NUMBER 13-13-00490-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG ABRAHAM PARRA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Justice Longoria
By six issues, which we have reordered, appellant Abraham Parra challenges his convictions for capital murder with the underlying offense of aggravated kidnapping
(Count I), and for a separate charge of aggravated kidnapping based on the same facts as the kidnapping offense contained within Count I (Count II). See TEX. PENAL CODE ANN. §§ 19.03(a)(2); 20.04 (West, Westlaw through 2013 3d C.S.). We affirm as modified.
I. BACKGROUND
A. Background Facts At approximately noon on July 18, 2012, a group of six men, one of whom was appellant, entered the Mariscos Playa Azul restaurant located on the Old Military Highway in Cameron County, Texas. They proceeded to sit down at a table. The following other persons were present in the restaurant when the six men entered: Reyes Bocenegra (Reyes), Reyes’s wife, Gloria Barrera, Arabella De La Cruz, the cashier, and Anna D. Garcia, the cook. Also present were Esmeralda Barrera, Jose Castillo, Rubio Castillo, and Jorge Castillo, a family eating lunch. A short time later, one of the six men rose from the table and forced De La Cruz, the cashier, at gunpoint into the back of the restaurant. Two of the men forced De La Cruz and Garcia to lie down on the floor and restrained them with duct tape. Appellant carried the duct tape and helped restrain both women. Other members of the group forced Esmerelda Barrera, Gloria Barrera, and the Castillos at gunpoint to lie on the floor in the front part of the restaurant. The men restrained the adults with plastic zip ties and took their cell phones. At this time, Reyes emerged from the bathroom. The men overpowered him after a brief fight and bound his hands with a plastic zip tie. Jorge Castillo testified at trial that appellant raised Reyes’s sweatshirt to check for an identifying tattoo of Reyes’s last name on his back. The men forced Reyes to leave with them at gunpoint in Reyes’s white Chevy Tahoe. The surveillance tape
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reveals that appellant led the restrained Reyes out of the restaurant. One of the six men drove off in the vehicle in which the men had arrived at the restaurant.
At approximately 1:15 p.m. the same day, U.S. Border Patrol Agent Gabriel Mello (Mello) found an abandoned white Chevy Tahoe parked with its engine running on Roberts Road. The back seat passenger-side window had been broken out and Reyes’s body was slumped in the backseat of the vehicle. Mello located a plastic tie on the floorboard near the body. Elizabeth Miller, the state’s pathologist, testified that Reyes died from a gunshot wound to the back of the head.
Detective Thomas Clipper (Clipper) of the Brownsville Police Department investigated the case. During the course of his investigation, Clipper viewed the body before it was removed from the crime scene, interviewed witnesses, and reviewed surveillance videos both from the restaurant and other nearby locations. The surveillance videos allowed him to identify the vehicle in which the six men drove to the restaurant. This information eventually led to the arrest of six persons, all of whom Clipper interviewed. Clipper interviewed appellant in Laredo, Texas, shortly after his apprehension by United States Marshals.
B. Proceedings in the Trial Court Appellant and the State entered into an agreed motion in limine that the State would not use any statements that appellant made during the interview in Laredo during the State’s case in chief unless appellant “opened the door” during his own testimony. At trial, Jorge Castro, one of the other persons accused in the case, was set to testify for the State pursuant to a plea agreement. Castro had earlier signed a statement alleging that appellant personally shot Reyes, but, at trial, Castro invoked his Fifth Amendment rights
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and declined to testify to anything except what was depicted on the video from the restaurant. The State next called Clipper, the investigating officer assigned to the case. Appellant had not yet testified.
After Clipper testified that he traveled to Laredo after appellant’s apprehension, the State asked “[a]nd did you talk to [appellant] up there?” Appellant objected, citing the motion in limine. The prosecutor replied:
I remember the agreement and counsel is correct. There is an agreement.
There's been a very serious breach, not by counsel but by the co-defendant, and I think it's very clear to everybody concerned that the State has been sabotaged and surprised and I need to find a solution.
