Opinion
No. 13-06-00464-CR
Memorandum Opinion delivered and filed August 14, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 214th District Court of Nueces County, Texas.
Before Justices RODRIGUEZ, GARZA, and VELA.
MEMORANDUM OPINION
Appellant, Joe David Padron, and his codefendant, Martin Robles, were accused of entering a home and shooting and killing Jesus Gonzalez and John Commisky. A jury convicted Padron of three counts of capital murder. Because the jury rejected the death penalty, Padron received life imprisonment for each count. In five issues, Padron contends the trial court erred by denying his motions for a mistrial, admitting two photographs into evidence, overruling his objection to the prosecutor's comments concerning his failure to testify, and denying his motion for new trial. We affirm.
Martin Robles was tried separately for the murders of Jesus Gonzalez and John Commisky. He was found guilty of two counts of capital murder and sentenced to death. See Robles v. State, 2006 WL 1096971 (Tex.Crim.App. April 26, 2006) (not designated for publication).
See Tex. Penal Code Ann. §§ 19.03(a)(2), (7)(A) (Vernon Supp. 2008). Specifically, the jury convicted Padron of murdering Jesus Gonzalez and John Commisky during the same criminal transaction (one count), and the jury convicted him of murdering each victim in the course of committing or attempting to commit burglary of a habitation (two counts).
See Tex. Penal Code Ann. § 12.31(a) (Vernon Supp. 2008).
I. Factual Background
Padron does not challenge the legal or factual sufficiency of the evidence to sustain his convictions. We shall, however, review the applicable facts because they are pertinent to the issues raised.A. State's Evidence
John Commisky, Jesus Gonzalez, Gavino Moreno, and Tony Ortiz sold crack cocaine out of a home on Mary Street in Corpus Christi. Because the Raza Unida ("RU") gang had a heavy presence in the neighborhood, the men were supposed to, but did not, pay RU a percentage of the money they earned from selling cocaine out of the home. Moreno testified that "[i]f you don't pay a percentage, then they [RU] deal with you." In the early morning of November 12, 2002, Moreno was inside the Mary Street home when he looked outside and saw a man standing in the driveway wearing a ski mask. He saw a second man, also wearing a ski mask, jump over the fence in front of the house. Moreno ran out the back door. At this time, Ortiz was asleep in the house when he heard gunshots. He saw two masked men standing in the back room of the house. One was shooting an AK-47, and the other was shooting a nine millimeter handgun. Commisky and Gonzalez died inside the home from multiple gunshot wounds. When the shooting stopped, Ortiz looked out the window and saw appellant Padron and another man getting into an SUV. When the prosecutor asked Ortiz, "How could you tell that it was this Defendant [Padron] that you saw going into the SUV?", he replied: "'[c]ause he took his — they were taking the mask off, and the light turned on from the SUV, the dome light." Prior to the shooting, Ortiz had seen Padron "a few times." Ortiz testified that Padron was one of the shooters inside the house and that Padron had fired the nine millimeter handgun. The State called two witnesses, Robert Lara and Vino Garcia, both of whom testified that they were incarcerated in the Nueces County Jail along with Robles and Padron. Garcia testified that he overheard Robles and Padron discussing the murders of Commisky and Gonzalez. With respect to this conversation, the prosecutor asked Garcia:Q. [D]id either Mr. Robles or Mr. Padron discuss what type of weapons were used or who shot first or second or anything like that?
A. Well, sir, Kid [Robles] — Kid told Magic [Padron], "You ain't no killer," . . . Magic goes, "If I ain't no killer I shot right after you. How you gonna say I didn't do nothing?". . . .
Q. So, Magic [Padron] told Kid [Robles] "I shot right after you."
A. Yes, sir.
With respect to Robert Lara, the prosecutor asked him:
Q. After Mr. Padron [appellant] was in your tank, did you ever hear any conversations between Mr. Padron and Mr. [Martin] Robles?
A. Yes, sir.
Q. Did any of those conversations refer to the homicide of Commisky and Gonzalez?
A. Yes, sir.
Q. Can you please tell me what you heard,. . . .
* * *
A. When Mr. Padron first came into 4A, he had told me why — he doesn't know why they had got caught. There must be a snitch. Mr. Robles then in a fit got into the conversation and said, "You might be the snitch." Mr. Padron then started talking to Mr. Robles, "I don't understand how we got caught. I don't understand." Mr. Robles-then they started arguing. Mr. Padron told Mr. Robles, "If it wasn't for that . . . fucking letter, we wouldn't have got caught."
