Garcia, Ray Stuart v. State

• Court: Court of Appeals of Texas
• Decided: March 16, 2006
• Docket: 14-04-00399-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed March 16, 2006

Affirmed and Memorandum Opinion filed March 16, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00399-CR

RAY STUART GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

_____________________________________________________

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 967,665

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Ray Stuart Garcia of aggravated assault with a deadly weapon and sentenced him to sixty-five years confinement in the Texas Department of Criminal JusticeBInstitutional Division.  In two issues, appellant contends the trial court erred by allowing (1) a witness to testify regarding a threatening phone call she received from a third party, and (2) the State to impeach his testimony with evidence of a prior conviction.  We affirm.

I.  Factual and Procedural Background

At approximately 10:00 p.m. on Saturday, November 8, 2003, Wesley Herrin, Jr. entered a Papa John=s pizzeria in Pasadena, Texas.  He walked around the counter, pointed a gun at the store clerk, and instructed her to get the store manager.  The two then walked towards the back of the store where the manager was working.  Herrin instructed them to unlock the back door and to go Ain the back.@  Assuming that Herrin wanted them to walk out the back door, the clerk pushed the back door open.  When she did so, both she and the manager were able to see that appellant was waiting outside.  Appellant was a former employee of the store, and the manager immediately recognized him.  Herrin then demanded the key to the store=s safe.  After the manager gave him the key, Herrin instructed the manager and the clerk to wait on their knees in the lavatory.  While they were in the lavatory, Herrin and appellant took money from the store=s safe and left the premises

The manager called police and informed the officers that she recognized appellant as one of the perpetrators.  After searching through the store=s personnel files, she provided appellant=s home address to the police.  Officers then went to appellant=s home and asked him to go with them to the store.  He agreed, and upon arrival, was identified by both the manager and the clerk as the person they observed waiting outside the store=s back door.  Appellant was placed under arrest and charged with aggravated robbery.  Because he had been convicted of three prior felonies, appellant was denied bail.

Approximately three weeks later, the store manager received a telephone call on her cell phone from an individual identifying himself as Officer Ray Johnson.  The caller asked the manager to recount the details of the robbery.  After she did so, the caller informed her that she needed to change her story so that appellant would not be implicated.  The caller also told her that her life and the lives of her family members would be in danger if she did not change her story.  The police were able to trace the call to Herrin=s home phone.  Herrin=s picture was placed in a photo spread, and the manager identified him as the individual who entered the store with a gun.

Before trial, appellant filed a motion in limine seeking to prohibit the State from referencing any of his prior convictions that had occurred more than ten years earlier.  The trial court held a hearing on the motion after the close of the State=s case-in-chief.  At that hearing, the trial court referred to an off-the-record discussion in which the State indicated it wanted to impeach appellant with evidence of his status as a parolee from a 1982 burglary conviction, if appellant chose to testify.  The trial court said it would allow the evidence as probative of appellant=s motive to lie.

On direct examination, appellant testified that he was taking a defensive driving class at home on the internet at the time of the robbery.  He also testified that he received a 60-year sentence for the 1982 conviction, and that he was on parole at the time of the robbery.  On cross-examination, appellant affirmed that the internet defensive driving class allowed him to take breaks, and offered no additional explanation for his alibi.  He also acknowledged that confessing to participation in the robbery would have automatically revoked his parole.  The jury found appellant guilty and sentenced him to sixty-five years confinement.  This appeal ensued.

II.  Issues Presented

In appellant=s first issue, he argues the trial court erroneously admitted the testimony concerning Herrin=s phone call to the store manager because it was irrelevant and more prejudicial than probative.  In his second issue, appellant contends the trial court erred by allowing the state to impeach him with evidence that he was on parole for a conviction that occurred more than ten years before the time of his trial.

III.  Analysis

A.        Did the Trial Court Err by Admitting Testimony Regarding the Threatening Phone Call?

Over appellant=s objection, the trial court ruled that the store manager could testify about receiving the threatening phone call.  On appeal, he characterizes the testimony as an extraneous offense committed by a third party and contends it is both irrelevant and unduly prejudicial.  The State argues appellant waived any error and, alternatively, that the testimony is relevant to establishing appellant=s identity as one of the perpetrators.

1.         Preservation of Error

Before we address the merits of appellant=s argument, we first turn to the state=s assertion of waiver.  In response to the State=s request to allow the store manager to testify, the trial court discussed the State=s purported testimony with both counsel outside the presence of the jury.  This dialogue provides the basis for the State=s argument that appellant waived his first issue:

THE COURT: I will allow you to ask the witness about the phone call, and I will allow the statement to come in, and I will give an admonishment for the statement, that is, a limiting instruction concerning that statement, that it=s not coming in as the truth . . . .

