Opinion
No. 05-11-00273-CR
06-21-2012
JUAN CARLOS NAVARRO BENAVIDES, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed June 21, 2012.
On Appeal from the 203 Judicial District Court
Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F08- 60424-P).
Dallas County, Texas
Trial Court Cause No. F08-60424-P
OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
Juan Carlos Navarro Benavides appeals the trial court's judgment convicting him of murder. The jury assessed punishment of life imprisonment. Benavides raises two issues on appeal: (1) the trial court erred by admitting into evidence an eyewitness's statements that were irrelevant and unfairly prejudicial, and (2) the trial court erred by failing to properly instruct the jury regarding the requirements of accomplice testimony. We decide against Benavides on both issues. The trial court's judgment is affirmed. I. FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours of August 30, 2008, Sergio Alanis, Jessie Ortiz, and Benavides were walking from the El Sandia bar to Alanis's car, parked in the bar's parking lot. While in the parking lot, Alanis was stabbed and died as a result of his injuries. Ortiz and Benavides were charged with Alanis's murder.
On August 31, 2008, Benavides telephoned his estranged sister and told her he needed to retrieve a bag because it contained evidence that he was in a fight the night before. That same day, Benavides telephoned his sister-in-law and requested that she give him money so he could buy a bus ticket and travel to Houston. His sister-in-law testified at trial that he needed to leave town because he had been in a fight the previous night. When she questioned him about the fight, Benavides told her that he "sent somebody to the hospital."
When police questioned Benavides, he denied being at the El Sandia bar on the night of the offense.
Margaret Ingram, an acquaintance of Ortiz, testified that, at the time of the offense, she was in another person's car in the El Sandia parking lot and saw Ortiz hit Alanis over the head. Then, Ingram said she saw Benavides stab Alanis. A few days after the offense, police interviewed Ingram where she was shown a photographic lineup of six individuals and was asked if she recognized anyone in the lineup. Ingram made a positive identification of the photo of Benavides as being a picture of the individual that stabbed Alanis and also told the officer Benavides would kill her for identifying him. At the officer's request, Ingram wrote down the comments she had made to the officer. She wrote: "Thats [sic] Carlos. he looks to [sic] skinny his hair is long. He will kill me." The interview was also videotaped.
At trial, when the prosecution questioned Ingram about her interview with police, the prosecution showed Ingram a copy of the photo lineup as well as the comments she made during her interview. Then, the prosecution offered the photo lineup and written comments as evidence, but the defense objected. The court excused the jury and held a hearing to determine the admissibility of the two documents. The defense specifically objected to Ingram's written comments, in which Ingram had written that Benavides would kill her. The defense claimed that comment was bolstering, not relevant, and, alternatively, unduly prejudicial. The court asked the defense how the admission of Ingram's statement in written form was any more prejudicial than Ingram orally testifying to that statement in court. The defense responded that, if such testimony were elicited, she would object to that as well. The court overruled the defense's objection and admitted the evidence.
After the hearing, the jury returned to the courtroom and the prosecution continued questioning Ingram about her interview with police. After Ingram stated she made a positive identification of Benavides's picture, the prosecution asked "did you make a comment at that time?" Ingram responded, "Yes. I was afraid to pick him because I was afraid he'd kill me too." No objection was raised.
On cross-examination, the defense offered as evidence the police's videotaped interview with Ingram, which included Ingram's statement to police that she was afraid to identify Benavides's photo because she was afraid he would kill her. Without objection from the State, it was admitted.
Jesus Guzman, a patron of the El Sandia bar, testified that on the night of the alleged offense, he saw Benavides with two men in the El Sandia parking lot. A forensic pathologist testified that Alanis died as a result of "one stab wound on the right side of the neck." A forensic biologist testified that material found from under Alanis's fingernails indicated a mixture of at least two people-Alanis and Benavides.
Benavides and Ortiz were both indicted for the capital murder of Alanis. During the guilt/innocence phase of the trial, the State called Ortiz, among others, to testify. The court's charge contained an instruction regarding the law of parties, but did not contain an accomplice-witness instruction. Neither side objected to the charge. The jury found Benavides guilty of the lesser- included offense of murder and sentenced him to life imprisonment. II. ADMISSION OF EYEWITNESS'S STATEMENT TO POLICE
In his first issue, Benavides argues the trial court erred by admitting into evidence, over his objection, statements from Ingram, who told police she was afraid to identify Benavides during the photo lineup because she was afraid he would kill her. Benavides asserts this testimony was irrelevant and unfairly prejudicial. The State disagrees. Further, the State contends that even if the trial court did err in admitting the evidence, any alleged error was harmless because appellant's counsel offered as evidence and moved to publish to the jury the videotape of Ingram, which included Ingram's comment that she was afraid of Benavides.
A. Standard of Review
When reviewing a trial court's ruling on the admission of evidence, an appellate court applies an abuse of discretion standard of review. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996).
B. Applicable Law
Relevant evidence is that which has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence. Tex. R. Evid. 401. Generally, all relevant evidence is admissible. Tex. R. Evid. 402. However, relevant evident may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990).
If a party believes the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, it is his duty to object to the admission of that evidence. Id. In deciding how to rule on this objection, a trial court should consider its inherent probativeness; the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; the time the proponent needs to develop the evidence; and the proponent's need for the evidence. Id. at 389-90.
C. Application of Law to Facts
Benavides argues the trial court erred in admitting irrelevant and unfairly prejudicial evidence of Ingram's comments made to the officer during her interview that she was afraid to identify Benavides in a photo lineup because she feared he would kill her. The State responds that Ingram's written comments were relevant not unfairly prejudicial.