Q. What letter was that?
A. A letter that Mr. Robles sent to 4A letting them know that the job was done.
* * *
Q. What specifics, if any, did Mr. Padron go into with you regarding how the offense was committed, sir?
* * *
A. He just said they came in through the unlocked gate, the chain was around — the chain was just wrapped around the gate, no lock. It had a lock but it was just unwrapped, the chain, walked in through the side of the house, went around to the kitchen area where the light was turned on. They just creeped in the house.
Q. Did he tell you what happened from there?
A. [S]o they went into the room and they just shot the Cuare (Commisky and Gonzalez) boys.
Q. Did Mr. Padron mention what type of weapons were used?
A. Just a high — high-caliber assault rifle and something about a large caliber, something like that.
B. Appellant's Evidence
Sara Cantu, the mother of Ortiz's children, testified that she had a "friendship" relationship with Padron. She said that Padron and her sister, Jessica, were friends and that Jessica was married to Gabriel Ramos, a member of the RU gang. George Bermudez, a Nueces County Sheriff's deputy, testified that he had "a bad opinion" about Lara's truthfulness and honesty. He stated that he would not believe Lara if Lara was testifying under oath. He also stated that Garcia was not truthful and honest and was unworthy of belief if he testified under oath. On cross-examination, Bermudez testified that he knew Lara gave information which led to the conviction of a fellow officer, who was bringing contraband into the Nueces County Jail. When the prosecutor asked Bermudez, "Are you glad that somebody believed Robert Lara so that dirty cop would plead guilty?", he replied, "In that aspect, yeah." Officer Gregory Barron, a training officer at the Nueces County Jail, testified that in his opinion, neither Lara nor Garcia were worthy of belief under oath. Daniel Lopez, a Nueces County Sheriff's deputy, testified that he did not believe that either Garcia or Lara were trustworthy and honest. Mario Bedia worked for the Nueces County Sheriff's Department and was assigned to the Tri-County Narcotics Task Force. He testified that he had bought narcotics from Ortiz and that Ortiz made a living selling drugs. When counsel asked Bedia, "Do you think, from what you know of him, that he's the kind of person if he testified, you could believe him under oath?", he replied, "No, sir."C. State's Rebuttal
The State called Francisco Cabrialez as its sole rebuttal witness. Cabrialez testified that while he and Padron were inmates in the Nueces County Jail, he had a conversation with Padron. When the prosecutor asked Cabrialez if he could tell the jury the context of that conversation, he replied: "We were talking about our cases. . . . I was telling him about my case, stuff that happened during my case, how they identified me and everything, and he [Padron] just told me, "No pun intended, but I only unmasked myself one time, and I won't make the same mistake again."II. Evidence of Padron's Prior Felony Conviction
In his first issue, Padron contends the trial court erred in denying his motion for a mistrial because of the introduction of inadmissible evidence regarding his prior felony conviction. During the State's direct examination of Garcia at the guilt-innocence stage, Garcia testified that he had overheard a conversation between Padron and Martin Robles. Specifically, Garcia testified, "[a]nd Mr. Robles told Padron, 'You think you're a killer? You ain't no killer,' just because of the last case he had." At this point, the prosecutor asked Garcia:Q. Mr. Robles told Mr. Padron, "You ain't no" —
A. Killer.
Q. — "killer." What — what did he say about this offense?
A. Well, he said —
Q. [L]et's talk about Commisky and Gonzalez.At this point, the trial court held a bench conference at which defense counsel told the trial court that Padron had a prior conviction for manslaughter. Counsel asked the trial court to instruct the jury to "disregard the last comment that this witness made" and asked for a mistrial. The trial court instructed the jury to disregard the statement, but denied the request for mistrial.
