Opinion
No. 04-04-00247-CR
Delivered and Filed: June 8, 2005. DO NOT PUBLISH.
Appeal from the 341st Judicial District Court, Webb, County, Texas, Trial Court No. 2003-CR-M000584-D3, Honorable Elma Teresa Salinas Ender, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
A jury convicted Jesus Arias, Jr. of two counts of aggravated assault and imposed a sentence of twenty years imprisonment for each count. On appeal, Arias argues that aggravated assault is not a lesser included offense of attempted murder; Arias also argues that the trial court erred in allowing an officer to testify regarding a witness's out of court statements, in excluding an instruction on mistake of fact, and in its instructions on the issues of retreat and use of deadly force. We affirm the judgment of the trial court.
Background
At approximately 11:00 p.m. on April 27, 2003, United States Border Patrol Agents Mark de Marco and Jose A. Garza were on duty along the Rio Grande River in Laredo, Texas. The agents, in plain clothes, were in an unmarked white pickup truck to observe a possible narcotics load. As the agents sat in their truck, they heard automatic weapons fire from behind them. Taking cover as much as possible, the agents looked through their side rearview mirrors and saw a group of people run by. The agents drove toward the gunfire, expecting to possibly encounter vehicles involved in a drive-by shooting or people in need of assistance. As the agents reached an intersection, they took gunfire from the right rear of their position. Subsequent investigation revealed that Jesus Arias, Jr., believing himself the target of a drive-by shooting, entered his home and retrieved an assault rifle. Taking up a position in an abandoned house, Arias shot the rifle at the white truck not knowing whether it was involved in the drive-by shooting. Both de Marco and Garza were wounded.Hearsay Evidence
Arias complains that the trial court erred in allowing Lt. Ismael Alardin of the Laredo Police Department to testify concerning statements made to him by Juanita Ochoa when he arrived at the crime scene. First, Arias contends that Ochoa's out-of-court statements were "merely a recanting of Juanita Ochoa's alleged memories of specific events rather than reflective of her state of mind and therefore the trial court erred by allowing said testimony." Second, Arias contends that the admission of Ochoa's out-of-court statements is barred by Crawford because Arias was denied his right to confront and cross-examine Ochoa concerning her statements. Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The Texas Rules of Evidence provide an exception to this rule for "excited utterances." Tex. R. Evid. 803(2). An excited utterance is "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Id. When determining whether a hearsay statement is admissible as an excited utterance, we may consider the time elapsed and whether the statement was in response to a question. Zuliani v. State, 97 S.W.3d 589, 595-96 (Tex.Crim.App. 2003). "However, it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception." Id. at 596. The critical factor to consider when determining if a statement is an excited utterance is "`whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event'" or condition at the time of the statement. Id. (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992)). In other words, a court must determine whether the statement was made "`under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.'" Id. Whether an out-of-court statement is admissible under an exception to the hearsay rule is a matter within the trial court's discretion. Id. at 595. The trial court held a hearing outside the presence of the jury to determine if Ochoa's statements to Alardin were admissible. Alardin testified that he arrived on the scene approximately forty-five minutes after the incident occurred and interviewed Ochoa ten to fifteen minutes later. According to Alardin, Ochoa was shaking and tearful, and she appeared nervous. Ochoa told Alardin that she was startled awake by the sound of several gunshots and, peeking out her bedroom window, saw a white truck in the intersection outside her house. Ochoa indicated that she heard more shots and told Alardin that she heard Arias yelling in Spanish, "I'm going to kill you." Alardin further stated that after Ochoa made this initial statement, it took approximately another hour for Ochoa to calm down sufficiently to make a written statement. The trial court determined that Ochoa's verbal statements to Alardin were admissible as excited utterances, but did not allow the admission of Ochoa's written statement. On appeal, Arias does not appear to complain that the statements were erroneously admitted as excited utterances, but that Ochoa's out-of-court statements do not qualify under the exception