However, the prosecutor also stated that “I don’t intend to break my agreement, Judge.” The court overruled the objection and permitted the testimony to continue. The following exchange occurred:
[State]: Detective Clipper, without going into the statement of anybody you interviewed, anybody, defendants, witnesses at all, through your investigation, Detective Clipper, did you learn who shot and killed Reyes Bocanegra?
[Clipper]: Yes, I did.
[State:]: Who shot and killed Reyes Bocanegra?
[Defense]: Objection, Your Honor.
[Court]: What's the legal objection?
[Defense]: Objection is going to be [sic] it's hearsay.
[Court]: Overruled
[Clipper]: The defendant Abraham Parra [State]: The one sitting here today?
[Clipper]: Yes, sir.
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[State]: And, sir, was this shooting in the course of committing kidnapping of Reyes Bocenegra?
[Defense]: Objection. Hearsay and [Rule] 602. He doesn’t have personal knowledge.
[State]: I’ll rephrase the question [Court]: Sustained.
[State]: Detective Clipper, through your investigation, did you learn whether or not the shooting of Reyes Bocenegra by the defendant Abraham Parra was in the course of committing kidnapping of Reyes Bocanegra?
[Defense]: Objection, [Rule] 602, no personal knowledge and also asking for hearsay.
[Court]: Overruled. [Defense]: I would ask for a limine instruction, Your Honor.
[Court]: Yes. Ladies and Gentlemen of the Jury, you are the sole witness of the credibility—if you are sole judges of the credibility of the witness. You can believe everything what a witness says, none of what a witness says, or some of what a witness says. You may—in considering the credibility of the witness, you will also consider all the other factors that I've gone through before. The stake that the witness may have on behalf of the defendant, the stake they may have on behalf of the State, the motivation of why they may say one thing or another. That is all within your purview. Proceed.
[State]: Did you learn whether this shooting had been in the course of committing kidnapping of Reyes Bocanegra?
[Clipper]: Yes, we did.
[State]: Now, sir, on July 1, 2012 from your investigation who shot Reyes Bocanegra?
[Defense]: I object again. He has no personal knowledge, Your Honor, under [Rule] 602.
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[Court]: It’s repetitive. Sustained.
[Defense]: Thank you.
[State]: From your investigation, sir, was this in Cameron County, state of Texas?
[Clipper]: Yes, sir.
[State]: Do you have any information indicating that this was an intentional act?
[Defense]: Objection, Your Honor, [Rule] 602.
[Court]: Sustained
[State]: I’ll repeat my question.
[Defense]: I’ll repeat my objection.
[State]: Do you have any information that this was an unintentional act?
[Defense]: 602 objection, Your Honor.
[Court]: Sustained
[State]: Okay. From your investigation, sir, did you learn whether or not the kidnapping and murder of Reyes Bocanegra was intentionally done?
[Defense]: I’m going to object again as to [Rule] 602.
[Court]: Overruled.
[Defense]: I object as to what he learned being hearsay, Your Honor.
[Court]: Overruled.
[Clipper]: It was intentionally done.
Following the close of evidence, the court submitted the case to the jury. The jury charge permitted the jury to convict appellant on Count I either as the actor or under the
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law of parties, see TEX. PENAL CODE ANN. § 7.02 (West, Westlaw through 2013 3d C.S.), but permitted the jury to convict appellant only as the actor on Count II. The jury returned a general verdict of guilty on both counts, and assessed punishment on Count II at fifty years’ imprisonment. The trial judge imposed the statutorily-mandated automatic sentence of imprisonment for life without parole on Count I. See id. § 12.31(a) (West, Westlaw through 2013 3d C.S.). Appellant timely filed a notice of appeal.
II. SUFFICIENCY OF THE EVIDENCE By his first issue, appellant challenges the trial court’s decision overruling his motion for a directed verdict. In the criminal context, we treat an appeal from the denial of a directed verdict as a challenge to the sufficiency of the evidence. See Garza v. State, 398 S.W.3d 738, 743 (Tex. App.—Corpus Christi 2010, pet. ref'd).
