COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-170-CR
HUGO ALEJANDRO SIERRA APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT
COUNTY
OPINION ON REHEARING
After
reconsidering our prior opinion on appellant’s motion for rehearing, we deny
the motion, but we withdraw our September 30, 2004 opinion and judgment and
substitute the following in their place.
INTRODUCTION
Hugo
Alejandro Sierra appeals from his conviction for capital murder. In eleven
issues, appellant complains that the trial court erred (1) in overruling his
motion to suppress appellant’s confession because it was obtained in violation
of article 15.16 of the Texas Code of Criminal Procedure, in violation of
article 38.23 of the Texas Code of Criminal Procedure, in violation of the
Vienna Convention, and in violation of the state and federal constitutional
protections against self incrimination; (2) in overruling appellant’s
requested charge to the jury on the voluntariness of appellant’s statement;
(3) in overruling appellant’s Texas Rule of Evidence 403 objection to the
introduction of autopsy photographs; (4) in overruling appellant’s Batson
challenge because all Hispanic male jurors were struck by the State; (5) in
overruling appellant’s requested jury charge on accomplice testimony; (6) in
overruling appellant’s Texas Rule of Evidence 403 objection to the playing of
the 911 tape; (7) in overruling appellant’s motion for a mistrial because the
emotional testimony of the murder victim’s widow violated Texas Rule of
Evidence 403, the state and federal constitutions, and the code of criminal
procedure; (8) in overruling appellant’s motion to declare the automatic life
sentence for capital punishment as cruel and unusual punishment; and (9) by
denying appellant the right to impeach Martin Esparza with a felony conviction
from Mexico. We affirm.
FACTS
On
March 23, 2001, appellant, a Mexican national, borrowed a gun from his cousin
and a white truck from his cousin’s roommate. Appellant and Heliberto Chi
planned to use the truck and gun to commit a robbery at the K & G Men’s
store in Arlington, where Chi used to work.
The
next afternoon, appellant and Chi went to K & G and “stood around”
inside talking to several of Chi’s former co-workers. Appellant and Chi then
went out to the parking lot to wait until closing time.
At
around 8:45 p.m., Chi left appellant in the truck and went into the store saying
that he had left his wallet there. Chi told appellant that he would shoot people
if necessary. After pretending to look for his wallet with no luck, Chi
acted as though he were leaving and walked toward the front of the store.
When he reached the front of the store, he pulled a gun on the three employees
while appellant stayed in the parking lot in the truck with the engine running.
At
one point, Chi demanded that the employees give him the deposit bag. Armand
Paliotta gave it to him, but then pushed Chi and ran toward the front of the
store. The two other employees, Gloria Chavez and Adrian Riojas, ran
toward the warehouse. First, Chi shot Paliotta, then he went after Riojas
and shot him in the back. Chi looked for Chavez, but did not find her
because she was hiding in a clothes rack. Paliotta died almost instantly,
but Riojas and Chavez survived.
Appellant
and Chi fled in the truck, and appellant eventually drove them back to his
apartment. There, they divided the money, and appellant left with
$500. The next day, appellant returned the truck to his cousin’s
roommate and the gun to his cousin. Two of the bullets from the gun were
missing, and appellant told his cousin that he lost them.
The
police first suspected that appellant might be involved in the robbery and
murder because Chi had dated appellant’s sister. When searching for Chi,
the police went to appellant’s apartment and arrested appellant on outstanding
traffic tickets from Dallas County. After his arrest, appellant signed a
written confession regarding his involvement in the robbery and murder.
The jury found appellant guilty of capital murder, and the trial court sentenced
him to life imprisonment.
MOTION TO SUPPRESS
In
his first three issues, appellant complains that the trial court erred in
overruling appellant’s motion to suppress his confession to the police.
Standard of Review
We
review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323,
327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997). In reviewing the trial court’s decision, we do not
engage in our own factual review. Romero v. State, 800 S.W.2d 539,
543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex.
App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of
fact and judge of the credibility of the witnesses and the weight to be given
their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App.
