PD-1557-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/19/2014 4:25:58 PM Accepted 12/29/2014 10:30:09 AM ABEL ACOSTA PD-1557-14 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS _________________________________________________
JUAN GARZA, JR. APPELLANT December 29, 2014
vs.
THE STATE OF TEXAS APPELLEE _________________________________________________
FROM THE SIXTH COURT OF APPEALS CAUSE NO. 06-14-00054-CR
APPEAL FROM CRIMINAL DISTRICT COURT NO. 2 OF DALLAS COUNTY, CAUSE NO. F12-30953-1, THE HONORABLE DONALD C. ADAMS PRESIDING _________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________________________________
BRUCE ANTON SORRELS, UDASHEN & ANTON State Bar No. 01274700 2311 Cedar Springs, Suite 250 ba@sualaw.com Dallas, Texas 75201 214-468-8100 (office) BRETT ORDIWAY 214-468-8104 (fax) State Bar No. 24079086 bordiway@sualaw.com Counsel for Appellant Ground for Review
Whether, in light of this Court’s opinion in Gutierrez v. State, 36 S.W.3d 509 (Tex. Crim. App. 2001), the court of appeals erred in deter- mining Garza’s complaint was not preserved for review because he obtained no adverse ruling without considering whether the trial court made an implicit ruling on Garza’s objection.
2 Table of Contents
Ground for Review ...................................................................................... 2
Index of Authorities .................................................................................... 4
Identity of Parties and Counsel ................................................................. 5
Statement Regarding Oral Argument ....................................................... 6
Statement of the Case and Procedural History ........................................ 7
Argument .................................................................................................... 9
In light of this Court’s opinion in Gutierrez v. State, 36 S.W.3d 509 (Tex. Crim. App. 2001), the court of appeals erred in determining Garza’s complaint was not preserved for review because he obtained no adverse ruling without considering whether the trial court made an implicit ruling on Garza’s objection. ................................................. 9
I. The court of appeals’s incomplete analysis ................................... 9
II. For over 17 years, explicit rulings have not been required to preserve a complaint for appeal ....................................................... 10
III. There was, at the very least, a question of whether the trial court implicitly ruled on Garza’s objection ...................................... 12
Certificate of Service ................................................................................ 20
Certificate of Compliance ......................................................................... 20
Appendix ................................................................................................... 21
3 Index of Authorities
Cases
Davis v. State, 104 S.W.3d 177, 180 (Tex. App.—Waco 2003, no pet.) .. 19 DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.] 1979) ................................................................................................ 10, 13 Frazier v. Yu, 987 S.W.2d 607, 609–10 (Tex. App.—Fort Worth 1999, pet. denied) ............................................................................................ 11 Garcia v. State, 887 S.W.2d 862, 871 (Tex. Crim. App. 1994)................ 13 Garza v. State, No. 06-14-00054-CR, 2014 WL 5490947 (Tex. App.— Texarkana Oct. 30, 2014) ............................................................. passim Gutierrez v. State, 36 S.W.3d 509 (Tex. Crim. App. 2001) . 2, 9, 12, 13, 19 Jones v. State, 111 S.W.3d 600, 606 (Tex. App.—Dallas 2003, pet. ref’d) ............................................................................................................... 19 Pescaia v. State, No. 06-04-00042-CR, 2004 WL 2359305, at *2 (Tex. App.—Texarkana 2004) ........................................................................ 12 Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995) ..................... 18 State v. Kelley, 20 S.W.3d 147, 153 n. 3 (Tex. App.—Texarkana 2000, no pet.) .................................................................................................. 11, 12
Statutes
TEX. GOV’T CODE § 73.001..................................................................... 8, 13 TEX. PEN. CODE § 22.02(a)(2) ...................................................................... 7
Rules
TEX. R. APP. P. 33.1(a)(2)(A) ..................................................................... 11 TEX. R. APP. P. 52(a) ................................................................................. 11
4 Identity of Parties and Counsel
For Appellant Juan Garza, Jr.:
LAWRENCE PATRICK DAVIS Trial counsel of record LAW OFFICE OF L. PATRICK DAVIS, PLLC 115 North Henderson Street Fort Worth, Texas 76102
BRUCE ANTON BRETT E. ORDIWAY Appellate counsel of record SORRELS, UDASHEN & ANTON 2311 Cedar Springs, Suite 250 Dallas, Texas 75201
For Appellee the State of Texas:
RONTEAR FARMER Trial counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE 133 North Riverfront Boulevard Dallas, Texas 75207
KIMBERLY J. DUNCAN Appellate counsel of record DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
5 Statement Regarding Oral Argument
The Texarkana Court of Appeals’s error was both glaring and
simple. Accordingly, Garza does not believe oral argument will be help-
ful to this Court’s understanding—it’s all on the page.
6 Statement of the Case and Procedural History
The complainant’s neighbor observed her walking down the side-
walk in her nightgown. (RR6: 18-19). She was bruised, swollen, had
dried blood underneath her nose, and was “visibly shaken up.” (RR6:
18-19, 22). The neighbor approached her, and she told him “that she
had been beaten up by [her boyfriend, Garza,] who “had a weapon.”