for then existing mental, emotional, or physical condition. After reviewing the evidence, we are of the opinion that Ochoa's out-of-court statements qualify as excited utterances. Ochoa's statements to Alardin were made in relation to startling events; she was still dominated by the emotion caused by those events. Since the statements were admissible under Rule 803(2) as excited utterances, it is not necessary for the statements to meet the requirements of Rule 803(3), the exception for then existing mental, emotional, or physical condition. Although we have determined that Ochoa's statements are admissible under the excited utterance exception to the hearsay rule, we must further analyze the statements in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In March 2004, the United States Supreme Court reexamined the admissibility of out-of-court hearsay statements. Id. In Crawford, the Court specified that the admission of testimonial hearsay violated the Confrontation Clause unless the declarant is shown to be unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Id. at 1373-74. The Court left "for another day any effort to spell out a comprehensive definition of `testimonial,'" but stated that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 1374. Assuming, without deciding, that Crawford bars the admission of Ochoa's out-of-court statements, we turn to the question of whether Arias was harmed by the error. In the case of constitutional error, we must reverse Arias's conviction unless we determine beyond a reasonable doubt that the error did not contribute to Arias's conviction. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Tex.R.App.P. 44.2(a); Mendez v. State, 56 S.W.3d 880, 893 (Tex.App.-Austin 2001, pet. ref'd). Essentially, we must "calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence." McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App. 2001). If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error is not harmless beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000). The fact that the legally admitted evidence is sufficient to support the verdict does not demonstrate the error was harmless. Id. However, the error may be harmless when the lawfully admitted evidence of Arias's guilt is overwhelming. See Simpson v. State, 119 S.W.3d 262, 269-71 (Tex.Crim.App. 2003); Guidry v. State, 9 S.W.3d 133, 151 (Tex.Crim.App. 1999). In determining harm associated with the inability to confront, we first assume that the damaging potential of the cross-examination is fully realized. Shelby v. State, 819 S.W.2d 544, 546-47 (Tex.Crim.App. 1991). We then, holding that assumption in mind, consider the importance of the statements to the prosecution's case, whether the testimony was cumulative, the presence or absence of corroboration, the extent of cross-examination otherwise permitted, and the overall strength of the state's case. Id. Arias was convicted of aggravated assault, which occurs if a person intentionally, knowingly, or recklessly commits an assault, which either causes serious bodily injury or is effected by the use of a deadly weapon. See Tex. Pen. Code Ann. §§ 22.01 22.02 (Vernon 1994). The question then is whether, disregarding Ochoa's statements, the lawfully admitted evidence overwhelmingly proves Arias's guilt in regard to aggravated assault. Wesbrook, 29 S.W.3d at 119. We conclude that it does. Arias did not have an opportunity to cross-examine Ochoa, and Ochoa's statements were neither cumulative nor corroborated by other testimony. However, the statements were not important to the State's case for aggravated assault. During the hearing on the admissibility of Ochoa's statements, the State indicated that it sought the admission of Ochoa's statements for the purpose of showing that Arias possessed the requisite intent to murder de Marco and Garza. Because the jury did not convict Arias of attempted murder, Ochoa's statements were ultimately unimportant to the State's case against Arias. The State presented the testimony of Investigator Primo Guzman, who testified that Arias admitted that he shot at the white truck in which de Marco and Garza were the occupants. The state also presented Arias's own written statement, in which Arias admitted to shooting at the white truck because he believed the occupants of the truck had shot at him and his family. Additionally, the jury viewed Arias's videotaped statement, in which Arias also admitted shooting at the white truck despite not knowing who its occupants were and whether it was involved in the drive-by shooting. The lawfully admitted evidence presented by the State overwhelmingly establishes Arias's guilt. Arias's own statement corroborates that he was the one who shot at the white truck in which de Marco and Garza were occupants. Moreover, Ochoa's statements were immaterial to the charge for which Arias was ultimately convicted. These factors lead us to conclude beyond a reasonable doubt that admission of Ochoa's statements were harmless. See Simpson v. State, 119 S.W.3d 262, 269-71 (Tex.Crim.App. 2003) (finding confrontation clause violation to be harmless error where the evidence of guilt was strong). Thus, Arias's first issue is overruled.Requested Jury Instruction