1999). Therefore, we give almost total deference to the trial court’s
rulings on (1) questions of historical fact and (2) application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor. Johnson v.
State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Harrison v. State,
144 S.W.3d 82, 85 (Tex. App.—Fort Worth 2004, pet. filed); Best, 118
S.W.3d at 861-62. However, when the trial court’s rulings do not turn on
the credibility and demeanor of the witnesses, we review de novo a trial
court’s rulings on mixed questions of law and fact. Johnson, 68
S.W.3d at 652-53.
Background Facts Relating to the Motion to Suppress
Police
officers arrested appellant at his apartment in Dallas County for outstanding
traffic tickets from Dallas County. After the arrest, the police took him
to the Arlington Police Department without first taking him to a magistrate in
Dallas County. At police department, appellant told the police that “he
wanted to be honest, wanted to be truthful, wanted to talk.” Before the
police interrogated appellant, they read him his Miranda rights, and
appellant initialed the Miranda warning card. After about ten
minutes of interrogation, appellant orally confessed to helping Chi commit the
robbery and murder that took place at the K & G.
Detective
Tommy LeNoir asked appellant if he would reduce his oral confession to a written
statement and appellant agreed. But while writing his confession, appellant
could not recall the exact name of the store or its address. To make sure
that appellant and the police were talking about the same offense, Detective
LeNoir had appellant take him to the K & G Men’s Store in Arlington, where
appellant confirmed that it was the correct store. Back at the police
station, appellant finished his written confession, edited it, and signed
it. The trial court admitted the confession into evidence at trial.
Violation of the Code of Criminal Procedure
In
his first issue, appellant complains that the trial court erred by denying his
motion to suppress his confession because the police obtained the confession in
violation of code of criminal procedure 15.16, which states that the person
executing an arrest warrant shall without unnecessary delay take the arrested
person before the magistrate who issued the warrant or is named in the warrant,
if the magistrate is in the same county where the person is arrested. Tex. Code. Crim. Proc. Ann. art. 15.16
(Vernon 1977). Texas Code of Criminal Procedure article 38.23 provides
that evidence obtained in violation of the Texas and U.S. Constitutions or laws
of the State of Texas shall not be admitted in evidence against the accused on
the trial of any criminal case. Tex.
Code. Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2004-05).
However, evidence is not obtained in violation of law and is not subject to
exclusion under the statutory exclusionary rule if there is no causal connection
between the illegal conduct and the acquisition of the evidence. Gonzales
v. State, 67 S.W.3d 910, 912 (Tex. Crim. App. 2002); Roquemore v. State,
60 S.W.3d 862, 870 (Tex. Crim. App. 2001); Chavez v. State, 9 S.W.3d 817,
820 (Tex. Crim. App. 2000). Likewise, it is well-settled, however, that
the failure to take an arrestee before a magistrate in a timely manner will not
invalidate a confession unless there is proof of a causal connection between the
delay and the confession. Cantu, 842 S.W.2d at 680.
Accordingly, the State contends that there was no causal connection between the
alleged violation of article 15.16 and appellant’s confession.
Here,
appellant said he wanted to tell the truth about what had happened; the police
read him his Miranda rights; appellant signed the Miranda
warnings, indicating he received and understood his rights; appellant gave the
police an oral confession within ten minutes of beginning the interrogation; and
Miranda warnings were contained in the written confession that appellant
also signed. This evidence shows that appellant freely, knowingly, and
voluntarily gave the police his confession and any delay in bringing appellant
before a magistrate had no causal connection to appellant’s statement.
We hold that the trial court did not abuse its discretion in denying
appellant’s motion to suppress his confession on a violation of article 15.16
of the code of criminal procedure. See Cantu, 842 S.W.2d at 680; Childress
v. State, 312 S.W.2d 247, 250 (Tex. Crim. App. 1958) (holding confession
made while under arrest is not inadmissible as a matter of law because officers
failed to take accused before magistrate); Golemon v. State, 247 S.W.2d
119, 124 (Tex. Crim. App.) (holding failure to bring the defendant before a
magistrate does not render confession inadmissible on theory that such failure
was a violation of the law), cert. denied, 344 U.S. 847 (1952). We
overrule appellant’s first issue.
