FILED ACCEPTED IN THE 13TH COURT OF APPEALS 13-13-00657-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI CORPUS CHRISTI, TEXAS 1/15/2015 1:36:37 PM 01/15/2015 DORIAN RAMIREZ DORIAN E. RAMIREZ, CLERK CLERK
CAUSE NO. 13-13-00657-CRBY smata
RECEIVED IN 13th COURT OF APPEALS IN THE COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 1/15/2015 1:36:37 PM THIRTEENTH JUDICIAL DISTRICT OFDORIAN TEXAS E. RAMIREZ Clerk
CORPUS CHRISTI - EDINBURG, TEXAS
MARIO ALBERTO ALANIZ, Appellant
v.
STATE OF TEXAS, Appellee.
On appeal from the 138th Judicial District Court of Cameron County, Texas Trial Court Cause Number 2013-DCR-01319-B
STATE’S APPELLATE BRIEF
Luis V. Saenz Cameron County District Attorney
René B. González Assistant District Attorney 964 East Harrison Street, 4thFloor Brownsville, Texas 78520 Phone: (956) 544-0849 Fax: (956) 544-0869
Attorneys for the State of Texas TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
State’s Response to Appellant’s First Issue. . . . . . . . . . . . . . . . . . . . . . . . . . 2
State’s Response to Appellant’s Second Issue. . . . . . . . . . . . . . . . . . . . . . . . 5
State’s Response to Appellant’s Third Issue. . . . . . . . . . . . . . . . . . . . . . . . . 7
State’s Response to Appellant’s Fourth Issue. . . . . . . . . . . . . . . . . . . . . . . . 9
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-i- INDEX OF AUTHORITIES Case law Page
Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
Castrejon v. State, 428 S.W.3d 179 (Tex. App.--Houston [1st Dist.] 2014, no pet.). . . . . . . . . . . 10, 11
Cordova v. State, 698 S.W.2d 107 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Cunningham v. State, 982 S.W.2d 513 (Tex. App.--San Antonio 1998, pet. ref’d). . . . . . . . . . . . . . . . . . 8
Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Flores v. State, 125 S.W.3d 744 (Tex. App.--Houston [1st Dist.] 2003, no pet.). . . . . . . . . . . . . . . 6
Garza v. State, 2 S.W.3d 331 (Tex. App.--San Antonio 1999, pet. ref’d). . . . . . . . . . . . . . . . . . . . 9
Goff v. State, 931 S.W.2d 537 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Gross v. State, 380 S.W.3d 181 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-ii- Johnson v. State, 84 S.W.3d 726 (Tex. App.--Houston [1st Dist.] 2002, pet. ref’d).. . . . . . . . . . . . . 6
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Leal v. State, 782 S.W.2d 844 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Lockhart v. State, 847 S.W.2d 568 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Peralta v. State, 338 S.W.3d 598 (Tex. App.--El Paso 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . . 10
Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sparks v. State, 935 S.W.2d 462 (Tex. App.--Tyler 1996, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . 7
Valle v. State, 109 S.W.3d 500 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Wilkerson v. State, 874 S.W.2d 127 (Tex. App.--Houston [14th Dist.] 1994, pet. ref’d). . . . . . . . . . . . 8
Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Wygal v. State, 555 S.W.2d 465 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
-iii- Statutes
Tex. Code Crim. Proc. art. 38.30.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. Penal Code § 7.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tex. Penal Code § 7.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rules
Rule 1009(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Rule 1009(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Tex. R. App. P. 33.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Tex. R. App. P. 38.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-iv- CAUSE NO. 13-13-00657-CR ____________________________________
IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG, TEXAS ____________________________________
MARION ALBERTO ALANIZ, Appellant
STATE OF TEXAS, Appellee ____________________________________
STATE’S APPELLATE BRIEF ____________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellee, the STATE OF TEXAS, by and through the
Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to
Rule 38.2 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief in
the above-styled and -numbered cause of action, and in support thereof, would show
this Honorable Court as follows:
SUMMARY OF ARGUMENT
Appellant raises four issues on appeal. (1) In his first issue on appeal,
Appellant complains that the evidence is insufficient to prove beyond a reasonable
State’s Brief Page 1 doubt that Appellant was a party to the offense of robbery. In response, the State
asserts that there is ample evidence in the record to support Appellant’s conviction
for the offense of robbery. (2) In his second issue, Appellant argues that the trial
court committed reversible error by allowing the State to introduce an extraneous
forgery offense into evidence. The State responds by asserting that Appellant did not
preserve this issue for appellate review. (3) In his third issue, Appellant argues that
the trial court committed error in refusing to give the jury a limiting instruction
regarding an extraneous offense. The State responds by asserting that the evidence
complained of was not “extraneous offense” evidence; but rather, it was “same
transaction contextual evidence.” (4) In his fourth issue, Appellant complains that
the trial court erred in allowing into evidence the video statement of Appellant
because it was not properly translated into English. The State responds by asserting
that the audio statement of Appellant was properly admitted into evidence because
a certified Spanish language interpreter was present in the courtroom to interpret the
Spanish portion of the statement.
