No. 4-05-00585-CR
Delivered and Filed: April 12, 2006. DO NOT PUBLISH.
Appeal from the 229th District Court, Starr County, Texas, Trial Court No. 04-Crs-306, Honorable Alex W. Gabert, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
Opinion by: REBECCA SIMMONS, Justice.
Appellant Arnoldo Belmontes appeals his conviction for unlawful possession of a firearm by a felon. Belmontes entered a plea of nolo contendere following the trial court's denial of his motion to dismiss. Belmontes raises three points of error, claiming that the trial court erred in: (1) denying his motion to dismiss by reason of prior acquittal of murder; (2) sentencing him to a term consecutive with his federal sentence; and (3) prohibiting cross-examination of federal probation officer Jaime Mora. Because Belmontes' challenges on appeal do not present reversible error, we affirm the trial court.
Factual Background
In May of 2004, Belmontes was involved in a fight that resulted in the death of Robey Guerra. In July of 2004, he was indicted for murder and for unlawful possession of a firearm by a felon, arising from this incident. Belmontes failed to seek consolidation of the two offenses. The State elected to proceed to trial on the murder charge first. On January 24, 2005, the State presented its case to a jury, which ultimately returned a verdict of not guilty. During the murder trial, Belmontes elected to testify and admitted, at several different points, to possessing a firearm while on supervised probation for the felony offense of conspiracy to possess with intent to distribute marijuana. Under direct examination, Belmontes stated, "[a]nd they were pointing the guns to my brother . . . that's when I got my gun . . . [m]y 45 that I had in my car." During cross examination, Belmontes again admitted to possessing a weapon while on probation: State. Did anybody have any weapons there?
Belmontes. I had my weapon in my car,
State. Well, wouldn't having a firearm be a violation of your release?
Belmontes. That's right.
State. And how long had you had the gun?
Belmontes. Two or three weeks.
After Belmontes' acquittal on the murder charge, the State proceeded on the unlawful possession indictment. Belmontes' motion to dismiss on double jeopardy grounds was denied by the trial court. On March 31, 2005, Belmontes entered a plea of nolo contendere to the charge of unlawful possession of a firearm by a felon. During the State's case-in-chief, federal probation officer Jaime Mora testified about Belmontes' probation status and the terms of his supervised release. During cross-examination, Belmontes' attorney asked Officer Mora if Belmontes had been a "good probationer." Officer Mora stated that he had been instructed by his director from district Judge Andrew S. Hanen's office that he could only answer the State's questions and that the information sought by Belmontes was "considered confidential." Belmontes' attorney inquired whether there was an objection or court ruling prohibiting the cross-examination. To which the trial court replied, "In this particular matter, I will have to go along with the witness." Belmontes' attorney simply replied, "note our objection, your honor, our exception." No other objection or bill of review was presented. Officer Mora ultimately testified regarding the status of Belmontes' federal probation, but refused to answer any questions regarding Belmontes' behavior while on probation. The trial court found Belmontes guilty of the offense of unlawful possession of a firearm by a felon and the case was reset for sentencing. While Belmontes was awaiting sentencing in state court, his federal probation was revoked and he was sentenced to five years in the federal penitentiary. On June 17, 2005, the trial court sentenced Belmontes to five years in the Institutional Division of the Texas Department of Criminal Justice, to be served consecutively with his federal sentence. Motion to Dismiss
Prior to the bench trial, Belmontes filed a motion to dismiss claiming his Fifth Amendment guarantee against double jeopardy prevented the State from proceeding. U.S. Const. amend. V; Tex. Code Crim. Proc. Ann. art. 1.10 (Vernon 2005). Belmontes asserts that the unlawful possession of a firearm by a felon charge is a lesser included offense of the murder charge. Additionally, Belmontes argues the State's reliance on factual conduct to prosecute one charge precludes it from relying on the same conduct to prosecute another charge without violating the Fifth Amendment guarantee against double jeopardy. Standard of Review
