ACCEPTED 07-14-00265-cr SEVENTH COURT OF APPEALS AMARILLO, TEXAS 2/9/2015 8:50:25 AM Vivian Long, Clerk
NO. 07-14-00265-CR
IN THE COURT OF APPEALS FOR THE FILED IN SEVENTH DISTRICT OF TEXAS 7th COURT OF APPEALS AMARILLO, TEXAS AMARILLO, TEXAS 2/9/2015 8:50:25 AM ______________________________ VIVIAN LONG CLERK
CHRISTINA ROCHA, Appellant
v.
THE STATE OF TEXAS, Appellee
______________________________
ON APPEAL FROM COUNTY COURT NO. 2 BEXAR COUNTY, TEXAS CAUSE NO. 240655 ______________________________
BRIEF FOR THE STATE ______________________________
NICHOLAS “NICO” LAHOOD Criminal District Attorney Bexar County, Texas
STEPHANIE A. LEWIS Assistant Criminal District Attorney Bexar County, Texas ORAL ARGUMENT WAIVED Paul Elizondo Tower 101 W. Nueva St., Ste. 526 San Antonio, Texas 78205 Phone: (210) 335-2110 Stephanie.Paulissen@bexar.org State Bar No. 24086675
Attorneys for the State of Texas IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a), the parties to the suit are as follows:
APPELLANT Christina Rocha
TRIAL JUDGE The Honorable Raymond Angelini 187th District Court
TRIAL PROSECUTORS Daryl Harris State Bar No. 24046028 Daniel Rodriguez State Bar No. 24051261 Assistant Criminal District Attorneys 101 W. Nueva St. San Antonio, Texas 78205
TRIAL DEFENSE ATTORNEYS Michael A. Baird State Bar No. 24078178 Shawn Sareen State Bar No. 24079274 1203 Buena Vista St. San Antonio, Texas 78207
APPELLATE STATE’S Stephanie A. Lewis ATTORNEY State Bar No. 24086675 Assistant Criminal District Attorney Paul Elizondo Tower 101 W. Nueva St., Ste. 526 San Antonio, Texas 78205 (210) 335-2110 Stephanie.Paulissen@bexar.org
APPELLATE DEFENSE Richard Langlois ATTORNEY State Bar No. 11922500 217 Arden Grove San Antonio, Texas 78215 (210) 215-0341
ii
TABLE OF CONTENTS Page(s)
Identity of Parties and Counsel ....................................................................................... ii
Table of Contents ........................................................................................................... iii
Index of Authorities ........................................................................................................ iv
Brief for the State ........................................................................................................... 1
Statement of Facts .......................................................................................................... 1
Summary of the Argument ............................................................................................. 4
Argument ........................................................................................................................ 5
I. State’s Response to Appellant’s Sole Point of Error Appellant’s sole point of error that the trial court improperly instructed the jury on Texas Rule of Evidence 615 should be overruled because the trial court did not abuse its discretion, and this alleged error was harmless.. ................................................... 5
Argument & Authorities ................................................................................... 5
Prayer .............................................................................................................................. 10
Attorneys for the State .................................................................................................... 10
Certificate of Service ...................................................................................................... 11
iii
INDEX OF AUTHORITIES Cases
Brooks v. State, 323 S.W.3d 893, 904 (Tex. Crim. App. 2010). ................................ 8
Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007)....................................... 7
Hay v. State, 472 S.W.2d 157 (Tex. Crim. App. 1971).............................................. 6
Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995).................................... 8
Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008). ....................................... 6
Jones v. State, No. 03-03-00067-CR, 2003 Tex. App. LEXIS 10329 *1
(Tex. App.—Austin Dec. 11, 2003, pet. ref’d)................................... 8
Rodriguez v. State, 90 S.W.3d 340 (Tex. App.—El Paso 2001, pet. ref’d). .............. 6
Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007)......................................... 7
Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002)............................................ 6-7
White v. State, 492 S.W.2d 281 (Tex. Crim. App. 1973). .......................................... 6
Statutes
Tex. Code Crim. Proc. Ann. art. 36.13 (West 2013).................................................. 6
