NUMBER 13-16-00245-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHARLES GARZA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Longoria, and Hinojosa Memorandum Opinion by Justice Longoria
Appellant Charles Garza appeals his conviction for possessing, with intent to
deliver, between four and 200 grams of methamphetamine, a first-degree felony. See
TEX. HEALTH & SAFETY CODE ANN. § 481.112 (a), (d) (West, Westlaw though 2017 1st
C.S.). After finding that appellant is a habitual felony offender, the jury sentenced appellant to forty years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice. See TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw though 2017
1st C.S.). In six issues appellant argues: (1) the trial court erred by admitting discovery
and a judgment from a civil asset forfeiture case; (2) the trial court erred by admitting the
audio statement of a testifying witness; (3) the trial court erred by re-opening evidence
after the jury began deliberating; (4) the State violated appellant’s due process rights by
suppressing favorable, material evidence; (5) the trial court submitted an erroneous
punishment jury charge, resulting in a sentence unsupported by necessary findings; and
(6) the trial court proceedings were infected with cumulative error, warranting a new trial.
We affirm.
I. BACKGROUND
In October 2013, Corpus Christi Police Department SWAT officers executed a no-
knock warrant at the home of Henry Velasquez. During the search, the officers
encountered several individuals in different areas of the home. Appellant was located in
one of the bedrooms with Rodolfo “Rudy” Ramos and Richard Ambriz. In the bedroom
where appellant was located, the officers found a safe on the bed which contained
approximately 27 grams of methamphetamine, a box of sandwich bags, a spoon, a light
bulb, some change, and a digital scale. Officers were told by Ramos that the safe
belonged to appellant. Appellant previously lived in the home and the room he was in
was his former bedroom. Officers ultimately linked the safe and its contents to appellant.
Velasquez and his girlfriend were located in another bedroom. In that room there was a
drawer full of money and a shoe box containing 172.84 grams of cocaine. Velasquez
pled guilty to the possession of the cocaine and received a fifteen-year sentence. His
2 testimony was that he was not selling the methamphetamine and the safe did not belong
to him.
Appellant was charged by indictment with first-degree possession of a controlled
substance with intent to deliver. See TEX. HEALTH & SAFETY CODE Ann. § 481.112 (a), (d).
The State also gave notice that it would seek to punish as him a habitual felony offender.
See TEX. PENAL CODE ANN. § 12.42(d). Count 1 of the indictment alleged that on or about
October 3, 2013, in Nueces County, Texas, appellant did then and there knowingly
possess, with intent to deliver, a controlled substance, namely, cocaine, in an amount of
four grams or more but less than 200 grams; and count 2 of the indictment alleged that
appellant, on or about October 3, 2013, in Nueces County, Texas, did then and there
knowingly possess, with intent to deliver, a controlled substance, namely,
methamphetamine, in an amount of four grams or more but less than 200 grams.
The State moved to dismiss the first count of the indictment. Subsequently
appellant was found guilty of the second count of the indictment. The jury then found that
appellant was a habitual felony offender and assessed his punishment at forty years’
imprisonment. This appeal followed.
II. ADMISSIBILITY OF EVIDENCE
By his first two issues, appellant contends that the trial court erred by admitting
inadmissible evidence, specifically: (1) discovery and a judgment from a civil asset
forfeiture case; and (2) the audio statement of a testifying witness.
A. Standard of Review
An appellate court reviewing a trial court’s ruling on the admissibility of evidence
must utilize an abuse-of-discretion standard of review. Weatherred v. State, 15 S.W.3d
3 540, 542 (Tex. Crim. App. 2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App.
1999). In other words, the appellate court must uphold the trial court’s ruling if it was
within the zone of reasonable disagreement. Weatherred, 15 S.W.3d at 542; Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In addition, the appellate court
must review the trial court’s ruling in light of what was before the trial court at the time the
ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1998); Hardesty
v. State, 667 S.W.2d 130, 133 n. 6 (Tex. Crim. App. 1984).
B. Documents from Appellant’s Civil Asset Forfeiture Case
Appellant argues that the trial court erred by admitting the agreed judgment and
additional documents from his civil asset forfeiture case on the grounds that the
documents were irrelevant, prejudicial, settlement negotiations or plea discussions, and
unauthenticated hearsay.
1. Settlement Negotiations
Appellant argues that the exhibit containing the civil asset forfeiture documents,
specifically the agreed judgment, was inadmissible as a settlement negotiation or plea
discussion. See TEX. R. EVID. R. 408, 410.
