COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-179-CR
PEDRO ARIEL ZARATE LUCIO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Two-year-old D.P. died from injuries she sustained when gang members
parked in front of her house and fired into the bedroom where she was sleeping. For
his part in the shooting, Appellant Pedro Ariel Zarate Lucio was convicted of murder
and engaging in organized criminal activity and sentenced to sixty years’
confinement.
1 See Tex. R. App. P. 47.4. In three points on appeal, Appellant claims that the trial court erred by allowing
the prosecutor to ask a witness to waive her attorney-client privilege, by admitting
evidence Appellant contends is irrelevant, and by commenting on the weight of the
evidence in a supplemental jury charge. W e will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Appellant belonged to an Arlington street gang known as the Latin Kings.
Sometime around midnight on May 4, 2006, he arrived at a Dallas nightclub with
Martin Lozoya, Yesenia Velasquez, and Yesenia’s cousin Angelica. Appellant and
Martin stayed close to the front of the club—where the Latin Kings were known to
congregate—while Yesenia and Angelica continued toward the back.
There, Yesenia confronted sisters Roxanne “Roxy” Espinosa and Pamela
Rocha. The women got into a heated argument and security at the club asked all
of them to leave.
On the way out, Yesenia worried that Roxy might try to damage her car, so
she asked Robert Armendariz and Edgar Rosas to retrieve it from the parking lot for
her. As soon as Robert and Edgar left to do so, Yesenia realized that neither one
of them knew what her car looked like or where it was parked, so she asked
Appellant to go help.
Pamela saw Appellant as he made his way through the parking lot. She
approached him with Jesse Prado, a former member of the Latin Knights, a rival
2 gang. Jesse and Appellant had known each other since childhood and had never
liked each other.
Over Jesse’s shoulder, Pamela taunted Appellant about a prior conflict
involving one of her brothers and one of Appellant’s brothers. Appellant took offense
and flashed Latin Kings gang signs at Jesse. W hen Jesse tried to walk away,
Appellant followed alongside him, continuing to flash gang signs and “talking trash.”
From across the parking lot, Edgar could tell that Appellant and Jesse were
not engaged in “a friendly conversation.” Dallas Police patrolling the area noticed
the commotion and dispersed it. Appellant stalked off, declaring that he would “take
care of it later.”
Robert and Edgar found Yesenia’s Nissan Altima and drove it to her. She,
Angelica, and Martin piled into the back seat, as did Appellant when they caught up
with him.
Appellant was visibly angry. He “mentioned something about going to get an
AK” and started making calls on his cell phone. Robert heard him call “Mapa,” a
nickname for Victor Aguilar, who is known for carrying guns. He also heard him say
into the phone, “I’m going to shoot Jesse’s house up,” and “[G]et ready.” Edgar
overheard Appellant say “something about an AK,” to “get ready,” and that “it’s
gonna happen tonight.”
Angelica rode on Appellant’s lap in the cramped backseat. They soon started
arguing. Appellant then argued with Yesenia, which resulted in his and Martin’s
3 departure from the vehicle at a 7–11 store in Grand Prairie. W ith Appellant and
Martin out of the car, Robert called Jesse and warned him that Appellant had said
he was “going to go shoot Jesse’s house up.” Jesse, who was having a late dinner,
headed home.
Yesenia had been on her cell phone complaining to her friend Ely Almendariz
about her run-in with Roxy and Pamela. Ely was at her cousin Victor “Mapa”
Aguilar’s house drinking with Victor and Henry “Elmo” Gabrillo, both Latin Kings. Ely
was upset after hearing about the argument and wanted to go confront Roxy with
Yesenia when Appellant called, needing a ride. Ely was too intoxicated to drive, so
Henry agreed to drive Ely’s tan GMC Suburban. Ely rode in the passenger seat, and
Victor and his date Alexis Ledesma rode in the backseat. Henry drove to Grand
Prairie, where they picked up Appellant and Martin walking along Pioneer Parkway.