A. Standard of Review and Applicable Law When reviewing the sufficiency of the evidence, appellate courts view all the evidence in the light most favorable to the jury’s verdict and determine whether, based on that evidence and reasonable inferences drawn from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We are mindful that it is the province of the jury, acting as the trier of fact, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Circumstantial evidence is as probative as direct evidence, and circumstantial evidence alone can suffice to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Each fact need not point directly and independently to the
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guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). In this review, we consider all of the evidence before the jury, even if it was improperly admitted. Id.
We measure the sufficiency of the evidence by the elements of the offense as they are defined by the hypothetically correct jury charge for the case. Id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge is authorized by the indictment, accurately sets out the law, does not unnecessarily increase the State's burden of proof or unnecessarily restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Sanchez v. State, 376 S.W.3d 767, 772 (Tex. Crim. App. 2012). Under the law of parties, the hypothetically- correct jury charge required the State to prove that appellant: (1) when acting with the intent to promote or assist another person in the commission of kidnapping, and that person intentionally committed murder in the course of committing or attempting to commit that kidnapping; (2) solicited, encouraged, directed, aided, or attempted to aid the other person to commit both the kidnapping and the murder. Adames v. State, 353 S.W.3d 854, 862 (Tex. Crim. App. 2011).
Evidence that the accused was present at the scene of the crime is by itself insufficient to sustain a conviction under the law of parties; there must be some evidence of the parties acting together, each contributing some part towards the execution of their common purpose. Nelson v. State, 405 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d); Hernandez v. State, 198 S.W.3d 257, 261 (Tex. App.—San Antonio 2006, pet. ref'd). The factfinder may examine events occurring before, during, and after
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the commission of the offense and may rely on the actions of the defendant to show an understanding and common design to commit the offense. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
B. Discussion Appellant asserts that the evidence is sufficient only to show that he intended to aid another person in the commission of kidnapping and that he did assist in the commission of kidnapping. Appellant argues that there is no evidence he also intended to assist in the commission of murder or that he solicited, encouraged, directed, aided, or attempted to aid any person in the commission of that offense. Therefore, according to appellant, the evidence is insufficient to convict him of murder under the law of parties. We disagree.
Evidence of a common plan is usually established by the actions of the parties.
See id. From the circumstantial evidence before it, the jury could have reasonably concluded that appellant and the other five men planned to commit both kidnapping and murder and that appellant aided in the commission of both. The restaurant surveillance video shows all of the men, two of who were armed, acting in concert. Appellant carried the duct tape and assisted in restraining De La Cruz and Garcia while the other men held them at gunpoint. Appellant lifted Reyes’s shirt to confirm the presence of an identifying tattoo of Reyes’s name, led the restrained Reyes out of the restaurant, and forced him to leave with them in Reyes’s vehicle. The Tahoe was found abandoned nearby less than an hour later, meaning Reyes was killed relatively quickly after appellant and his codefendants forced him to leave with them in the vehicle. The jury could reasonably infer from these facts that the plan of the six men was to kidnap Reyes, remove him from
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the restaurant, and then kill him. Appellant’s argument is essentially that the forgoing facts are just as consistent with only having a common design to commit kidnapping, but we may not substitute our judgment for that of the jury. See Gear, 340 S.W.3d at 746. All of these facts, especially the short amount of time between the kidnapping and the death of Reyes, are sufficient circumstantial evidence for the jury to conclude that appellant and his codefendants shared a common design to commit both kidnapping and murder and that appellant actually did solicit, encourage, direct, aid, or attempt to aid the commission of both offenses. See Adames, 353 S.W.3d at 862. Having found the evidence to be sufficient under the law of parties, we overrule appellant’s first issue.1 III. HEARSAY
Appellant argues in his second issue that the trial court erred in overruling his hearsay objection to Clipper’s testimony that appellant shot Reyes and that the shooting was intentional. See TEX. R. EVID. 802. We agree, but conclude that the error was harmless.2 A. Standard of Review and Applicable Law We review a trial court’s decision to admit evidence for an abuse of discretion.
Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We will not reverse as long as the judge’s decision lies within the zone of reasonable disagreement. McCarty v.
1 The jury charge on Count I also permitted the jury to convict appellant as the actor. We address only the sufficiency of the evidence supporting the conviction under the law of parties because it is dispositive. See TEX. R. APP. P. 47.1.