ARGUMENT & AUTHORITIES
State’s Response to Appellant’s First Issue
In his first issue on appeal, Appellant complains that the evidence is
State’s Brief Page 2 insufficient to prove beyond a reasonable doubt that Appellant was a party to the
offense of robbery. In response, the State asserts that there is ample evidence in the
record to support Appellant’s conviction for the offense of robbery.
The United States Constitution requires that a criminal conviction be supported
by evidence “necessary to convince a trier of fact beyond a reasonable doubt of the
existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316
(1979). A reviewing court must view the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id. at 319; Laster v. State, 275
S.W.3d 512, 517-18 (Tex. Crim. App. 2009). Proper deference must be given to the
jury’s determination of the credibility of the evidence. Id.
A person is a criminally responsible party to an offense “if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both.” Tex. Penal Code § 7.01. A person is criminally responsible
for the conduct of another if, acting “with intent to promote or assist the commission
of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense.” Tex. Penal Code § 7.02.
To determine whether an individual is a party to an offense, the reviewing court
may look to “events before, during, and after the commission of the offense.” Gross
State’s Brief Page 3 v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (quoting Wygal v. State, 555
S.W.2d 465, 468-69 (Tex. Crim. App. 1977). Evidence is sufficient to support a
conviction under the law of parties where the actor is physically present and
encourages the commission of the offense either by words or other agreement.
Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985). Mere presence alone
will not make one a party to an offense; nevertheless, it is a circumstance tending to
prove that a person is a party to the offense and when taken with other facts may be
sufficient to show that he was a participant. Wygal, 555 S.W.2d at 469. A court may
also rely on circumstantial evidence to prove party status. Ransom v. State, 920
S.W.2d 288, 302 (Tex. Crim. App. 1996).
In the present case, the record reflects that Appellant was present at the scene
of the robbery, and was in the vehicle used to arrive at, and to flee from, the scene.
(SX5). The record also reflects that immediately after fleeing the scene of the
robbery, Appellant knew that one of the other individuals in the vehicle was going
through the victim’s purse, throwing some things out the window. (SX5; R.R. Vol.
3, p. 106). Appellant and the other two individuals then proceeded without delay to
the H.E.B. located on Southmost Road in Brownsville, where they attempted to pass
one of the checks taken from the victim’s purse. (SX 5; R.R. Vol. 3, p. 155). The
record demonstrates that Appellant went and asked the clerk for a pen so that the
State’s Brief Page 4 check could be filled in. (SX5; R.R. Vol. 3, pp. 153-154). Because these events
occurred immediately after the robbery, and because these circumstances dictate that
Appellant and the others must have somehow discussed their roles and reached an
agreement in connection with this criminal transaction (i.e., “you go get the pen so
I can fill out this check we just took,” or something similar), there was sufficient
evidence for the jury to find Appellant guilty as a party to the offense of robbery.
Accordingly, this Court should find the evidence sufficient to support
Appellant’s conviction as a party to the offense of robbery, and this Court should
overrule Appellant’s first issue.
State’s Response to Appellant’s Second Issue
In his second issue, Appellant argues that the trial court committed reversible
error by allowing the State to introduce an extraneous forgery offense into evidence.
The State responds by asserting that Appellant did not preserve this issue for
appellate review.