First, we address Benavides's relevance argument. When deciding whether a particular piece of evidence is relevant, a trial court should ask whether a reasonable person would believe that evidence is helpful in determining the truth or falsity of any consequential fact to the suit. See id. at 376. When shown a photo lineup, which included Benavides, Ingram told the officer questioning her that she was afraid to select the photo of Benavides. This statement by Ingram was relevant because it showed that she identified Benavides as the person that perpetrated Alanis's murder. Cf. Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987) (stating that police may sometimes show a witness a particular suspect's photograph numerous times because the "witness recognizes a suspect but fears to identify his photograph").
Next, Benavides argues that Ingram's testimony as to her fear of identifying a photograph of him from a photo lineup was unfairly prejudicial and "excites negative emotions against [him]." The State responds that, although the jury heard Ingram's testimony that she was scared to pick Benavides's photo out of the lineup, there was no testimony or evidence presented as to Ingram's prior contacts with Benavides that would cause her to be scared. This identification of Benavides by Ingram is highly probative evidence for the State, and while certainly prejudicial to Benavides, we cannot say it is "unfairly prejudicial." See Caballero v. State, 919 S.W.2d 919, 922 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd) (stating that testimony which emphasizes the human impact of a crime may be prejudicial to the defense, but does not necessarily rise to unfair prejudice). Accordingly, we c on clude the trial court did not abuse its discretion in admitting the testimony into evidence. Benavides's first issue is decided against him.
In addition, we note the record shows that when the prosecution sought to admit Ingram's written comments into evidence, the defense objected, and the trial court overruled the objection. However, soon after the court admitted those written comments into evidence, the prosecution asked Ingram if she made a comment regarding her identification of Benavides's photo. She replied: "Yes. I was afraid to pick him because I was afraid he'd kill me too." While Benavides's counsel objected to the admission of the written comment in the police records, there was no objection raised when the prosecutor subsequently asked Ingram about her comment while on the witness stand. "[I]t is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered." Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). III. ACCOMPLICE-WITNESS JURY INSTRUCTION
In his second issue, Benavides argues the trial court erred when it failed to instruct the jury regarding accomplice-witness testimony. The State agrees failure to include this instruction constituted error, but argues any error was harmless because the omission of the instruction did not egregiously harm Benavides.
A. Standard of Review
An appellate court reviews a trial court's submission of jury instructions under an abuse of discretion standard. Slott v. State, 148 S.W.3d 624, 632 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) (citing Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)).
B. Applicable Law
"Texas law requires that, before a conviction may rest upon an accomplice witness's testimony, that testimony must be corroborated by independent evidence tending to connect the accused with the crime." Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (citing Tex. Code Crim. Proc. Ann. art. 38.14). An accomplice is a person who participates in an offense, before, during, or after the commission of a crime and acts with the required culpable mental state. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006); Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002). To participate in an offense, the accomplice witness must affirmatively act to promote the commission of the offense. Cocke, 201 S.W.3d at 748; Paredes, 129 S.W.3d at 536. When a co-indictee testifies for the State against the accused, he or she is an accomplice witness as a matter of law. East v. State, 702 S.W.2d 606, 616 (Tex. Crim. App. 1985).
If the witness is an accomplice as a matter of law, the trial court has the duty to instruct the jury of this fact and of the necessity of corroborative evidence. See Cocke, 201 S.W.3d at 747-48. Failing to so instruct is error. Herron, 86 S.W.3d at 631.
If an appellate court finds that the trial court erred in failing to instruct the jury and no objection was made during trial, it will reverse only if the error is so egregious and created such harm that the appellant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). "[T]he omission of an accomplice witness instruction is generally harmless unless corroborating (non-accomplice) evidence is 'so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.'" Herron, 86 S.W.3d at 632 (quoting Saunders v. State, 817 S.W.2d 688, 689 (Tex. Crim. App. 1991)).
C. Application of Law to Facts
Because Benavides and Ortiz were both indicted for the capital murder of Alanis and Ortiz testified for the State against Benavides, Ortiz was an accomplice as a matter of law. See East, 702 S.W.2d at 616. Accordingly, the failure of the trial court to instruct the jury of this fact and the necessity of corroborative evidence was error. Herron, 86 S.W.3d at 631. Because no objections were raised to the failure to properly instruct the jury, we next consider whether the trial court's error was egregiously harmful. Almanza, 686 S.W.2d at 171.
The following corroborating (non-accomplice) evidence was adduced at trial: (1) Guzman testified that he saw Benavides with two men in the El Sandia parking lot on the night of the offense; (2) Ingram stated she saw Ortiz hit Alanis and saw Benavides stab Alanis; (3) Benavides admitted via telephone that he "sent somebody to the hospital" the night of the alleged offense; (4) Benavides told a police detective that he was not at the El Sandia bar the night of the offense; (5) according to medical testimony, Alanis died as a result of one stab wound to the neck; and (6) forensic DNA evidence gathered from the scene of the crime showed a mixture of at least two people, one of which corresponded with that of Benavides. Based on this record, we cannot say the corroborating evidence is "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Herron, 86 S.W.3d at 632. Accordingly, we conclude the trial court's error in failing to include an accomplice-witness instruction to the jury did not egregiously harm Benavides. Benavides's second issue is decided against him.
IV. CONCLUSION
We conclude the trial court did not err in admitting as evidence Ingram's written comments. Further, we decide the trial court's error in failing to instruct the jury regarding accomplice witness testimony did not egregiously harm Benavides. The trial court's judgment is affirmed.
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110273F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JUAN CARLOS NAVARRO BENAVIDES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00273-CR
Appeal from the 203
Opinion delivered by Justice Lang, Justices Bridges and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 21, 2012.
DOUGLAS S. LANG
JUSTICE