2 Appellant mentions in the statement of facts attached to this issue that he objected to Clipper’s testimony regarding which persons drove the vehicles involved in the kidnapping, but does not mention this testimony again. To the extent appellant means to include this portion of Clipper’s testimony under his hearsay issue, the objection is waived because he objected at trial on Rule 602 grounds and did not mention hearsay. See Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996) (en banc) (“An objection stating one legal basis may not be used to support a different legal theory on appeal.”). Appellant also does not mention this testimony under his Rule 602 issue, below.
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State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). The rules of evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX. R. EVID. 801. Hearsay is inadmissible except as provided by statute or rule. Id. R. 802. An out-of-court statement need not be directly quoted to implicate the prohibition against hearsay. Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999). The relevant question when the issue of back-door hearsay is raised is whether there “is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom.” Id. (citing Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989)). Whether the conclusion is “inescapable” depends in large part on how strongly the content of the out- of-court statements may be inferred from the context. Id. at 262; see Poindexter v. State, 153 S.W.3d 402, 408 n. 21 (Tex. Crim. App. 2005) (explaining that, under Head, an officer’s testimony that “I received information of possible drugs being sold at 5th and Main” is admissible as an explanation for why an officer began an investigation, while an officer’s testimony that “I received information that drugs were being sold from the defendant’s house” too clearly conveyed that the source of the information was an out- of-court statement and would be inadmissible unless offered for another purpose).
B. Did the Trial Court Err in Admitting the Evidence?
Appellant objects to two portions of Clipper’s testimony. Clipper first testified that appellant was the person who shot and killed Reyes:
[State]: Detective Clipper, without going into the statement of anybody you interviewed, anybody, defendants, witnesses at all, through your investigation, Detective Clipper, did you learn who shot and killed Reyes Bocanegra?
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[Clipper]: Yes, I did.
[State:]: Who shot and killed Reyes Bocanegra?
. . .[3]
[Clipper]: The defendant Abraham Parra [State]: The one sitting here today?
[Clipper]: Yes, sir.
Clipper later testified that the death of Reyes was intentional:
[State]: Okay. From your investigation, sir, did you learn whether or not the kidnapping and murder of Reyes Bocanegra was intentionally done?
[Defense]: I’m going to object again as to [Rule] 602.
[Court]: Overruled.
[Defense]: I object as to what he learned being hearsay, Your Honor.
[Court]: Overruled.
[Clipper]: It was intentionally done.
Appellant argues that it would have been impossible for Clipper to have the knowledge to testify that (1) appellant shot Reyes and (2) that the murder was intentionally done unless he was repeating information that he learned in interviews with appellant or the other five men. The State responds that there is no back-door hearsay problem because no portion of the questions suggested that the information was gained from another person, and, even if Clipper was testifying regarding the contents of a statement, the State did not seek any identifying information regarding the declarant.
3 We omitted appellant’s various objections here, but reproduced this exchange in full in the background section of this opinion.
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We agree with appellant. In Burks v. State, a similar exchange occurred during the testimony of J.R. Price, a detective who investigated the murder at issue in the case:
State: After talking to Jesse Contreras, and please let me remind you not to tell me what if anything Mr. Contreras told you, did you go searching or looking for a particular description of an individual?
Price: Yes, sir.
State: What is that?
Price: A black male, somewhat smaller build than Mr. Contreras, having in his possession a black ski mask or toboggan type cap.
