COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
GERARDO VASQUEZ,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
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No. 08-09-00062-CR
Appeal from
171st District Court
of El Paso County, Texas
(TC # 20070D00922)
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O P I N I O N
Gerardo Vasquez appeals his conviction of murder. A jury found Appellant guilty and
assessed his punishment at a fine of $10,000 and life imprisonment. For the reasons that follow, we
affirm.
FACTUAL SUMMARY
One evening, Ahias Blanco and his nephew went to the Cabaret, a strip club in El Paso.
Appellant was also at the Cabaret with his cousin and a friend. The two groups did not know each
other but at some point Appellant began arguing with someone in Blanco’s group. The dispute
cooled and the two groups continued to socialize. The doorman had to enter the club because
Appellant and Blanco were standing in front of the stage and blocking it. They did not appear to be
arguing but they were intoxicated. Around closing time, the doorman went back inside because both
Appellant and Blanco had removed their shirts and were showing their tattoos. They did not appear
to be arguing but both men were extremely intoxicated and the doorman threatened to throw them
out of the club if they did not settle down. Soon afterwards, Blanco and his nephew, trailed by his
friend, walked out of the club and into the parking lot where they stopped to talk. Appellant exited
about thirty seconds later and, after talking briefly with the group, went to the trunk of his car. He
removed a 12 gauge Remington 870 Express Magnum shotgun and held it so it could be seen.
Rather than leaving when he saw the shotgun, Blanco walked slowly toward Appellant while asking,
“What are you going to do with that?” and saying, “Shoot me, shoot me.” Appellant racked the
shotgun, which was loaded with three Winchester slug rounds, and fired a single shot at Blanco who
was about ten to twelve feet from him. Appellant put the gun back in the trunk and left. Blanco died
as a result of a penetrating shotgun wound in the left pelvis.
A deputy sheriff saw Appellant at a truck stop about an hour after the shooting and
recognized him based on the BOLO description which included a distinctive tattoo of two eyes on
the back of his neck. The deputy arrested Appellant, who asked whether Blanco had died and said
that he deserved it. While in the patrol car, Appellant made a number of statements including, “you
f--k with the wrong person, man, . . . that’s what happens,” and if someone challenges him, “he
knows he’s f-----g with death.” He also stated, “I smoked him,” and said that a person should not
challenge someone “full of tattoos.” Appellant subsequently gave a recorded video statement in
which he claimed that he shot Blanco because he kept walking towards him and challenged him.
The police recovered the shotgun from the trunk of Appellant’s car and found that it had one spent
round and two live rounds in it.
The jury rejected Appellant’s claim of self-defense and found him guilty of intentionally
causing Blanco’s death by shooting him with a firearm. This appeal follows.
LEADING QUESTIONS,
A COMMENT BY THE PROSECUTOR,
AND FINAL ARGUMENT
In Issue One, Appellant complains of the trial court’s failure to grant a mistrial after allowing
the State to engage in a pervasive pattern of leading its witnesses.
He also complains about the
prosecutor’s final argument during guilt-innocence and a comment by the prosecutor during the
punishment phase.
Leading Questions
The State contends that Appellant failed to preserve error with respect to most of his
complaints. Evidentiary error must be preserved by making a proper objection and securing a ruling
on that objection. Tex.R.App.P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.
2002); Peralta v. State, ---- S.W.3d ----, 2010 WL 4851388 at *8 (Tex.App.--El Paso 2010, no pet.).
A proper objection is one that is specific and timely. Id. If the objection is sustained, the party must
move for an instruction for the jury to disregard, and if the instruction is given, then the party must
move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). When the appellant
has been given all the relief he requested at trial, there is nothing to complain of on appeal. Cook,
858 S.W.2d at 473.
Appellant cites in his brief to twenty-four instances during trial when the prosecutor allegedly
asked leading questions. The trial court either expressly or impliedly sustained twenty-one of those
objections, overruled one, and did not rule on two other objections.
Appellant did not request a curative instruction in connection with any of the twenty-one
instances where the trial court sustained his objection to a leading question nor did he request a
mistrial. Consequently, Appellant received all of the relief that he sought from the trial court and
nothing is presented for our review. With regard to the two instances where the trial court did not
rule on the objections, error is not preserved. Tex.R.Civ.P. 33.1(a)(2).