(RR6: 21). The neighbor called 9-1-1, and the responding police officer,
too, perceived the complainant to be “shaken,” “very upset.” (RR6: 22-
23, 118; SX1). The complainant told him that Garza had returned home
intoxicated and assaulted her. (RR6: 119-20). The complainant further
stated that Garza had pointed a gun at her and threatened to kill her.
(RR6: 122).
Garza was indicted for aggravated assault with a deadly weapon.
(RR6: 107; CR: 19); see TEX. PEN. CODE § 22.02(a)(2). Specifically, the
indictment alleged that Garza intentionally, knowingly, and recklessly
caused bodily injury to the complainant by striking her “with a hand
and hands and by grabbing and squeezing [her] neck with a hand and
hands.” (CR: 19). The indictment further alleged that Garza “use[d] and
exhibit[ed] a deadly weapon; to wit, a firearm, during the commission of
7 the assault.” (CR: 19). Garza pleaded not guilty, but at the conclusion of
his trial the jury found him guilty and sentenced him to 35 years’ im-
prisonment and a $10,000 fine. (RR5; RR6: 14, 138, 180; RR7: 25; CR:
163).
Garza appealed his conviction on three grounds. Garza v. State,
No. 06-14-00054-CR, 2014 WL 5490947 (Tex. App.—Texarkana Oct. 30,
2014). The Texas Supreme Court ordered the appeal transferred to the
Texarkana Court of Appeals in order to balance the courts of appeals’s
dockets. See TEX. GOV’T CODE § 73.001. That court rejected each of Gar-
za’s other grounds, though, and affirmed his conviction, and no motion
for rehearing was filed. Garza, 2014 WL 5490947.
8 Argument
In light of this Court’s opinion in Gutierrez v. State, 36 S.W.3d 509 (Tex. Crim. App. 2001), the court of appeals erred in determining Garza’s complaint was not preserved for review because he obtained no adverse ruling without consider- ing whether the trial court made an implicit rul- ing on Garza’s objection.
! ! !
I. The court of appeals’s incomplete analysis
In Garza’s second ground of error on appeal, he urged the Texar-
kana Court of Appeals that the trial court erred in admitting a police
officer’s testimony referring to Garza’s “violent history.”1 Garza v. State,
No. 06-14-00054-CR, 2014 WL 5490947, at *4 (Tex. App.—Texarkana
Oct. 30, 2014). The court of appeals noted that Garza had, indeed, “ob-
jected under Rules 401, 402, 403, and 404(b) and also asked for a mis-
trial,” and that a “hearing was held outside the presence of the jury.” Id.
From the transcript of that hearing, though, the court determined that
the “trial court denied Garza’s objection under Rule 403 and denied his
1As the court of appeals rightly noted, though this point of error in Garza’s brief was erroneously stylized as “the trial court erred in failing to give an instruction to disregard evidence of an extraneous assault,” the substance of the argument raised a claim for erroneous admission of extraneous-offense evidence in violation of Rule 404(b) of the Texas Rules of Evidence. See Garza, 2014 WL 5490947 at *4 n. 2. 9 motion for mistrial, but never ruled on his objections under Rules 401,
402, or 404(b).” Pointing to this Court’s 1979 opinion in DeRusse v.
State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.] 1979), which
held that a “complaining party must obtain an adverse ruling from the
trial court” in order to preserve the issue for appeal, the court deter-
mined that Garza had thus failed to preserve the issue for review. Gar-
za, 2014 WL 5490947 at *4.
II. For over 17 years, explicit rulings have not been required to preserve a complaint for appeal
To be sure, prior to the enactment of the “new” appellate rules,
which became effective September 1, 1997, a party had to “obtain a rul-
ing” or object to the court’s refusal to rule in order to preserve error for
appellate review. See Frazier v. Yu, 987 S.W.2d 607, 609–10 (Tex.
App.—Fort Worth 1999, pet. denied) (comparing TEX. R. APP. P. 52(a)
with TEX. R. APP. P. 33.1(a)(2)(A)). But revised rule 33.1(a)(2)(A), for-
merly rule 52(a), relaxes that requirement, and now, to preserve any er-
ror, the trial court must rule either expressly or implicitly on the objec-
tion, or refuse to rule with the complaining party objecting to the re-
fusal. See TEX. R. APP. P. 33.1(a)(2)(A); Frazier, 987 S.W.2d at 609–10
(error preserved as long as record indicates in some way that trial court
10 ruled on objection either expressly or implicitly). Thus, “[i]n some in-
stances, a party need not get an express ruling on an objection, motion,
or request to preserve error.” State v. Kelley, 20 S.W.3d 147, 153 n. 3
(Tex. App.—Texarkana 2000, no pet.). “Appellate courts will generally
find that a trial court made an implicit ruling on an objection when the
objection was brought to the trial court's attention and the trial court’s
subsequent action clearly addressed the complaint.” Id.
Of course, an appellate court will not find that the trial court
made an implicit ruling on an objection where the record does not re-
flect that the objection was ever brought to the trial court’s attention.
Id. But where an objection is made, and “the trial court [does] not ex-
pressly rule on the objection, [an appellate court] must determine
whether the trial court implicitly ruled on the objection.” Pescaia v.
