Opinion
Nos. 14-03-00145-CR, 14-03-00146-CR.
Opinion filed January 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause Nos. 936,483 and 936,484. Affirmed.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
A jury found appellant, Luis Gonzalez, guilty of two counts of murder. In four issues, he contends (1) he should have been charged with evading arrest rather than felony murder under the doctrine of pari materia; (2) the trial court erred in failing to grant a mistrial in response to comments from a prospective juror; and (3) his due process rights under the United States and Texas Constitutions were violated when the trial court denied his motion to admit the written statement of an unavailable witness. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
Facts
On December 24, 2001, two Harris County Sheriff's deputies in separate vehicles went to a gas station to get some coffee. They saw a truck parked by the side of the building in an area not used by the public. Appellant was sitting in the driver's seat, and his girlfriend was sitting next to him. The truck's motor was running, and the passenger door was open. Suspicious that a robbery or theft might be in progress, the deputies parked their cars behind the truck. Randall Dixon then ran out of the gas station with five cartons of cigarettes he had just stolen and got in the truck. Appellant began to drive away before Dixon was completely in the truck. The deputies activated their emergency lights and sirens, but appellant did not stop. The deputies followed appellant for ten minutes covering a distance of twelve miles on a highway and through residential areas. During the pursuit, appellant drove through several red lights, and drove over the posted speed limits, causing many other drivers to take evasive action to avoid appellant. Eventually, appellant accelerated through an intersection against a red light and collided with a car traveling through the intersection with a green light. The two brothers inside the car were both killed in the collision. Appellant ran from the scene, but was caught and handcuffed after a brief struggle. At trial, appellant claimed he fled from the deputies because he had been afraid Dixon might hurt him.PARI MATERIA
In his first issue, appellant claims he was prosecuted under the wrong statute. Under the doctrine of pari materia, two statutes with a similar purpose must be harmonized if possible. Burke v. State, 28 S.W.3d 545, 546-47 (Tex.Crim.App. 2000) (citing Mills v. State, 722 S.W.2d 411, 413-14 (Tex.Crim.App. 1986). If the two cannot be harmonized, a defendant should be charged under the more specific statute, unless it appears the intent of the legislature was to make the general act controlling. Id. Pari materia only applies if the statutes were enacted with the same purpose in mind, with the intent that they be construed together. Id. at 547, 549. Appellant was convicted of the first degree offense of felony murder. See TEX. PEN. CODE ANN. § 19.02 (b)(3) (Vernon 2003). He claims he should have been prosecuted for the second degree felony offense of evading arrest. See TEX. PEN. CODE ANN. § 38.04 (Vernon 2003). This offense is committed when a person intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him, and another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight. TEX. PEN. CODE ANN. § 38.04 (b)(3). The evading arrest statute provides that "[a] person who is subject to prosecution under both this section and another law may be prosecuted under either or both this section and the other law." Tex. Pen. Code Ann. § 38.04. Therefore, the legislature clearly did not intend for the evading arrest statute to be construed together with any other statute, including the felony murder statute. Because the statutes were not intended to be construed together, they are not in pari materia. Burke, 28 S.W.3d at 549. Therefore, the State had discretion as to which offense it would prosecute. Id. Appellant's first issue is overruled.Prospective Juror Statement
In his second issue, appellant claims the trial court erred in failing to grant his request for a mistrial and quash the jury panel in response to comments made by a prospective juror. During voir dire by the trial court, several prospective jurors indicated they had already formed an opinion that appellant was guilty. The trial court then informed the jury about the presumption of innocence and asked if anyone could still not presume appellant innocent. One venire member raised her hand and the following exchange occurred:VENIREPERSON: All you have to do is research some of this stuff. You have read the indictment. I'm affiliated with attorneys, so I'm totally —
THE COURT: Well, if you're affiliated with attorneys, do you not believe in the system?
VENIREPERSON: I believe in the system, but I also believe in what — I'm also a former — retired prison guard. Okay.
THE COURT: And what does that mean?
VENIREPERSON: That means that I see too many people walk on crimes and — no. I have researched it enough. That's why.