Rule 408 of the Texas Rules of Evidence states:
(a) Prohibited Uses. Evidence of the following is not admissible either to prove or disprove the validity or amount of a disputed claim:
(1) furnishing, promising, or offering–or accepting, promising to accept, or offering to accept–a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made during compromise negotiations about the claim.
(b) Permissible Uses. The court may admit this evidence for another purpose, such as proving a party’s or witness’s bias, prejudice, or
4 interest, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Id. Here, the State’s use of the evidence was to establish a link between the appellant
and the recovered money. Specifically, they were corroborating the testifying officer’s
statement that the money was found on appellant’s person. Their intention, therefore,
was to use the forfeiture documents, which were created to facilitate the agreed judgment,
to prove the validity of a disputed claim, which is specifically prohibited under rule 408.
See TEX. R. EVID. R. 408; see also Casamento v. State, No. 05-91-00294-CR, 1992 WL
224567, at *4 (Tex. App.—Dallas Sept. 11, 1992, no pet.) (mem. op. not designated for
publication) (finding that the use of a civil forfeiture judgment was admissible in criminal
case for purposes of impeachment where the defendant took the stand and testified that
he had no association to the money involved in the forfeiture proceeding). Therefore, the
trial court abused its discretion in admitting the civil forfeiture documents. 1
2. Harm Analysis
Because we conclude that the trial court abused its discretion, we must now
evaluate for harm. See TEX. R. APP. P. 44.2. Generally, if the trial court’s ruling merely
offends the rules of evidence, the erroneous admission or exclusion of evidence is non-
constitutional error for purposes of a harm analysis. See Celis v. State, 354 S.W.3d 7,
38 (Tex. App.—Corpus Christi 2011), aff’d 416 S.W.3d 419 (Tex. Crim. App. 2013). Non-
constitutional errors that do not affect substantial rights must be disregarded. TEX. R.
APP. P. 44.2(b). Inadmissible evidence can be rendered harmless if other evidence at
trial is admitted without objection and it proves the same fact that the inadmissible
1 Having found error under rule 408, we need not address appellant’s arguments that the exhibit was inadmissible as irrelevant, more prejudicial than probative, or hearsay.
5 evidence sought to prove. Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App.
1986) (en banc). The State sought to use the inadmissible civil forfeiture documents to
establish a link between appellant and the contraband, specifically to show that the cash
that was seized belonged to appellant. Appellant argues that the jury may have taken the
documents as an admission of guilt because the documents state that the money was
his. The State brought this same information in through its testifying officer without
objection:
Prosecutor: All right. Let’s talk about this particular case. During this search that you were conducting after the search warrant was issued, did you happen to be present when the defendant Charles Garza’s person was searched?
Officer: Yes.
Prosecutor: Okay. And what was found on this man’s person?
Officer: A little over $1600 in U.S. currency.
Additionally, cross-examination of the officer by appellant’s counsel elicited that there was
a civil forfeiture proceeding. Accordingly, the erroneous admission of the document was
harmless and did not constitute reversible error. See id. Appellant’s first issue is
overruled.
C. Audio Statement
By his second issue, appellant argues that the trial court erred in admitting the
audio statement of co-defendant Ramos.
1. Waiver
The State argues that appellant waived his argument as to the admissibility of the
audio statement of Ramos when appellant offered it into evidence at trial. In order to
6 preserve error for appellate review, the record must show that a complaint was made to
the trial court by an objection that stated the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court aware of
the complaint, unless the specific grounds were apparent from the context. TEX. R. APP.
P. 33.1(a); Aguilera v. State, 75 S.W.3d 60, 65 (Tex. App.—San Antonio 2002, pet. ref’d).
To preserve error for review, a timely and specific objection must be made and followed
by an adverse ruling. Aguilera, 75 S.W.3d at 65.; Turner v. State, 805 S.W.2d 423, 431
(Tex. Crim. App. 1991). A party must object every time allegedly inadmissible testimony
is offered in order to preserve error. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.
App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Scaggs v.
State, 18 S.W.3d 277, 291 (Tex. App.—Austin 2000, pet. ref’d).
Here, appellant initially objected to the State using the recorded statement of
Ramos; however, appellant was ultimately the party who entered the redacted recording
into evidence. While the trial court had already ruled on the admissibility of the recording
in a hearing outside the presence of the jury, by offering and moving the recording into
evidence during his cross-examination of Ramos, appellant did not preserve error on the
argument of admissibility of said evidence. See Hudson, 675 S.W.2d at 511 (stating that
“it is well settled that an error in admission of evidence is cured where the same evidence
comes in elsewhere without objection; defense counsel must object every time allegedly
inadmissible evidence is offered”); see also Bryant v. State, 534 S.W.3d 471, 473 (Tex.