State, No. 06-04-00042-CR, 2004 WL 2359305, at *2 (Tex. App.—
Texarkana 2004) (emphasis added) (citing Kelley, 20 S.W.3d at 153 n.
3).
This Court affirmed as much in Gutierrez v. State, 36 S.W.3d 509
(Tex. Crim. App. 2001). In that case, like this one, the court of appeals
stated that in order to preserve an alleged error for appellate review
11 under Rule of Appellate Procedure 33.1, the record must reflect that the
complaint was made to the trial court and that an adverse ruling was
obtained. Id. at 510; Garza, 2014 WL 5490947 at *4. And in that case,
like this one, the court of appeals pointed to pre-1997 case law in sup-
port. Gutierrez, 36 S.W.3d at 510 (citing Garcia v. State, 887 S.W.2d
862, 871 (Tex. Crim. App. 1994)); Garza, 2014 WL 5490947 at *4 (citing
DeRusse, 579 S.W.2d at 235).
This Court swiftly and unanimously vacated the court of appeals’s
judgment and remanded the case to that court to consider whether the
trial court had nonetheless implicitly ruled on the appellant’s com-
plaint. Gutierrez, 36 S.W.3d at 511. This Court noted “the obvious lin-
guistic differences between Rule 33.1(a) and Rule 52(a),” the former “al-
low[ing] for a ruling by the trial court ‘either expressly or impliedly’
while Rule 52(a) simply required that the party obtain ‘a ruling.’” Id. In
only addressing whether “the trial court made an express ruling on ap-
pellant’s motion,” then, the court of appeals erred. Id.
III. There was, at the very least, a question of whether the trial court implicitly ruled on Garza’s objection
Unless the trial court here indisputably failed to rule on Garza’s
objection, then, the court of appeals was bound to consider whether he
12 did so implicitly before dismissing Garza’s complaint as unpreserved.
And here, the record is, at the very least, unclear.
At Garza’s trial, the first-responding police officer testified that he
did not make contact with Garza because of “his violent history.” (RR6:
126). Trial counsel immediately objected under Texas Rule of Evidence
404(b) and “ask[ed] for a ruling.” (RR6: 126). Thus began an extensive
back-and-forth. First, the court suggested, “Well, why don’t you with-
draw your question or re-ask.” (RR6: 126). Garza’s counsel then re-
quested, and received permission, to approach the bench. (RR6: 126).
The jury was excused, and the following occurred:
Court: Do you have an objection?
Counsel: Yeah. I do have an objection. Object to 404(b), 403, 402, 401. I ask the Court for a ruling on 404(b) first.
Court: Well–
Counsel: Violent history. This witness—and before the Court rules, let’s make it very, very clear for the Fifth Court of Appeals.2 This witness is a police officer. He knows better. He’s a sergeant on top of that. He’s testified before. I’m not going to ask him how many
2The Texas Supreme Court ordered the appeal transferred from the Fifth Court of Appeals in order to balance the courts of appeals’s dockets. See TEX. GOV’T CODE § 73.001. 13 times he’s testified. But now—he’s talked about a 2009, incident. Now, he’s talked about the violent history, and he knows bet- ter, Judge.
He knows a lot better, and I don’t think his captain would be too happy with the way he’s come down here and messed this trial up.
Judge, now the jury has heard about a vio- lent history, a 2009 incident, involving my client and Ms. Moore. This same jury— Judge, move for a mistrial. Grant me a mis- trial.
Court: Denied.
Counsel: 404(b). Okay. 404(b).
Court: We’re going to—
Counsel: I ask for a ruling.
Court: —finish this case.
(RR6: 127-28). The court then questioned whether the officer had said
anything even potentially objectionable:
Court: Nothing has come out that I can hear that he stated–
Counsel: I heard it. I heard it. 402.
Court: What did he say? What did he say that’s—
14 Counsel: Violent history. Based on his violent histo- ry. Based on his violent history. Trust me, [the court reporter] has got it. Go ahead, Counsel.
Prosecutor: He did, Your Honor. He said based on his violent history.
Court: Okay.
(RR6: 128-29). The court then asked the State if it had any response:
Prosecutor: The State’s response is: They have not been given the opportunity to clear up what the officer testified to.
Furthermore, the State’s response will be that Defense counsel, himself, stated that his client is going to testify. And that is in- formation that would come out that.
Counsel: That is ridi—
Prosecutor: In the voluntary manslaughter, would abso- lutely come out.
Counsel: Not at this juncture, though, Judge.
Prosecutor: And the State’s—
Counsel: Not at this juncture. That’s crazy.
Prosecutor: And the State’s position is that they can remedy what the officer testified to and ask the Judge to ask the jury to disregard—
Court: All right.
15 Prosecutor: —what was said.
Court: All right. And if you were to ask that, I might do that.
Prosecutor: —and not go into it further.
Counsel: How are they going to disregard that, Judge?
Counsel: That’s like having a naked woman run through your courtroom right now.
Counsel: Could you disregard that?