Vienna Convention
In
his second issue, appellant argues that the trial court erred by denying his
motion to suppress due to a violation of section 36 of the Vienna
Convention. Although appellant concedes that the Texas Court of Criminal
Appeals’s decision in Rocha v. State controls this case, he argues that
the decision is against public policy and should be reversed. 16 S.W.3d 1, 19
(Tex. Crim. App. 2000) (holding that the exclusionary rule of the Texas Code of
Criminal Procedure did not apply to treaty violations).
Section
36 of the Vienna Convention provides that when nationals from participating
countries are arrested in the United States, the authorities are required to
notify the foreign national that he has a right to contact his nation’s
consulate. Vienna Convention on Consular Relations, Apr. 24, 1963, art.
36(1)(b), at http://www.un.org/law/ilc/texts/consul.htm.
If the foreign national requests, the authorities “shall, without delay”
inform the foreign consulate that he has been detained. Id.
Additionally, the consular officials from the foreign country shall have the
right to visit their nationals in custody in the United States. Id.
art. 36(1)(c). Appellant argues that his confession should have been
suppressed because the police never notified him that, as a Mexican national, he
had a right to contact the Mexican Consulate, nor did the police contact the
consulate on his behalf.
The
State argues that this court is bound by the court of criminal appeals decision
in Rocha. 16 S.W.3d at 18-19. The court in Rocha held
that the article 38.23(a) exclusionary rule of the Texas Code of Criminal
Procedure does not apply to violations of treaties. Id.; see also Tex. Code Crim. Proc. Ann. §
38.23(a). Absent contrary directions from the United States Supreme Court,
the court of criminal appeals stated that it would not enforce Vienna Convention
violations claimed under the federal exclusionary rule. Rocha, 16
S.W.3d at 19. This court is bound by the precedent of the Texas Court of
Criminal Appeals and has no authority to disregard or overrule the precedent in Rocha.
See Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—Fort Worth 2003, pet.
ref’d). Accordingly, we hold that the trial court did not abuse its
discretion by denying appellant’s motion to suppress on this ground.
Therefore, we overrule appellant’s second issue.
Violation of Appellant’s Constitutional Right
Against Self Incrimination
In
his third issue, appellant complains that the trial court erred by denying his
motion to suppress because it violated appellant’s Texas and United States
Constitutional rights against self-incrimination. Although appellant
alleges that admission of his confession violated the Texas and United States
Constitutions, his argument consists of only one paragraph and does not cite a
single legal authority in support of his argument. Thus, appellant has
inadequately briefed this argument, and we will not consider it. See
Tex. R. App. P. 38.1(h); Jackson
v. State, 50 S.W.3d 579, 591 n.1 (Tex. App.—Fort Worth 2001, pet. ref’d)
(explaining that by raising an issue and failing to present any argument or
authority on that issue, the party waives that issue).
JURY CHARGE ERRORS
In
appellant’s fourth issue, he complains that the trial court erred by denying
his jury charge request on voluntariness. Appellant claims that his
confession is involuntary and therefore inadmissible due to violations of the
Vienna Convention. As we have previously discussed, the court of criminal
appeals in Rocha determined that a violation of the Vienna Convention
provides no basis for the jury to disregard an otherwise voluntary
confession. Rocha, 16 S.W.3d at 18-19. Therefore, the trial
court’s failure to give the requested instruction regarding the affect of the
Vienna Convention was not error. See Sifuentes v. State, 29 S.W.3d
238, 244 (Tex. App.—Amarillo 2000, pet. ref’d). Appellant’s fourth
issue is overruled.
