No. 14-04-00024-CR
Memorandum Opinion filed May 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from 183rd District Court Harris County, Texas, Trial Court Cause No. 915,253. Affirmed.
Panel consists of Justices YATES, EDELMAN, and GUZMAN.
EVA M. GUZMAN, Justice.
A jury convicted Appellant Michael Charles Mendez of murder and sentenced him to thirty years' confinement in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant contends (1) the trial court erred in allowing the State to impeach him with evidence of a prior conviction, and (2) the evidence is legally and factually insufficient to support his conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant attended a party at the home of Candelario Guerrero. While at the party, he began to argue with another of Guerrero's guests, Rubin Zambrano, over their preference of beers. The argument ended with appellant and Zambrano shaking hands, but after appellant left the party some thirty minutes later, he encountered his brother, Christopher Mendez, and a friend, Chris Ginardi, and told them that someone at the party had threatened to kill him and his wife. Appellant asked Christopher and Ginardi to return to the party with him. Christopher decided to arm himself with a shotgun "just in case" Zambrano was also armed. On their way to the party, appellant stopped at his home and retrieved a shotgun and 30-30 rifle. When they arrived at the party, appellant and Christopher approached Zambrano and pointed their shotguns at him. Guerrero, who had been observing the confrontation from inside the house, came outside and confronted appellant. Guerrero took hold of appellant's shotgun, attempting to wrestle it away from him. The resulting struggle lasted several minutes, with the two ending up on the ground. Christopher fired in the direction of appellant and Guerrero, striking Guerrero in the chest and fatally wounding him. A jury convicted appellant and Christopher of murder and sentenced appellant to thirty years' confinement. This appeal followed. II. ISSUES ON APPEAL
In his first issue, appellant contends the trial court erred in allowing the State to cross-examine him with evidence that he was previously convicted of assaulting his wife because the evidence served no purpose other than to inflame the jury. In his two remaining issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction, claiming it does not support a finding that he intended to cause Guerrero serious bodily injury. In the alternative, appellant contends there is no evidence he solicited, directed, aided, or attempted to aid Christopher in causing Guerrero's death. We address appellant's sufficiency issues first. III. ANALYSIS AND DISCUSSION
A. Sufficiency of the Evidence 1. Standards of Review In a legal sufficiency review, we consider all the evidence in a light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). During our review, we do not reevaluate the weight or credibility of the evidence; our role is to ensure the jury reached its verdict rationally. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). We affirm the decision if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). When conducting a factual sufficiency review, we view the evidence in a neutral light and set aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to support a verdict of guilt beyond a reasonable doubt; or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). In our evaluation of the evidence, we must be deferential to the jury's findings and avoid substituting our judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). As the trier of fact, the jury alone judges the credibility of the witnesses and the strength of the evidence. Herrero v. State, 124 S.W.3d 827, 832 (Tex.App.-Houston [14th Dist.] 2003, no pet.). 2. The law of parties A person commits murder when that person (1) intentionally or knowingly causes an individual's death, or (2) 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 2003). Here, it is undisputed that appellant did not fire the weapon that caused Guerrero's death; he was convicted as a party to the murder. A person may be convicted as a party to a crime if, "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid [an]other person to commit the offense." Id. § 7.02(a)(2); Ahrens v. State, 43 S.W.3d 630, 633 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). When a defendant is present during the commission of an offense and contributes toward its commission by words or agreement, evidence is sufficient to convict under the law of parties. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1996) (op. on reh'g). Guilt under the law of parties may be proved by circumstantial evidence, and we may look at events occurring before, during, and after the commission of the crime, as well as actions by the defendant that demonstrate an understanding or common design to commit the offense. Id. Each fact need not directly and independently point to appellant's guilt, so long as the cumulative effect of the incriminating facts is sufficient to support the conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). 