(RR6: 129-30). The court then instructed the bailiff to bring the jury in,
and that “[i]f you want to make that—we’ll sustain the objection.” (RR6:
130). There is no indication to which objection the court referred, and
counsel then asked:
Counsel: You’ve overruled both of my objections on 404(b), correct? You’ve overruled those?
Court: Well, I mean—
Counsel: Motion for a mistrial. You heard that. Did you overrule it?
Court: I denied the motion for a mistrial.
16 Counsel: Okay. Object under 404(b) to the violent history by Sergeant Diaz.
Court: I don't know that we got that much out of it, but—
Counsel: We did. We did.
Court: So—well, maybe you think so, but I—
Prosecutor: If the State could be given an opportunity to remedy what was said by Sergeant Diaz—
Counsel: Oh. No. No. No. If they get into that, we’re going to object under 404(b) again.
Court: Well, let’s bring in the jury. And, you know, if you want to make all your objections in the record, that’s fine, but we’re going to move on with this case.
Counsel: Sergeant, you need to stay away from that. Counsel, stay away from it. Don’t make it worse. Let’s move on. I'm with the Judge. I'm with Judge Adams.
Prosecutor: I think I know how to do my job.
Counsel: I know. I’m with Judge Adams, so let’s move on.
Court: Let’s get this—let’s get this case over with.
Counsel: Let’s get it going, get this train moving.
17 (RR6: 130-31). The jury then entered the courtroom, and the matter was
not further addressed. (RR6: 131-32). The jury was not told to disregard
the officer’s testimony. (RR6: 132).
Even before the appellate rules’ amendment in 1997, this Court
recognized this scenario as one in which an implicit ruling was made.
See Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim. App. 1995) (defend-
ant’s motion “implicitly overruled” when he twice requested the court to
make a ruling and then stated that the court had denied his motion and
neither the court nor the State corrected that statement). And certainly,
the courts of appeals have since recognized this scenario as one in which
an implicit ruling was made. See, e.g., Davis v. State, 104 S.W.3d 177,
180 (Tex. App.—Waco 2003, no pet.) (implicit ruling found where appel-
lant’s counsel made an offer of proof, excepted to the court’s “ruling,”
and neither the court nor the State contradicted or corrected counsel’s
statement); Jones v. State, 111 S.W.3d 600, 606 (Tex. App.—Dallas
2003, pet. ref’d) (admission of evidence objected to implicitly overrules
the objection).
At the very least, there is a “question . . . whether the trial court’s
ruling was implicit.” Gutierrez, 36 S.W.3d at 511. Accordingly, just as
18 this Court did in Gutierrez, Garza respectfully requests it to grant his
petition so that it may vacate the judgment of the Texarkana Court of
Appeals and then remand the case to that court to consider whether the
trial court’s ruling was implicitly made.
Respectfully submitted,
/s/ Bruce Anton BRUCE ANTON Bar Card No. 01274700 ba@sualaw.com
/s/ Brett Ordiway BRETT ORDIWAY Bar Card No. 24079086 bordiway@sualaw.com
SORRELS, UDASHEN & ANTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214)-468-8100 (office) (214)-468-8104 (fax)
Attorneys for Appellant
19 Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of the foregoing Appellant’s Petition for Discretionary Review was served via U.S. Mail to the Dallas County District Attorney’s Office and the State Prosecuting Attorney on December 19, 2014.
/s/ Bruce Anton BRUCE ANTON
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies that this brief complies with:
1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because this petition contains 1,971 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).
2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style requirements of TEX. R. APP. P. 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14-point Century Schoolbook.
20 Appendix
21 In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-14-00054-CR
JUAN GARZA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court No. F-1230953-1
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Juan Garza, Jr., was indicted in Dallas County, Texas, 1 for aggravated assault with a
deadly weapon involving family or dating violence and was found guilty by a jury. He pled
“true” to the enhancement allegation of a prior felony conviction, and after a punishment hearing
to that same jury, the enhancement allegation was found true. Diaz was sentenced to thirty-five
years’ confinement and assessed a $10,000.00 fine.
On appeal, Garza argues that the trial court erred (1) by permitting testimony which
Garza maintained was an assertion by another witness that the alleged victim’s statements were
truthful, (2) by failing to instruct the jury to disregard evidence of an extraneous offense, and
(3) by admitting victim-impact testimony during the guilt/innocence phase of the trial.
By way of cross-appeal, the State asks this Court to modify the judgment so as to reflect
the existence of the enhancement and the finding of family violence.
I. Factual Background
On the morning of May 5, 2012, about 6:30 or 6:45 a.m., Richard Berna was in his yard
preparing to hold a garage sale when he encountered a woman, later identified as Kelly Moore,
walking down the sidewalk. The woman was dressed in a nightgown, was “visibly shaken up,”
and carried a small dog. Berna saw that Moore had bruising and swelling on her face and dried
blood underneath her nose. When Berna approached Moore and asked if he could help her, she
told him that she had been beaten up by her boyfriend (later identified as Garza) and that she had
1 Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
2 to wait until he fell asleep before she could leave the house and get help. Moore went on to
relate to Berna that her assailant, Garza, “had a weapon.”