Tex. Code Crim. Proc. Ann. art. 38.04 (West 2013).................................................. 7
Tex. Code Crim. Proc. Ann. art. 38.05 (West 2013).................................................. 6
Tex. Penal Code Ann. § 22.02 (West 2013)............................................................... 1
Rules
Tex. R. App. P. 38.1(a). ............................................................................................. ii
Tex. R. App. P. 33.1. ................................................................................................. 6
Tex. R. App. P. 44.2(a)............................................................................................... 7
iv
No. 04-10-00809-CR
CHRISTINA ROCHA, § COURT OF APPEALS Appellant § § VS. § SEVENTH JUDICIAL DISTRICT § THE STATE OF TEXAS, § Appellee § AMARILLO, TEXAS
BRIEF FOR THE STATE
To the Honorable Seventh Court:
Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar
County, Texas, and files this brief for the State. Appellant, Christina Rocha, was charged
by Indictment with Aggravated Assault with a Deadly Weapon, pursuant to Section 22.02
of the Texas Penal Code (CR at 6). After hearing all the evidence, the jury found
Appellant guilty, and she was sentenced to five (5) years of confinement in the Institution
Division of the Texas Department of Criminal Justice (CR at 101–02). Appellant timely
filed notice of appeal on the 18th day of June, 2014 (CR at 108).
STATEMENT OF FACTS
On October 19, 2012, Nancy Rodriguez, hereinafter called Complainant, was
driving around San Antonio trying to find her husband, Jaime Rodriguez (3 RR at 32–
33). Complainant and her husband had planned to meet, so she went to pick him up at
work (3 RR at 32–33). After she realized that her husband was not at work, she drove to
the home of his mistress, Appellant Christina Rocha (3 RR at 33). When Complainant
arrived, Appellant came out of her home, and the two women began to argue (3 RR at 66,
107, 141). That argument escalated into a physical fight (3 RR at 66, 107, 141). Mr.
Rodriguez came out and separated the two women, and Complainant walked towards her
car (3 RR at 67, 108, 142). Appellant went inside, returned with a four-and-a-quarter-inch
serrated kitchen knife in her hand, and approached Complainant (3 RR at 25, 109, 143).
As Appellant got closer, Complainant put her hands up in a defensive position, and
Appellant stabbed Complainant on the upper left side of her body (3 RR at 70, 109, 144).
Complainant staggered back towards her car and collapsed, and Appellant walked back
inside her house as witnesses ran to Complainant’s aid (3 RR at 72, 110, 144).
In Appellant’s case-in-chief, one of her neighbors, Lillian Sifuentes, testified that
Complainant pulled up to Appellant’s house, got out of her car, and began screaming
threats at Appellant (3 RR at 159–60). After the fight, Ms. Sifuentes stated that Appellant
went back inside her house, and Complainant ran towards the house and started banging
on the door, continuing to threaten Appellant’s life (3 RR at 162). She also testified that
Complainant opened the door to Appellant’s home (3 RR at 165). At that point, Ms.
Sifuentes stated that she went inside her own home, so she did not see Appellant stab
Complainant (3 RR at 166–67).
According to Ms. Sifuentes, she gave a written statement to Appellant’s first
attorney, Al Acevedo (3 RR at 197). When the court and trial attorneys learned this
information, the court instructed Appellant’s trial attorney, Michael Baird, to find that
statement and tender it to the State’s attorneys (3 RR at 198). When the trial resumed the
following day, Mr. Baird advised the court that he was unable to locate Ms. Sifuentes’
statement (4 RR at 21). The State moved to strike Ms. Sifuentes’ testimony pursuant to
Texas Rule of Evidence 615 (4 RR at 20). Instead of striking the testimony, the court
decided to orally instruct the jury on what the law is, and that the defense attorneys do not
have Ms. Sifuentes’ statement to produce to the State (4 RR at 21). When the court and
the attorneys discussed this course of action, defense counsel replied, “No problem with
that, Judge” (4 RR at 21). Specifically, the court instructed the jury:
“Ladies and Gentlemen, a situation has occurred concerning the last witness. The last witness testified that she made a written statement. Anytime a witness makes a written statement or report, the other side has to turn it over to them; as you noted what the prosecution did to the Defense. The Defense attorneys have said that there is no written statement. You’re to take that into consideration concerning this last witness’ testimony (4 RR at 23).”
