Rocky Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: July 28, 2005
• Docket: 13-03-00761-CR
• Status: Published

Opinion

                                            NUMBER 13-03-761-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

ROCKY HERNANDEZ,                                                                      Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                              On appeal from the 24th District Court

                                        of Victoria County, Texas.

                              MEMORANDUM OPINION^[1]

                       Before Justices Rodriguez, Castillo and Garza

                           Memorandum Opinion by Justice Castillo

A jury convicted appellant Rocky Hernandez of murder.^[2]  The jury assessed punishment at a term of fifty-five years in the Institutional Division of the Texas Department of Criminal Justice.  By three issues, Hernandez asserts that the trial court abused its discretion by (1) denying the jury's request during deliberations to review testimony, (2) admitting gang evidence, and (3) denying his motion to sever.  We affirm.

I.  Background

An eyewitness testified that Hernandez and his brother shot and killed Martin Martinez.  Martinez died of five gunshot wounds.  The brothers were tried together.

II.  Jury Request to Review Testimony

In his first issue, Hernandez argues that the trial court abused its discretion by refusing to have testimony read to the jury during its deliberations upon a legitimate request.  Hernandez asserts the trial court violated article 36.28 of the Texas Code of Criminal Procedure by responding with a "canned" answer denying the request.  See Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 1981).

In response to the jury request for "all evidence," the trial court caused to be delivered various photographs, exhibits, and cassette tapes admitted in evidence, along with a cassette tape player as the jury requested.  In response to the second jury request for the transcript of a witness=s statement "about silver car driver being located & talked to," the trial court responded:

In response to your request, you are instructed that the law does not permit the jury receiving a transcript of a witness= testimony nor a general re-reading of the testimony of any witness.  If you disagree as to a statement of a witness, you must indicate the particular point in dispute before you can have read to you from the court reporter=s notes only on that part of such witness testimony on the particular point in dispute.

Trial counsel did not object to either trial court action. 

We review a trial court's ruling on a jury's request to review testimony under an abuse of discretion standard of review.  See Jones v. State, 706 S.W.2d 664, 667 (Tex. Crim. App. 1986) (en banc).  An abuse of discretion exists when the trial court's ruling is outside the zone of reasonable disagreement regarding the law applicable to an issue.  See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g) (en banc).  When the jury asks that certain testimony be re‑read, the trial court must determine if the request is proper and adequate under article 36.28.  Brown v. State, 870 S.W.2d 53, 55 (Tex. Crim. App. 1994) (en banc); Robison v. State, 888 S.W.2d 473, 480 (Tex. Crim. App. 1994) (en banc).  The trial court is constrained by article 36.28 and cannot provide witness testimony until the jury's request meets the requirements of article 36.28.  See Brown, 870 S.W.2d at 55.  If the jury requests the reading of certain testimony without more, it is proper for the court to instruct the jurors that it cannot comply with their request unless the jurors state they are in disagreement about a witness's statement or a particular point of testimony, and then only this testimony and no other can be read to them.  Jones, 706 S.W.2d at 667.

We conclude that the trial court properly responded to the first request.  See Tex. Code Crim. Proc. Ann. art. 36.25 (Vernon 1981).  The jurors' second request did not state there was an actual dispute among the jurors.  Tex. Code Crim. Proc. Ann. art 36.28 (Vernon 1981).  On this record, we cannot say that the trial court abused its discretion by refusing to have the court reporter read the transcription of the requested testimony.  Thus, even absent forfeiture of the complaint, the issue is not supported in the record.  We overrule the first issue presented. 

III.  Evidence of Gang Affiliation

In his second issue, Hernandez argues that the trial court abused its discretion by admitting evidence of gang affiliation.^[3]  Hernandez points to the testimony provided by his sister about gangs, gang tattoos, and Hernandez's affiliation with a gang.  His sister testified, without objection, that Hernandez has a "gang name" tattoo on his stomach.  Hernandez additionally points to a police officer's testimony about gangs.  The police officer also testified without objection:^[4]

Q:  Is there a street gang that you are familiar with in this area, this being the South Cameron and

South Street

area?