876 S.W.2d 877, 898 (Tex. Crim. App. 1994) (en banc). Price gave almost identical testimony about the description of the person he searched for after speaking with another witness. Id. The Texas Court of Criminal Appeals concluded that this testimony was inadmissible hearsay because the State indirectly elicited testimony from Price regarding what the witness told him by asking about the particular description of individual the officer searched for after questioning the witnesses. Id. This case admittedly differs from many cases involving back-door hearsay because the specific identity of the declarant of the statements is unclear. Nevertheless, viewed in context, the conclusion is inescapable that Clipper was testifying either about statements appellant made during the interview, Jorge Castro’s statements, or statements that one of the other accused men made during their interviews. The State asked Clipper whether he interviewed appellant and, like the prosecutor in Burks, immediately asked appellant what he learned from his investigation about who actually shot Reyes. Later, after the trial judge permitted appellant’s attorney to take Clipper on voir dire, Clipper admitted that he learned who did the shooting “from the suspects.” Shortly afterwards, the State asked Clipper on direct examination if he learned through his investigation whether the kidnapping and murder of Reyes was
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intentionally done and he replied that it was intentional. While we agree with the State that Clipper’s investigation involved more than interviews with appellant and the others, nothing in Clipper’s testimony suggests a source for his statements other than interviews with the alleged perpetrators. Viewed in the context of the trial, including the prosecutor’s statement that he needed to find an alternative for Castro’s testimony and Clipper’s admission that he learned who did the shooting “from the suspects,” the conclusion is inescapable that Clipper was testifying to statements appellant or Castro made during their interviews with him. See id.; see also Head, 4 S.W.3d at 261.
C. Harm Having determined that the trial court erroneously admitted Clipper’s testimony that appellant shot Reyes and that the murder was intentionally done, we now analyze for harm. We generally review the erroneous admission of hearsay evidence for non- constitutional error under Texas Rule of Appellate Procedure 44.2(b). Whitaker v. State, 286 S.W.3d 355, 363 (Tex. Crim. App. 2009); see TEX. R. APP. P. 44.2(b). Under this standard, we must disregard the error if we have a “fair assurance” that the error did not influence the jury’s verdict or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). When assessing the likelihood that the error adversely affected the jury’s decision, appellate courts consider everything in the record. Id. We pay particular attention to factors such as the other evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). We may also consider the jury instructions, the State’s theories, any defensive theories, closing arguments, voir dire, and the State’s emphasis on the error. Id. at 518–19.
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After a thorough review of the record, we conclude that the harm from admitting the portions of Clipper’s testimony at issue here was minimal. As we explained in Part II of this opinion, there was substantial evidence that appellant was guilty of murder under the law of parties. Appellant is visible on the surveillance recording acting in concert with the five men, two of whom were visibly armed, to subdue the other persons present in the restaurant at gunpoint. The recording depicts appellant and the five men binding Reyes and the other persons present in the restaurant with plastic restraints that they brought with them. Before leaving the restaurant, appellant pulled down Reyes’s shirt to check for the presence of an identifying tattoo. Appellant is visible on the recording leading the restrained Reyes out of the restaurant. Reyes was found shot to death in the back of his vehicle less than an hour after appellant and the five men removed him from the restaurant. The strong circumstantial evidence supporting appellant’s guilt weighs in favor of finding that the error was harmless. See Powell v. State, 88 S.W.3d 794, 801 (Tex. App.—El Paso 2002, pet. struck) (holding that strong circumstantial evidence connecting the defendant to the crime weighed in support of finding that the erroneous admission of evidence was harmless). The State did not mention the hearsay again following Clipper’s testimony,4 but focused the remainder of its case and its closing argument on asking the jury to draw reasonable inferences from the events depicted on the surveillance recordings. Given the other evidence supporting the verdict and the lack of emphasis on the hearsay, the jury likely gave little consideration to the hearsay in connection with the other evidence introduced by the State. See Haley, 173 S.W.3d at
4The only further mention of the hearsay portion of Clipper’s testimony was in appellant’s closing argument when he reemphasized his position that it was impossible for Clipper to have the knowledge to make either statement.
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518. Appellant argues that Clipper’s evidence contradicted his defensive theory that he was not in the Tahoe but could have been the one driving the other vehicle, but there is no requirement that a defendant be physically present at the commission of the offense to be guilty under the law of parties. See Guevara, 152 S.W.3d at 52 (observing that the penal code “does not require that a party to the crime be physically present at the commission of the offense”) (citing Morrison v. State, 608 S.W.2d 233, 234 (Tex. Crim. App. [Panel Op.] 1980)). We have a fair assurance the court’s error in the admitting Clipper’s testimony was harmless and did not affect appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). We overrule appellant’s second issue.
