Hernandez v. State

Full title: RICHARD CHARLES HERNANDEZ, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jun 7, 2006

No. 4-05-00262-CR (Tex. App. Jun. 7, 2006)

Opinion

No. 4-05-00262-CR

Delivered and Filed: June 7, 2006. DO NOT PUBLISH.

Appeal from the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-2490B, Honorable Pat Priest, Judge Presiding. Affirmed.

Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.

MEMORANDUM OPINION

Opinion by: CATHERINE STONE, Justice.

After a trial by jury, Richard Charles Hernandez was convicted of murder and sentenced to ten years in prison. On appeal, Hernandez contends the trial court abused its discretion when it allowed testimony to be read back to the jury and when it denied a hearing outside the presence of the jury for its threshold determination of admissibility of extraneous offense evidence at the punishment phase of the trial. Hernandez further contends the extraneous offense evidence was erroneously admitted. We disagree with Hernandez's contentions and affirm the trial court's judgment.

Article 36.28 — Reading Back Testimony to the Jury

In his first issue, Hernandez contends the trial court abused its discretion by allowing testimony to be read back to the jury after deliberations had started. Hernandez argues that no disagreement was shown between the jurors regarding a portion of a witness' testimony and that consequently the readback was in violation of Article 36.28 of the Texas Code of Criminal Procedure. Article 36.28 provides:

[I]f the jur[ors] disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other. . . .

Tex. Crim. Proc. Code Ann. art. 36.28 (Vernon 2005). Thus, the jurors must disagree as to the testimony of a witness before the testimony may be read back to them. DeGraff v. State, 962 S.W.2d 596, 598 (Tex.Crim.App. 1998). A simple request for testimony does not, by itself, reflect disagreement. Robison v. State, 888 S.W.2d 473, 480 (Tex.Crim.App. 1994). It is not enough for the trial court to infer that the jury is in disagreement based on mere speculation, as was done in Moore v. State, 874 S.W.2d 671, 673 (Tex.Crim.App. 1994) (acknowledging that the jurors merely provided a simple request for testimony, and nothing in the request could lead the trial court to infer that a disagreement existed). Rather, the trial judge should determine through additional instructions or communications to the jury whether a dispute exists among the jurors as to the testimony of a specific witness. See Howell v. State, 175 S.W.3d 786, 791-92 (Tex.Crim.App. 2005); Robison, 888 S.W.2d at 480-81. A trial judge's determination as to whether a factual dispute exists between the jurors is reviewed for an abuse of discretion. Robison, 888 S.W.2d at 480. An abuse of discretion occurs when the trial court's decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-102 (Tex.Crim.App. 1996). The note in question that Hernandez complains of reads as follows:

The prosecutor said in closing remarks that the detective testified that the other individuals present at the crime scene corroborated Mr. Gutierrez's story. We would like that element of the Detective's testimony read to us. There is disagreement. Signed, [jury foreman].

Despite Hernandez's objection that the note failed to show a disagreement among the jurors concerning the specific testimony of a witness, the trial court concluded the note was "sufficiently specific and sufficiently indicative of a disagreement among the jurors to justify reading back that portion only of the testimony." The actions taken by the trial judge in the instant case are similar to those performed in Robison. Here, the jury initially requested nearly all the testimony and exhibits. The judge answered the jury by informing them that there must be disagreement regarding specific testimony. Then the note at issue was sent to the trial judge. Hernandez objected that the note did not illustrate disagreement regarding the testimony of a witness, but rather it showed the jurors' confusion concerning any inconsistency between the detective's testimony and the closing statements of the prosecutor. The trial judge stated, "My reading of the note differs from yours. I think they are saying they disagree about what the detective said. So your objection is overruled. It will be read back." The trial court's decision to read back the testimony to the jury did not fall outside the zone of reasonable disagreement. The trial judge took the appropriate action to determine whether the request complied with Article 36.28. Hernandez's first issue is overruled.

Article 37.07 — Admission of Extraneous Evidence at Punishment Phase

At the punishment phase of the trial, Hernandez requested that the trial court make a threshold determination of admissibility outside the presence of the jury concerning extraneous offense evidence the State intended to offer. The evidence complained of includes the testimony of several witnesses concerning Hernandez's commission of an extraneous assault and a robbery. The trial judge denied Hernandez's request, and Hernandez now contends the trial court abused its discretion. We disagree. To the extent that Hernandez contends the trial court erred by failing to conduct a preliminary hearing outside the jury's presence, we overrule his complaint. "[T]here is no requirement that [the] initial determination be made by the court following a hearing as opposed to some other form of preliminary review. The trial court may determine whether there is sufficient evidence through an oral or written proffer of evidence, motions, pretrial hearings, and the trial, including any bench conferences." See Arzaga v. State, 86 S.W.3d 767, 781 (Tex.App. El Paso 2002, no pet.) (citations omitted). Hernandez's remaining complaints regarding admission of extraneous offense evidence are governed by Article 37.07 of the Code of Criminal Procedure. Article 37.07 provides that extraneous offense evidence may be offered during the punishment phase "as to any matter the court deems relevant to sentencing, including but not limited to . . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant. . . ." Tex. Crim. Proc. Code Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2006). The trial court bears the responsibility to determine threshold issues of admissibility while the jury maintains the power to decide whether the State has met its burden of proof. See Welch v. State, 993 S.W.2d 690, 697 (Tex.App.-San Antonio 1999, no pet.). The trial court's determination is an initial determination of whether the extraneous offense is relevant. Arzaga v. State, 86 S.W.3d at 781; Mitchell v. State, 931 S.W.2d 950, 953-54 (Tex.Crim.App. 1996). The determination by the trial court is not that the State has proved the extraneous offense beyond a reasonable doubt, "but is instead a finding that sufficient evidence exists from which a jury could reasonably so find." Arzaga, 86 S.W.3d at 781 (citing Mann v. State, 13 S.W.3d 89, 94 (Tex.App. Austin 2000), aff'd, 58 S.W.3d 132 (Tex.Crim.App. 2001)). We review the trial court's decision to admit extraneous offense evidence under the abuse of discretion standard. Mitchell, 931 S.W.2d at 953. Here the court granted a motion in limine that the State's witnesses were not to speak of Hernandez's extraneous offenses during the guilt/innocence phase of the trial. Additionally, at the punishment phase, Hernandez objected again to the introduction of extraneous offenses by the State. Thus the trial judge heard Hernandez's pretrial motion in limine and objections and argument during the punishment phase. The court was also aware that testimony concerning the alleged assault by Hernandez was to be provided by Hernandez's ex-wife, and testimony regarding the robbery was to be provided by two officers and an eyewitness. See Arzaga, 86 S.W.3d at 781-82 (holding that the "prosecutor's oral statement as to how she intended to prove these other assaults through [a deputy] was sufficient for the trial court to make an initial determination of relevance"); Mann, 13 S.W.3d at 93-95 (concluding that the prosecutor's statement that he intended to offer evidence of an extraneous offense through the defendant's ex-wife regarding physical abuse by the defendant was sufficient for purposes of making a threshold determination of admissibility). The facts in the murder at issue revealed that the deceased was assaulted and his pockets were turned inside-out, suggesting a robbery took place. The court did not abuse its discretion concluding that the extraneous offenses were relevant and that the testimony of the witnesses was sufficient to warrant a decision by the jury, beyond a reasonable doubt, that Hernandez committed the previous assaults and the robbery.

Conclusion

Because the trial court did not abuse its discretion when it provided for a read-back of testimony or when it admitted extraneous offense evidence during the punishment phase of trial, we affirm the trial court's judgment.