After a short drive, Henry stopped the Suburban again and got out. Ely had
been passing in and out of consciousness, but she awoke when she heard gunfire
and saw Henry running back to the car. He climbed in, set a .40 caliber Glock
handgun on the console, and resumed driving. Ely stashed the weapon in her purse
on the floorboard.
Jesse had three young children with Christine Arredondo, and Christine was
pregnant with their fourth child. D.P. was about one-and-a-half-years old, little
brother J.P. was almost one, and older sister A.P was two. The children were in bed
in the front bedroom of their house. D.P. and J.P. were sleeping closest to the
4 window that faced the street, and A.P. was sleeping near the wall on the opposite
side of the bed. Christine had dozed off next to A.P. while watching television.
That night, the weather turned rough. Severe thunderstorms had rumbled into
the Metroplex. Around three in the morning, Christine awoke to what she thought
was the sound of thunder or hail hitting the window. She saw J.P. sitting up in the
bed screaming, and she noticed a hole in his shirt. She went to hold him and felt
blood on his hand. Alarmed, Christine looked out the window and noticed a tan
Suburban parked in the street with someone in the seat behind the driver reaching
out to close the door. Then Christine noticed that the bedroom’s bottom window
pane had been shattered.
She carried her son into the living room to look at him under the light. His
shoulder had been nicked but he was otherwise unharmed. Christine hurried back
to the bedroom, turned the light on, and checked her other children.
The oldest was fine. But D.P. lay underneath a pillow at a different angle from
how she had gone to sleep. Christine lifted the pillow and saw a pool of blood on the
bed. She screamed, grabbed D.P., ran to the living room, scooped up J.P., and ran
with them both across the street for help.
It was raining hard. Christine was seven months pregnant, and when she
reached the grass at the curb while carrying her two children, she slipped.
Julian Garza lived across the street. Awakened by the sound of gunfire, he
checked on his children and then looked outside. Seeing nothing unusual, he went
5 back into the house. As he was closing the door, however, he heard Christine
screaming. He looked outside again and saw her fall.
Christine had dropped her children. Unable to carry them both at the same
time, she passed her son to Julian and then went back for D.P. who lay on the
concrete, barely breathing. The neighbor handed J.P. to his wife and then reached
for D.P. He carried her to the living room and lay her down on the floor. She was
bleeding badly. Julian tried to staunch the blood with a towel. One of his sons
called 911. Another family member retrieved Christine’s other daughter from across
the street.
Arlington Police Officer Anthony Wright responded to the 911 call. W hen he
arrived, he saw D.P. on the living room floor with a severe head injury. Almost
immediately, fire department personnel rushed in and transported her to Fort W orth’s
Cook Children’s Hospital.
She arrived in grave condition. The left side of her brain had been severely
damaged by a gunshot wound. The bullet was still there, resting in front of her ear.
In an attempt to save her life, surgeons removed half of D.P.’s brain. Her prognosis
was “terrible.” She survived another six months before dying from the injuries
caused by the gunshot.
Christine described the Suburban she had seen outside the window to Officer
W right, who immediately broadcast the description to all units in the area. After
6 Jesse arrived and learned that his children had been shot, he reported the earlier
altercation and Appellant’s threat to shoot up his house.
Officer Heather Boone spotted a tan Suburban that matched the broadcast
description. Henry, Ely, and Appellant were still inside the vehicle—the others
having been dropped off after the shooting. Henry led officers on a brief chase and
then pulled over. One by one, he, Ely, and Appellant were ordered out of the
Suburban and taken into custody.
Officers found the Glock in Ely’s purse under the front seat. Ely, Henry, and
Appellant all tested positive for gunpowder residue. The results of Appellant’s test
showed that he either had been close to the weapon when it was fired or had
handled it afterward. Subsequent analysis of the weapon linked it to expelled
cartridge casings found in the street in front of the Prado home. Bullets recovered
from the home and the one recovered from D.P. during surgery shared “consistent
characteristics” but were not established to a scientific certainty to have all been fired
from the weapon found in Ely’s purse.