* * *

TRIAL COUNSEL: I need to object to that, if I may, first, on the basis that there is no evidence that will sufficiently connect [the phone call] to [appellant].  By that, I mean to show that [appellant] knew about the phone call or had anything to do with it being made.  Secondly, the probative value of that phone call is far outweighed by its prejudicial value for the complaining witness toCit links [appellant] to the Mafia,^[1] and it=s a threat to her life, that=s certainly prejudicial.

THE STATE: I=ll tell you what I think is relevant also about it. . . . [T]his witness= credibility is being attacked, obviously. . . . [S]omeone told her to change her story and, in fact, she said, >No,= you know, >That=s who did it to me.= . . .

THE COURT: Well, I=m letting [the testimony] in for certain reasons.  I am letting that in because [of] the thought of [the witness= credibility].  I=m going to let it in because that is the manner which they connected [Herrin] and it is, I believe, probative that somehow one ore more people involved in the robbery knew the name of one of the witnesses . . . . It prompted her to call the police and the police followed it and it led to the arrest of the other person. . . . .

TRIAL COUNSEL: Can I have my objection now so I don=t need to do it for the jury?

THE COURT: Yes.

TRIAL COUNSEL: That=s sufficient?

THE COURT: Yes.  For purposes of the record, I have told [trial counsel] that his objection right now is sufficient.

Appellant=s objections at trial to the irrelevancy and to the unduly prejudicial nature of the testimony are governed by Rules 402 and 403 of the Texas Rules of Evidence.  But in his brief, appellant characterizes the testimony as Aan extraneous offense, committed by a third party, which was not relevant to any material issue in the case.@  The admissibility of extraneous offenses is addressed in Rule 404(b).  Thus, the State argues appellant is raising a new argument for the first time on appeal.

To preserve error, an appealing party must make a timely, specific objection at the earliest possible opportunity and must pursue the objection to an adverse ruling.  Tex. R. App. P. 33.1(a); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998).  Although appellant objected at trial on the basis that the testimony was more prejudicial than probative, the Court of Criminal Appeals has stated that the prejudicial-versus-probative balancing test is Aan inherent part of Rule 404(b).@  Castaldo v. State, 78 S.W.3d 345, 349, 350 (Tex. Crim. App. 2002).  Therefore, we assumeCwithout decidingCthat appellant has preserved error, and consider the merits of appellant=s issue.

2.         Admission of the Phone Call

a.         Standard of Review

We review a trial court=s ruling regarding the admission of evidence for an abuse of discretion.  Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).  If the ruling is correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment.  Id.  Extraneous‑offense evidence is admissible under both Rules 404(b) and 403 if that evidence satisfies a two‑prong test: whether the extraneous offense evidence is relevant to a fact of consequence in the case apart from its tendency to prove conduct in conformity with character; and whether the probative value of the evidence is not substantially outweighed by unfair prejudice.  Id.  An abuse of discretion occurs only when the trial court=s decision was so clearly wrong as to lie outside that zone with which reasonable persons might disagree.  Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

b.         The Evidence Offered Proof of Appellant=s Identity

Appellant argues that the testimony could only be relevant to proving his identity.  He contends his identity was not an issue at trial because, when he testified in his own defense, the state effectively impeached his alibi.  But, the testimony in question was admitted during the State=s case-in-chiefCbefore appellant=s alibi was impeachedCwhen appellant=s identity was still in question.^[2]  Therefore, we must determine whether the proffered testimony could have allowed the jury to find that appellant was one of the perpetrators.  See Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001).

Here, the trial court stated as a basis for admitting the evidence that it established a connection between the store manager and the alleged perpetrators.  We agree.  The store manager testified that she and appellant previously worked together and that she recognized him when she saw him waiting outside the back of the store during the robbery.  The State=s next witness was a police officer who testified that he used the store manager=s phone records to trace the call to Herrin, and the store manager identified Herrin in a photo spread as the other assailant.

Acts of third parties can be logically relevant to the context in which an act was committed.  Castaldo v. State, 78 S.W.3d at 349.  After hearing the testimony, a juror could make a logical inference that appellant was the individual waiting behind the store because (a) the phone call was traced to Herrin=s phone; (b) the store manager identified appellant and Herrin as co-conspirators in the robbery; and (c) appellant would have reason to know the store manager=s name and phone number.  Thus, the testimony had the effect of making appellant=s identity more probable than if it not been admitted, and therefore, the testimony is relevant.  See Tex. R. Evid. 401 (defining Arelevant evidence@); 404(b) (permitting Aevidence of other crimes, wrongs, or acts@ for the purpose of proving identity; see also Castaldo, 78 S.W.3d at 349 (extending Rule 404(b) to acts not committed by the defendant).

c.         The Evidence is More Probative than Prejudicial

Even if logically relevant to the context, Athe danger of undue prejudice that may arise from evidence of a third party=s misconduct must not outweigh the [probative] value of the evidence.@  Castaldo, 78 S.W.3d at 350 (citing Advisory Committee=s Note, Fed. R. Evid. 404).  When a third party=s acts reflect on the character of the defendant, the effect of the prejudice is greater.  Id.  The prejudicial effect on the defendant may be lessened, however, if the evidence is probative of the third party=s character as well.  Id. 

