Esequiel Perez v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00114-CR

No. 10-07-00177-CR

Esequiel Perez,

Appellant

v.

The State of Texas,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court Nos. Fam-06-18502 and Fam-06-18503

MEMORANDUM Opinion

After pleading guilty to the jury, Esequiel Perez was convicted of Aggravated Assault with a deadly weapon (No. 10-07-00177-CR) and Assault of a Public Servant (No. 10-07-00114-CR). He was sentenced to 3 years in prison and a fine of $3,000 on the charge of aggravated assault, and was sentenced to 5 years in prison and placed on community supervision for 10 years on the charge of assault of a public servant. Perez appealed both convictions. Because there was no error by the trial court in admitting a videotape into evidence during the punishment phase of both offenses showing Perez committing the assault on a public servant, the trial court s judgments in both appeals are affirmed.

Perez came home one night, after drinking beer all day, and began beating his girlfriend, Sonia Useda. He also put a knife to her neck. Useda escaped during the beating and ran outside screaming. Perez caught up with her and continued beating her in the middle of the street. Gatesville police officer Chad Thompson happened upon the scene. Useda ran toward the officer, her shirt covered in blood. Thompson then tried to detain Perez who began struggling with Thompson. Thompson received road rash on his knee, arm, and hip as a result of the struggle.

The struggle with the officer was captured on the officer s in car video system. Over Perez s Rule 403 objection, the video tape was offered into evidence at punishment. Specifically, counsel objected to the admission of the video because he s [Perez] freely admitted to doing what they said he did. The video is just going to be unfairly duplicative. It s just going to unfairly bolster the testimony of the victim and the police officer. The trial court overruled Perez s objection. In conducting its balancing test, the trial court held, The Court did do the balancing test required under 403. The Court considers it, since the issue of punishment is before the jury, that the tape is probative with regard to appropriate punishment for the offense and is not substantially more prejudicial than it is probative.

Perez s sole issue is that the trial court erred in overruling his objection to the introduction of the video tape because it presented needless cumulative evidence. Perez specifically argues that the video tape was cumulative because he pled guilty to the offence and its admission was for the purpose of obtaining a greater sentence.

On appellate review, a trial court's admission or exclusion of evidence is subject to an abuse of discretion standard. Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim. App. 2003). If the trial court's decision was within the bounds of reasonable disagreement we will not disturb its ruling. Id.

Regardless of the plea, evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including the circumstances of the offense for which the defendant is being tried and extraneous crimes or bad acts. Tex. Code Crim. Proc. Ann. art. 37.07 Sec. 3(a)(1) (Vernon 2006). However, Rule 403 provides, in part, that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of needless presentation of cumulative evidence. Tex. R. Evid. 403.

In a non-capital felony punishment hearing, the jury has discretion to assess whatever punishment it sees fit, within the statutorily prescribed range. Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). And even though a defendant enters a plea of guilty, proof is offered so that the jury may have evidence solely for the purpose of assessing punishment. See Durham v. State, 466 S.W.2d 758, 759 (Tex. Crim. App. 1971); Darden v. State, 430 S.W.2d 494 (Tex. Crim. App. 1968). The State's right to introduce evidence is not restricted by the entry of a plea of guilty by the defendant or by his admission of facts sought to be proved. York v. State, 566 S.W.2d 936, 938 (Tex. Crim. App. [Panel Op.] 1978).

Granted, Perez pled guilty to both offenses and the two victims, his girlfriend and the police officer, testified about the circumstances surrounding the offenses. But because the jury has to determine what punishment to assess, a video recording can provide a more panoramic representation of the evidence, and thus, may be more helpful to a jury in assessing punishment than oral testimony. See generally, Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990). The State s right to introduce the video tape was not restricted by Perez s guilty plea.

We do not believe the trial court abused its decision in admitting the video tape of the struggle between the officer and Perez as unnecessarily cumulative punishment evidence in either offense; and we will not disturb its ruling. Therefore, Perez s sole issue is overruled.

Having overruled the only issue presented, the trial court s judgments in both convictions are affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment)

Affirmed

Opinion delivered and filed January 23, 2008

Do not publish

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