A. Standard of Review
We review the denial of a motion for mistrial under an abuse of discretion standard. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App. 2004); Davis v. State, 177 S.W.3d 355, 363 (Tex.App.-Houston [1st Dist.] 2005, no pet.). Under this standard, an appellate court must uphold the trial court's ruling as long as the ruling was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000); Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999).B. Prejudicial Testimony
When objectionable testimony is elicited, inadvertently or deliberately, an appellate court presumes a jury will follow instructions to disregard the evidence. Drake v. State, 123 S.W.3d 596, 604 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd); see also Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987). Thus, a trial court's instruction to disregard can cure any harm resulting from testimony referring to extraneous offenses "unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind." Drake, 123 S.W.3d at 604 (citing Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992)). Thus, a trial court properly exercises its discretion to declare a mistrial when, due to the error, an impartial verdict cannot be reached or a conviction would have to be reversed on appeal due to "an obvious procedural error." Wood, 18 S.W.3d at 648. When, as here, the trial court instructs the jury to disregard, but denies a defendant's motion for a mistrial, the issue is whether the trial court abused its discretion in denying a mistrial. Hawkins, 135 S.W.3d at 77. In determining whether the trial court abused its discretion in denying the mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial effect); (2) curative measures; and (3) the certainty of conviction absent the misconduct. Id. at 75. Only in extreme circumstances, when the prejudice is incurable or the comment is "so prejudicial that expenditure of further time and expense would be wasteful and futile," will a mistrial be required. Id. at 77.C. Analysis
In the complained-of statement, Garcia mentioned neither the details about Padron's last case nor that it resulted in a conviction for any crime, including manslaughter. Thus, Garcia's comments had little, if any, prejudicial effect. Further, it is undisputed that the trial court instructed the jury to disregard the comment. We ordinarily assume that an instruction to disregard cures any harm flowing from the error. Martinez v. State, 17 S.W.3d 677, 691 (Tex.Crim.App. 2000). Beyond that general assumption, however, we can say in this case that Garcia's comments were not so inflammatory that an instruction to disregard could not have cured the error. Finally, the evidence showed that Padron, an RU member, had a motive to kill Commisky and Gonzalez because they were involved in selling drugs in an RU neighborhood and did not pay RU members a percentage of the money they earned from the drug sales. Moments before the murders, Moreno saw two masked men outside the house. Ortiz saw two masked men inside the house firing an AK-47 and a nine millimeter handgun. Immediately after the shooting, Ortiz was able to identify Padron as one of the men getting into the SUV because Padron was removing his mask, and the SUV's dome light was on. Garcia testified that Padron told Robles: "I shot right after you. How you gonna say I didn't do nothing?" Padron told Lara that, "[T]hey just shot the Cuare boys," referring to Commisky and Gonzalez. Padron told Francisco Cabrialez, "I only unmasked myself one time, and I won't make the same mistake again." Even though the defense attacked the credibility of the State's witnesses, the jury was free to believe or disbelieve their testimony. Thus, absent Garcia's comment, the certainty of conviction is strong. After balancing the three Hawkins factors, we hold that any possible harm caused by Garcia's testimony was cured by the trial court's instruction and that the trial court did not err by denying counsel's motion for mistrial. See Drake, 123 S.W.3d at 603-04 (holding that jury could follow instruction to disregard State's reference to defendant's "many burglaries"); Ladd, 3 S.W.3d at 567 (grant of a mistrial is required only "when error is so prejudicial that expenditure of further time and expense would be wasteful and futile"). Issue one is overruled.III. The Shackling of Padron
In issue three, Padron contends the trial court erred in denying his motion for a mistrial because during the trial the jury saw him shackled in the courtroom, which Padron claims violated his constitutional right to the presumption of innocence. During the punishment phase while the jury was seated in the courtroom, Padron's defense counsel, Doug Tinker, told the trial court that Padron needed to use the restroom. Padron's other counsel, James Granberry, asked the trial court, "[M]ay we have the jury excused?" The trial court replied, "No. He just needs to go to the rest room. Go ahead." At that point, Tinker asked to approach the bench, and the trial court excused the jury from the courtroom. When the jury was out of the courtroom, Tinker objected "to the fact that it was now obvious that our client is chained, and Mr. Granberry tried to make a request to avoid the jury finding out he was chained here at the table, and because the jury now knows, we request a mistrial, Your Honor." The trial court denied the motion for mistrial and stated, "Take him to the bathroom so he can come back and we can finish up." Padron then left the courtroom and returned. Afterwards, the jury returned to the courtroom.A. Applicable Law
The Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution guarantee an accused the right to a fair trial. Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App. 1991); Wynn v. State, 219 S.W.3d 54, 59 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing Estelle v. Williams, 425 U.S. 501, 503 (1976)). One of the constituent elements of this guarantee, which is directly implicated by the shackling of an accused during trial proceedings, is that "the criminal process presumes that the defendant is innocent until proven guilty." Wynn, 219 S.W.3d at 59. An accused who is visibly shackled does not have the benefit of this presumption, and thus his or her right to a fair trial is fundamentally compromised. Id. Shackling has principally been held to be harmful error when the shackles are detectible to the jurors. Deck v. Missouri, 544 U.S. 622, 630-31 (2005); Wynn, 219 S.W.3d at 60-61. Padron contends that the jury saw him shackled in the courtroom. However, the record does not reflect that the jury actually saw that Padron was shackled or that the jury heard the sound of his shackles. The only reference to the shackles came from defense counsel when addressing the trial court outside the jury's presence. The court of criminal appeals and various courts of appeals have consistently held that, in the absence of evidence that the jury actually saw the restraints, an accused is not harmed or prejudiced. Even if we were to conclude that the jurors had seen the shackles, we must determine whether this constituted harmful error. See Tex. R. App. P. 44.2(a). Because the use of shackles implicates constitutional rights, an appellate court must "reverse a judgment of conviction or punishment unless [it] determines beyond a reasonable doubt that the [shackling] did not contribute to the conviction or punishment." Wynn, 219 S.W.3d at 60. In this case, the error complained of occurred during the punishment stage and, therefore, had no effect on the jury's finding of his guilt. Because the jury rejected the death penalty, life imprisonment was the only available punishment option. See Tex. Penal Code Ann. § 12.31(a) (Vernon Supp. 2008). Accordingly, we can determine beyond a reasonable doubt that even if the jury had seen the shackles, this did not contribute to Padron's convictions or his punishment. Issue three is overruled.IV. Admission of Photographs
In issue two, Padron contends the trial court erred in admitting a photograph into evidence because it was irrelevant and unfairly prejudicial to him. During cross-examination at the guilt-innocence stage, Garcia testified that: (1) he was facing twenty-five to thirty-five years in prison; (2) he knew that if he helped Sales, the lead prosecutor in this case, he would "get a deal"; (3) he was in jail with Padron and Martin Robles two years prior to trial; (4) he had all his cases disposed of about a year-and a-half before trial; and (5) he had pleaded guilty to two counts of aggravated robbery and was serving a fifteen-year sentence for both offenses. On re-direct examination, Sales asked Garcia, "Mr. Tinker [defense counsel] has asked you some questions about the benefits that you received, which include going to prison for 15 years as a snitch. Can you educate the jury on what is the status of a snitch in prison?" Garcia replied that "anything could happen to you while you're in prison." When Sales asked Garcia if "any bad things" had happened since he agreed to start testifying, he replied that his "sister got stabbed by another RU member." Sales then offered State's exhibits 75 and 76 into evidence, which were photographs showing three stab wounds to Garcia's sister's back. Padron's counsel objected on the grounds that the photographs were "highly prejudicial, and there's no proof that he [Padron] did it." The trial court overruled the objection and admitted the photos into evidence.A. Standard of Review
An appellate court reviews a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007). A trial court abuses its discretion when its decision is so clearly wrong that it falls outside that zone within which reasonable persons might disagree. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). Because trial courts are in the best position to decide questions of admissibility, an appellate court should uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Cameron, 241 S.W.3d at 19. An appellate court may not reverse a trial court's decision regarding the admissibility of evidence solely because it disagrees with the decision. Id. As a general rule, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Evidence that is not relevant is not admissible. Tex. R. Evid. 402. Furthermore, the trial court's determination of relevancy will not be reversed absent an abuse of discretion. Reese v. State, 33 S.W.3d 238, 240 (Tex.Crim.App. 2000). However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Andrade v. State, 246 S.W.3d 217, 227 (Tex.App.-Houston [14th Dist.] 2007, pet. filed). Therefore, upon further objection from the opponent of the evidence based on rule 403, the trial court must weigh the probativeness of the evidence against the potential for unfair prejudice. Andrade, 246 S.W.3d at 227 (citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1991)). Evidence is unfairly prejudicial when it has an undue tendency to suggest an improper basis for reaching a decision. Reese, 33 S.W.3d at 240. In keeping with the presumption of admissibility of relevant evidence, there is a presumption that relevant evidence is more probative than prejudicial. Andrade, 246 S.W.3d at 227 (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997)). The trial court's ruling whether to exclude evidence under rule 403 is also measured by an abuse of discretion standard and will not be reversed if the ruling is within the zone of reasonable disagreement. Id.B. Did the Danger of Unfair Prejudice Substantially Outweigh the Probative Value of the Evidence?