To preserve a complaint for appellate review, a defendant must make a timely,
specific objection to the trial court. Tex. R. App. P. 33.1(a); see Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002). Moreover, an objection stating one legal
basis may not be used to support a different legal theory on appeal. See Heidelberg
State’s Brief Page 5 v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). Courts have routinely held
that where a complaint on appeal does not comport with an objection made at trial,
the error is not preserved on the complaint. Wilson, 71 S.W.3d at 349; Goff v. State,
931 S.W.2d 537, 551 (Tex. Crim. App. 1996); Flores v. State, 125 S.W.3d 744, 747
(Tex. App.--Houston [1st Dist.] 2003, no pet.). Further, the law in Texas requires a
party to continue to object each time inadmissible evidence is offered. Ethington v.
State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Johnson v. State, 84 S.W.3d 726,
729 (Tex. App.--Houston [1st Dist.] 2002, pet. ref’d). “Any error in the admission
of evidence is cured when the same evidence comes in elsewhere without objection.”
Johnson, 84 S.W.3d at 730.
In the present case, Appellant objected to Detective Reyes’ testimony
concerning the passing of a check at the H.E.B.; however, the basis of the objection
and the ruling thereon are not contained in the record, as there was a bench
conference which was not recorded. (R.R. Vol. 3, p. 44). Appellant was required to
object to the court reporter’s failure to record the bench conference. Valle v. State,
109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Because he failed to do so, nothing
is presented for review.
Likewise, when the surveillance video from H.E.B. (which depicted Appellant
and another attempting to pass one of the checks from the robbery) was offered into
State’s Brief Page 6 evidence, a bench conference was held to discuss the admission of the exhibit;
however, this bench conference was not reported either, and no objection was made
to failure to record the bench conference. (R.R. Vol. 3, p. 46).
The record does not reflect that Appellant objected to the admission of the
evidence related to the passing of the victim’s, every time the evidence was offered.
Further, the record does not reflect whether any of Appellant’s objections made at the
unrecorded bench conferences comport with the issue raised on appeal. For these
reasons, this Court should find that Appellant has not preserved this issue for review,
and Appellant’s second issue should be overruled.
State’s Response to Appellant’s Third Issue
In his third issue, Appellant argues that the trial court committed error in
refusing to give the jury a limiting instruction regarding an extraneous offense. The
State responds by asserting that the evidence of complained of was not “extraneous
offense” evidence; but rather, it was “same transaction contextual evidence.”
“Same transaction contextual evidence” refers to other offenses connected with
the primary offense and is admissible when the evidence is necessary for the state to
logically present evidence of the charged offense. Lockhart v. State, 847 S.W.2d 568,
570 (Tex. Crim. App. 1992); Sparks v. State, 935 S.W.2d 462, 466 (Tex. App.--Tyler
State’s Brief Page 7 1996, no pet.). The reason for admitting such evidence is “simply because in
narrating the one it is impracticable to avoid describing the other, and not because the
other has any evidential purpose.” Mayes v. State, 816 S.W.2d 79, 86–87 n. 4 (Tex.
Crim. App. 1991). Crimes do not occur in a vacuum, and the state is entitled to prove
the circumstances surrounding the crime even though they may seem like irrelevant
details. Cunningham v. State, 982 S.W.2d 513, 521 (Tex. App.--San Antonio 1998,
pet. ref’d); Wilkerson v. State, 874 S.W.2d 127, 131 (Tex. App.--Houston [14th Dist.]
1994, pet. ref’d).
In the present case, the conduct related to the passing of the stolen check is
intermixed or blended with the primary offense of robbery such that it is admissible
as same transaction contextual evidence. This especially so, because the evidence of
the passing of the stolen check serves to demonstrate the agreement and cooperation
between the parties and thus proves the criminal responsibility of the parties.
The Court of Criminal Appeals has held that a limiting instruction is not
required when evidence is admitted as same transaction contextual evidence.
Camacho v. State, 864 S.W.2d 524, 535 (Tex. Crim. App. 1993). Where the
evidence is presented as same transaction contextual evidence, the State is not
offering the evidence to prove the defendant’s character but simply to explain the
surrounding circumstances. Although the jury may use the evidence to assess the
State’s Brief Page 8 defendant’s character, by holding that a limiting instruction is not required, the Court
of Criminal Appeals has already decided that this Court should not concern itself with
that possibility. Therefore, since same transaction contextual evidence is not offered
as evidence against a defendant, but simply to explain the circumstances of the
offense, a reasonable doubt instruction is not required. Id.; see also Garza v. State,
2 S.W.3d 331, 335 (Tex. App.--San Antonio 1999, pet. ref’d).
Accordingly, this Court should find that a limiting instruction was not
necessary as the evidence offered was merely same transaction contextual evidence;
and therefore, this Court should overrule Appellant’s third issue.
