Cristobal Aguirre, Jr. v. The State of Texas--Appeal from 49th Judicial District Court of Zapata County

MEMORANDUM OPINION
No. 04-06-00499-CR
Cristobal AGUIRRE, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 1654
Honorable Manuel R. Flores, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

 

Delivered and Filed: July 18, 2007

 

AFFIRMED

 

A jury convicted Cristobal Aguirre, Jr. of aggravated assault on a public servant. On appeal, Aguirre contends that the trial court erred in: (1) allowing the testimony of an undisclosed witness; (2) admitting Aguirre's statement that he "[did] not want to go to jail" or "[did] not want to go back to jail"; (3) allowing the victim to show his injury to the jury; and (4) denying Aguirre's motion for a new trial based on juror misconduct. We affirm.

Background

On June 14, 2005, Martin Oviedo, a game warden for the Texas Parks and Wildlife Department, arrived at his home at approximately 7:30 p.m. As he began completing his weekly paperwork, he heard a noise coming from outside his house. He grabbed his gun and cell phone, and went outside. Once outside, he saw a man attempting to steal his barbeque pit. Oviedo ordered the man to get on the ground and lie flat, and the man complied. As Oviedo approached the man, he noticed another man, who he identified as Aguirre at trial, in his yard. Oviedo told Aguirre to lie flat on the ground next to the first man. Aguirre moved near the other man and kneeled down, but he would not lie flat. Oviedo continued to order Aguirre to lie flat on the ground, but Aguirre yelled at Oviedo and would not comply. Oviedo told both men that he was a police officer, and he showed them his badge. Aguirre repeatedly told Oviedo that he did not want to go to jail.

As Oviedo continued to order Aguirre to lie flat, Aguirre began moving on his knees toward Oviedo. Oviedo was standing on the inside of his gate and near a truck that was parked on the other side of the gate. Oviedo did not want Aguirre to reach the truck, so he fired his gun into the ground, directing the shot away from Aguirre. After the shot rang out, Aguirre stayed still on his knees for about five to eight minutes but then began moving on his knees toward the truck. Oviedo began climbing the gate to get between Aguirre and the truck when he saw Aguirre pull a gun out of his waistband. Aguirre shot Oviedo in the ankle as Oviedo attempted to climb over the gate. Aguirre and Oviedo exchanged gunfire until Oviedo was able to return to his house and call for help. Police apprehended Aguirre later that evening.

 

Undisclosed State Witness In his first issue, Aguirre contends that the trial court erred in allowing the State's undisclosed witness, Martin Oviedo, to testify during trial. We use an abuse of discretion standard in reviewing a trial court's decision to allow the testimony of an undisclosed witness. See Bridge v. State, 726 S.W.2d 558, 566 (Tex. Crim. App. 1986); Martinez v. State, 131 S.W.3d 22, 29 (Tex. App.-San Antonio 2003, no pet.). In determining whether the trial court abused its discretion in permitting an undisclosed witness to testify, we must answer two questions: (1) whether the prosecutor acted in bad faith by failing to disclose the name of the witness ahead of time; and (2) whether the defendant could reasonably anticipate that the witness would testify. See Bridge, 726 S.W.2d at 566-67; Martinez, 131 S.W.3d at 29. In determining whether the prosecutor acted in bad faith, we look at three areas: (1) whether the State intended to deceive; (2) whether the State's notice left the defense adequate time to prepare; and (3) whether the State freely provided the defense with information. Martinez, 131 S.W.3d at 29. In determining whether the defense could reasonably anticipate that Oviedo would testify, we examine: (1) the degree of surprise to the defendant; (2) the degree of disadvantage inherent in that surprise (e.g., the defendant was aware of what the witness would say, or the witness testified about cumulative or uncontested issues); and (3) the degree to which the trial court was able to remedy that surprise (e.g., by granting the defense a recess, postponement, or continuance, or by ordering the State to provide the witness's criminal history). Id.

Aguirre argues that the State's disclosure of Oviedo's name on a Friday when the trial was set to begin the following Monday establishes that the State acted in bad faith in omitting Oviedo's name from the witness list because such short notice gave the defense inadequate time to prepare for Oviedo's testimony. However, there is no indication in the record that the State acted in bad faith. The prosecutor explained to the trial court that the defense knew of Oviedo because Oviedo was the victim of the crime with which Aguirre was charged. The prosecutor also stated that any omission of Oviedo's name on the witness list was not intentional. At the hearing on the motion for new trial, the prosecutor further explained that he told defense counsel that Oviedo had to have multiple surgeries but that Oviedo would try to be in court on the first day of trial. Thus, there is no evidence that the State intended to deceive the defense by omitting Oviedo's name from the witness list. In addition, the record shows that the defense was adequately prepared to cross-examine Oviedo. For example, defense counsel did not request a continuance to prepare for Oviedo's cross-examination. Also, defense counsel conducted an extensive cross-examination of Oviedo. Based on the evidence that the defense had adequate time to prepare for Oviedo's cross-examination and the lack of evidence that the State intended to deceive the defense, we conclude that the State did not act in bad faith in omitting Oviedo's name from the witness list. See id. at 30.