Padron argues the prejudicial effect of the photographs substantially outweighed their probative value; therefore, the trial court should have excluded them. A trial court may exclude relevant evidence under rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. When a trial court balances the probative value of the evidence against the danger of unfair prejudice, a presumption exists that favors the evidence's probative value. Feldman v. State, 71 S.W.3d 738, 754-55 (Tex.Crim.App. 2002). The relevant criteria for determining whether the prejudice of admitting the evidence substantially outweighs the probative value include the following: (1) the probative value of the evidence; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence to prove a fact of consequence. State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005); Andrade, 246 S.W.3d at 228. Using these factors as a guide, if the record reveals the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, then we should conclude the trial court did not abuse its discretion in admitting the photographs. See Reese, 33 S.W.3d at 241; Andrade, 246 S.W.3d at 228 (citing Montgomery, 810 S.W.2d at 393).C. Analyzing the Mechler factors
1. The Probative Value of the Evidence The term "probative value" refers to the inherent probative force of an item of evidence; that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). Here, defense counsel attacked Garcia's credibility by eliciting testimony that gave the impression that Garcia received only fifteen years in prison for pleading guilty to two aggravated robberies because he had agreed to testify against Padron. Therefore, the photographs had probative value because they bolstered Garcia's testimony that testifying as a "snitch" had detrimental consequences; that is, injury to his sister. 2. The Potential to Impress the Jury in an Irrational but Nevertheless Indelible Way Rule 403 does not exclude all prejudicial evidence. Andrade, 246 S.W.3d at 228-29. Virtually all evidence a party offers will be prejudicial to the opponent's case, or the party would not offer it. Casey, 215 S.W.3d at 883. Instead, rule 403 focuses only on the danger of unfair prejudice and the tendency to tempt the jury into finding guilt or innocence on grounds apart from proof of the offense charged. Andrade, 246 S.W.3d at 229. The photographs present little, if any, prejudice to Padron because no party suggested to the jury that Padron was connected to the stabbing of Garcia's sister. Furthermore, Garcia did not testify that Padron played any role in the stabbing incident. We find the photographs did not potentially impress the jury in an irrational way. 3. The Time Needed to Develop the Evidence The time involved in the introduction of two photographs is minimal and unlikely to distract the jury from considering the charged offense. See Andrade, 246 S.W.3d at 229 (holding the time involved in the introduction of a photograph was minimal). 4. The Proponent's Need for the Evidence to Prove a Fact of Consequence The court of criminal appeals has pointed out three subparts when assessing the proponent's need for the evidence: (1) does the proponent have other available evidence to establish the fact of consequence the evidence is admissible to show; (2) if so, how strong is that other evidence; and (3) whether the fact of consequence is related to an issue that is in dispute. Reese, 33 S.W.3d at 242. Garcia testified that one of the bad things that happened since he agreed to start testifying was that his sister was stabbed in the back. Bearing in mind that counsel had previously attacked Garcia's credibility, the State was entitled to rehabilitate Garcia's testimony about the stabbing incident. The record does not reflect whether the State could have offered other evidence to solidify Garcia's testimony about the stabbing. However, keeping in mind the third Mechler factor, the time involved in the introduction of the two photographs was minimal and unlikely to distract the jury from considering the charged offense when compared to having Garcia's sister testify before the jury. Therefore, the State's need for the evidence to prove a fact of consequence was strong. After evaluating the four Mechler factors and balancing the prejudicial nature of the photographs against their probative value, we conclude the prejudicial effect of the photographs did not substantially outweigh their probative value. See Mechler, 153 S.W.3d at 990. We cannot say the trial court's decision to admit them into evidence was so clearly wrong that it fell outside that zone within which reasonable persons might disagree. Thus, the trial court did not abuse its discretion in admitting the photographs. See McDonald, 179 S.W.3d at 576. We overrule the second issue.V. Jury Argument