Berna telephoned the emergency 9-1-1 number and twenty or thirty minutes later, Grand
Prairie Police Officer Michael Diaz arrived on the scene. Diaz saw that Moore had marks on her
face and chest, and he described her as “shaken,” “very upset,” and carrying a small dog. She
told Diaz that at about 2:30 that morning, Garza had come home very angry and possibly
intoxicated and that he had beaten her for hours. Moore related that during the course of the
beating, Garza had pointed a gun at her and threatened to kill her. Because he believed Garza
was then armed, Diaz did not immediately go to Garza’s residence.
About a month later, on June 6, Garza was arrested and later indicted for aggravated
assault with a deadly weapon involving family violence. Specifically, the indictment alleged that
Garza had
intentionally, knowingly and recklessly cause[d] bodily injury to KELLY MOORE, hereinafter called complainant, by STRIKING COMPLAINANT WITH A HAND AND HANDS AND BY GRABBING AND BY SQUEEZING COMPLAINANT’S NECK WITH A HAND AND HANDS, and said defendant did use and exhibit a deadly weapon, to-wit: a FIREARM, during the commission of the assault,
and further, the said defendant has and has had a dating relationship with the said complainant and the said defendant was a member of the complainant’s family and household . . . .
Garza’s jury trial began December 3, 2013.
During the trial, Moore testified that she and Garza had dated intermittently for nine
years. At the time of the incident, they were living together, and she even called him her spouse.
She testified that at about 2:30 a.m. May 5, 2012, Garza came home intoxicated and seemingly 3 angry. He struck her in the temple with his hands and ordered her to give him the handgun she
kept for protection. Garza then used the gun to add “extra weight” to his punches, before
pointing it at her and threatening to kill her, then trying to suffocate her. The physically abusive
conduct continued for “hours” until Garza fell asleep at about sunrise. When Garza fell asleep,
Moore retrieved the small dog she was pet-sitting that night, left the residence, and began
walking down the street.
Moore was taken to a hospital, where she was diagnosed with having suffered a
concussion, two breaks in her nose, and damaged teeth. Later, at the direction of the police,
Moore recorded a telephone conversation with Garza during which he asked her to drop the
criminal charges. The telephone conversation was played for the jury.
Garza called no witnesses in his defense and rested, after which the jury found him guilty
as charged. Garza pled true to the enhancement paragraph that alleged a prior felony conviction,
and Garza and the State made their cases to the jury for punishment. The jury assessed Garza’s
punishment at thirty-five years’ confinement and a $10,000.00 fine, and the trial court sentenced
him accordingly. This appeal has ensued.
II. Analysis
A. Testimony Regarding Truthfulness of Complainant
In his first point of error, Garza contends that the trial court erred in admitting what
Garza maintains was a statement by Berna that Moore was truthful in her statements to him.
We review the trial court’s admission of evidence for an abuse of discretion. State v.
Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.
4 Crim. App. 2003); Harris v. State, 133 S.W.3d 760, 770 (Tex. App.—Texarkana 2004, pet.
ref’d). An abuse of discretion occurs only when the trial court’s decision “‘was so clearly wrong
as to lie outside that zone within which reasonable persons might disagree.’” Harris, 133
S.W.3d at 770–71 (quoting Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)). We
will uphold the trial court’s ruling if it is reasonably supported by the record and is correct under
any applicable legal theory. Dixon, 206 S.W.3d at 590.
Berna testified that Moore had told him that her boyfriend had beaten her up and that he
had a gun. The State asked Berna, “What did you learn next, if anything?,” and Berna testified
that “[b]ased on what [he] could see, [he] believed that she was telling the truth.” Garza objected
under Rule 608 of the Texas Rules of Evidence, and the trial court overruled the objection.
Garza moved for a mistrial, and the trial court overruled that as well. Berna testified that he then
called 9-1-1, and his wife brought Moore into their home, offered her breakfast, coffee,
“whatever [they] could give her at that time.”
Nonexpert testimony may be offered to support the credibility of a witness in the form of
opinion or reputation, but “the evidence may refer only to character for truthfulness or
untruthfulness.” TEX. R. EVID. 608(a)(1). A lay witness may not, under Rule 608, testify as to
the complainant’s truthfulness in the particular allegations. See Schutz v. State, 957 S.W.2d 52,
72 (Tex. Crim. App. 1997); Fuller v. State, 224 S.W.3d 823, 832–33 (Tex. App.—Texarkana
2007, no pet.). Further, evidence of truthful character may only be offered “after the character of
the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.”
TEX. R. EVID. 608(a)(2).
5 Here, Berna testified to Moore’s truthfulness. The State contends that Berna’s statement
“was offered as an explanation as to why Berna helped Moore—a complete stranger—by calling
911 and inviting her into his home.” However, the trial court could not have rested its ruling on
Berna’s statement to be an explanation for why he helped Moore because the trial court
overruled Garza’s objection before Berna testified to calling 9-1-1, helping Moore, or bringing
her into his home. Therefore, we find the trial court erred in admitting the testimony.