A:  Yes.

Q:  What=s the name of the street gang?

A:  [Gang name]. . . .

Q:  In the street gangs, do they fight with other street gangs?

A:  Occasionally, yes.

Hernandez asserts that the trial court sustained defense objections to the testimony.  However, the record does not support this argument.  The record shows that the trial court sustained some objections to gang evidence, but that other gang evidence was admitted without objection. 

Under Texas law, "if, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection."  Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).  A proper objection is one that is specific and timely.  Id.  "Further, with two exceptions, the law in Texas requires a party to continue to object each time inadmissible evidence is offered."  Id.  The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury.  Id.  In this case, Hernandez did not continue to object to all of the gang related evidence and did not obtain a running objection.  A hearing outside the presence of the jury occurred after evidence of gang affiliation was adduced.  Thus, Hernandez forfeited his complaint on appeal.^[5]  We overrule the second issue presented.

IV. Severance

In his third issue, Hernandez argues that the trial court erred by refusing to grant his motion to sever his trial from that of his brother, a co-defendant.  Hernandez generally asserts that the co-defendant's defense was that Hernandez was the shooter.  Hernandez further asserts that he was harmed on grounds of antagonistic defenses. 

Article 36.09 of the code of criminal procedure mandates that the court order a severance upon a timely motion and upon introduction of evidence which establishes either (1) that there is a previous admissible conviction against one defendant, or (2) that a joint trial would be prejudicial to any defendant.  Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981); Aguilar v. State, 26 S.W.3d 901, 903 (Tex. Crim. App. 2000) (en banc).  A motion to sever on the grounds of unfair prejudice under article 36.09 is "timely" if made at the first opportunity or as soon as the grounds for prejudice become or should have become apparent, thus providing the trial court an opportunity to rule on the potentially prejudicial evidence at the time it is introduced.  Aguilar, 26 S.W.3d at 910.

Hernandez filed a pretrial motion to sever asserting as grounds that (1) his brother's misconduct during a pretrial hearing, if similar at trial, would harm him in the presence of the jury; and (2) Hernandez intended to testify and would comment about his brother/co-defendant<s failure to testify.  Hernandez did not testify.  Even so, an eyewitness testified that both brothers pursued and each shot Martinez. 

On this record, we conclude that Hernandez did not object as soon as the grounds for the claimed prejudice which he now brings on appeal, antagonistic defenses, became or should have become apparent.  See Aguilar, 26 S.W.3d at 903.  Thus, he did not provide the trial court the opportunity "to rule on the potentially prejudicial evidence at the time it was introduced."  Id.  Accordingly, Hernandez forfeited his complaint on appeal.  Id.; see also Tex. R. App. P.  33.1.  We overrule the third issue presented.

V.  Conclusion

We have reviewed the record.  We find no reversible error.  We affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 28th  day of July, 2005.

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^[1] See Tex. R. App. P. 47.2, 47.4. 

^[2] The indictment alleged that on or about October 13, 2002, Hernandez caused the death of Martin Martinez.  A person commits murder if he causes the death of an individual.  See Tex. Pen. Code Ann. '19.02 (Vernon 2003). 

^[3] Gang membership evidence is admissible if it is relevant to show a noncharacter purpose that in turn tends to show the commission of the crime.  Tex. R. Evid. 402, 404(b); Ortiz v. State, 93 S.W.3d 79, 94 (Tex. Crim. App. 2002) (en banc). 

^[4] The police officer testified after Hernandez=s sister testified. 

^[5] Even assuming error was not forfeited, it is well established that questions regarding the admission of evidence are rendered moot if the same evidence is elsewhere introduced without objection.  Any error in admitting evidence over a proper objection is harmless if the same evidence is subsequently admitted without objection. Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999) (en banc) (citing McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App. 1992) (en banc)).