3. Was appellant a party to Guerrero's murder? Appellant argues the evidence is legally insufficient to support his conviction as a party because neither he nor Christopher intentionally caused Guerrero's death, nor intended to cause Guerrero serious injury. Appellant also claims that, assuming Christopher knowingly caused Guerrero's death, there is no evidence appellant solicited, encouraged, directed, aided, or attempted to aid Christopher in committing Guerrero's murder. Because Christopher was convicted of Guerrero's murder and appellant was convicted as a party, we address only appellant's second argument. See TEX. PEN. CODE ANN. § 7.02(a)(2). The record establishes that after appellant left the party, he went to his mother's house, where Christopher and Ginardi were "hanging out," and asked Christopher and Ginardi to return with him to the party because Zambrano had threatened to kill him. The three men armed themselves with two shotguns and one rifle before returning to confront Zambrano. Ginardi testified that appellant said he "wanted to go to that party and show [Zambrano] that he did not know who he was messing with." Ginardi also testified he did not hear either appellant or Christopher attempt to dissuade the other from returning to the party. When they arrived at the party, all three men exited the truck and one of them fired a gunshot into the air. Appellant and Christopher crossed the street, while Ginardi remained by the truck. Zambrano testified that appellant and Christopher pointed their guns at him and as the two approached, appellant yelled at Zambrano to "talk s**t now," or words to that effect. Zambrano then began walking forward, toward Christopher. Zambrano stated that Christopher said nothing as he approached, but appellant twice told Christopher to shoot Zambrano. As Zambrano continued approaching Christopher, Christopher fired his shotgun into the ground. At this point, Guerrero came outside and began struggling with appellant, trying to wrestle the gun away from him. Zambrano testified that Christopher kept his gun pointed at Zambrano, but when appellant "said something like `shoot [Guerrero]'" to Christopher, Christopher shot in the direction of Guerrero and appellant, striking Guerrero. The three men then fled the scene, and hid in a trailer park. Viewing this evidence in the light most favorable to the verdict, we conclude a reasonable juror could convict appellant as a party to Guerrero's murder. Appellant was present at the commission of the murder, he conceived the idea to return to the party armed for a confrontation with Zambrano, encouraged his brother to shoot Guerrero, and then fled the scene along with his brother. See King, 29 S.W.3d at 562; Ahrens, 43 S.W.3d at 633. Accordingly, we overrule appellant's first issue. Viewing the evidence neutrally, we cannot say the evidence supporting the conviction, taken alone, is too weak to support the verdict of guilt beyond a reasonable doubt, nor are we convinced the contrary evidence is so strong that the State is unable to meet its burden of proving beyond a reasonable doubt appellant was a party to Guerrero's murder. Zuniga, 144 S.W.3d at 484-85. Appellant asserts that the evidence is factually insufficient because it shows that his dispute was with Zambrano, not Guerrero. The State, however, was not required to prove appellant had any animosity toward the victim to obtain a conviction of appellant as a party to the murder. See TEX. PEN. CODE ANN. § 7.02(a)(2); see also Guevara, 152 S.W.3d at 49. Moreover, although the evidence reflects that appellant may have returned to the party to confront Zambrano, it also shows that appellant became involved in a physical struggle with Guerrero. Appellant's second issue is overruled. B. Appellant's Prior Conviction
In his remaining issue appellant claims the trial court erred in permitting the State to cross-examine him regarding his prior conviction for misdemeanor assault of his wife. During cross examination, appellant testified he did not allow children to drink. The State then sought to introduce evidence of appellant's prior conviction for misdemeanor assault of his wife, claiming appellant created a false impression that he is a law abiding citizen. Appellant argues on appeal that his testimony — that he does not allow children to drink — did not mislead the jury into believing he was a law-abiding citizen and, therefore, did not "open the door" to allow the State to prove he had previously violated the law. On appeal, the State does not argue that appellant opened the door, inviting the use of the prior conviction. Rather, the State claims the cross-examination was proper under Rule of Evidence 609 because an assault by a man against his wife is a crime involving moral turpitude, and thus is expressly permitted for impeachment purposes by the Rule. See TEX. R. EVID. 609(a). 