The erroneous admission of evidence for the purpose of demonstrating the nature of a
witness’ character for truthfulness is nonconstitutional error. Rhodes v. State, 308 S.W.3d 6, 10
(Tex. App.—Eastland 2009, pet. dism’d, untimely filed). Thus, we disregard the error unless it
affected appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). Substantial rights are not
affected by the erroneous admission of evidence if, after reviewing the record as a whole, the
appellate court has fair assurance that the error either did not influence or had only a slight effect
on the finder of fact. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In weighing
harm, we consider everything in the record, including the evidence, the character of the alleged
error and how it might be considered together with the other evidence in the case, the jury
instructions, the State’s theory, any defensive theories, closing arguments, voir dire, and whether
the evidence of guilt is overwhelming. Id. at 355–58. In making that determination, this Court is
not concerned with whether there was sufficient evidence on which Garza could have been
convicted, but rather, whether there is a reasonable possibility the impermissible testimony might
have contributed to the conviction. Lopez v. State, 288 S.W.3d 148, 178 (Tex. App.—Corpus
Christi 2009, pet. ref’d).
6 Garza argues that Berna’s testimony “essentially bolstered [Moore’s] credibility,”
arguing further that to believe Berna’s testimony was not harmful “strains credulity.” Here,
Garza’s defensive theory was that although Moore did not lie about the fact that an assault
occurred, she did lie regarding the seriousness of or the extent of the assault, arguing that
“[s]omething happened, just not this, not to this magnitude . . . .” While Berna did testify to
Moore’s credibility, Moore had yet to testify, and Berna’s testimony did not reference the extent
of the assault. Later in the case, Moore herself testified regarding the assault’s extent, duration,
and results. Moore testified that Garza, with a gun in his hand, repeatedly struck her in the head
and choked her. The jury saw photographs of Moore’s injuries taken the morning after the
assault as well as photographs taken a few days later. The medical records show that Moore
suffered a concussion, and her nose was broken in two places. The jury also heard a recorded
telephone conversation between Garza and Moore in which Garza stated he wanted her to be
okay and he did not know what made him snap. During this conversation, when Moore told
Garza that she thought he would kill her during the assault, he replied, “I know . . . . It was a bad
deal.” In addition to the recorded telephone call, there were several text messages from Garza to
Moore introduced in which Garza was urging Moore to drop the charges and change her story.
One of the text messages included the statement, “Your thing is in the trunk of your car.” When
the car trunk was searched, the police found the gun used by Garza in the assault. The State did
not otherwise emphasize Berna’s statement of his belief in the story told him by Moore.
We have a fair assurance that Berna’s statement that he believed Moore to have been
telling him the truth about the nature of the assault had either only a very slight influence or no
7 influence on the deliberations of the jury. Even ignoring Berna’s statement entirely, there was
ample evidence that confirmed for the jury the veracity of Moore’s version of the assault. The
error in allowing Berna’s statement about the truthfulness of Moore’s statement was harmless.
Accordingly, we overrule this point of error.
B. Evidence of Extraneous Offense
In his second point of error, Garza contends that the trial court erred by admitting Diaz’
testimony regarding an extraneous offense committed by Garza. 2
While Diaz was testifying regarding Moore’s oral offense report, he stated that Moore
had told him that Garza “[w]oke her up. And then started beating her as he was screaming at her
about a 2009 case.” Garza objected under Rules 401, 402, 403, and 404(b) of the Texas Rules of
Evidence 3 and requested a mistrial. The trial court overruled his objections and denied his
motion.
On appeal, Garza argues that Diaz’ testimony regarding the 2009 case was inadmissible
evidence of an extraneous offense under Rule 404(b) of the Texas Rules of Evidence.
Extraneous offenses or bad acts are not admissible to prove the defendant acted in conformity
with his criminal nature. TEX. R. EVID. 404(b); Abdnor v. State, 871 S.W.2d 726, 738 (Tex.
Crim. App. 1994). The reference to a 2009 case is not testimony implicating Garza in an arrest,
2 In Garza’s brief, this point of error contends that the trial court erred by “failing to give an instruction to disregard evidence of an extraneous offense,” but the substance of his argument raises a claim for erroneous admission of extraneous-offense evidence in violation of Rule 404(b) of the Texas Rules of Evidence. 3 Rule 401 defines “relevant evidence,” Rule 402 says generally that relevant evidence is usually admissible whereas irrelevant evidence usually is not, Rule 403 spells out some circumstances wherein some evidence (though relevant) should be barred, and Rule 404(b) provides that a person’s prior bad conduct is not admissible for the purpose of showing that a person’s later actions are made in conformity with that person’s prior bad conduct. 8 crime, or bad act. There is nothing the jury heard to illustrate precisely what was meant by the
reference to a “2009 case.” Although that reference might have been to another crime of which
Garza had been accused, it could just as easily have been a reference to a civil case or to a case
involving only Moore. Under these circumstances, Diaz’ reference to a 2009 case is a simple
mystery, too vague to rise to the level of an extraneous bad act under Rule 404(b). Therefore,
the testimony raises no issue for our review.