In issue four, Padron contends the trial court erred in overruling counsel's objection to the prosecutor's comments concerning Padron's failure to testify. The approved general areas of argument are summation of the evidence, reasonable deduction from the evidence, answer to opposing counsel's argument, and plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Neither the trial judge nor the prosecution may comment on the defendant's failure to testify, and any comment thereon violates the Fifth Amendment privilege against self-incrimination. Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App. 2007) (citing Griffin v. California, 380 U.S. 609, 614 (1965)); see Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2006). To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. Cruz, 225 S.W.3d at 548. It is not sufficient that the language might be construed as either an implied or indirect allusion. Id. The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. Id. "In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character." Id. (citing Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001)). Padron argues that three statements made by the lead prosecutor, constituted impermissible comments on his failure to testify. These comments occurred during Sales's closing argument to the jury at the punishment stage. In the first instance, Sales argued: What did Francisco Cabrialez testify to you about what Joe David Padron said to him about unmasking himself? "Hey, I only unmasked myself once, I won't do that next time." What does that mean? Does that mean, "Oh, I will never kill again?" Do you honestly believe that that's what that statement, with a straight face, could you look into a mirror and tell yourself, "Yeah, I believe that's what he meant, that he'd never kill again," or did he mean that, "Next time I'll keep my mask on." What do you think he meant? Next time he'd do a better job of committing the crime. There was not an expression of remorse in that statement that he made to Mr. Cabrialez. It was a statement of- At this point, defense counsel objected, "I believe that's a comment on my client's failure to testify. We object to it." The trial court overruled the objection. In the second instance, Sales argued:I'm asking you not to let him kill anybody else. Don't allow him to get in prison and continue his role as a captain and make it available whether or not he calls into question or asks that someone else be killed, whether he does it himself or calls for the order. It's disrespect of human life. His comments to Francisco Cabrialez, "I shouldn't have unmasked myself," there's no remorse. Is that mitigating? Is it a fact that-At this point, counsel stated, "He continues to comment on my client's failure to testify about remorse." The trial court did not rule on the objection; rather, the court stated: "Just argue the evidence, sir." To preserve error on appeal for improper jury argument, the defendant must object to the comment and pursue the objection until the trial court rules adversely. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Counsel objected to the alleged improper comment, but the record does not show that the trial court ruled on the objection. Nevertheless, in both instances, viewing the complained-of comments from the jury's standpoint, we do not believe the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on Padron's failure to testify. See Cruz, 225 S.W.3d at 598. Sales was referring to Francisco Cabrialez's testimony that Padron had told him, "I only unmasked myself one time, and I won't make the same mistake again." Sales's comments that "[t]here was not an expression of remorse in that statement" and "there's no remorse" are reasonable deductions from the evidence. When there is evidence in the record indicating a lack of remorse, a comment on the defendant's lack of remorse does not naturally and necessarily lead the jury to understand it to be a comment on the defendant's failure to testify. Searcy v. State, 231 S.W.3d 539, 549 (Tex.App.-Texarkana 2007, pet. ref'd). The third instance relates to an incident between Padron and Ricardo Romero, the bailiff for the court which tried Padron's case. During the punishment stage, Romero testified for the defense. On direct-examination, defense counsel asked Romero about an incident when he (Romero) was escorting Padron out the door. "[O]n this occasion, was it a touch that you thought he [Padron] was trying to check you out and see if you had a weapon?" He replied, "I don't believe so." When defense counsel asked Romero if Padron had touched him on the arm, he replied, "I think it was my side." On cross-examination, Romero testified that he was not wearing a weapon when Padron touched his side. When Sales asked Romero, "By touching your side, was . . . Mr. Padron able to identify the fact that you were not wearing a weapon?", he replied, "I don't think so." Romero said the incident was reported. When Sales asked Romero, "So by that reporting of that happening, would you say that that — were you more careful after that?", he replied, "That cured the situation, yes." In his closing argument, Sales argued:
Now, the testimony about the bailiff Ricardo Romero. Is that something that was blown all out of proportion, that you know, the defendant was patting him, was just being affectionate, just being friendly? Well, maybe he was just being affectionate and friendly. You know, that's possible. But the danger, ladies and gentlemen, is, when you underestimate your adversary, when you underestimate the people on the other side, and that's how you get killed. That's how mistakes are made. That's how people get hurt. That's true in many walks of life, whether you're dealing with someone in business and you underestimate them, or from the athletic field and you underestimate them. Only Joe David Padron knows what was going on in his mind when he patted-At this point, counsel objected, "[T]hat's another comment on Joe David Padron's failure to testify." The trial court overruled the objection. Here, we must examine Sales's comment in context. Bustamante, 48 S.W.3d at 765. When defense counsel asked Romero, "[W]as it a touch that you thought he [Padron] was trying to check you out and see if you had a weapon?", Romero replied, "I don't believe so." Based upon this reply, Romero could not say for sure whether Padron had touched Romero in order to detect whether he had a weapon. Thus, Sales's comment that "Only Joe David Padron knows what was going on in his mind when he patted — " is a reasonable deduction from the evidence that Romero did not know Padron's motive for touching him. Thus, when viewed from the jury's perspective, we are unable to conclude that the language was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on Padron's failure to testify. See Cruz, 225 S.W.3d at 548. Issue four is overruled.
VI. Motion for New Trial
In issue five, Padron contends the trial court erred in denying his motion for new trial based upon newly discovered evidence and in refusing to admit exculpatory evidence at the motion for new trial hearing. Padron's post-trial attorney, Bill May, filed a motion for new trial alleging that Cabrialez committed perjury when he testified as the State's rebuttal witness. Specifically, the motion alleged: (1) that Cabrialez testified falsely against Padron because Padron's family did not pay Cabrialez $2,000 as requested; and (2) that Cabrialez had a motive to testify against Padron because Cabrialez blamed Padron for Cabrialez's murder conviction and life sentence.A. Standard of Review
Article 40.001 of the code of criminal procedure provides: "A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006); Wallace v. State, 106 S.W.3d 103, 107 (Tex.Crim.App. 2003). However, a trial court has discretion to decide whether to grant a new trial based upon newly discovered evidence, and we will not reverse the ruling absent an abuse of discretion. See Keeter v. State, 74 S.W.3d 31, 37 (Tex.Crim.App. 2002). We do not substitute our judgment for the trial court's judgment, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006); Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). We must view the evidence in the light most favorable to the trial court's ruling, and we presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Charles, 146 S.W.3d at 208. A trial court abuses its discretion in denying a motion for new trial only if no reasonable view of the record could support the trial court's ruling. Holden, 201 S.W.3d at 763; Charles , 146 S.W.2d at 208; Lewis v. State , 911 S.W.2d 1, 7 (Tex.Crim.App. 1995).B. Motion for New Trial Hearing
The trial court held a hearing on the motion for new trial at which Mr. May called three witnesses and introduced all four exhibits.1. Testimony of Iris Cabrialez
Francisco Cabrialez's cousin, Iris Cabrialez, testified that Francisco's mother told her that Francisco "was requesting $2,000 from . . . [Padron's] family, and if he didn't get it, that he was gonna say something. He didn't specify exactly what it was he was gonna say, but he said he would say something" "negative" about Padron. When Francisco took the witness stand to testify for the State, Iris was supposed to "nod my head yes or no if he [Francisco] were to get the money." However, when Francisco took the stand, she made no indication to him about the money because she "didn't know what to do" and "was scared." She told Padron's family members about Francisco's request for the $2,000, but she did not receive any money. Iris did not report this alleged scheme to either the trial court or law enforcement. On cross-examination, she testified that after working three-and-one-half years as a corrections officer at the Nueces County Jail, she was "terminated" from the jail, "got [her] job back," and "resigned." 