We also conclude that the defense could have reasonably anticipated that Oviedo would testify. As previously stated, Aguirre knew of Oviedo because Oviedo was the victim of the offense and was named as such several times in Aguirre's indictment. Further, Aguirre did not request a continuance to prepare for Oviedo's cross-examination. Because the State did not act in bad faith and because defense counsel could have reasonably anticipated Oviedo's testimony, we hold that the trial court did not abuse its discretion in admitting Oviedo's testimony. See id.

Admissibility of Aguirre's Statement to Oviedo

In his second issue, Aguirre contends that the trial court erred in allowing Oviedo to testify that Aguirre repeated the phrase "I do not want to go to jail" or "I do not want to go back to jail" before shooting Oviedo. However, Aguirre does not provide any citations to the record that would pinpoint the testimony of which he complains. Because Aguirre does not provide citations to the record, he waives error with regard to this issue. See Tex. R. App. P. 38.1(h) (brief must contain appropriate citations to record). Even if he had not waived error through inadequate briefing, Aguirre waived error at trial by failing to object to at least two instances in which the State introduced his statement. See Tex. R. App. P. 33.1 (to preserve error, party must make timely objection, state specific basis for objection, and obtain ruling from trial court); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (error in admission of evidence is cured where same evidence comes in elsewhere without objection).

In the first instance, the prosecutor began his opening statement by saying: "'I don't want to go back to jail. I don't want to go back to jail. I don't want to go to jail.' This case is about that defendant not wanting to go to jail." Aguirre did not object to the prosecutor's statements. In a second instance, Oviedo testified that Aguirre stated that he "[did] not want to go back . . .," but was interrupted by the prosecutor before he mentioned the words "to jail." Oviedo then testified that Aguirre stated: "You can let me go. I'm going - I'm not going back. I'm getting out of here." At that point in the testimony, defense counsel objected. After the trial court sustained defense counsel's objection, the following exchange occurred:

Prosecutor: After the defendant is telling you he doesn't want to go to jail, what do you do if anything?

Defense: Your Honor -

Prosecutor: I said "go to jail."

Prosecutor: What do you do, Mr. Oviedo?

Oviedo: I just continue giving him commands. I'm trying to get him to go prone.

 

Although defense counsel objected to Oviedo's initial testimony, he did not object again once the prosecutor explained that he was using the phrase "go to jail." Because Aguirre did not object to the prosecutor's introduction of Aguirre's statement either during the State's opening statements or during Oviedo's testimony, he failed to preserve error for our review. See Tex. R. App. P. 33.1; Valle, 109 S.W.3d at 509.

Display of Oviedo's Injury

In his third issue, Aguirre contends that the trial court erred in allowing Oviedo to display his ankle injury to the jury. We review a trial court's evidentiary rulings under an abuse of discretion standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We will not reverse a trial court ruling that is within the zone of reasonable disagreement. Id. Here, Oviedo testified that Aguirre shot him in the ankle as Oviedo attempted to climb over a gate. He testified that he felt "a lot of pain" as a result of the injury. He explained that when he was taken to the hospital after the shooting, he had to have surgery on his ankle. When the prosecutor asked Oviedo to remove the bandage on his ankle and show his injury to the jury, the defense objected. The trial court overruled the objection, and Oviedo removed his bandage and showed the jury the entrance and exit wounds caused by the bullet.

Aguirre argues that a display of Oviedo's injury should have been excluded under Rule 403 of the Texas Rules of Evidence (1) because the probative value of the injury was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). In a Rule 403 analysis, we must first evaluate two factors: (1) the inherent probative force of the proffered evidence; and (2) the proponent's need for that evidence. See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). We must then balance those two factors against the following four counter-factors: (1) any tendency of the evidence to suggest decision on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the main issues; (3) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence; and (4) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. See Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007); Gigliobianco, 210 S.W.3d at 641-42.

Turning to the first factor, the probative force of the evidence, Oviedo's ankle injury had considerable probative force because it showed that he sustained bodily injury, one of the elements the State must prove in order to obtain a conviction for aggravated assault on a public servant. See Tex. Penal Code Ann. 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2007). Regarding the second factor, the State's need for the evidence, the prosecutor argued in the trial court that the State needed Oviedo to show his injury because the State did not have any photos of the injury. Thus, considering the first two factors, we conclude that the trial court could have reasonably concluded that the probative value of the evidence and the State's need for the evidence weighed in favor of admissibility.