In
appellant’s seventh issue, he complains that the trial court erred by denying
his request for a jury charge on accomplice testimony. Appellant’s
complaint focuses specifically on the testimony given at trial by Martin Esparza
and Jose Luis Soto, who, respectively, provided the truck and the gun used in
the robbery and murder. Appellant argues that Soto and Esparza were
accomplices and, as such, the code of criminal procedure prohibited the State
from convicting appellant solely on their uncorroborated testimony.
Article
38.14 of the Code of Criminal Procedure provides as follows:
A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed; and the corroboration is not sufficient if it merely shows the
commission of the offense.
TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 1979). In conducting
a sufficiency review under the accomplice-witness rule, the reviewing court must
eliminate the accomplice testimony from consideration and then examine the
remaining portions of the record to ascertain if there is any evidence that
tends to connect the accused with the commission of the crime. Solomon
v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Hernandez v. State,
939 S.W.2d 173, 176 (Tex. Crim. App. 1997). “Tendency to connect”
rather than rational sufficiency is the standard: the corroborating evidence
need not be sufficient by itself to establish guilt beyond a reasonable
doubt. Solomon, 49 S.W.3d at 361; Cathey v. State, 992
S.W.2d 460, 462 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 1082
(2000). Nor is it necessary for the corroborating evidence to directly
link the accused to the commission of the offense. Cathey, 992
S.W.2d at 462. To satisfy the accomplice-witness rule there simply needs
to be other evidence tending to connect the accused to the commission of the
offense. Id. at 463.
When
there exists no doubt that a witness is an accomplice, the court is under a duty
to so instruct the jury and failure to do so may be reversible error. DeBlanc
v. State, 799 S.W.2d 701, 709 (Tex. Crim. App. 1990) (applying Almanza),
cert. denied, 501 U.S. 1259 (1991); Solis v. State, 792 S.W.2d 95,
98 (Tex. Crim. App. 1990) (same); Burns v. State, 703 S.W.2d 649, 651
(Tex. Crim. App. 1985) (same). If there is doubt whether a witness is an
accomplice witness, the trial court may submit the issue to the jury even though
the evidence weighs in favor of the conclusion that the witness is an accomplice
as a matter of law. Kunkle v. State, 771 S.W.2d 435, 440-41 (Tex.
Crim. App. 1986), cert. denied, 492 U.S. 925 (1989).
The
State contends that no accomplice witness instruction was required because
neither Esparza nor Soto were accomplices. The evidence at trial showed
that appellant borrowed a white truck and a gun from Esparza and Soto,
respectively, and offered to pay them for the use of these items. No
evidence was presented at trial to show that Soto and Esparza had any knowledge
of the crime or played any role in the robbery and murder. Detective
LeNoir testified that the police initially considered Esparza and Soto as
potential accomplices to the crime because they supplied the gun and
truck. But the police cleared them as accomplices after appellant made his
statement saying that neither had any knowledge what the items were to be used
for. According to appellant, Esparza thought he was using the truck to
“go out with some girls.” Appellant stated that he did not tell Soto
why he needed the gun. Even appellant’s written confession, admitted at
trial, denied that Esparza and Soto had any knowledge of why appellant wanted to
borrow the gun and truck.
Additionally,
sufficient evidence existed to corroborate appellant’s participation in the
crime, namely, his confession. Because neither Esparza nor Soto could be
considered accomplices and sufficient evidence existed to corroborate
appellant’s involvement, appellant was not entitled to a jury instruction on
accomplice testimony. We hold that the trial court did not err in denying
appellant’s requested instruction and overrule appellant’s seventh issue.
RULE 403 OBJECTIONS
In
his fifth and eighth issues, appellant complains that the trial court erred by
overruling his objections to the introduction of autopsy photographs and the
playing of the 911 phone call recording reporting the crime. He contends
that the exhibits were more prejudicial than probative under Texas Rule of
Evidence 403. Tex. R. Evid.
403.
In
reviewing the trial court’s determination of the probative and prejudicial
value of evidence under rule 403, we will reverse the trial court only upon a
clear abuse of discretion. Rachal v. State, 917 S.W.2d 799, 808
(Tex. Crim. App.), cert. denied, 519 U.S. 1043 (1996); Montgomery v.