IV. CONFRONTATION CLAUSE
By his third issue, appellant argues that the trial court erred in overruling his Confrontation-Clause objection to Clipper’s testimony that appellant shot Reyes. See U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 51–52 (2004). We disagree.
During the portion of Clipper’s testimony that we quoted in the background section of this opinion, appellant objected at various times on the basis of hearsay and Rule 602, but appellant did not object on Confrontation-Clause grounds. At the end of this testimony, the trial judge permitted appellant to take Clipper on voir dire. The following exchange occurred:
[Defense]: And the testimony that when you’re answering did you learn, without getting names, without getting in [sic] a specific, this information you obtained from talking to either one or the other or a combination of defendants; is that correct?
[Clipper]: Correct [Defense]: From nowhere else?
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[Clipper]: In reference to?
[Defense]: Like, for example, who went inside, who stayed outside, who supposedly did the shooting?
[Clipper]: Of course, those were from the suspects.
[Defense]: And I would also amend that objection to include Crawford violations, Your Honor.
The trial court sustained the objection but did not give an instruction to the jury to disregard any of Clipper’s testimony. Appellant admits in his brief on appeal that he did not object until after Clipper had given the allegedly objectionable testimony and the trial court ruled on his other objections, but argues that “[t]he fact that trial counsel failed to object until the end of the direct examination should have still placed the Trial Court on notice and told the jury to disregard all of Clipper’s testimony as it related to the information learned from the codefendants.” The State responds that the Confrontation- Clause objection was untimely.
We agree with the State. To preserve error for appeal, an objection must be both specific and timely. TEX. R. APP. P. 33.1(a); see Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012) (observing that the rules of appellate procedure require that “the complaining party must make a timely, specific request that the trial court refuses”). The complaining party must object at the earliest possible opportunity. Davidson v. State, 422 S.W.3d 750, 754 (Tex. App.—Texarkana 2013, pet. ref’d). If a witness testifies without a contemporaneous objection, any objection to the testimony is waived. Zorn v. State, 315 S.W.3d 616, 625–26 (Tex. App.—Tyler 2010, no pet.); Hall v. State, 303 S.W.3d 336, 341 (Tex. App.—Amarillo 2009, pet. ref'd). Appellant did not object to Clipper’s testimony on Confrontation-Clause grounds until after Clipper testified and the trial judge ruled on
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appellant’s hearsay and Rule 602 objections.5 We conclude that appellant did not preserve error because he did not timely object to Clipper’s testimony on Confrontation- Clause grounds. See Zorn, 315 S.W.3d at 625–26; Hall, 303 S.W.3d at 341. We overrule appellant’s third issue.
V. RULE 602
By his fourth issue, appellant argues that the court erred by overruling his objections that Clipper did not have personal knowledge to testify that appellant shot Reyes and that the shooting of Reyes was intentionally done. See TEX. R. EVID. 602. We do not need to address this issue because when the trial court erroneously overruled a Rule 602 objection, appellate courts review the record for harmless error under rule 44.2(b). TEX. R. APP. P. 44.2(b); see Lewis v. State, 402 S.W.3d 852, 865 (Tex. App.— Amarillo 2013), aff'd on other grounds, 428 S.W.3d 860 (Tex. Crim. App. 2014). Because we have already concluded under that standard that admitting the objected-to portions of Clipper’s testimony was harmless, we will not discuss this issue further. See TEX. R. APP. P. 47.1.
VI. DOUBLE JEOPARDY
By his fifth issue, appellant argues that his convictions on both counts violate the state and federal prohibitions against double jeopardy. We agree.
A. Applicable Law
5 A violation of the Confrontation Clause is not structural error and may be waived. Dewberry v.
State, 4 S.W.3d 735, 752 & n. 16 (Tex. Crim. App. 1999). It is well settled that an objection on hearsay grounds does not preserve a Confrontation-Clause objection, see Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005), and appellant does not argue that a Rule 602 objection also preserves a Confrontation-Clause objection.