We must now balance the first two factors against Rule 403's counter-factors. Casey, 215 S.W.3d at 883. First, regarding the tendency of the evidence to suggest a decision on an improper basis, we conclude that this factor weighs in favor of admissibility because there is nothing in the record to suggest that the injury was inflammatory in any way. See Gigliobianco, 210 S.W.3d at 642. Second, with regard to the tendency of the evidence to confuse or distract the jury from the main issue, we conclude that the presentation of the injury did not distract from the main issue because it related directly to the charged offense and took up very little time (less than two pages of the record) at trial. See id. Third, regarding the tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, we conclude that the presentation of the injury was not misleading because it was not carried out in a complex or scientific manner that would prevent the jury from adequately judging the injury's probative value. See Casey, 215 S.W.3d at 880. For example, the State did not call a medical expert to testify about the injury. Rather, Oviedo simply showed the injury to the jury and pointed out the entrance and exit wounds. Thus, there is nothing in the record to suggest that the jury would give undue weight to the evidence. Fourth, with regard to the likelihood that presentation of the evidence consumed an inordinate amount of time or repeated evidence already admitted, we conclude that it did neither. As previously stated, the presentation of the injury consumed very little time. Also, although Oviedo previously testified that Aguirre shot him in the ankle and that he experienced pain as a result of the shooting, the State did not introduce photos of the injury, and there was no other testimony about the physical characteristics of the injury. Thus, his presentation of the injury was not needlessly repetitive.

Considering all of the factors involved in the Rule 403 analysis, we conclude that the probative value of Oviedo's injury was not substantially outweighed by the danger of unfair prejudice. Accordingly, we hold that the trial court did not abuse its discretion in allowing Oviedo to show his injury to the jury.

Jury Misconduct

In his fourth issue, Aguirre contends that the trial court erred in denying his motion for a new trial based on jury misconduct. We review the denial of a motion for new trial under an abuse of discretion standard. Rent v. State, 982 S.W.2d 382, 384 (Tex. Crim. App. 1998). A court should grant a defendant a new trial when the court finds that the jury engaged in such misconduct that the defendant did not receive a fair and impartial trial. Tex. R. App. P. 21.3(g). A movant for a new trial based on jury misconduct must prove that: (1) misconduct occurred; and (2) the misconduct resulted in harm to the movant. See Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. 1981).

Defense counsel first alleged jury misconduct during Oviedo's testimony at trial, just after the State published several photo exhibits to the jury. After the court granted permission for defense counsel to approach the bench, the following exchange occurred:

Defense: Your Honor, I just noticed the jurors up there are pointing to the picture and comparing - saying, Look at this - the two ladies in the back.

Court: They're doing what?

Defense: They're looking at the pictures and they're talking about them, Judge. They can't be discussing it right now, Judge. I'm going to ask for a mistrial. The brown are still - the brown and the black are still talking about it.

Court: Ladies and gentlemen of the jury, at this time I would instruct you [to] listen to the testimony carefully, and the exhibits that are admitted are for your inspection, but you may not communicate with each other at this time. You will not be able to communicate concerning this case until such time as you have retired to deliberate on a verdict.

Defense: Your Honor, may we approach one more time just briefly.

Defense: I'd just like to put on the record what I saw, Your Honor, clearly. The two lady jurors, the one with the black shirt in the second row and the one with the brown shirt next to her holding the photographs and pointing to them, and discussing the contents of the photographs, Judge. I don't think that's going to be interpreted as anything except discussing the evidence prior to going back to deliberations, Judge. They're already comparing notes. They're already deliberating out here, Judge. That's clearly outside the Court's instructions, and I would strongly urge the Court to grant a mistrial, Judge. I mean, how much worse can it get? And it continued, Judge, when they passed the next one with gestures and movements. I'd ask for a mistrial at this time.

Court: The Motion for Mistrial is denied.

 

At the conclusion of trial, Aguirre filed a motion for new trial. The trial court denied the motion after a hearing. A motion for new trial alleging jury misconduct must be supported by the affidavit of a juror or some other person who was in a position to know the facts. Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985); In re S.P., 9 S.W.3d 304, 308 (Tex. App.-San Antonio 1999, no pet.). Aguirre did not specifically allege jury misconduct in his motion for new trial, nor did he attach an affidavit to the motion. He did, however, raise the issue of jury misconduct at the hearing on his motion for new trial. At the hearing, defense counsel alleged that the two jurors "were already deliberating" and that they "already had made up their minds of [his] client's guilt," but he did not provide juror affidavits or any other evidence to support the truth of his assertions. Aguirre also failed to provide any evidence or argument at the hearing or on appeal to show that the jurors' conduct caused him harm. In addition, we note that upon learning of the alleged misconduct at trial, the trial court immediately instructed the jury that jury members were not permitted to communicate with each other about the case until they retired to deliberate the verdict. Because Aguirre has not properly established that jury misconduct occurred or that the alleged misconduct caused him harm, we hold that the trial court did not abuse its discretion in denying Aguirre's motion for new trial. See Garza, 630 S.W.2d at 274. Accordingly, we overrule Aguirre's fourth issue.

Conclusion

We affirm the trial court's judgment.

 

Alma L. L pez, Chief Justice

Do Not Publish

1. Rule 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially 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." Tex. R. Evid. 403.