Although appellant argues the State Afailed to establish any connection between [appellant] and the alleged threats,@ the testimony, as we explained above, allows for such a connection to be made.  Moreover, the trial court minimized the prejudicial effect of the testimony by refusing to allow the store manager to testify that she was told appellant had a connection to the Mafia.  Finally, the trial court gave limiting instructions to the jurors, informing them that the testimony was not to be taken for its truth, but merely for the fact that it was said.  Although the testimony may have impugned the character of both appellant and Herrin, we cannot say that the testimony was more prejudicial than probative.  Accordingly, the decision to admit the testimony was well within the zone of reasonable disagreement, and therefore, we overrule appellant=s first issue.

B.        Did the Trial Court Err by Allowing the State to Impeach Appellant with Evidence of a Prior Conviction?

Appellant filed a motion in limine, seeking to prevent the State from questioning him about his status as a parolee from a 1982 felony conviction.  In denying the motion, the trial court allowed the questioning Astrictly [to show] bias or motive to lie@ when testifying.  Here, appellant argues the trial court erred by denying his motion because Texas Rule of Evidence 609 renders evidence of a conviction that occurred more than ten years earlier inadmissible without a showing by the State that the probative value of the conviction substantially outweighed its prejudicial effect.  Before we address the merits of appellant=s issue, however, we first consider whether it has been properly preserved for our review.

When a motion in limine is denied, error is not preserved unless the aggrieved party makes a proper objection to the proffered evidence.  McDuff v. State, 939 S.W.2d 607, 618 (Tex. Crim. App. 1997) (en banc).  That objection can be raised in a hearing outside the presence of the jury.  Manns v. State, 122 S.W.3d 171, 190 (Tex. Crim. App. 2003).  Although our review of the record does not show evidence of an objection, the State acknowledges in its brief, that A[the trial judge=s] summary of [appellant=s objections] implies that counsel objected under Rule 609@ and Ademonstrate[d] that the court was aware of a Rule 609 staleness issue, so that issue should be treated as preserved.@

The record, however, demonstrates appellant has waived his right to appeal this issue because appellant testified regarding his 1982 conviction on direct examination.  By preemptively introducing evidence of a prior conviction on direct examination, appellant may not claim on appeal that the admission of the evidence was error.  Ohler v. United States, 529 U.S. 753, 759 (2000).  Accordingly, appellant=s second issue is waived.^[3]

For the above reasons, we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed March 16, 2006.

Panel consists of Justice Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]   The trial court later ruled that the witness could not testify that the caller stated that appellant was connected to the Mafia.

^[2]   In his opening statement, appellant=s counsel stated, A[Appellant] was with his family at the time of the robbery . . . and this is simply a case of mistaken identity.@

^[3]  In his brief, appellant argues that Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) (en banc) allowed him to introduce evidence of his prior conviction on direct examination without waiving his right to appeal the trial court=s ruling on his objection.  Appellant=s reliance on Leday is misplaced.  Leday discussed two exceptions to the well-settled rule that Aoverruling an objection to evidence will not result in a reversal when other such evidence was received without objection, either before or after the complained-of ruling . . . [regardless of] whether the evidence was introduced by the defendant or the State.@  Id. at 718.

The first exception arises when a defendant=s decision to testify is made in order to overcome the impact of objected-to evidence that the State allegedly obtained in violation of the law.  Id. at 718B19.  This exception does not apply here.  First, there is no argument that the evidence the State sought to introduce was obtained Ain violation of the law.@  Second, appellant=s decision to testify was made before the State presented its evidence.  In fact, appellant=s trial counsel warned appellant on the record, AIf you do not testify, the jury will not learn you are on parole.  If you do testify, the jury will know you=re on parole.@  Appellant did not introduce the evidence to Aovercome the impact@ of any action taken by the State.  Thus, the first exception does not apply.

The second exception arises when a defendant seeks to Ameet, destroy, or explain@ the objected-to evidence presented by the State by presenting rebutting evidence.  Id. at 719 (emphasis added).  Again, this exception does not apply because appellant did not Arebut@ the State=s evidence of his prior convictions, he introduced it. 

We conclude that neither exception is applicable, and therefore, the general rule applies.  Because the objected-to evidence was introduced by appellant after his objection was overruled, we will not reverse on the grounds that the court erred in its ruling.