Henry and Appellant denied any involvement in the shooting. Police
interviewed Ely twice on the morning of her arrest, and both times she claimed to
have been the sole shooter. Her story, however, did not make sense to
investigators: she claimed that she had shot at the house because she had become
enraged after Yesenia called her and told her about the argument with Roxy.
7 Ely eventually recanted her confession, and after repeated meetings with
investigators and prosecutors, she was released from custody and all charges
against her were dropped. She testified at a hearing some months before
Appellant’s trial and then again at his trial.
The trial ran more than two weeks. In the end, the jury acquitted Appellant of
the capital murder charge but convicted him of murder and engaging in organized
criminal activity. The jury assessed his punishment at sixty years’ confinement for
each conviction. The trial court sentenced him accordingly, ordering that the
sentences run concurrently.
III. IMPROPER Q UESTION
In his first point, Appellant claims that the trial court abused its discretion by
allowing the prosecutor to ask Ely to waive her attorney-client privilege.
Ely obtained counsel following her arrest on the morning of the shooting. After
some time in jail following her initial confession, she recanted and was “ready to tell
the truth.” On September 21, 2007, she and her lawyer met with the prosecutor to
discuss her testimony for a hearing scheduled four days later. On September 25,
2007, Ely testified under oath that Appellant, Henry Gabrillo, and Victor Aguilar were
all members of the Latin Kings gang, that the gun used in the shooting belonged to
Victor, that he had suggested disposing of it and had instructed her to call a woman
he knew who would help her do so, and that Ely “had a memory” of the passenger
door of the Suburban closing immediately after the shooting.
8 Jury selection for Appellant’s trial was set for May 6, 2008. Approximately ten
days before trial, Ely met with the prosecution at a McDonald’s restaurant to once
again review her upcoming testimony. On May 8, 2008, Ely was the ninth of
eighteen witnesses called by the State in its case in chief. She admitted on the
stand that she had been present during the shooting, had concealed the murder
weapon in her purse, and had twice falsely confessed to police to having been the
shooter before charges against her were dropped.
Ely acknowledged that she had met with the prosecution numerous times to
discuss her testimony, including the meeting at McDonald’s some ten days or so
before trial. During questioning by the State, however, she professed not to
remember many of the facts she had previously either discussed with the
prosecution or testified to. Moreover, although she admitted that she knew
Appellant, Victor Aguilar, Martin Lozoya, and Henry Gabrillo, she claimed to have
lied when she testified at the September hearing that they were all members of the
Latin Kings.
The trial recessed for lunch between Ely’s direct examination by the State and
cross examination by the defense. During the break, Ely visited with Appellant’s
counsel. Afterwards, she testified on cross-examination that she had repeatedly lied
to prosecutors, claiming that she had told them “what they wanted to hear” because
she was “tired of being in jail,” would have said anything to get out, and was afraid
that if she changed her story the prosecutor would make it “bad” for her.
9 On the State’s redirect, Ely was asked about statements she had made to the
prosecution during their meeting at the McDonald’s before trial. She denied saying
that she knew before the shooting that Appellant and Victor did not like Jesse. She
did not remember saying that Appellant was angry when he got in the Suburban or
that he had talked about “the fight at the club with Jesse.” At first she did not
remember telling the prosecution that the gun belonged to Victor but then testified
that she had “said it for a reason.”
At that point, the prosecutor began the following line of questions that forms
the basis of Appellant’s first point on appeal:
Q. Are you willing to waive your attorney/client privilege and allow [your attorney] Mr. Brown to talk to this jury about the things you told him about that on that night?
[DEFENSE COUNSEL]: I’m going to object without her counsel present to explain what he means legally on that matter.
THE COURT: I will overrule the objection.
Q. [PROSECUTOR:] You have a right to prevent him from testifying and telling these people what you said, okay? It’s secret. It’s secret. Unless you give permission for him to talk to these people, he can’t do it.
