Teobaldo Figueroa Velazquez v. State

• Court: Court of Appeals of Texas
• Decided: July 30, 2009
• Docket: 14-07-00781-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 30, 2009

Affirmed and Memorandum Opinion filed July 30, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00781-CR

TEOBALDO FIGUEROA VELAZQUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1082828

M E M O R A N D U M   O P I N I O N

Appellant, Teobaldo Figueroa Velazquez, appeals his murder conviction for which he was sentenced to life in prison.  In two issues, he contends that the trial court  denied him his Sixth Amendment right to confrontation by excluding evidence of a witness=s motive for testifying on behalf of the State. We affirm.            

                                                  BACKGROUND^[1]

The decedent was found shot to death in a public park near his home on August 9, 2006.  Three suspects emerged from law enforcement=s initial investigation into the murder:  Francisco Alviso, Frank Spencer, and appellant.  A fourth person was suspected of tampering with evidence relevant to the murder.  Later in its investigation, law enforcement received information that appellant had directed Alviso and Spencer to murder the decedent.  The State ultimately charged appellant, Alviso, and Spencer each by felony indictment with the decedent=s murder. 

In August 2007, Alviso pleaded guilty to murder as charged in the indictment.  His case was reset for punishment, and his sentencing hearing was set for a date subsequent to both Spencer=s and appellant=s trials.  Days after Alviso=s plea, Spencer=s case proceeded to trial before a jury.  Spencer was found guilty and sentenced to 60 years in prison.  In September 2007, appellant=s case was also tried before a jury.  At appellant=s trial, Alviso testified on behalf of the State that he and Spencer had fatally shot the decedent at appellant=s direction.

Specifically, Alviso testified that he and Spencer were members of the gang ASurrenos 13@ and that appellant was the gang=s leader.  Alviso testified that appellant had devised a plan to murder the decedent, a fellow gang member, because the decedent had been disloyal to appellant.  According to Alviso, appellant drove Spencer, Alviso, and a third person to the decedent=s house and provided Spencer with a semiautomatic and Alviso with a revolver.  Alviso testified that appellant instructed Spencer to lure the decedent out of his house and to a nearby public park, while Alviso was instructed to hide behind bushes in the same park.  As Spencer and the decedent walked by the bushes in which Alviso was hiding, Alviso stepped out and began shooting at the decedent.  The decedent attempted to flee, but Spencer ran after him and tripped him.  As the decedent lay in the grass, Spencer shot him again, multiple times.  Spencer and Alviso then returned to appellant=s car, and they drove away.

Appellant disputed Alviso=s version of the events leading up to the murder and his own involvement in the decedent=s death.  Appellant posed a number of cross-examination questions to demonstrate Alviso=s bias and motive for testifying against him.  On cross, Alviso testified that he had pleaded guilty to the murder of the decedent and was awaiting sentencing.  Alviso further indicated that he was testifying in an effort to cooperate with the State and in hopes of receiving a lighter sentence, possibly probation.  In further questioning Alviso about his plea of guilty, defense counsel asked Alviso, ADo you recall . . . the last offer that was made to you [by the State] before you took the P.S.I.?@  The State objected, and the trial court sustained the objection.  Appellant continued to cross examine Alviso.

Appellant was subsequently found guilty of murder as charged in the indictment, and he was sentenced to life in prison.  On appeal, appellant raises two issues, jointly contending that the trial court erred in sustaining the State=s objection to Alviso=s testimony because in doing so, the trial court violated his Sixth Amendment right to confrontation and impaired his ability to show Alviso=s motive for testifying for the State.  See U.S. CONST. amend. VI; Tex. Const. art. 1, ' 10. 

DISCUSSION

We begin by considering whether appellant properly preserved his confrontation arguments for appellate review.  In determining whether a party has preserved a complaint for review regarding the exclusion of evidence, we must examine the nature of the excluded evidence.  See Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987); Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984). The Court of Criminal Appeals has recognized a distinction between a situation where the defendant desires to elicit a certain, specific response from a witness but is precluded by the trial court from doing so, and a situation where the defendant is not permitted to question a witness about a certain general subject matter that might affect the witness=s credibility.  Virts, 739 S.W.2d at 29.