Appellant now argues to this Court that the this oral instruction constitutes reversible
error.
SUMMARY OF THE ARGUMENT
Response to Appellant’s Sole Point of Error:
Appellant’s sole point of error that the trial court improperly instructed the jury on Texas Rule of Evidence 615 should be overruled because the trial court did not abuse its discretion, and this alleged error was harmless.
ARGUMENT
I. STATE’S RESPONSE TO APPELLANT’S SOLE POINT OF ERROR:
Appellant’s sole point of error that the trial court improperly instructed the jury on Texas Rule of Evidence 615 should be overruled because the trial court did not abuse its discretion, and this alleged error was harmless.
In Appellant’s sole point of error, he argues that the trial court improperly
instructed the jury regarding Lillian Sifuentes’ testimony. This point of error is without
merit.
Argument and Authorities
i. Failure to Preserve Error
Appellant argues that the trial court abused its discretion when it orally instructed
the jury that it may consider the absence of Lillian Sifuentes’ statement. However,
Appellant waived her right to complain about this instruction on appeal when her defense
counsel agreed to the instruction.
When Ms. Sifuentes stated on the witness stand that she gave a written statement
to Appellant’s first defense attorney, the trial court adjourned and ordered Appellant’s
attorney at that time, Mr. Michael Baird, to find the statement. Mr. Baird returned to
court the next morning and advised that he could not locate any statement by Ms.
Sifuentes (4 RR at 21). The court decided to advise the jury that Texas Rule of Evidence
615 exists, and that they could take that into consideration (4 RR at 22–23). In response
to the court’s idea to give the instruction, Mr. Baird said, “[t]hat would be perfectly fine”
(4 RR at 23).
A timely objection is required to preserve alleged errors made by the trial court.
Tex. R. App. P. 33.1 (West 2013); Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim.
App. 2008). Because Mr. Baird did not object to the court’s oral instruction, Appellant
cannot complain about the instruction on appeal.
ii. No Abuse of Discretion
Even if Appellant had preserved this issue for appellate review, the trial judge did
not abuse his discretion in giving the jury this instruction. When reviewing a trial judge's
decision to admit or exclude evidence, an appellate court must determine whether the
judge's decision was an abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex.
Crim. App. 2002). Unless the decision was outside the “zone of reasonable
disagreement,” an appellate court should uphold the ruling. Id.
A trial court has the discretion to give the jury oral instructions to remedy unique
issues that may arise. See White v. State, 492 S.W.2d 281 (Tex. Crim. App. 1973); Hay v.
State, 472 S.W.2d 157 (Tex. Crim. App. 1971); Rodriguez v. State, 90 S.W.3d 340, 370–
72 (Tex. App.—El Paso 2001, pet. ref’d). In handling such issues, the trial court shall not
discuss or comment on the weight of the evidence or its bearing in the case. Tex. Code
Crim. Proc. Ann. art. 38.05 (West 2013).
In this case, the court determined that the best course of action would be to apprise
the jury of the law requiring written witness statements to be tendered to opposing
counsel prior to cross-examination. It is within the court’s authority to instruct the jury on
the existence of applicable law. See Tex. Code Crim. Proc. Ann. art. 36.13 (West 2013).
Therefore, the trial judge did not abuse his discretion in this case. See Torres, 71 S.W.3d
at 760.
iii. Any Error is Harmless
If this Court finds that the trial judge erred in instructing the jury regarding the
existence of Texas Rule of Evidence 615(e), such error was harmless. Because the
alleged error in the present case is not of federal constitutional origin, it must be
subjected to a harm analysis. Tex. R. App. P. 44.2(a) (West 2013). Appellant did not
object to the trial court’s instruction, so any alleged error is reversible only if the error
was so egregiously harmful under the circumstances as to have denied Appellant a fair
and impartial trial. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007).
Charge error is egregiously harmful if it affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State,
218 S.W.3d 706, 719 (Tex. Crim. App. 2007). To determine if charge error was
egregiously harmful, appellate courts examine the record as a whole, including the
charge, the contested issues, the weight of the probative evidence, and the arguments of
counsel. Id.