Direct Examination of the Doorman
We will now address the instance where the trial court overruled Appellant’s objection. A
leading question suggests the desired answer, instructs the witness how to answer, or puts words into
the witness’s mouth to be echoed back. Tinlin v. State, 983 S.W.2d 65, 70 (Tex.App.--Fort Worth
1998, pet. ref’d). A question is not leading simply because it can be answered “yes” or “no.” Tinlin,
983 S.W.2d at 70. A question is impermissibly leading only when it suggests which answer, “yes”
or “no,” is desired. Id. Leading questions may not be used on the direct examination of a witness
except as may be necessary to develop the testimony of the witness. Tex.R.Evid. 611(c). Thus, the
rule clearly contemplates that some leading questions are acceptable at the trial court’s discretion.
Wyatt v. State, 23 S.W.3d 18, 28 (Tex.Crim.App. 2000). To establish that the trial court abused its
discretion, the appellant must demonstrate that the questions resulted in undue prejudice. Wyatt, 23
S.W.3d at 28.
During direct examination of Cabaret’s doorman, Jon Borrego, the prosecutor asked several
questions about size of Appellant and Blanco:
[The prosecutor]: Okay. What were their relative sizes?
[Borrego]: The one on the right hand side, if I remember correctly, he was a pretty
big individual. As compared to me he was probably 5’10”, 170.
[The prosecutor]: And what was the defendant in your estimation -- of course I know
you didn’t have a scale. You can’t --
[Borrego]: I don’t know 5’10”, 150. 5’6”, 5’7”.
[The prosecutor]: Okay. So the guy who was shot, Mr. Blanco was a tiny bit, just
a little bit larger than the defendant?
[Defense counsel]: Objection, leading, Your Honor.
[The Court]: Sustained.
[The prosecutor]: Can you tell the jury, can you give us a comparison of their
relative sizes?
[Borrego]: Well, between the two the individual on the right that was shot was the
larger man compared to the other one.
[The prosecutor]: By how much, by a lot or a little? [Emphasis added].
[Defense counsel]: Object vagueness, Your Honor, and leading.
[The prosecutor]: Your Honor, it’s --
[The Court]: Overruled.
[The prosecutor]: You said about ten pounds, maybe an inch?
[Borrego]: Maybe 20 pounds, he was a little bit more filled out, I guess you can say.
The prosecutor’s question, “By how much, by a lot or a little?” did not put words in Borrego’s mouth
nor did it suggest the answer. Thus, it is not a leading question. Even if it could be considered a
leading question, Appellant has failed to show that undue prejudice resulted because the witness
answered in his own words and testified consistently that Blanco outweighed Appellant by twenty
pounds. The trial court did not abuse its discretion by overruling the objection.
The Prosecutor’s Comment
Appellant also complains about a comment made by the prosecutor. The record reflects that
the prosecutor was introducing exhibits pursuant to a stipulation at the beginning of the punishment
phase of trial when the following occurred:
[The prosecutor]: State’s Exhibit 126, reflects the verdict in defendant’s conviction
in Cause Number 20000D02097 for three counts of aggravated assault, and this
shows that the defendant, once again, was given seven years of shock probation
which meant that he got down -- sent down to the Texas Department of Criminal
Justice --
[Defense counsel]: Objection, Your Honor --
[The prosecutor]: For a period of time.
[Defense counsel]: Objection.
[The prosecutor]: And brought back.
[Defense counsel]: If Mr. Ferguson wants to testify you can swear him in.
[The prosecutor]: Okay, Your Honor.
[Defense counsel]: And that the jury be instructed to disregard that comment.
[The Court]: Please disregard the last statement made by Mr. Ferguson, please.
[Defense counsel]: And I make a motion for mistrial, Your Honor?
[The Court]: Denied. Go ahead, Mr. Ferguson.
[The prosecutor]: Yes, Your Honor. Show you State’s Exhibit 127, defense counsel,
I presume -- is this -- are you objecting to me explained [sic] what these are,
Sheldon?
[Defense counsel]: No.