THE COURT: Researched what, ma'am?
VENIREPERSON: The information that was available, and there is a lot available.
THE COURT: You have already done research on this case?
VENIREPERSON: I research a lot of cases because I am involved with the lawyers.
THE COURT: And so, how did you do your research?
VENIREPERSON: I got on the internet, newspaper articles, your court. I have access to the court cases, to a certain amount of information.
THE COURT: And what is — and you specifically researched this case and read confidential police reports?
VENIREPERSON: No, no. I did not read what's confidential. Obviously, you have that answer. So, let's don't kid each other. I'm just saying the information I saw was somewhat backed up by a lot of documented information, not all hearsay, et cetera. So —
THE COURT: And can you tell me where you researched this case?
VENIREPERSON: Most of this information is available obviously through newspaper, through publications, information on the Internet.After the conversation between the trial court and the venire member, appellant requested a bench conference. He requested a mistrial and that the entire jury panel be stricken because the venireperson's comments were prejudicial. The trial court denied both requests. Both appellant and the State agreed that the venireperson should be stricken, and the trial court instructed her not to raise her hand or answer any other voir dire questions. The trial court asked if any other venire member could not give appellant the presumption of innocence, and no one indicated they could not. We review a trial court's denial of a motion to quash a jury panel and motion for mistrial under an abuse of discretion standard. Mendoza v. State, 552 S.W.2d 444, 447 (Tex.Crim. App. 1977). After a defendant's motion to quash a jury panel because of alleged prejudicial remarks has been denied, a defendant must prove the following to show harm: (1) other venire members heard the remarks; (2) the venire members who heard the remarks were influenced by them to the prejudice of the defendant; and (3) the juror in question or another juror with a similar opinion was forced upon the defendant. Calkins v. State, 780 S.W.2d 176, 188 (Tex.Crim.App. 1986) (citing Johnson v. State, 205 S.W.2d 773, 774-75 (Tex.Crim.App. 1947)). Appellant has not identified any other juror who had a similar opinion about his guilt, and nothing in the record indicates any other prospective jurors were influenced by the comments. See Sanchez v. State, 769 S.W.2d 348, 352 (Tex. App.-San Antonio 1989, no pet.). Appellant, therefore, has failed to demonstrate that he suffered any harm. We also recognize, as the State points out, that a request for an instruction to disregard before moving to quash the venire is the preferred practice in this situation. See Sanchez v. State, 769 S.W.2d 348, 353 (Tex. App.-San Antonio 1989, no pet.) (citing Mendoza, 552 S.W.2d at 446-47). We find the trial court did not abuse its discretion and overrule appellant's second issue.
Statement of Unavailable Witness
In his third and fourth issues, appellant contends his due process rights under the United States and Texas Constitutions were violated when the trial court denied his request to admit the written statement of his girlfriend, Christial Backstrom, who was present in the truck at the time of the offense, but unavailable as a witness at trial. In a statement to police, she claimed that during the police chase, Dixon grabbed her by the hair and throat, threatened to kill her, and instructed appellant on how to get away from the police. Appellant argues Backstrom's statement was crucial to prove his defense of duress. The trial court refused to admit the statement based on the State's objection that the statement was hearsay.Appellant does not claim the statement falls under an exception to the rule against hearsay, but he relies on Chambers v. Mississippi, 410 U.S. 284 (1973) to support his assertion that the testimony should have been admitted. In Chambers, the Court found that a defendant's right to due process was violated by the exclusion of hearsay statements that should have been admitted because they bore "persuasive assurances of trustworthiness." Id. at 302; see Valle v. State, 109 S.W.3d 500, 506 (Tex.Crim.App. 2003). In this case, however, the hearsay statement did not bear such assurances. See Valle, 109 S.W.3d at 506. Appellant testified at trial that he could not recall if Dixon had threatened Backstrom, and he did not make any claim that Dixon had been assaultive toward Backstrom. The deputies who were following the truck did not see anyone inside fighting. Therefore, the exclusion of the statement does not amount to a denial of due process. We overrule appellant's third and fourth issues. Accordingly, the judgment of the trial court is affirmed.