Later in Diaz’ testimony, he was asked whether, after speaking to Moore at Berna’s
house, he went to Moore’s home to speak with Garza. Diaz replied that he did not do so because
of “his violent history, as she portrayed it to me -- .” As before, Garza objected under Rules 401,
402, 403, and 404(b) and also asked for a mistrial. A hearing was held outside the presence of
the jury, during which Garza not only objected to the statement, he asked for a mistrial—
skipping over a request for the intermediate relief of an instruction for the jury to disregard. The
trial court denied Garza’s objection under Rule 403 and denied his motion for mistrial, but never
ruled on his objections under Rules 401, 402, or 404(b).
As a prerequisite to presenting a complaint for appellate review, an appellant must
present to the trial court a timely request, objection, or motion stating the specific grounds for the
desired ruling. TEX. R. APP. P. 33.1(a)(1)(A). The complaining party must obtain an adverse
ruling from the trial court. DeRusse v. State, 579 S.W.2d 224, 235 (Tex. Crim. App. [Panel Op.]
1979). Finally, the point of error on appeal must correspond to the objection made at trial.
Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998); Thomas v. State, 723 S.W.2d 696,
700 (Tex. Crim. App. 1986).
9 On appeal, Garza’s argument is based upon Rule 404(b); however, regarding Diaz’
reference to Garza’s “violent history,” Garza failed to obtain a ruling (adverse or otherwise) on
his objection. Therefore, he failed to preserve this issue for our review. See TEX. R. APP. P.
33.1(a)(1)(A); DeRusse, 579 S.W.2d at 235.
C. Victim Impact Evidence During Guilt/Innocence Phase of Trial
In his final point of error, Garza contends that the trial court erred by admitting victim-
impact testimony during the guilt/innocence phase of the trial.
During the State’s examination of Moore, the following exchange took place:
Q. Okay. Tell me how this assault has affected your life.
[GARZA’S ATTORNEY]: Your Honor, this is improper at this point.
THE COURT: Well, why don’t you rephrase your question.
Q. (BY [THE STATE]) Have you had any physical consequences to the assault? Has there been -- the aftermath of your injuries?
[GARZA’S ATTORNEY]: Asked and answered, Judge.
THE COURT: Overruled.
A. Yes. I -- I just don’t have the memory and the -- some cognitive skills that I have lost.
[GARZA’S ATTORNEY]: Judge, this is all improper --
[GARZA’S ATTORNEY]: -- at this point. This is all improper. This is all --
A. I lost my job and wages.
10 [GARZA’S ATTORNEY]: -- victim impact?
Q. (BY [THE STATE]) When -- I’m sorry. We only need one person talking because the court reporter has to record things.
A. I’m sorry.
Q. Just let that person talk. And then the Judge will make a ruling, and then you can talk, okay?
A. Okay.
Q. So you said that you have -- you’ve lost some cognitive abilities and lost your memory. How about your teeth? Or did you have to have any surgery or repairing to your teeth or your nose?
A. Yeah. I lost two months of work and had to have my dental work replaced and just scars from the inside.
Outside the context of homicide cases, victim-impact testimony is generally defined as
evidence regarding the physical or psychological effects of a crime on victims themselves. See
Lane v. State, 822 S.W.2d 35, 41 (Tex. Crim. App. 1991). Victim-impact evidence may include
physical, psychological, or economic effects of crime on a victim or a victim’s family. Espinosa
v. State, 194 S.W.3d 703, 711 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Although
victim-impact testimony may be admissible during the punishment stage, such evidence is
generally inadmissible during the guilt/innocence phase because it does not have the tendency to
make more or less probable the existence of any fact of consequence with respect to
guilt/innocence. See Miller–El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (victim’s
testimony about future hardship as paraplegic was irrelevant on guilt issue and thus inadmissible
over objection); see also TEX. R. EVID. 402 (evidence not relevant is inadmissible). Here, Moore 11 testified regarding the physical, psychological, and economic effects of the crime on her.
Therefore, the testimony was very clearly victim-impact testimony in nature, and the trial court
undoubtedly abused its discretion in allowing its admission at this stage of the proceedings.
Having found error, we must conduct a harm analysis to determine whether the error calls
for reversal of the judgment. TEX. R. APP. P. 44.2. If the error is constitutional, we apply Rule
44.2(a) and reverse unless we determine beyond a reasonable doubt that the error did not
contribute to appellant’s conviction or punishment. TEX. R. APP. P. 44.2(a). Otherwise, we
apply Rule 44.2(b) and disregard the error if it does not affect the appellant’s substantial rights.
TEX. R. APP. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Constitutional error is only present when a ruling is constitutionally required; mere
misapplication of the rules of evidence is not constitutional error. Alford v. State, 22 S.W.3d
669, 673 (Tex. App.—Fort Worth 2000, pet. ref’d). Thus, erroneously admitted victim-impact
evidence does not amount to constitutional error. Karnes v. State, 127 S.W.3d 184, 196 (Tex.
App.—Fort Worth 2003, pet. ref’d); Lindsay v. State, 102 S.W.3d 223, 228 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d). We, therefore, consider whether the error affected
Garza’s substantial rights. TEX. R. APP. P. 44.2(b).
“A substantial right is affected when the error had a substantial and injurious effect or
influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim.