State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991) (op. on reh’g).
But, reviewing for abuse of discretion in this context requires more than
deciding that the trial judge did in fact conduct the required balancing between
probative and prejudicial values; the trial court’s determination must be
reasonable in view of all relevant facts. Rachal, 917 S.W.2d at
808; Montgomery, 810 S.W.2d at 392. Accordingly, if the record
reveals that the probative value of the tendered evidence is substantially
outweighed by unfair prejudice, then the trial court acted irrationally in
admitting it and abused its discretion. Rachal, 917 S.W.2d at 808; Montgomery,
810 S.W.2d at 392.
Autopsy Photographs
In
his fifth issue, appellant argues that the trial court erred by overruling his
objection to three autopsy photographs of Paliotta’s body. At trial,
appellant objected to their admission arguing that the photographs were “very
gruesome” and would unfairly prejudice appellant if admitted. Appellant
also claimed that the photographs were cumulative as to the cause of
Paliotta’s death and that the cause of death could be shown by the medical
examiner’s testimony and sketches.
With
regard to appellant’s challenges, rule 403 requires an admissible photograph
to possess “some probative value and that its probative value not be
substantially outweighed by its inflammatory nature.” Santellan v.
State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997) (quoting Long v. State,
823 S.W.2d 259, 272 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224
(1992)). In making this determination, we consider factors including the
following: the number of exhibits offered, their gruesomeness, their detail,
their size, whether they are black and white or color, whether they are close-up
shots, whether the body is naked or clothed, the availability of other means of
proof, and other circumstances unique to the individual case. Id.
Here,
the three color photos at issue showed close-up views of the bullet entry wound
on Paliotta’s back, the large bruise on the front of his chest where the
bullet tried to exit, and his bloodied face. The photos depicted the
extent and nature of Paliotta’s wounds and did not show any alteration to his
body resulting from autopsy or medical procedures. See id. (allowing
autopsy photos unless they depict mutilation of the victim caused by the autopsy
itself). The photographs were admitted during the State medical
examiner’s testimony and they assisted him in describing his findings for the
jury and illustrating to the jury the location and nature of Paliotta’s
wounds. See Matamoros v. State, 901 S.W.2d 470, 476 (Tex.
1995) (admitting morgue photos of wounds because they added to jury’s
understanding of the nature of the wounds involved); Rogers v. State, 774
S.W.2d 247, 258 (Tex. Crim. App.) (holding that admission of autopsy photographs
in capital murder prosecution was allowed for illustrative purposes with respect
to pathologist’s testimony regarding cause of death), cert. denied, 493
U.S. 984 (1989), overruled on other grounds by, Peek v. State, 106 S.W.3d
72, 79 (Tex. Crim. App. 2003). Paliotta was clothed from the waist down
and the photos focused primarily on the gunshot wound that caused his
death. The photographs were not unnecessarily gruesome or so inflammatory
that they would be excludable from a capital murder trial on grounds that their
probative value, to show circumstances of crime and to depict reality of
offense, was substantially outweighed by danger of unfair prejudice. See
Chamberlain v. State, 998 S.W.2d 230, 236-38 (Tex. Crim. App. 1999), cert.
denied, 528 U.S. 1082 (2000). We hold that the trial court did not
abuse its discretion in admitting the photographs. We overrule appellant’s
fifth issue.