Are you willing to right now on the record give him permission to talk to these people and tell them what you told him about that night?
A. W hat do you mean?
Q. I’m sorry?
A. W hat?
10 Q. Are you willing right now to give your attorney, Scott Brown, permission to tell these people what you told him about the things that happened that night?
A. No.
Q. You don’t want him saying what you told him, right?
[DEFENSE COUNSEL]: I’m going to object again. This is attorney/client privilege that he is inquiring about.
THE COURT: Overruled.
[DEFENSE COUNSEL]: And I ask for a running objection to all questions related to this matter.
THE COURT: All right.
[DEFENSE COUNSEL]: Thank you. Also, Your Honor, I’m asking for a mistrial based on this.
THE COURT: Denied.
Appellant contends that the prosecutor’s soliciting Ely’s waiver of her attorney-
client privilege violates Texas Rule of Evidence 513, which prohibits comments on
a claim of privilege before the jury. Specifically, Appellant points to parts (a) and (b)
of the rule, which state in pertinent part:
(a) Comment of Inference Not Permitted. . . . the claim of a privilege . . . is not a proper subject of comment by judge or counsel, and no inference may be drawn therefrom.
(b) Claiming Privilege W ithout Knowledge of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
11 Tex. R. Evid. 513. The State argues that Appellant’s claim is not preserved for our
review.2
An appellant’s complaint on appeal must comport with the specific objection
made at trial. See Pena v. State, 285 S.W .3d 459, 464 (Tex. Crim. App. 2009);
Simmons v. State, 288 S.W .3d 72, 77 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). An objection stating one legal theory may not be used to support a different
legal theory on appeal. Broxton, 909 S.W .2d at 918; Johnson v. State, 803 S.W .2d
272, 292 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259 (1991), overruled on
other grounds by Heitman v. State, 815 S.W .2d 681 (Tex. Crim. App. 1991);
Simmons, 288 S.W .3d at 77.
Appellant’s first objection to the prosecutor’s question does not comport with
his theory on appeal. At trial, he objected that Ely should not have been asked
whether she would be willing to waive her attorney-client privilege “without her
counsel present to explain what he means legally on that matter.” On appeal,
though, he complains that the trial court’s having allowed the question violated rule
513’ s proscription against comment before the jury on a claim of privilege, in this
instance Ely’s attorney-client privilege. The two issues are separate and one has
2 The State does not argue that the prosecutor did not violate rule 513, and in fact, the prosecutor’s questioning clearly violated that rule. However, we need not reach the merits of Appellant’s argument if he did not properly preserve the complaint for our review. See Broxton v. State, 909 S.W .2d 912, 918 (Tex. Crim. App. 1995) (noting that a reviewing court will not consider errors, even of constitutional magnitude, not properly preserved).
12 little if anything to do with the other. The presence of Ely’s counsel to explain what
the prosecutor means by asking Ely to waive her attorney-client privilege is unrelated
to whether asking her in the jury’s presence violated rule 513.
A proper objection, one that would comport with this point on appeal, would
have alerted the trial court to the fact that the prosecutor was talking about Ely’s
attorney-client privilege in front of the jury. Indeed, trial counsel later asserted an
objection that does comport with his point on appeal when she objected that “[t]his
is attorney/client privilege that he is inquiring about.”
But because Appellant’s first objection does not comport with the complaint
on appeal, existing case law requires us to hold that the objection did not preserve
Appellant’s complaint that the trial court violated rule 513 by allowing the prosecutor
to ask Ely if she would waive her attorney-client privilege. See Broxton, 909 S.W .2d
at 918; Johnson, 803 S.W .2d at 292; Simmons, 288 S.W .3d at 77.
Although we have noted that Appellant’s second objection comports with his
point on appeal, by the time counsel articulated it at trial, it was too late to preserve
Appellant’s complaint. It is well-settled that a timely objection is required in order to
preserve a complaint for review. See Tex. R. App. P. 33.1(a)(1)(A); Layton v. State,
280 S.W .3d 235, 238–39 (Tex. Crim. App. 2009). A timely objection is one that is
made at the first opportunity or as soon as the basis for it becomes apparent.