The trial court's ruling on a motion to dismiss is subject to an abuse of discretion standard of review. Williams v. State, 464 S.W.2d 842, 844-45 (Tex.Crim.App. 1971); State v. Hernandez, 830 S.W.2d 631, 635 (Tex.App.-San Antonio 1992, no pet.). In considering whether the trial court abused its discretion, we must determine whether its ruling lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991). Analysis
To prevail on his double jeopardy claim, Belmontes must show, as a matter of law, that the two offenses constitute "the same offense" under the double jeopardy clause. See Ortega v. State, 171 S.W.3d 895, 896 (Tex.Crim.App. 2005) (en banc). The Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides that "no person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb. . . ." U.S. Const. amend. V, IV; Benton v. Maryland, 395 U.S. 784, 794 (1969). In North Carolina v. Pearce, 395 U.S. 711, 717 (1969) the United States Supreme Court explained that the double jeopardy guarantee consists of three separate constitutional protections, it preludes: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. When reviewing a double jeopardy claim, Texas courts apply the "same elements" test outlined in Blockburger v. United States, 284 U.S. 299, 304 (1932). In Blockburger, the Supreme Court held that double jeopardy guarantees do not apply in cases where at least one of the elements of a charged offense is different from the elements of any other charged offense. Id. This test requires an examination of the statutory elements of each offense to determine if each statute requires proof of an additional factor that the other does not. Id.; Cervantes v. Texas, 815 S.W.2d 569, 573 (Tex.Crim.App. 1991) (stating "[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution under the other"); Flores v. Texas, 906 S.W.2d 133, 136 (Tex.App.-San Antonio 1995, no pet.) (noting that "the test simply inquires whether each offense contains an element not contained in the other; if not, double jeopardy bars a successive prosecution"); see also Ortega v. State, 171 S.W.3d 895, 899 (Tex.Crim.App. 2005) (finding no violation of the Double Jeopardy clause because one offense required proof of a fact that the other did not). In support of his contention, Belmontes points to Ortega v. State, 131 S.W.3d 698 (Tex.App.-Corpus Christi 2004) (en banc) rev'd, 171 S.W.3d 895 (Tex.Crim.App. 2005) (en banc) in which the appellate court overturned Ortega's conviction because he "had already been convicted for conduct that was a necessary element of the offense for which he was later charged and subsequently convicted." Just recently, however, the Texas Court of Criminal Appeals reversed this decision and remanded the case back to the appellate court. Ortega v. State, 171 S.W.3d 895 (Tex.Crim.App. 2005) (en banc). In Ortega, the Court of Criminal Appeals held that a subsequent prosecution for assault on a police officer after defendant was convicted of resisting arrest did not violate the prohibition against double jeopardy, where each offense required proof of a fact that the other did not. Id. at 900. The court clarified that the Blockburger test focuses on the elements of each individual offense and not on the underlying conduct. Id. at 899. Here, a comparison of the elements of each offense illustrates the absence of a double jeopardy issue. The murder offense of which Belmontes was acquitted required proof that: (1) a person, (2) intentionally or knowingly, (3) 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 (b) (Vernon 2005); Brown v. State 955 S.W.2d 276, 284 (Tex.Crim.App. 1997). The conviction for the unlawful possession of a firearm by a felon required proof that: (1) a person, (2) who has been convicted of a felony, (3) possesses a firearm, (4) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later. Tex. Pen. Code Ann. § 46.04 (a) (1) (Vernon 2003); Hunt v. State, 994 S.W.2d 206, 208 (Tex.App.-Texarkana 1999, pet. ref'd). Application of the Blockburger test demonstrates that unlawful possession of a firearm requires proof of at least one element that the murder offense does not. Additionally, Texas law establishes that unlawful possession of a firearm by a felon is not a lesser included offense of murder. Tex. Code Crim. Proc. Ann. art. 37.09 (1) (Vernon 1981). The Texas Code of Criminal Procedure states that an offense is considered 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." Id. The unlawful possession of a firearm by a felon charge clearly did not require proof of any of the same facts as the murder charge. As a result, we conclude that the trial court's decision to deny the motion to dismiss was not outside the zone of reasonable disagreement. Belmontes' first point of error is overruled. Consecutive Sentences