Appellant initially made only a general objection which is insufficient to preserve error. See
Buchanan v. State, 207 S.W.3d 772, 775 (Tex.Crim.App. 2006). Appellant next objected to the
prosecutor “testifying” about the exhibit. He did not object and could not have objected on the
ground that the prosecutor was asking a leading question because no witness was on the stand at the
time. To the extent Appellant has characterized this incident as part of the prosecutor’s “pervasive
pattern of leading questions,” the claimed error is not preserved because the objection made at trial
about the prosecutor testifying does not comport with the argument raised on appeal regarding
leading questions. See Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997)(stating that
the issue on appeal must comport with the objection made at trial).
The only preserved issue is whether the trial court abused its discretion by denying
Appellant’s request for a mistrial. A mistrial is an appropriate remedy in “extreme circumstances”
for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884
(Tex.Crim.App. 2009); Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). A mistrial halts
trial proceedings when error is so prejudicial that expenditure of further time and expense would be
wasteful and futile. Ocon, 284 S.W.3d at 884; Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.
1999). Whether an error requires a mistrial must be determined by the particular facts of the case.
Ocon, 284 S.W.3d at 884.
A trial court’s denial of a mistrial is reviewed for an abuse of discretion. Id. An appellate
court views the evidence in the light most favorable to the trial court’s ruling, considering only those
arguments before the court at the time of the ruling. Id.; Wead v. State, 129 S.W.3d 126, 129
(Tex.Crim.App. 2004). The ruling must be upheld if it was within the zone of reasonable
disagreement. Id.
The prosecutor’s attempt to explain shock probation when introducing a prior conviction
pursuant to the parties’ stipulation was improper but it was not so prejudicial that it could not have
cured by the court’s instruction to disregard. The prosecutor did not finish his explanation and the
prosecutor later elicited testimony from a punishment witness to explain shock probation. We
presume the jury followed the trial court’s instruction to disregard the prosecutor’s comment. See
Wesbrook v. State, 29 S.W.3d 103, 116, (Tex.Crim.App. 2000).
Final Argument
Appellant’s next complaint concerns a portion of final argument in which the prosecutor
commented on something which had occurred during trial. During direct examination of Detective
Mike Aman, the prosecutor asked him whether he had seen the wound and how large it was. Aman
had seen the wound after it had been cleaned up and he believed the wound was about one inch in
diameter. The prosecutor then asked, “Or larger?” The trial court sustained Appellant’s objection
to a leading question. The prosecutor then showed Aman a photograph of the body and Aman
testified that the wound appeared to be two inches or two and one-half inches in diameter. During
closing argument, defense counsel criticized the prosecutor for leading the witnesses, including
Detective Aman, and for laughing when defense counsel objected. The prosecutor responded as
follows:
[The prosecutor]: This isn’t reality that the defense is trying to bring you. They are
trying to misdirect or direct your attention away from the defendant’s guilt. Talking
about being fair, he wants to imply that because I laughed and somehow I wasn’t
being fair to the defense. But remember what was going on, we had a man on the
stand who says, Well, that wound was about an inch. We have a photograph that
shows that’s not true.
I have a duty to do justice and present the truth on that stand, and if somebody
says something that is not true and they are mistaken I have a duty to clarify it and
clear it up. So I simply say, Could it have been larger.
[Defense counsel]: Objection, Your Honor, that is a misstatement of the law. He has
no duty to lead the witnesses he’s put on.
[The prosecutor]: I have a duty to clear up a any [sic] misstatement, Your Honor.
[Defense counsel]: Not by those means.
On appeal, Appellant argues that the prosecutor improperly testified to facts during final argument.
He did not, however, object on this ground at trial. Because the argument on appeal does not
comport with his objection, Appellant has failed to preserve error. See Santellan, 939 S.W.2d at 171
(stating that the issue on appeal must comport with the objection made at trial to preserve error).
Issue One is overruled.
CHARGE ERROR
In his second issue, Appellant contends that the trial court erred by refusing to submit an
instruction on the lesser-included offense of aiding suicide. Appellant maintains that the lesser-included offense was raised by evidence that Appellant shot Blanco only after he held up his hands
and said, “Shoot me.”
A trial court’s decision to submit or deny an instruction on a lesser-included offense is
reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App.