Appellant argues that the court’s instruction discredited her defense, permitting the
jurors to disregard Lillian Sifuentes’ testimony if they found that she was not credible.
(Appellant’s Br. 19). It is well settled that jurors are the sole judges of facts, and of the
weight to be given testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 2013).
Resolution of conflicts in the evidence is within the exclusive province of the jury, and
the jury may choose to believe all, some, or none of the testimony or evidence presented.
Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Therefore, with or
without the court’s instruction, the jurors were permitted to believe or disbelieve Ms.
Sifuentes’ testimony, and the appellate court cannot sit as a thirteenth juror and judge the
credibility of witnesses. See id.; Brooks v. State, 323 S.W.3d 893, 904 (Tex. Crim. App.
2010).
The Third Court of Appeals has addressed the issue of oral instructions in Jones v.
State, No. 03-03-00067-CR, 2003 Tex. App. LEXIS 10329 *1 (Tex. App.—Austin Dec.
11, 2003, pet. ref’d). In Jones, the jurors sent out a note to the court during deliberations
stating that the presiding juror had reservations about the verdict. Id. at *20. After a
bench conference, the court and the attorneys agreed that the court should orally instruct
the jury that the verdict must be unanimous. Id. at *21. The defendant complained on
appeal that the oral instruction caused egregious harm. Id. at *20. The Third Court of
Appeals determined that the court’s oral instruction was harmless because it was not a
comment on the evidence, and it echoed the instruction in the jury charge that a verdict
must be unanimous. Id. at *25.
In the present case, after an examination of the record as a whole, this Court will
find that any alleged error in giving this instruction was harmless. During trial, the State
presented overwhelming evidence of guilt. The State called three lay witnesses who
consistently testified that Appellant and Complainant got into an altercation, Appellant
went inside her house while Complainant walked back towards her car, then Appellant
returned with a knife and stabbed Complainant (3 RR at 70, 109, 144). Lillian Sifuentes
testified for the defense that Complainant was banging on Appellant’s front door while
screaming threats at Appellant (3 RR at 162–65). However, on cross-examination, the
prosecutor pointed out that there were various obstructions that would have blocked
Sifuentes’ view of Appellant’s recessed front door (3 RR at 179).
In addition, Ms. Sifuentes’ testimony was the only evidence that raised the issue of
self-defense. A self-defense instruction was included in the jury charge, and the jury was
free to believe Ms. Sifuentes’ version of events. The jurors chose, however, to believe the
several other lay witnesses who testified that Complainant was trying to leave the
property when Appellant stabbed her. The trial court’s oral instruction, given in the
context of the rest of the evidence, did not vitally affect Appellant’s self-defense theory.
Therefore, it did not result in an unfair trial, and was not harmful error.
CONCLUSION
Appellant did not preserve this error for appellate review. Even so, the trial court
did not abuse its discretion by giving the jury this oral instruction, and any alleged error
was harmless. Therefore Appellant’s sole point of error should be overruled.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas submits that the
judgment of the trial court should, in all things, be AFFIRMED.
Respectfully submitted,
Nicholas “Nico” LaHood Criminal District Attorney Bexar County, Texas
/s/ Stephanie A. Lewis______ Stephanie A. Lewis Assistant Criminal District Attorney Bexar County, Texas Paul Elizondo Tower 101 W. Nueva St., Ste. 526 San Antonio, Texas Phone: (210) 335-2110 Stephanie.Paulissen@bexar.org State Bar No. 24086675
Attorney for the State
CERTIFICATE OF SERVICE
I, Stephanie A. Lewis, Assistant Criminal District Attorney, hereby certify that a
true and correct copy of the above and foregoing brief has been sent by electronic mail to
Appellant’s attorney of record, Richard Langlois, on this 9th day of February, 2015.
CERTIFICATE OF COMPLIANCE
I, Stephanie A. Lewis, certify that the State’s brief is approximately 2,700 words.
_________________________________
Stephanie A. Lewis Assistant Criminal District Attorney
Richard Langlois 217 Arden Grove San Antonio, Texas 78215
Attorney for Appellant