When a trial court prevents a defendant from eliciting certain specific responses from a State=s witness, defense counsel preserves error by either (1) calling the witness to the stand outside the presence of the jury and having the witness answer specific questions or (2) making an offer of proof on questions he would have asked and answers he might have received.  Koehler, 679 S.W.2d at 9; Stults v. State, 23 S.W.3d 198, 203B04 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (emphasis in original).  However, when the trial court denies a defendant the opportunity to question a witness for the State in the presence of the jury about an entire subject matter that might have shown his lack of credibility, such as malice, ill will, motive, or bias, defense counsel preserves error by stating the subjects on which he intends to question the witness.  Virts, 739 S.W.2d at 29.

In this case, appellant clearly sought to know the details of the last offer on punishment made to Alviso by the State.  In other words, appellant was searching for a specific answer, i.e., probation, 10 years, 20 years.  The exclusion of this specific response falls under the former standard, requiring an offer of proof.  See Koehler, 679 S.W.2d at 9.  However, to avoid waiving error by failing to make an offer of proof, appellant attempts to characterize the sought-after testimony as evidence of an entire subject matter relating to Alviso=s motive.  We are not persuaded.

Appellant=s inquiry into the State=s last offer does not probe generally into Alviso=s motive.  Rather, the question sought a specific answer as to the State=s most recent offer on punishment.  Contrary to appellant=s contentions, he was permitted to, and did, examine Alviso generally about any motive for testifying for the State arising from his plea of guilty and his expectations therefrom.  In response to defense counsel=s questioning, Alviso testified that: (1) he had pleaded guilty to the murder of the decedent; (2) his plea of guilty was made without an agreed recommendation on punishment; (3) his case was reset for punishment and was still pending at the time of trial; (4) he understood that his range of punishment was up to 99 years or life in prison; and (5) he was testifying in an effort to cooperate with the State and in hopes of receiving a lighter sentence, possibly probation.  Appellant=s inquiry into the State=s latest offer was an attempt to explore further into the subject matter of Alviso=s plea and his lack of credibility thereof, a topic that had already been introduced and developed by defense counsel.  See Oliva v. State, 942 S.W.2d 727, 730B31 (Tex. App.CHouston [14th Dist.] 1997), pet. dism=d, improvidently granted, 991 S.W.2d 803 (Tex. Crim. App. 1998).  Accordingly, this case involves the denial of a specific response.  See id.; see also Garcia v. State, 756 S.W.2d 880, 882 (Tex. App.CCorpus Christi 1988, no pet.).  Because appellant failed to call Alviso to the stand outside the presence of the jury and ask the specific question or make an offer of proof, he has presented nothing for appellate review.

Furthermore, appellant failed to object to the trial court=s exclusion of the evidence.  To preserve error, a defendant must lodge a timely, specific objection.  See Tex. R. App. P. 33.1.  Even constitutional error may be waived by failure to raise the issue at trial.  Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (holding that, by failing to object, appellant waived claim that admission of a videotape violated his rights to confrontation and due process/due course of law).  Specifically, a defendant waives his constitutional right to confront witnesses if he does not object to the denial of that right at trial.  Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Thacker v. State, 999 S.W.2d 56, 61 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  In addition, a party seeking to introduce evidence must meet an objection with an argument stating the basis for its admission.  See Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005).  It is not enough to merely attempt to introduce the evidence or to tell the judge that the evidence is admissible.  Id.   The proponent, if he is the losing party on appeal, must have told the trial court why the evidence was admissible.  Id.

Here, the trial court sustained the State=s objection to the question relating to the State=s last plea offer to Alviso.  The record does not reflect any objection by appellant on any basis, including the Confrontation Clause.  Instead, appellant continued with cross examination and neglected to apprise the trial court of any objection or basis thereof.  See id. at 179 (concluding that a proponent of evidence must clearly articulate to the trial court that the Confrontation Clause requires the admission of the challenged evidence and failure to do so waives error). Therefore, appellant has failed to preserve his right-to-confrontation complaints for appellate review.

CONCLUSION

Because appellant has waived both appellate issues challenging the trial court=s exclusion of evidence, we overrule issues one and two and affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Because the sufficiency of the evidence is not challenged, we recite only the facts relevant to the issues raised by appellant.