1. Standard of Review and Impeachment under Rule 609 We review a trial court's evidentiary rulings under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). We will not disturb the trial court's ruling on an evidentiary matter so long as it lies within the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 391. A trial court has great latitude when deciding whether to exclude or admit evidence of prior convictions. Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992). Additionally, we affirm a trial court's decision to admit evidence under any theory of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543-44 (Tex.Crim.App. 1990). Generally, a defendant who waives his privilege against self-incrimination by voluntarily testifying is subject to the same rules as any other witness. Bell v. State, 620 S.W.2d 116, 124 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh'g). He may be impeached, contradicted, made to present evidence against himself, cross-examined on a new matter, and treated as any other defense witness except when a statute or other rule forbids the use of certain matters against him. Moreno v. State, 944 S.W.2d 685, 689 (Tex.App.-Houston [1st Dist.] 1997), aff'd, 22 S.W.3d 482 (Tex.Crim.App. 1999). Texas Rule of Evidence 609(a) permits an attack on a witness's credibility with prior convictions "only if the crime was a felony or involved moral turpitude . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party." See TEX. R. EVID. 609(a). It is well established in Texas that a misdemeanor assault by a man against his wife is a crime involving moral turpitude. See Lloyd v. State, 151 Tex. Crim. 43, 204 S.W.2d 633, 634 (1947); Stewart v. State, 100 Tex. Crim. 566, 272 S.W.2d 202, 203 (1925). Thus, we agree with the State that appellant's prior conviction for misdemeanor assault of his wife is a crime of moral turpitude under Rule 609(a). Our review does not, however, end with this determination. Although appellant's assault conviction is indeed a crime involving moral turpitude, use of the prior conviction under Rule 609(a) also requires that its probative value outweigh its prejudicial effect. TEX. R. EVID. 609(a); Theus, 845 S.W.2d at 880. We turn now to that portion of the inquiry, noting the State, as the proponent of the prior-conviction evidence, has the burden to establish that the probative value of the prior conviction outweighs its prejudicial effect. Theus, 485 S.W.2d at 880. 2. Theus Factors — Does the probative value of the conviction outweigh its prejudicial effect? The Court of Criminal Appeals has developed a non-exhaustive list of factors to consider when weighing the probative value of a prior conviction against its prejudicial effect. The factors include: (1) the impeachment value of the prior crime, (2) the temporal proximity of the prior crime relative to the charged offense and the witness's subsequent history, (3) the similarity between the prior crime and the charged offense, (4) the importance of the defendant's testimony to the case as a whole, and (5) the importance of the credibility issue. Id. Because each case is unique and several of the factors cut in different directions, their application to a particular case cannot be made with "mathematical precision." Id. a. Impeachment Value, Temporal Proximity, and Similarity Crimes involving deception have a higher impeachment value than crimes involving violence, and the latter have a greater potential for prejudice. Id. at 881. Accordingly, if a party seeks to impeach a witness using evidence of a crime relating more to deception than not, this factor weighs in favor of admission. Id. Because appellant's prior conviction was for a crime of violence rather than deception, this factor weighs against admissibility of his prior conviction. See DeLeon v. State, 126 S.W.3d 210, 215 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd, untimely filed). Temporal proximity favors admission when the prior crime is recent and the witness has frequent instances where he or she has run afoul of the law. Theus, 845 S.W.2d at 880. Here, the assault took place a little more than two and one-half years before appellant's murder trial, but there is no evidence that appellant has a propensity for running afoul of the law. This factor therefore weighs equally for admission and exclusion of the prior conviction. Cf. DeLeon, 126 S.W.3d at 215 (noting the second factor favored admission of thirteen-year-old convictions because appellant had been incarcerated for them twice and, at the time of trial, was still serving the sentences). The third factor favors exclusion if the past crime and the charged offense are similar, in order to prevent a jury from possibly convicting a defendant on a perceived past pattern of conduct as opposed to evidence in the current trial. Theus, 845 S.W.2d at 881. The prior crime of assault and the charged offense of murder in this case are similar because both are violent in nature. See DeLeon, 126 S.W.3d at 215. This weighs against admission of the prior conviction. Theus, 845 S.W.2d at 881. b. Importance of Defendant's Testimony and Credibility The final two factors are related because they depend on the nature of the defense and