2004). We utilize a two-pronged test to determine whether a charge on a lesser-included offense
should be given. McKinney v. State, 207 S.W.3d 366, 370 (Tex.Crim.App. 2006); Hall v. State, 158
S.W.3d 470, 473 (Tex.Crim.App. 2005). The first step is to determine whether the lesser-included
offense is included within the proof necessary to establish the offense charged. Rousseau v. State,
855 S.W.2d 666, 672 (Tex.Crim.App. 1993). The second prong then requires an evaluation to
determine whether some evidence exists that would permit a jury to rationally find that, if the
defendant is guilty, he is guilty only of the lesser offense. Mathis, 67 S.W.3d 918, 925
(Tex.Crim.App. 2002). In other words, the evidence must establish the lesser-included offense as
a valid, rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113
(Tex.Crim.App. 2000). If facts are elicited during trial that raise an issue of the lesser-included
offense, and the charge is properly requested, then a charge must be given. Ross v. State, 861
S.W.2d 870, 877 (Tex.Crim.App. 1993)(op. on reh’g.).
Article 37.09(1) of the Code of Criminal Procedure provides that an offense is a
lesser-included offense “if it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged.” Tex.Code Crim.Proc.Ann. 37.09(1)(West
2006). Texas has adopted the cognate pleadings approach to the first step of the lesser included
offense analysis. McKithan v. State, 324 S.W.3d 582, 587 (Tex.Crim.App. 2010; Ex parte Watson,
306 S.W.3d 259, 273 (Tex.Crim.App. 2009); Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App.
2007). The first prong is satisfied if the indictment for the greater-inclusive offense either:
1) alleges all of the elements of the lesser-included offense, or
2) alleges elements plus facts (including descriptive averments, such as non-statutory
manner and means, that are alleged for purposes of providing notice) from which all
of the elements of the lesser-included offense may be deduced.
Ex parte Watson, 306 S.W.3d at 273. Both statutory elements and any descriptive averments alleged
in the indictment for the greater-inclusive offense should be compared to the statutory elements of
the lesser offense. Id. If a descriptive averment in the indictment for the greater offense is identical
to an element of the lesser offense, or if an element of the lesser offense may be deduced from a
descriptive averment in the indictment for the greater-inclusive offense, this should be factored into
the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are
contained within the allegations of the greater offense. Id. This inquiry is a question of law. Hall,
225 S.W.3d at 535.
The indictment alleged three alternative means of committing murder. Paragraph A alleged
that Appellant intentionally or knowingly caused the death of Blanco by shooting him with a firearm.
See Tex.Penal Code Ann. § 19.02(b)(1)(West 2003). Paragraph B alleged that Appellant, with
intent to cause serious bodily injury to Blanco, committed an act clearly dangerous to human life,
to wit: shooting Blanco with a firearm, that caused Blanco’s death. See Tex.Penal Code Ann.
§ 19.02(b)(2). Paragraph C alleged that Appellant committed or attempted to commit the felony
offense of aggravated assault by threatening Blanco with a firearm, and while in the course of and
in furtherance of the commission of aggravated assault, committed an act clearly dangerous to human
life, to wit: shooting Blanco with a firearm, that caused Blanco’s death. See Tex.Penal Code Ann.
§ 19.02(b)(3).
A person commits the offense of aiding suicide if, with the intent to promote or assist the
commission of suicide by another, he aids or attempts to aid the other to commit or attempt to
commit suicide. Tex.Penal Code Ann. § 22.08. A comparison of the statutory elements and the
indictment reveals that aiding suicide includes a specific intent to promote or assist the commission
of another person’s suicide whereas the offense of murder as charged in the indictment does not.
Further, Section 22.08 has been interpreted as only encompassing conduct which indirectly
contributes to another’s voluntary suicide. Goodin v. State, 726 S.W.2d 956, 958 (Tex.App.--Fort
Worth 1987), aff’d, 750 S.W.2d 789 (Tex.Crim.App. 1988). It does not include conduct which
directly causes the death of another, even if that conduct is done at the deceased’s request. Goodin,
726 S.W.2d at 958. The offense of murder as alleged in the indictment requires proof that Appellant
caused Blanco’s death by shooting him with a firearm. Thus, the elements of aiding suicide are not
established by proof of the same or less than all of the facts required to establish commission of the
charged offense. Issue Two is overruled.