Lagrone v. State, 942 S.W .2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917
(1997); Polk v. State, 729 S.W .2d 749, 753 (Tex. Crim. App. 1987).
13 After the trial court overruled Appellant’s first objection to the prosecutor’s
request for Ely to waive her privilege, the prosecutor explained to Ely that she had
a “right to prevent [counsel] from testifying and telling these people [the jury] what
you said.” He then repeated the question: “Are you willing to right now on the record
give him permission to talk to these people and tell them what you told him about
that night?” Although this question was objectionable, Appellant stood mute, did not
object, and Ely responded to the prosecutor’s question by asking, “W hat do you
mean?” The prosecutor replied with “I’m sorry?” to which Ely replied, “W hat?” The
record then shows that the prosecutor repeated the question a third time and that Ely
answered it.
Q. Are you willing right now to give your attorney, Scott Brown, permission to tell these people what you told him about the things that happened that night?
A. No.
Finally, after the prosecutor confirmed Ely’s answer, Appellant objected.
Q. You don’t want him saying what you told him, right?
[DEFENSE COUNSEL]: I’m going to object again. This is attorney/client privilege that he is inquiring about.
THE COURT: Overruled.
By then, however, it was too late to preserve the claim for our review.
Appellant’s objection was untimely as contemplated by our rules of error
preservation because it was not presented until after the prosecutor asked numerous
14 times whether Ely would waive her privilege and even explained the privilege to her.
See Tex. R. App. P. 33.1(a)(1)(A); Lagrone, 942 S.W .2d at 618; Dinkins v. State,
894 S.W .2d 330, 355 (Tex. Crim. App. 1995); Johnson, 803 S.W .2d at 291; Marini
v. State, 593 S.W .2d 709, 714 (Tex. Crim. App. 1980). W e hold, therefore, that
Appellant’s second objection failed to preserve his complaint for our review.
Because neither of Appellant’s objections preserved his claim for our review,
we overrule Appellant’s first point.
IV. P RIOR S HOOTING INCIDENT
In his second point, Appellant contends that the trial court abused its
discretion by admitting evidence that Appellant had previously been the victim of a
shooting.
Arlington Police Department Gang Unit Officer Sean W heetley testified that,
in his opinion, Appellant was a member of the Latin Kings gang. Officer W heetley
also testified that in 2003 he had investigated a shooting in which Appellant was the
victim and about which Latin Kings gang members Henry Gabrillo and Appellant’s
older brother Ishmael Lucio believed “might possibly” have been gang-related. The
officer further testified, however, that the investigation had ultimately produced no
clear answer on whether that shooting was gang-related or whether it even occurred
as originally reported and that he had concluded the investigation without filing
charges.
15 Appellant argues that because Officer W heetley could not determine if the
prior shooting had been gang-related, his testimony regarding the investigation was
not relevant to the issue of whether the shooting in the instant case was gang-
related. But whether or not the officer could determine if the earlier shooting had
been gang-related, evidence that Appellant was reportedly shot under suspicious
circumstances and that known gang members—including Henry Gabrillo—had
believed that the earlier shooting could have been gang related is relevant to the
issue of whether the shooting here—involving Appellant and Henry—is gang-related.
Although evidence of the earlier shooting does not establish conclusively that the
shooting in the instant case was gang-related, it nonetheless provides a “small
nudge” toward proving that it was. Montgomery v. State, 810 S.W .2d 372, 376 (Tex.
Crim. App. 1990) (op. on reh’g); Levario v. State, 964 S.W .2d 290, 297 (Tex.
App.—El Paso 1997, no pet.); see Hawkins v. State, 871 S.W .2d 539, 541–42 (Tex.