911 Tape Recording
In
appellant’s eighth issue, he complains that the trial court erred in allowing
the State to play the 911 tape aloud to the jury. He argues that, instead,
the trial court should have admitted a written transcript of the 911 tape in
order to avoid “inflam[ing] the minds of the jurors and unduly predjudic[ing]
the Appellant.” Riojas and Chavez were excited and distraught on the 911
recording, but did not display such emotion as to inflame the jurors to act on
emotion rather than on the evidence. Although the 911 recording was
prejudicial to appellant, its probative value was not outweighed by the risk of
undue prejudice. We hold that the trial court did not abuse its discretion
by allowing the tape to be played in front of the jury. We overrule
appellant’s eighth issue. See Anderson v. State, 15 S.W.3d 177,
186 (Tex. App.—Texarkana 2000, no pet.) (holding tape of call by victim’s
husband to 911 was not more prejudicial than probative, even though tape was
prejudicial to defendant, where tape covered period immediately after murder of
wife, and contained eyewitness statements identifying defendant as the
attacker); Munoz v. State, 932 S.W.2d 242, 244 (Tex. App.—Texarkana
1996, no pet.) (holding tape recording of emergency call, in which caller told
dispatcher that victim had been shot, was not more prejudicial than probative in
murder trial; tape provided framework within which state’s evidence could be
developed, tape was not unduly graphic, and, although caller was excited and
distraught, he did not display the kind of inflammatory emotion that would be
calculated to cause jurors to act on emotion rather than evidence).
BATSON CHALLENGE
In
his sixth issue, appellant complains that the trial court erred by overruling
his Batson challenge because the State struck all potential Hispanic male
jurors.
Appellant
is a Hispanic male and a Mexican national. During the voir dire
examination, the State used peremptory strikes to strike the only two male
Hispanic veniremembers. The Fourteenth Amendment prohibits the use of
peremptory challenges in a racially discriminatory manner. Batson v.
Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986); Ladd v. State,
3 S.W.3d 547, 563 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070
(2000). When one party makes a prima facie case that another’s use of a
peremptory strike is racially discriminatory, the striker must tender to the
trial court race-neutral reasons for having made it. Ladd, 3 S.W.3d
at 563. The challenger then must prove that the discrimination was
purposeful. Id.
Here,
the State struck the only two potential Hispanic male jurors on the panel.
However, quite a few minorities remained on the jury panel. The court
noted that jurors, Sally Rodriguez and Anita Garcia, were Hispanic and that Dawn
Alvarez also had a Hispanic surname. Additionally, juror Wade was an
African-American male. Appellant made a Batson challenge to the
State’s use of their peremptory strikes, but the trial court ruled that
appellant failed to make a prima facie case that the strikes were racially
motivated.
Even
so, the State explained that it struck veniremember number eight, Rafael
Bustamante, because he was the first juror to ask a question on the issue of
what appellant should have anticipated when Chi went into the store.
Because Bustamante had trouble deciding that issue, the State struck him.
The State also struck veniremember twenty, Steve Hernandez, because the police
had arrested him three times for domestic violence. The State felt as
though the arrests illustrated that Hernandez could not be a reliable State’s
juror.
Once
the State gave its race-neutral explanations for striking Bustamante and
Hernandez, the issue of whether appellant established a prima facie case became
moot and appellant was then required to prove that the discrimination was
purposeful. Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859,
1866 (1991); Ladd, 3 S.W.3d at 563; Malone v. State, 919 S.W.2d
410, 412 (Tex. Crim. App. 1996). Because the trial court is in a unique
position to determine the veracity of race-neutral reasons for exercising
peremptory challenges, we must accord the trial court’s decision great
deference and may not overturn it unless clearly erroneous. Jasper v.
State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001). Our standard of
review requires that we view the evidence in the light most favorable to the
trial court’s ruling. Id. Having done so, we hold that the
record before us does not establish that Bustamante and Hernandez were struck
for racially discriminatory reasons. We overrule appellant’s sixth
issue.
WIDOW’S TESTIMONY
In
his ninth issue, appellant complains that the trial court erred by overruling
appellant’s motion for a mistrial because the emotional testimony of
Paliotta’s widow had no probative value and unfairly prejudiced appellant
under evidence rule 403, the state and federal constitutions, and the code of
criminal procedure’s guarantees of due process and fair trials. Although
appellant alleges that admission of the widow’s testimony violated the Texas
and United States Constitutions, the rules of evidence, and the code of criminal
procedure, his argument consists of only four sentences, and he does not cite a
single authority in support of his argument. Additionally, appellant
failed to show how he was harmed by the testimony. Thus, appellant has
inadequately briefed this argument, and we will not consider it. See
Tex. R. App. P. 38.1(h); Jackson,
50 S.W.3d at 591 n.1 (explaining that by raising an issue and failing to present
any argument or authority on that issue, the party waives that issue).