App.—Corpus Christi 2017, pet. ref'd) (quoting Ohler v. United States, 529 U.S. 753, 760
(2000) “[A] defendant who preemptively introduces evidence of a prior conviction on direct
examination may not on appeal claim that the admission of such evidence was error.”).
7 We conclude that appellant did not preserve error. See id. Appellant’s second issue is
III. REOPENING OF EVIDENCE
By his third issue, appellant argues that the trial court erred by reopening evidence
after the jury began deliberating.
A. Invited Error
Appellant contends that the reopening of evidence was a violation of article 36.02
and as such should be held to be an abuse of discretion by the trial court. See TEX. CRIM.
PROC. CODE ANN. § 36.02 (West, Westlaw through 2017 1st C.S.) (“The court shall allow
testimony to be introduced at any time before the argument of a cause is concluded, if it
appears that it is necessary to a due administration of justice.”). The State, however,
argues that appellant invited the error of which he now complains. See Woodall v. State,
336 S.W.3d 634, 644 (Tex. Crim. App. 2011) (stating that “[t]he law of invited error
provides that a party cannot take advantage of an error that it invited or caused, even if
such error is fundamental.”).
During the punishment phase of appellant’s trial, the State elicited testimony from
an officer about a prior offense committed by appellant. After the close of evidence, the
State learned that a co-defendant in appellant’s prior offense claimed responsibility for
the offense. The State brought this information to the attention of appellant’s counsel and
the trial court. Appellant’s counsel requested that the jury be informed of the new
information. The jury was brought in and counsel for the State explained the new
information. Appellant sought to have the information given to the jury and cannot now
complain that it was error to do so. See id. Appellant’s third issue is overruled.
8 IV. SUPPRESSION OF FAVORABLE EVIDENCE
By his fourth issue, appellant contends that the state suppressed favorable
evidence in violation of his due process rights. See Brady v. Maryland, 373 U.S. 83
(1963).
A. Applicable Law
Under United States Supreme Court precedent beginning with Brady, the State is
required to disclose evidence known to it that is favorable or material to a defendant’s
guilt or punishment, whether or not the defendant requests it. Strickler v. Greene, 527
U.S. 263, 280 (1999). This duty encompasses both impeachment as well as exculpatory
evidence. Id. (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). The good or
bad faith of the prosecution is irrelevant. Brady, 373 U.S. at 87, 83 S.Ct. 1194.
A defendant must show the following requirements to establish a Brady violation:
(1) the State suppressed evidence; (2) the suppressed evidence is favorable to the
defendant; and (3) the suppressed evidence is material. Strickler, 527 U.S. at 281–82;
accord Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). “Favorable” evidence
for these purposes is any evidence that, if disclosed and used effectively, “may make the
difference between conviction and acquittal.” Harm, 183 S.W.3d at 406. Evidence is
“material” for Brady purposes “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (internal
quotations omitted). A reasonable probability is one that is sufficient to undermine
confidence in the outcome. Id.
9 The materiality prong incorporates a requirement that the defendant is prejudiced
by the State’s failure to disclose the evidence. Harm, 183 S.W.3d at 406. When
information is disclosed mid-trial, the prejudice inquiry involves determining whether the
disclosure came in time to make effective use of the information at trial. Little v. State,
991 S.W.2d 864, 866 (Tex. Crim. App. 1999). “If the defendant received the material in
time to use it effectively at trial, his conviction should not be reversed just because it was
not disclosed as early as it might have and should have been.” Id.
B. Arguments of the Parties
Appellant argues that the State presented misleading evidence by suppressing
favorable, material evidence. Appellant argues that the State suppressed exculpatory
evidence that another individual was responsible for a prior criminal act that the State
presented to the jury during the punishment phase of his trial. As previously discussed,
when the State learned of the information, it was presented to appellant’s counsel and
the trial court. Appellant’s counsel requested the information be relayed to the jury, thus,
reopening evidence during deliberations. Appellant’s request was granted and the jury
was presented with the new information. Appellant now argues on appeal that the State
“affirmatively presented prejudicial evidence while suppressing the full story.”