TATTOO AND GANG AFFILIATION EVIDENCE
In his final issue, Appellant argues that the trial court abused its discretion by admitting
evidence of Appellant’s gang affiliation and tattoos during the guilt-innocence phase of trial.
Preservation of Error
To complain about error in the admission of evidence, a party must make a timely and
specific objection or motion to strike. Tex.R.App.P. 33.1(a)(1); Tex.R.Evid. 103(a)(1); Wilson, 71
S.W.3d at 349. During the guilt-innocence phase of trial, the trial court admitted a booking sheet,
State’s Exhibit 32, which contained a statement that Appellant had tattoos on his torso, arms, and
neck. The State had initially offered an unredacted version of the booking sheet which also included
a description of the tattoos, but the court sustained Appellant’s Rule 403 objection and required the
State to redact the description from the exhibit. Appellant did not voice any objection to the redacted
version outside the presence of the jury. Further, when the State offered the redacted version into
evidence, Appellant stated he had “no objection.” By affirmatively stating he had no objection to
the redacted State’s Exhibit 32, Appellant waived any he complaint he had regarding its admission.
See Holmes v. State, 248 S.W.3d 194, 196 (Tex.Crim.App. 2008)(defendant waived complaint
regarding admission of crack pipe by stating “no objection” when the exhibit was offered into
evidence); Swain v. State, 181 S.W.3d 359, 368 (Tex.Crim.App. 2005)(holding that a defendant
waives any error when he affirmatively states no objection to introduction of exhibits despite earlier
objections).
Appellant also contends the trial court erred in admitting State’s Exhibit 122 which is
Appellant’s videotaped statement. During the interview, the detective questioned Appellant about
the events before the shooting and why Appellant shot Blanco. In an apparent effort to learn whether
the shooting was gang-related, the detective asked Appellant about his gang affiliation, and
Appellant stated that he “used to be from Canuto” but he was trying to change.
In this same vein,
the detective later questioned Appellant about showing his tattoos to Blanco in the club:
[Detective]: What tattoos were you showing?
[Appellant]: I can’t remember, sir, my stomach.
[Detective]: Take off your shirt and show me. What’s it say, a gangster’s trip?
[Appellant]: Yeah.
[Detective]: (Inaudible) Canuto.
[Detective]: You show look I’m with Canuto or what are you saying?
[Appellant]: I don’t know. I can’t remember, sir.
[Detective]: Was he a gang member, too?
[Appellant]: He didn’t say, but --
[Detective]: Okay.
[Appellant]: (Inaudible). Was he?
[Detective]: I don’t know.
[Appellant]: I don’t know. (Inaudible) jail man, he was a type of person because
he’s been in jail before and he knows that when you go in there you’re probably in
a gang. So he sees me all tagged up, trying to and (inaudible) that’s what he was
trying to do.
[Detective]: Trying to intimidate you with -- saying he is an Azteca?
[Appellant]: (Inaudible).
Prior to the admission of State’s Exhibit 122, Appellant objected that the exhibit contained
“reference to tattoos and gang membership which I think are character evidence” and he argued that
the danger of unfair prejudice outweighed the probative value. He did not identify the particular
portions of the exhibit which he found objectionable.
When an exhibit contains both admissible and inadmissible evidence, the burden is on the
objecting party to specifically point out which portion of the recording is inadmissible. Whitaker v.
State, 286 S.W.3d 355, 369 (Tex.Crim.App. 2009), citing Hernandez v. State, 599 S.W.2d 614, 617
(Tex.Crim.App. 1980)(op. on reh’g). A trial court is not obligated to search through an exhibit, such
as a recorded statement, and segregate the admissible evidence from the inadmissible. Whitaker, 286
S.W.3d at 369. Appellant objected to the entire videotaped statement without identifying the specific
portions to which his objection applied. Consequently, we find that Appellant did not preserve his
complaint regarding State’s Exhibit 122. We overrule Issue Three and affirm the judgment of the
trial court.
April 28, 2011
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)