CRUEL AND UNUSUAL PUNISHMENT
In
his tenth issue, appellant complains that the trial court erred by overruling
appellant’s motion to declare the automatic life sentence for capital
punishment as cruel and unusual punishment.
Appellant
contends his punishment is cruel and unusual in violation of the Eighth
Amendment to the United States Constitution. Specifically, he contends the
automatic life sentence imposed by section 12.31 of the penal code and article
37.071, section 1 of the code of criminal procedure violates his right to an
individualized sentence under the Eighth Amendment. U.S. Const. amend. VIII; Tex. Code Crim. Proc. Ann. art. 37.071,
§ 1 (Vernon Supp. 2004-05); Tex. Penal
Code Ann. § 12.31(a) (Vernon 2003). Numerous courts, including
this one, have rejected the argument that the assessment of a mandatory life
sentence for the offense of capital murder constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment. See, e.g., Buhl
v. State, 960 S.W.2d 927, 935 (Tex. App.—Waco, pet. ref’d), cert.
denied, 525 U.S. 1057 (1998); Laird v. State, 933 S.W.2d 707, 714-15
(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d); Prater v. State,
903 S.W.2d 57, 59 (Tex. App.—Fort Worth 1995, no pet.). We are
unpersuaded by appellant’s request to revisit this issue. Moreover,
Texas courts have traditionally held that as long as the punishment is within
the range prescribed by the Texas Legislature, the punishment is not excessive,
cruel, or unusual. See, e.g., Alvarez v. State, 63 S.W.3d 578, 580
(Tex. App.—Fort Worth 2001, no pet.). Here, appellant received a
punishment within the statutory range. See Tex. Penal Code Ann. § 12.31(a) (a
defendant convicted of capital murder receives a mandatory life sentence when
the State waives the death penalty). Appellant’s tenth issue is
overruled.
IMPEACHMENT OF A WITNESS
In
his eleventh issue, appellant complains that the trial court erred by denying
appellant the right to impeach Martin Esparza with a felony conviction from
Mexico.
Rule
of evidence 609(a) provides as follows:
For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime shall be admitted if elicited from the
witness or established by public record but only if the crime was a felony or
involved moral turpitude, regardless of punishment, and the court determines
that the probative value of admitting this evidence outweighs its prejudicial
effect to a party.
Tex. R. Evid. 609(a). The
proponent of the evidence must show that it is admissible. Arnold v.
State, 36 S.W.3d 542, 546 (Tex. App.—Tyler 2000, pet. ref’d). When
reviewing a trial court’s decision to admit evidence of a defendant’s
previous conviction, we accord the trial court wide discretion and reverse only
when the court’s decision lies outside the zone of reasonable
disagreement. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App.
1992).
Esparza
testified outside the jury’s presence that the Mexican police stopped him for
possession of a firearm and held him in a Durango, Mexico jail for a day and a
half. Although Esparza admitted the offense was a felony in Mexico, he
claimed that he never went before a judge or a court in the case.
Appellant never offered any documents or testimony establishing the existence of
a felony conviction, nor did he request a continuance to obtain proof. It
was appellant’s burden to produce evidence showing that a prior felony
conviction existed. See Arnold , 36 S.W.3d at 546. Based upon
this record, we hold that the trial court did not err in denying appellant’s
request to impeach. We overrule appellant’s eleventh issue.
CONCLUSION
Having
overruled all of appellant’s issues on appeal, we affirm the trial court’s
judgment.
TERRIE
LIVINGSTON
JUSTICE
PANEL A: CAYCE,
C.J.; LIVINGSTON and WALKER, JJ.
PUBLISH
DELIVERED: December 16, 2004