App.—Fort W orth 1994, no pet.); see also Tex. R. Evid. 401 (defining “[r]elevant
evidence” as evidence having any tendency to make the existence of any fact of
consequence more probable or less probable). That is all that is required. See
Montgomery, 810 S.W .2d at 376; 1 Steven Goode, et. al., Texas Practice: Guide
to the Texas Rules of Evidence § 401.3 (3d ed. 2002)(“If evidence alters the
probabilities involved in any degree, it is relevant.”). W e hold, therefore, that the
trial court acted within its wide discretion by admitting Officer Wheetley’s testimony
about the prior shooting, and we overrule Appellant’s second point. See Carrasco
16 v. State, 154 S.W .3d 127, 129 (Tex. Crim. App. 2005); Montgomery, 810 S.W .2d at
379.
V. R ESPONSE TO J URY N OTE D URING P UNISHMENT D ELIBERATIONS
In his third and final point, Appellant asserts that the trial court erred by
administering an unnecessary supplemental jury instruction at punishment that
amounted to a comment on the weight of the evidence.
During its deliberations on punishment, the jury sent out the following note:
Does the law prevent a family member from speaking during the sentencing phase for the defendant?
Over Appellant’s objection, the trial court responded with the following
instruction:
The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to the issues in the case. You have heard all of the witnesses who have been called to testify. Please continue your deliberations.
It is well settled that although a jury is the exclusive judge of the facts, it is
bound to receive the law from the court and to be governed by such law. Abnor v.
State, 871 S.W .2d 726, 731 (Tex. Crim. App. 1994); Chance v. State, 292 S.W .3d
138, 141 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d); see Tex. Code Crim
Proc. Ann. art 36.13 (Vernon 2007). In giving its charge and in responding to
questions from the jury, the trial court may not comment on the weight of the
evidence. Whaley v. State, 717 S.W .2d 26, 32 (Tex. Crim. App. 1986); Grady v.
State, 634 S.W .2d 316, 317 (Tex. Crim. App. 1982); Davis v. State, 955 S.W .2d 340,
17 351 (Tex. App.—Fort W orth 1997, pet. ref’d); see Tex. Code Crim. Proc. Ann. art.
36.14 (Vernon 2007). But a trial court may respond to a jury note with a legally
correct statement of the law. See, e.g., Krause v. State, 243 S.W .3d 95, 108 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d); Ryan v. State, No. 06-07-00081-CR,
2007 W L 4118296, at *2 (Tex. App.—Texarkana Nov. 21, 2007, pet. ref’d) (mem.
op., not designated for publication) (holding that a trial court’s accurate statement of
law in response to a jury question was not grounds for reversal).
Here, we hold that the trial court’s response to the jury note was a correct
statement of the law. Compare Chance v. State, 292 S.W .3d 138, 141–42 (Tex.
App.—Houston [14 Dist.] 2008, pet. ref’d) (holding trial court’s response to jury’s
question properly clarified question of law); Kuhn v. State, No. 2-07-00157-CR, 2008
W L 344516, at *4 (Tex. App.—Fort W orth Feb. 7, 2008, no pet.) (mem. op., not
designated for publication) (same), with Matamoros v. State, 901 S.W .2d 470, 477
(Tex. Crim. App. 1995) (holding instruction about reliability of DNA evidence is
impermissible comment on weight of evidence); Daniell v. State, 848 S.W .2d 145,
147 (Tex. Crim. App. 1993) (holding instruction about available correction facilities
for defendant was erroneous instruction about a factual, rather than legal, matter).
The trial court’s response expressed no opinion as to the weight of the evidence, nor
did it assume the existence of a disputed fact. See Whaley, 717 S.W .2d at 32;
Davis v. State, 955 S.W .2d 340, 351 (Tex. App.—Fort W orth 1997, pet. ref’d).
18 Because the trial court did not err in its response to the jury’s note, we
overrule Appellant’s third point.
VI. C ONCLUSION
Having overruled all of Appellant’s points, we affirm the judgment.
PANEL: W ALKER,J.; LIVINGSTON, C.J.; and MEIER, J.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 29, 2010