2. Testimony of James Granberry James Granberry testified that he first heard about the alleged "$2,000 bribe" while the jury was deliberating on Padron's guilt or innocence. Granberry stated that when he spoke to Iris about the alleged scheme, she told him Francisco had offered to tell the truth for $2,000, and that Iris was supposed to stand up when Francisco walked into the courtroom, indicating that, "yes, there was gonna be $2,000, and if she didn't stand up, that would be, no, that there wasn't $2,000." He also testified: "[T]here were some other, you know, things that made us think that maybe the story wasn't completely straight,. . . ." 3. Testimony of Kenneth Botary Kenneth Botary testified that he spoke with Francisco prior to Francisco's testimony at Padron's trial. Botary did not learn anything about a supposed demand or request by Francisco to receive money or else he would testify unfavorably against Padron. After hearing the evidence and counsels' arguments, the trial court denied the motion for new trial.C. Whether the Trial Court Erred in Refusing to Admit Four Letters into Evidence at the Motion for New Trial Hearing
1. Standard of Review We review a trial court's admission or exclusion of evidence for abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). "A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Id. a. The Trial Court's Exclusion of Defendant's Exhibits 1 and 4 At the motion for new trial hearing, Iris testified that after Francisco testified in Padron's trial, she received four letters from him. Three of these letters, defendant's exhibits 1 through 3, were written by Francisco to her. The fourth letter, defendant's exhibit 4, was delivered to her, but written to Padron's mother. When May offered exhibits 1 and 4 into evidence as a declaration against penal interest and for impeachment purposes, the trial court sustained the State's hearsay objection and admitted them only for the purpose of a bill of exception. (i) Were Exhibits 1 and 4 Admissible as Statements Against Penal Interest? Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d), see Schaffer v. State, 777 S.W.2d 111, 115 (Tex.Crim.App. 1989). One type of hearsay that may be admitted under the exceptions to the hearsay rule is a statement against interest under Rule 803(24). Determining whether a statement is admissible as a statement against interest under Rule 803(24) involves a two-step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). First, the trial court determines whether the statement tends to expose the declarant to criminal liability. Id. Second, corroborating evidence must "clearly indicate the trustworthiness of the statement." Tex. R. Evid. 803(24); Bingham, 987 S.W.2d at 57; see also Dewberry v. State, 4 S.W.3d 735, 751 (Tex.Crim.App. 1999). The party seeking admission of the statement bears the burden to make this showing and "the test is not an easy one." Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994). Here, exhibits 1 and 4 do not tend to expose Francisco to criminal liability. And, even if they did, there is no corroborating evidence to "clearly indicate the trustworthiness of the statement." Tex. R. Evid. 803(24); Bingham, 987 S.W.2d at 57. Thus, we conclude that Padron has not satisfied the two-part inquiry. See Bingham, 987 S.W.2d at 57. We hold the trial court did not abuse its discretion by excluding both exhibits on this basis. See Bingham, 987 S.W.2d at 57 (trial court's decision to admit or exclude evidence of statement against interest is reviewed under abuse of discretion standard). (ii) Were Exhibits 1 and 4 Admissible for Impeachment Purposes? Rule 806 provides the declarant of a previously admitted hearsay statement may have his or her credibility attacked by any evidence "admissible for those purposes" if the declarant had testified as a witness. See Tex. R. Evid. 806. In exhibit 1, Francisco stated:I could've beat my case if he [Padron] have never put hit [sic] foot in. Believe it, because that's the truth. He told Kid not to help me out because that would mess up his, Joe David's, chances and his, Kid's, appeal. So really I'm sitting on a life because he put his two cents in my case. He went against me. He did that.This portion of the letter involves "hearsay upon hearsay," an out-of-court statement (the letter) to prove the matter asserted in another out-of-court statement (Padron's statement to Kid) and is, therefore, incompetent evidence for impeachment purposes under Rule 806. See Davis v. State, 791 S.W.2d 308, 309-10 (Tex.App.-Corpus Christi 1990, pet. ref'd). We note that in both letters, Francisco expresses his anger at Padron. Francisco does not say, however, that he lied when he testified for the State. Thus, we cannot say the trial court abused its discretion by excluding these letters from evidence. b. The Trial Court's Exclusion of Defendant's Exhibits 2 and 3 May did not offer Defendant's Exhibits 2 and 3 into evidence; rather, he offered them "for purposes of the bill." Because they were not offered into evidence, we cannot say that the trial court abused its discretion in excluding them.