the means used to prove that defense. Id. A defendant's credibility is less of an issue in cases where he presents an alibi defense and calls witnesses other than himself. Id. The importance of the defendant's credibility escalates, however, in cases where only the defendant testifies to rebut the State's case. Id. As the importance of the defendant's credibility rises, so does the need to impeach his credibility. Id. Because intent is an element of the charged crime in this case, the importance of appellant's testimony and, therefore, the need to impeach his credibility, are high. See Theus, 845 S.W.2d at 881. Although several witnesses were available to testify as to the events surrounding Guerrero's murder and appellant's role in it, appellant was one of only two witnesses called to rebut the State's case. Further, appellant did not present an alibi defense — he was undisputedly at the scene. These factors therefore favor admissibility of the conviction. On the whole, our analysis of the Theus factors weighs nearly equally for admission or exclusion of the prior conviction. The first three factors favor exclusion, but the importance of appellant's testimony to his defense and the resulting need to impeach him favor admission of the prior conviction. Because this evidence falls within the zone of reasonable disagreement, we cannot say the trial court abused its discretion in admitting it. Montgomery, 810 S.W.2d at 391; see Romero v. State, 800 S.W.2d at 543-44. Further, even assuming we were to conclude that the trial court abused its discretion, we hold appellant was not harmed by the admission of his prior conviction. 3. Harm Analysis A trial court's error in admitting evidence is generally non-constitutional error, and therefore our harm analysis is governed by Rule of Appellate Procedure 44.2(b). King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Our evaluation under Rule 44.2(b) requires us to decide whether the error affected appellant's substantial rights and, if not, we disregard the error. See TEX. R. APP. P. 44.2(b). A substantial right is affected where the error had a substantial injurious effect or influence in determining the jury's verdict. King, 953 S.W.2d at 271. We will not overturn a conviction due to non-constitutional error if, after examining the entire record, we have a fair assurance that the error did not influence the jury, or its effect was slight. Reese v. State, 33 S.W.3d 238, 243 (Tex.Crim.App. 2000). In conducting our analysis, we consider the nature of the evidence that supports the verdict, the character of the alleged error, and how the jury might consider it in connection with other evidence. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App. 2003). Additional considerations include jury instructions, the State's theory of the case, the defense's theory of the case, closing arguments, voir dire, and whether the State emphasized the error. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002). Finally, the presence of overwhelming evidence of guilt may also be considered. Id. at 357. During voir dire, the prosecutor did not mention appellant's prior conviction despite the fact a prospective juror specifically asked whether the jury would be made aware of prior convictions. Although the prosecutor posed several questions about the conviction during his cross-examination of appellant, the questioning was prolonged by appellant's evasive answers. Also, the prosecutor mentioned the assault during his closing arguments, stating that appellant was "on trial for his life, and can't even get his wife down here," because she "probably wanted him out of her life." Apart from these two instances, the conviction was not otherwise referenced by the State. Appellant argues that he was harmed by the admission of the prior conviction because it "drew into question his willingness to engage in assaultive behavior." Viewing the evidence that was before the jury, this conclusion is likely independent of the prior conviction evidence. The confrontation with Zambrano was diffused once appellant left the party, but he chose to return with Christopher and Ginardi. It was reasonable for the jury to find appellant willing to engage in assaultive behavior from Ginardi's testimony that appellant wanted to return to the party to confront Zambrano, to "show that boy that he did not know who he was messing with." Also, the three men chose to arm themselves for the confrontation with Zambrano and Zambrano testified that while appellant struggled with Guerrero, appellant "said something like `shoot [Guerrero]'" to Christopher. Finally, appellant fled the scene with Christopher and joined him in hiding in a trailer park. After viewing the entire record, we are convinced the admission of appellant's assault conviction had no, or at most a slight, influence on the jury's verdict because of the overwhelming evidence of appellant's guilt. Reese, 33 S.W.3d at 243. Accordingly, appellant's remaining issue is overruled. For the foregoing reasons, we affirm the judgment of the trial court.