder victim. The defense intended to use the State's laser pointer to demonstrate that a person of appellant's stature, holding the weapon in the manner testified to by the State's witnesses, would not have been able to shoot someone who was five feet, eight inches tall in the head. The trial court expressed concern that the laser pointer would injure the demonstration witness's eyes. Outside the presence of the jury, the State objected to the defense using its laser pointer in the demonstration, stating, "it's ours and I don't like him using [it]." The trial court again expressed concern over the laser pointer being pointed in the direction of a person, and sustained the objection. The trial court then told the jury the laser pointer would not be used because of legitimate concerns that it would be shined in the eyes of the demonstration witness and cause an injury. There were no objections to the court's comment, and the demonstration proceeded without the laser pointer.

It is well settled that almost every right, constitutional or statutory, may be waived by the failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); see generally Tex. R. App. P. 33.1 (to preserve error for appellate review, a defendant must object timely, state the specific grounds for the objection, and receive an adverse ruling from the trial court). The right not to have the trial court comment on the weight of the evidence is a right which may be waived. Moore v. State, 907 S.W.2d 918, 923 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd). We hold appellant's failure to object at trial has waived her complaint on appeal. Accordingly, appellant's final issue is overruled.

Conclusion

The judgment of the trial court is affirmed.

Phylis J. Speedlin , Justice

DO NOT PUBLISH

1. Miranda v. Arizona, 384 U.S. 436 (1966).

2. Ruben testified that he did not know if the gun his mother and Mark Anthony were struggling over had been pointed at him because he was busy fighting. Ruben claims there was more than one gun pointed at him. When asked whether it was possible that a gun was pointed at him for five minutes while somebody went to get his mother to rescue him, Ruben answered, "I guess not."

3. Counsel attempted to impeach Avilos with her June statement in an effort to clarify the sequence of events on June 7, 2003. Specifically, counsel attempted to ascertain whether the shooting occurred before or after the struggle for the weapon.

4. We note that the record contains 37 pages of testimony elicited from Janie Garcia by appellant on cross-examination.

5. Appellant did object that the question called for speculation, but her objection to the trial court does not comport with her complaint on appeal; therefore, error, if any, is waived. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (noting "the point of error on appeal must comport with the objection made at trial").

6. Appellant notes in her brief that she actually meant in defense of a third person.