Arias maintains that the evidence justifies an instruction on mistake of fact on the attempted murder charge. We do not agree. The Texas Penal Code provides that a person commits attempted murder if the person "intentionally or knowingly" causes the death of another or "intends" to cause serious bodily injury to another and takes steps amounting to more than mere preparation which tends but fails to effect the commission of murder. Tex. Pen. Code Ann. §§ 19.02 15.01 (Vernon 1994). The penal code also provides that a person commits the offense of aggravated assault if a person intentionally, knowingly, or recklessly commits an assault, which either causes serious bodily injury, or is effected by the use of a deadly weapon. Id. at §§ 22.01 22.02. To raise the defense of mistake of fact, Arias must have shown that through mistake, he formed a reasonable belief about a matter of fact which negated the kind of culpability required to commit either offense for which the jury could find him guilty. See id. at § 8.02; see also Thomas v. State, 855 S.W.2d 212, 214 (Tex.App.-Corpus Christi 1993, no pet.) (indicating that mistake of fact applies only if a defendant's mistake affects the mens rea for the offense charged). Arias argues that through mistake, he formed a reasonable belief that at the time of the shooting, the occupants of the white truck at which he directed gunfire were the persons who had been shooting at him and his family. He also indicated that he believed the white pickup truck at which he shot had been involved in an earlier drive-by shooting. Even viewing this evidence in a light favorable to Arias, it does not negate the culpable mental state required for either attempted murder or aggravated assault. By his own admission, Arias fired gunshots at the occupants of the white truck irrespective of the identity of the occupants. Arias's proclaimed reason for doing so is self-defense; Arias believed the occupants of the truck had been shooting at him and his family. "A mistake about the existence of a fact which would establish an affirmative defense to an offense, rather than negating an element of the offense, does not raise the mistake of fact defense." Lugo v. State, 923 S.W.2d 598, 601 (Tex.App.-Houston [1st Dist.] 1995, writ ref'd). Arias's second issue is overruled.Jury Instructions
Arias complains that the trial court erroneously charged the jury on the issues of retreat and the availability of the self defense justification. When reviewing a claim of charge error, we first determine whether error actually exists in the charge. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). We then determine whether sufficient harm resulted from the error to require reversal. Id. The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether an appellant objected to the charge at trial. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). Where a timely objection has been made at trial, we search only for "some harm." Id. However, where error is urged for the first time on appeal, we search for "egregious harm." Id. Retreat Arias complains that the trial court erred in instructing the jury on the issue of retreat when defense of third persons has been raised. Arias requested that the trial court's charge include instructions that he would not be required to retreat in defense of a third person. Arias asserts that the trial court's charge does not distinguish between when a reasonable person would have retreated and when a reasonable person does not need to retreat. Arias concludes that "[t]he trial court erred when it instructed the jury that appellant could not be acquitted `if a reasonable person in his situation would not have retreated.'" The trial court's charge on the issue of defense of third parties, however, instructed the jury to find Arias not guilty if a reasonable person in the defendant's position would not have retreated. The trial court's charge instructed the jury. Therefore, if you find from the evidence beyond a reasonable doubt that the defendant on the occasion in question did shoot Mark de Marco [and Jose A. Garza] with a firearm, as alleged in the indictment, but you further find from the evidence at the time, or you have a reasonable doubt thereof, that viewed from the standpoint of the defendant at the time . . . it reasonably appeared to the defendant that his life or . . . the life of a third person . . . was or were in danger and there was created in his mind a reasonable expectation or fear of death . . . at the hands of Mark de Marco [or Jose A. Garza], and that, acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself or a third person . . . and that a reasonable person in defendant's situation would not have retreated, then you will find the defendant "Not Guilty." A person is justified in using deadly force against another if a reasonable person in the actor's situation would not have retreated. Tex. Pen. Code Ann. § 9.32 (Vernon 1994). Section 9.33 of the penal code "provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary." Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). Here, because the court's instructions correctly set forth the applicable law, we find no error. Arias's third issue is overruled. Availability of Self Defense Justification Arias contends the trial court erroneously instructed the jury that the use of deadly force in self-defense as afforded by law was not justified if Arias recklessly injured or killed an innocent third person. The trial court, generally tracking Section 9.05 of the penal code, instructed the jury If you find that the Defendant is justified in using force or deadly force, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by law is unavailable to Defendant. See Tex. Pen. Code Ann. § 9.05 (Vernon 1994). Arias argues that he is entitled to a self-defense instruction on apparent danger without the limitations with regard to innocent third parties as presented in his proposed charge, and concludes that the trial court's erroneous instruction rises to the level of fundamental error. Arias's own statement indicates that Arias, in self defense, shot at a white pickup truck, hitting both of the occupants. The evidence at trial showed that neither of the truck's occupants had been shooting at Arias and are, therefore, innocent third persons. Subsequently, Arias was charged with "the reckless injury or killing of the innocent third person[s]." See Tex. Pen. Code Ann. § 9.05 (Vernon 1994). Therefore, the instruction was proper; we find no error in the complained of charge. Arias's fourth issue is overruled.Lesser Included Offense
Finally, Arias argues that aggravated assault is not a lesser included offense of murder, but is an offense that should have been charged separately in the indictment. In support of his argument, Arias points out that attempted murder and aggravated assault are both second degree felonies and are subject to the same punishment range. Arias contends that because he could be convicted of aggravated assault under a mental state additional to those under which he was charged for attempted murder, he did not receive appropriate notice of the charges against him. We disagree. An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged or it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). The determination of whether an offense is a lesser included offense of the offense charged is made without regard to punishment; an offense may be a lesser included offense of another even if it carries the same penalty. Mello v. State, 806 S.W.2d 875, 878 (Tex.App.-Eastland 1991, pet. ref'd). The included offense need not be "lower" in the sense that it provides lesser punishment. Id. The word "lesser" does not refer to the punishment range but to the factor that distinguishes the included offense from the offense charged, i.e., less than all facts, less serious injury or risk of harm, or less culpable mental state. Johnson v. State, 511, 515-16 (Tex.App.-Waco 1992, pet. ref'd). In the instant case, the indictment charged Arias with attempted murder pursuant to the Texas Penal Code §§ 19.02 and 15.01, by alleging that Arias did:. . . then and there, with the specific intent to commit the offense of Murder of Mark de Marco [and Jose A. Garza], do an act, to-wit: shoot Mark de Marco [and Jose A. Garza], with a firearm, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended.Section 19.02 provides that a person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02 (Vernon 1994). Section 15.01 provides that a person commits the offense of criminal attempt to commit murder if he, acting with the specific intent to commit murder, does an act amounting to more than mere preparation which tends but fails to effect the commission of murder. Id. at § 15.01. The trial court's charge allowed the jury to find Arias guilty of the lesser included offense of aggravated assault. The relevant elements of aggravated assault are (1) a person, who (2) intentionally, knowingly, or recklessly (3) commits an assault; which either (4) causes serious bodily injury, or (5) is effected by the use of a deadly weapon. Id. at §§ 22.01 22.02. Therefore, under the plain meaning of Article 37.09(1), aggravated assault may be a lesser included offense of attempted murder. See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). Aggravated assault may also be a lesser included offense under Article 37.09(3). See id. The fact that the lesser included offense of aggravated assault may be committed by the "additional" culpable mental state of "reckless" does not preclude an instruction to the jury on "reckless," even though "reckless" is not alleged in the indictment. Rocha v. State, 648 S.W.2d 298, 302 (Tex.Crim.App. 1983) (on rehearing). The culpable mental states are classified according to relative degrees, from highest to lowest, as follows: intentional, knowing, reckless, criminal negligence. Tex. Pen. Code Ann. § 6.02(d) (Vernon 1994). Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. Id. at § 6.02(e). "For the purposes of submission to the jury of the lesser included offense of aggravated assault, . . . the culpable mental state of "reckless" is included under the canopy of the higher culpable mental states of "intentional" and "knowing" alleged in the indictment for the greater offense of attempted murder." Rocha, 648 S.W.2d at 302. Arias is correct in pointing out that the requisite notice of an offense must come from the face of the indictment; a trial court may not enter a conviction on an offense not charged in the indictment. See Jacob v. State, 864 S.W.2d 741, 742 (Tex.App.-Houston [14th Dist.] 1993) aff'd 892 S.W.2d 905 (Tex.Crim.App. 1995). However, once the jurisdiction of the court is properly invoked to try the offense charged in the indictment, it is authorized to proceed to judgment upon any lesser included offense determined from the offense charged and the facts of the case. Cunningham v. State, 726 S.W.2d 151, 153 (Tex.Crim.App. 1987). The limitations of article 37.09 satisfy the requirements of due process and notice because the lesser included offense must necessarily be included within the greater. See Jacob, 892 S.W.2d at 907. Therefore, we now turn to whether, in this case, the trial court was justified in instructing the jury on the lesser included offense of aggravated assault. See Bartholomew v. State, 871 S.W.2d 210, 212 (Tex.Crim.App. 1994) (indicating that our analysis of the appropriateness of a lesser included offense instruction must be made on a case-by-case basis); see also Schweinle v. State, 915 S.W.2d 17, 18 (Tex.Crim.App. 1996) (stating that a determination must be made whether proof of the charged offense in the instant case included proof of the lesser included offense). In making our determination, we evaluate the evidence presented at trial to determine whether there is some evidence that would permit a rational jury to find that Arias is guilty only of the lesser offense, and not of the greater. Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App. 2001). We evaluate the evidence in the context of the entire record. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998). Some evidence must exist from which a rational jury could acquit Arias on the greater offense while convicting him of the lesser included offense. Id. We may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. If there is evidence from any source negating or refuting the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury was appropriately charged on the lesser included offense. Schweinle, 915 S.W.2d at 19. The evidence at trial showed that on the evening of April 27, 2003, Arias believed that a drive-by shooting was occurring in his neighborhood. The jury had before it Arias's statement that he heard shooting from a block away. Arias went inside his home to retrieve a firearm he had there. When he returned outside, he fired the weapon at a white truck stopped in front of his house, injuring both of the occupants. Investigator Primo Guzman testified that Arias indicated he did not believe the truck was involved in a drive-by shooting and he did not know who the occupants of the truck were, but shot at the truck because he was scared. The occupants of the truck were de Marco and Garza, plain-clothed Border Patrol agents responding to a tip concerning the movement of a narcotics shipment. Evidence at trial showed that neither de Marco nor Garza discharged a weapon during the shooting. The evidence at trial raises doubts whether Arias possessed the necessary intent to murder de Marco and Garza, but that he did shoot at the white truck without care for who was inside. Therefore, the trial court correctly included in its charge the lesser included offense of aggravated assault which was raised by the evidence. Burks v. State, 510 S.W.2d 321, 322 (Tex.Crim.App. 1974). Because aggravated assault may properly be considered a lesser included offense of attempted murder and the evidence showed that, in this case, an instruction on the lesser included offense was proper, Arias's fifth issue is overruled.