App. 1997). To determine whether the substantial rights of the appellant were affected, the
appellate court should consider everything in the record, including any testimony or physical
evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict,
12 the character of the alleged error, the arguments, and the voir dire. Motilla v. State, 78 S.W.3d
352, 355–58 (Tex. Crim. App. 2002). “A criminal conviction should not be overturned by the
erroneous admission of evidence ‘if the appellate court, after examining the record as a whole,
has fair assurance that the error did not influence the jury, or had but a slight effect.’” Ex parte
Henderson, 384 S.W.3d 833, 860–61 (Tex. Crim. App. 2012) (quoting Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998)). The strength of the evidence of guilt, especially if it
is overwhelming, is a factor to be considered. Motilla, 78 S.W.3d at 357–58. Whether the State
emphasized the error can also be a factor in the appellate court’s consideration. Id. at 356. If
there are “grave doubts” about whether the error did not affect the outcome, then the error is
treated as if it did affect the outcome. Fowler v. State, 958 S.W.2d 853, 865 (Tex. App.—Waco
1997), aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999).
After examining the record as a whole, we conclude that the admission of Moore’s
testimony about the ways that the incident has affected her life had only a slight effect, if any, on
the jury during the guilt/innocence phase of the trial. The remainder of Moore’s testimony, if
believed by the jury, was sufficient to prove beyond a reasonable doubt that Garza had severely
beaten Moore with his hands and with the pistol and, thus, committed the offense charged. The
testimony of Berna and Diaz also supports conviction, as do the text messages from Garza, the
recorded telephone conversation, and the medical records. The only reference the State made to
the testimony during its closing argument was an oblique mention that Moore “was terrorized
and still lives with that.” The State did not otherwise emphasize the error. We cannot say that
we are in “grave doubt” about whether the error affected the outcome, and we have a fair
13 assurance on this record that the error had little to no effect on the jury’s guilty verdict. Given
the strength of the evidence of guilt, we find the erroneous admission of the victim-impact
testimony harmless. Accordingly, we overrule this point of error.
D. State’s Cross-Appeal to Modify Findings in Judgment of Conviction
As noted before, in its cross-appeal, the State asks this Court to modify the judgment so
as to reflect Garza’s plea of true to the enhancement, the jury’s finding of true to the
enhancement, and a finding of family violence.
The Texas Rules of Appellate Procedure give this Court authority to modify judgments
and correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; Bigley
v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).
Here, the judgment lists “N/A” next to the spaces for “Plea to 1st Enhancement
Paragraph” and “Findings on 1st Enhancement Paragraph.” The record clearly reflects that
Garza pled true to the enhancement alleged by the State. The jury found the enhancement true.
Article 42.013 of the Texas Code of Criminal Procedure provides that if the trial court
“determines that the offense involved family violence, as defined by Section 71.004, Family
Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in
the judgment of the case.” TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2006); Butler v.
State, 189 S.W.3d 299, 302 (Tex. Crim. App. 2006) (“[T]he trial court is statutorily obligated to
enter an affirmative finding of family violence in its judgment, if during the guilt phase of trial,
the court determines that the offense involved family violence as defined by TEX. FAM. CODE
14 ANN. § 71.004(1).”); Thomas v. State, 150 S.W.3d 887, 889 (Tex. App.—Dallas 2004, pet. ref’d)
(“[T]he trial court had no discretion in entering a family violence finding once it determined the
offense involved family violence.”). “Family violence” includes “dating violence.” TEX. FAM.
CODE ANN. § 71.004(3) (West 2014). “Dating violence” includes an act that is “committed
against a victim . . . with whom the actor has or has had a dating relationship” and that is
intended to result in assault, or that “reasonably places the victim in fear of imminent physical
harm, bodily injury, assault, or sexual assault.” TEX. FAM. CODE ANN. § 71.0021(a)(1)(A), (a)(2)
(West 2014).
The indictment and the jury charge each alleged that Garza presently or previously had a
dating relationship with Moore and that Garza was a member of Moore’s family or household.
The application portion of the jury instructions instructed the jury, in pertinent part,
Now, bearing in mind the foregoing instructions, if you unanimously find from the evidence beyond a reasonable doubt that on or about May 5, 2012, in Dallas County, Texas, the defendant, Juan Garza, Jr., did unlawfully then and there intentionally or knowingly or recklessly cause bodily injury to Kelly Moore, hereinafter called complainant, by striking complainant with hand or hands, and [Garza] did use or exhibit a deadly weapon, to-wit: a firearm during the commission of the assault, and you further find beyond a reasonable doubt that [Garza] has or has had a dating relationship with the said complainant or [Garza] was a member of the complainant’s family or household, then you will find [Garza] guilty of aggravated assault as charged in the indictment.
The jury found Garza guilty as charged in the indictment; therefore, the jury found the allegation
of family violence to be true.
15 Here, Moore gave undisputed testimony that she and Garza dated and lived together.
Despite the evidence provided at trial and the jury’s verdict, the judgment fails to include an
affirmative finding of family violence.
Accordingly, we modify the judgment to include an affirmative finding of family
violence and the prior felony enhancement and affirm the judgment, as modified.
Bailey C. Moseley Justice
Date Submitted: August 28, 2014 Date Decided: October 30, 2014
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