Belmontes contends the trial court abused its discretion when it ordered that his sentence for unlawful possession of a firearm by a felon run consecutively, and not concurrently, with his federal sentence. The trial court is vested with the authority to order that sentences run concurrently or consecutively. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon 1979); Banks v. State, 503 S.W.2d 582, 587 (Tex.Crim.App. 1974); Bruns v. State, 924 S.W.2d 176, 179 (Tex.App.-San Antonio 1996, no writ). The trial court's decision to impose a consecutive sentence is subject to the traditional "outside the zone of reasonable disagreement" abuse of discretion standard of review. See Macri v. State, 12 S.W.3d 505, 511 (Tex.App.-San Antonio 1999, pet. ref'd). The Texas Code of Criminal Procedure provides "[w]hen the same defendant has been convicted in two or more cases. . . . The second and subsequent convictions may either be that the [punishment] shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the [punishment] shall run concurrently. . . ." Tex. Code Crim. Proc. Ann. art. 42.08 (a) (Vernon 2005). The record shows that the sentence for his previous federal conviction was still in effect. Therefore, the trial court had the authority to cumulate the sentences so that the second sentence would become effective when the initial sentence ended. Belmontes fails to show how the trial court's decision was outside the zone of reasonable disagreement. Having concluded that it was within the trial court's statutory authority to impose consecutive sentences, we are unable to say that the trial court abused its discretion. We overrule Belmontes' second point of error. Limitation of Cross-Examination
In his final point of error, Belmontes argues the trial court violated his right to confrontation under the Sixth Amendment by limiting his cross-examination of federal probation officer Jaime Mora. The fundamental purpose of the confrontation right is to ensure the opportunity of cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 685 (1986). The confrontation clause of the Sixth Amendment guarantees that the defendant will have an opportunity to effectively cross-examine the witnesses against him. Id. Belmontes contends that the answers he sought to elicit from officer Mora might have affected the trial court's sentencing decision. However, because Belmontes' failed to make an offer of proof or a bill of exception, nothing is preserved for review. Analysis
The record illustrates that Belmontes' was improperly prevented from obtaining a specific response to a specific question, however, this error was not properly preserved for review. Easterling v. State, 710 S.W.2d 569, 578 (Tex.Crim.App. 1986) (holding "[w]hen a defendant contends that his cross-examination of a witness has been unduly limited, nothing is preserved for review unless the record shows by bill of exception or otherwise what questions he wanted to propound and the answers he expected therefrom"). Even if we determine that the trial court improperly limited the scope of a defendant's cross-examination, and that the error was preserved, we must apply a harmless error analysis to ascertain whether exclusion of the testimony warrants a reversal. Shelby v. State, 819 S.W.2d 544, 547 (Tex.Crim.App. 1991) (adopting the harmless error analysis announced in Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). We review the error in connection with the following elements: (1) the importance of the witness's testimony; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness; (4) the extent of cross-examination otherwise allowed; and, (5) the overall strength of the prosecution's case. Id. Although Belmontes' attorney objected when his cross-examination was cut off, he did not make an offer of proof or perfect a bill of exception showing what he expected to establish with the testimony. While we cannot determine why the trial judge chose to limit the cross-examination, we are unable to apply the proper harm analysis without a record of the information Belmontes expected to obtain from officer Mora. Accordingly, we overrule Belmontes' final point of error. Conclusion
Having overruled all of Belmontes' issues, we affirm the judgment of the trial court.