State’s Response to Appellant’s Fourth Issue
In his fourth issue, Appellant complains that the trial court erred in allowing
into evidence the video statement of Appellant because it was not properly translated
into English. The State responds by asserting that the audio statement of Appellant
was properly admitted into evidence because a certified Spanish language interpreter
was present in the courtroom to interpret the Spanish portion of the statement.
Appellant argues first that the recording was inadmissible because the State did
not comply with Rule 1009 of the Texas Rules of Evidence. See Tex. R. Evid. 1009.
Specifically, at trial, Appellant complained that said Rule was not complied with, and
State’s Brief Page 9 he was not given forty-five days’ notice of the State’s intent to introduce the
recording, as required by subsection 1009(a). (R.R. Vol. 3, pp. 72-73). After hearing
Appellant’s objections, the trial court questioned Alejandro Solis, a certified
interpreter, and the trial court was satisfied that Mr. Solis was qualified to interpret
from the Spanish language into English. (R.R. Vol. 3, pp. 77-79). The trial court
then placed Mr. Solis under oath and had him interpret those portions of Appellant’s
audio statement which are in Spanish. (R.R. Vol. 3, pp. 86-88).
In response to Appellant’s argument, the State would note that Rule 1009(a)’s
forty-five day notice requirement does not apply to the admission of the underlying
video or audio recording of Appellant’s interview with police officers. The
requirement applies only to the admission of the translation of the recording, and it
applies to admission of the translation only if that translation was not admissible
under another subsection of Rule 1009. Here, Appellant’s audio statement is
admissible under Rule 1009(e). See Tex. R. Evid. 1009(e). Rule 1009(e) does not
require the contemporaneous admission of a written transcript of the exhibit being
translated through live testimony; and it does not require forty-five days’ notice.
Castrejon v. State, 428 S.W.3d 179, 184-85 (Tex. App.--Houston [1st Dist.] 2014, no
pet.) (citing Peralta v. State, 338 S.W.3d 598, 606 (Tex. App.--El Paso 2010, no
pet.)). Said Rule requires only that the translation be offered by live testimony or by
State’s Brief Page 10 the deposition of a certified expert translator. Tex. R. Evid. 1009(e). Thus, the fact
that the State did not submit a written translation and affidavit of a qualified translator
to appellant forty-five days before trial does not preclude admission of the recording.
See Castrejon, 428 S.W.3d at 185.
Further, the State relies on Leal v. State, 782 S.W.2d 844 (Tex. Crim. App.
1989). In Leal, the Court of Criminal Appeals held that the admission of a recorded
conversation in a foreign language is analogous to testimony by a non-English
speaker, and that the safeguards of article 38.30 apply. Leal, 782 S.W.2d at 849; Tex.
Code Crim. Proc. art. 38.30. The court held that on a proper motion or objection, an
interpreter must be sworn to translate the recorded conversation, which is what
happened in the present case. Leal, 782 S.W.2d at 849.
Accordingly, it was not error for the trial court to allow the Appellant’s audio
statement into evidence, as a qualified interpreter was present in the courtroom to
interpret any Spanish portions of the statement. Therefore, Appellant’s fourth issue
should be overruled.
State’s Brief Page 11 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that
this Court will overrule Appellant’s issues on appeal, and affirm both the judgment
of conviction and the sentence herein.
Respectfully Submitted,
LUIS V. SAENZ Cameron County District Attorney 964 East Harrison Street, 4th Floor Brownsville, Texas 78520 Phone: (956) 544-0849 Fax: (956) 544-0869
By: /s/ René B. González René B. González Assistant District Attorney State Bar No. 08131380 rgonzalez1@co.cameron.tx.us Attorneys for the State of Texas
State’s Brief Page 12 CERTIFICATE OF COMPLIANCE
I certify that this document contains 2,594 words (excluding the cover, table
of contents and table of authorities). The body text is in 14 point font, and the
footnote text is in 12 point font.
/s/ René B. González René B. González
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State’s appellate Brief was served by
electronic mail upon Mr. Edmund K. Cyganiewicz, Attorney at Law, 1000 East
Madison Street, Brownsville, Texas 78520, edcyganiewicz@rgv.twcbc.com on the
15th day of January, 2015.
State’s Brief Page 13