Abraham Pizano v. State

• Court: Court of Appeals of Texas
• Decided: June 20, 2013
• Docket: 01-12-00994-CR
• Status: Published

Opinion

Opinion issued June 20, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00994-CR ——————————— ABRAHAM PIZANO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 1314178

MEMORANDUM OPINION

A jury convicted Abraham Pizano of injury to a child, enhanced by two

earlier felony convictions, and assessed his punishment at forty-eight years’

confinement. On appeal, Pizano contends that the trial court abused its discretion

in admitting letters that Pizano wrote to his girlfriend while incarcerated and awaiting trial, because the letters are not relevant. Finding no error, we affirm.

Background

Pizano and Loraine Perez, Pizano’s girlfriend, lived together with Perez’s

two young children, a son and a daughter. During an argument between Pizano and

Perez, Pizano pushed Perez onto a sofa, and began to beat Perez. Perez’s five-year-

old daughter intervened by standing between Pizano and Perez and urging Pizano

to stop. Pizano slapped the child’s face with his open hand. While Perez held her

daughter, Pizano stood over both of them with a knife and threatened to kill Perez.

Pizano then left, and nearby neighbors who stood outside and had witnessed part of

the struggle called the police. The police arrested Pizano a few days later.

While awaiting trial in this case, Pizano sent forty-eight letters to Perez. In

the letters, Pizano states that he was sorry, both to Perez and the children. He urges

Perez to recant and to tell the children to testify in his favor. At trial Pizano

objected to the relevance of the letters.

Discussion

Standard of Review

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial

court abuses its discretion only if the court’s decision is “so clearly wrong as to lie

outside the zone within which reasonable people might disagree.” Taylor v. State,

2 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); see Roberts v. State, 29 S.W.3d 596,

600, (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A trial court’s ruling falls

within this zone if the record and the law applicable to the case reasonably support

it. See De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex. Crim. App. 2009). If the

trial court’s decision is correct on any theory of law applicable to the case, we will

uphold the decision, even if the trial court gives the wrong reason for its decision.

Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

Analysis

Pizano contends that the letters are not relevant under Texas Rule of

Evidence 401. Any evidence that is both material and probative is relevant. TEX. R.

EVID. 401. Evidence is material if it influences consequential facts. Mayes v. State,

816 S.W.2d 79, 84 (Tex. Crim. App. 1991). Evidence is probative if it tends to

make the existence of a material fact more or less probable than it would be

without the evidence. Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001).

Evidence that is not relevant is inadmissible. TEX. R. EVID. 402.

The conduct of a defendant subsequent to the alleged commission of a crime

that indicates a consciousness of guilt is a circumstance tending to prove that the

defendant committed the act with which he is charged. Brown v. State, 657 S.W.2d

117, 119 (Tex. Crim. App. 1983); see Torres v. State, 794 S.W.2d 596, 598 (Tex.

App.—Austin 1990, no writ) (“A ‘consciousness of guilt’ is perhaps one of the

3 strongest kinds of evidence of guilt.”). A defendant’s apology to the victim, even if

vague, is also a circumstance indicating guilt. See Yost v. State, 222 S.W.3d 865,

877 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (holding that defendant’s

statements in letter sent from jail that “I am sorry for everything” and “please

forgive me” were circumstance indicating guilt). Evidence of a defendant’s efforts

to induce a witness to alter potential testimony or suppress a witness’s testimony

also shows a consciousness of guilt. See Brown, 657 S.W.2d at 119; Johnson v.

State, 583 S.W.2d 399, 409 (Tex. Crim. App. 1979); Garza v. State, 358 S.W.2d

622, 623 (Tex. Crim. App. 1962).

Almost all of the letters contain an apology, either to Perez or her children.

Some of the apologies are vague, such as “I never meant to hurt you,” and “I know

I was wrong.” Others, however, are specific and border on admissions: “I’m sorry

that I lost control after you scratched my face.” These apologies are relevant as a

circumstance indicating Pizano’s consciousness of guilt. See Yost, 222 S.W.3d at

877.

In most of the letters, after apologizing and expressing his love and

devotion, Pizano asks Perez to recant her statements to police that Pizano hit her

and her daughter. Pizano asked Perez to coach her children to give conforming

statements, as well. He asked Perez to tell her children to say that a jar fell on

Perez’s daughter’s face to explain the bruising on her cheek. Pizano also asked

4 Perez to sign an affidavit that he had prepared, recanting her previous statement

and averring that she had made a false report. He repeatedly pleaded with Perez not

to testify and to recant. These attempts to suppress Perez’s testimony and to

persuade her to recant are relevant to show Pizano’s consciousness of guilt. See

Brown, 657 S.W.2d at 119; Johnson, 583 S.W.2d at 409.

Virtually all the letters contain apologetic statements by Pizano or are

attempts to induce Perez to alter her statement or not testify. See Brown, 657

S.W.2d at 119; Johnson, 583 S.W.2d at 409. Only two of the forty-eight letters

contain no such statements. A general objection to evidence that consists of both

admissible and inadmissible material does not preserve error. Alvarez v. State, 536

S.W.2d 357, 361 (Tex. Crim. App. 1976). Rather, a party must specifically object

to the material deemed objectionable, so that the trial court may strike the

objectionable material. Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App.

1985). Because the vast majority of the letters are relevant, and Pizano did not

specifically object to the two irrelevant letters, the relevance objection was not

sufficient to preserve error as to those particular letters. See id.

5 Conclusion

We conclude that the trial court did not abuse its discretion in admitting

Pizano’s letters over his relevance objection. We therefore affirm the judgment of

the trial court.

Jane Bland Justice

Panel consists of Justices Keyes, Higley, and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).