The State responds that appellant failed to preserve the Brady complaint for review
because he failed to make any objection, nor did he move for a mistrial. Further, the
State notes that there was no mention of Brady in a motion for new trial.
C. Preservation of Error
Preservation of error is governed by Rule 33.1 of the Texas Rules of Appellate
Procedure, which provides that, to preserve error, a complaint must be “made to the trial
10 court by a timely request, objection, or motion that . . . state[s] the grounds for the ruling
that the complaining party sought from the trial court with sufficient specificity to make the
trial court aware of the complaint, unless the specific grounds were apparent from the
context.” TEX. R. APP. P. 33.1(a)(1)(A). The record must also show that the trial court
“ruled on the request, objection, or motion, either expressly or implicitly” or “refused to
rule on the request, objection, or motion, and the complaining party objected to the
refusal.” Id. R. 33.1(a)(2).
In this case, there was no objection made on Brady grounds, or at all, in regard to
the evidence. Appellant’s counsel did not present any argument to the trial court and
therefore, cannot now raise the issue on appeal. See id. We conclude appellant’s issue
was not preserved for appeal. Id. We overrule appellant’s fourth issue.
V. JURY CHARGE ERROR
By his fifth issue, appellant contends the trial court submitted an erroneous
punishment jury charge by not requiring the jury to make distinct findings about each
alleged enhancement.
Courts analyze a jury-charge issue under a two-step process, first deciding
whether there was error in the charge and, if error exists, analyzing the error for harm.
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). The amount of harm
necessary to warrant reversal depends on whether the error was preserved for appeal.
Id. When, as here, the defendant did not object to the jury charge, error is reversible only
if it was egregiously harmful. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App.
2015).
11 B. Enhancement Application
Appellant argues that the jury “did not have the opportunity to distinctly address
the validity of the enhancements after [appellant] challenged the testimony linking him to
the judgments.” Specifically, appellant argues that the trial court combined the finding of
whether or not he was a habitual felony offender within the reiteration of the guilty verdict
and sentence assessment.
Generally, the factfinder’s decision of what particular sentence to assess is a “normative, discretionary function” that does not depend on the resolution of specific facts. However, when the State seeks to enhance a defendant’s sentence for the primary offense by alleging that a defendant has a prior conviction, and the defendant enters a plea of not true, the factfinder must decide whether the State has sustained its burden by entering a finding that the enhancement allegation is either true or not true. In essence, the assessment of punishment involves two types of deliberations when the State has alleged, and the defendant has entered a plea of not true to, a prior conviction used for enhancement purposes. First, the factfinder engages in a deductive, discrete fact-finding process to determine whether the State has proved that the enhancement allegation is true. And second, considering all of the evidence admitted during the guilt and punishment phases, the factfinder engages in a normative process that is uninhibited by any required, specific fact determination to decide what particular punishment to assess within the range prescribed by law.
Jordan v. State, 256 S.W.3d 286, 291–92 (Tex. Crim. App. 2008) (citations omitted).
Here, the punishment charge specifically instructed the jurors regarding the enhancement
charges, the finding of a person to be habitual felony offender, and the sentencing ranges.
The verdict form then allows for three possible sentencing options: (1) habitual felony
offender punishment; (2) repeat felony offender punishment; or (3) first degree felony
punishment. The jury was instructed that it was their duty “to determine whether the
Defendant is a Habitual Felony Offender” and that their determination must be beyond a
reasonable doubt. The jury was specifically instructed to make a determination regarding
appellant’s habitual felony offender status and then to apply such determination to their
12 sentencing. See id. at 293. We conclude there was no error in the punishment charge
and verdict form. See Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)
(stating that reviewing courts “must examine the charge as a whole instead of a series of
isolated and unrelated statements.”). Appellant’s fifth issue is overruled.
VI. CUMULATIVE ERROR
In his final issue, appellant argues that the “proceedings are infected with
cumulative error, warranting a new trial.” Listing each of his first five issues, appellant
states that he has shown that there were multiple irregularities and errors in his trial, and
therefore the integrity of the trial as a whole should be called into question. We need not
decide this issue, however, because appellant’s conclusory statement that the cumulative
effect of all his alleged errors warrants reversal is insufficient to maintain his burden to
adequately brief the point of error. See TEX. R. APP. P. 38.1(i); Linney v. State, 401
S.W.3d 764, 782–83 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (overruling as
inadequately briefed appellant’s conclusory contention that cumulative harm affected his
substantial rights). Appellant’s sixth issue is overruled.
VII. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 1st day of November, 2018.