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The Double Jeopardy Clause provides three distinct protections: “First, protection against a second prosecution for the same offense after acquittal. Second, protection against a second prosecution for the same offense after conviction. Third, protection against multiple punishments for the same offense.” Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008). Appellant’s issue implicates the multiple-punishments protection, which is applicable in two separate contexts: if one offense is a lesser-included offense of the other, or if the two offenses are contained in separate statutory provisions but the Legislature has made it clear it only intended to impose one punishment. Littrell v. State, 271 S.W.3d 273, 276 (Tex. Crim. App. 2008).
Courts first analyze whether the two offenses are the same under the Blockburger test. Bigon, 252 S.W.3d at 370 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). “Under the Blockburger test, two offenses are not the same if one requires proof of an element that the other does not.” Id. If the offenses are not the same under Blockburger, the cognate-pleadings approach adopted by the Texas Court of Criminal Appeals permits a defendant to still make a double jeopardy claim if the indictment alleges the same “facts required” for both offenses. Id. We determine whether two offenses have the same “facts required” as a matter of state law by comparing the elements of the greater and lesser offenses as alleged by the State in the indictment. Littrell, 271 S.W.3d at 276 (citing Hall v. State, 225 S.W.3d 525, 525 (Tex. Crim. App. 2007)). If one offense is a lesser-included offense of the other under this analysis, the offenses are the “same” for double-jeopardy purposes and the defendant may not be punished for both. Id.
B. Discussion
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This Court decided in a previous case that punishing a person for the offense of capital murder with the underlying offense of kidnapping and for a separate count of aggravated kidnapping violates the Double Jeopardy Clause because the kidnapping had the same “facts required” as capital murder with the underlying offense of kidnapping. January v. State, 695 S.W.2d 215, 223 (Tex. App.—Corpus Christi 1985), holding adopted by per curiam order, 732 S.W.2d 632 (Tex. Crim. App. 1987) (per curiam); see Ex parte Hawkins, 6 S.W.3d 554, 557 (Tex. Crim. App. 1999) (discussing the double- jeopardy reasoning of January with approval). The State agrees that January controls this case. We also conclude that January remains good law and that appellant’s convictions are the “same” for double-jeopardy purposes. See January, 695 S.W.2d at 223; see also Ex parte Hawkins, 6 S.W.3d at 557.
The State argues that we should nevertheless overrule appellant’s issue because he requested the incorrect relief. Appellant requested in his brief that we either dismiss Count I or remand the entire case for a new trial where the State would elect the count on which it would proceed. When a person has been convicted of two offenses that are the “same” for double-jeopardy purposes, the proper remedy is to retain the “most serious” conviction and set aside the other. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). If the defendant received two sentences of different lengths, the “most serious” conviction is the offense for which the defendant received the greatest sentence. Ex Parte Denton, 399 S.W.3d 540, 547 (Tex. Crim. App. 2013). Appellant has presented no contrary authority showing that he is entitled to receive another type of relief.6
6
This Court decided recently that in the rare case in which the length of the sentence and all other factors for determining which conviction is the most serious are equal, the case should be abated for the
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The State’s argument that we should not grant relief that appellant did not request might have force in a civil case,7 but we have the authority to address unassigned error in criminal cases over which we have jurisdiction. See Bigon, 252 S.W.3d at 369; Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006). Moreover, the Texas Rules of Appellate Procedure grant this Court the authority to modify the judgment. TEX. R. APP. P. 43.2(b). We may modify the judgment at the request of either party or act sua sponte, and we may have a duty to do so. Woods v. State, 398 S.W.3d 396, 406 (Tex. App.— Texarkana 2013, pet. ref’d). Our authority to reform the judgment is not limited to mistakes only of a clerical nature. Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (en banc) (construing the predecessor rule to Rule 43.2(b)).
In light of the State’s concession that the convictions in this case violate the state and federal protections against double jeopardy, we will modify the judgment. See Ex parte Cavazos, 203 S.W.3d at 337. We set aside appellant’s conviction and fifty-year sentence on Count II and retain the conviction and sentence of life imprisonment without parole on Count I. TEX. R. APP. P. 43.2(b); see Lewis, 402 S.W.3d at 867 (reforming the defendant’s sentence of life without the possibility of parole where the State admitted the sentence was unconstitutional and because there was sufficient evidence in the record to show that the defendant was indeed a minor at the time of the offense). We sustain appellant’s fifth issue.
VII. JURY INSTRUCTION ON LESSER-INCLUDED OFFENSE
prosecutor to elect which conviction to retain. See Almaguer v. State, No. 13-12-00605-CR, ___ S.W.3d ____, 2014 WL 5088386, at *6 (Tex. App.—Corpus Christi Oct. 9, 2014, pet. ref’d).
7 See Lopez-Juarez v. Kelly, 348 S.W.3d 10, 14 (Tex. App.—Texarkana 2011, pet. denied) (“A court should not grant relief which has not been requested by the prevailing party.”).
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Appellant argues in his sixth issue that the trial court erred when it refused his requested jury instruction on the lesser-included offense of felony murder.
A. Applicable Law A defendant is entitled to a jury instruction on a lesser-included offense if: (1) the lesser-included offense is included within the proof necessary to establish the charged offense; (2) there is some evidence in the record that if the defendant is guilty, he is guilty only of the lesser-included offense. Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009); see Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). The second prong requires the existence of evidence “from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense.” Feldman v. State, 71 S.W.3d 738, 750–51 (Tex. Crim. App. 2002). Anything more than a scintilla of such evidence is sufficient. Goad, 354 S.W.3d at 446. We may not consider the credibility of the evidence or whether it conflicts with or is controverted by other evidence. Young, 283 S.W.3d at 875.
B. Discussion We agree with appellant and the State that the first prong is met because the Texas Court of Criminal Appeals has decided that felony murder is a lesser-included offense of capital murder with an underlying felony. See Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999) (concluding that felony murder is a lesser-included offense of capital murder with an underlying felony offense). Appellant asserts that the second prong is met because there is no evidence that he had the intention to murder or aid the murder of Reyes. Appellant reasons that the evidence shows only that he committed the
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kidnapping, an act clearly dangerous to human life that resulted in the death of Reyes. We disagree.
The difference between felony murder and capital murder is the culpable mental state; capital murder requires “the existence of an intentional cause of death,” while in felony murder, the culpable mental state is supplied by the underlying felony. Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005) (internal quotations omitted). Thus, the critical question is whether there was evidence that would permit a reasonable jury to conclude that appellant, whether as the actor or as a party, did not intend to kill Reyes but was responsible for an act clearly dangerous to human life that resulted in Reyes’s death. See id. at 742. However, the only evidence in the record of an act clearly dangerous to human life that resulted in Reyes’s death was shooting the restrained Reyes in the back of the head shortly after abducting him, evidence of an intentional killing. See id. (concluding that a felony-murder instruction was not warranted because shooting the decedent in the head at close range was more than an act clearly dangerous to human life). Appellant argues that the act of kidnapping was itself an act dangerous to human life, but felony murder requires both (1) the commission or attempt to commit a felony other than manslaughter and (2) the commission or attempt to commit an act clearly dangerous to human life in “the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt” of that felony. TEX. PENAL CODE ANN. § 19.02(b)(3) (West, Westlaw through 2013 3d C.S.). To convict a defendant of felony murder, it is not enough to prove the underlying felony alone, see id., but appellant has not identified any evidence of act clearly dangerous to human life other than the underlying felony of kidnapping. Our review of the record has not revealed even some
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evidence of an act clearly dangerous to human life other than the shooting of Reyes in the head, which is evidence of an intentional killing. See Salinas, 163 S.W.3d at 742. Because appellant has not identified any evidence from which a reasonable jury could acquit him of capital murder but convict him of felony murder, the trial court did not err in refusing his requested instruction. See Mohammed v. State, 127 S.W.3d 163, 167 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (holding that the trial court did not err in refusing to give an instruction when the evidence showed that the defendant was either guilty of capital murder or innocent of both capital murder and felony murder because he would have had no awareness of the act that resulted in the decedent’s death). We overrule appellant’s sixth issue.
VIII. CONCLUSION
We vacate the aggravated kidnapping conviction on double jeopardy grounds. We affirm as modified.
/s/ Nora L. Longoria
NORA L. LONGORIA
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 9th day of April, 2015.