Opinion
No. 01-05-00611-CR
Opinion issued May 25, 2006.
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 987689.
Panel consists of Justices TAFT, HIGLEY, and BLAND.
MEMORANDUM OPINION
A jury convicted appellant, Manual Perez, of murder and assessed punishment at 30 years in prison. See TEX. PEN. CODE ANN. 19.02 (Vernon 2003). We determine (1) whether the trial court abused its discretion by overruling appellant's motion for mistrial regarding an eyewitness in-court identification procedure and (2) whether the trial court erred by refusing appellant's request to include the lesser-included offense of manslaughter in the jury charge. We affirm the judgment of the trial court.
Background
On May 13, 2004, appellant and his girlfriend, Charlotte Jones, attended a party with neighbors Elvira Hernandez, Gloria Escobedo, Jose Perales, and Hilario Mejia at their apartment complex. Jones left the party, but appellant remained downstairs at the barbeque until approximately 6:30 p.m.
At approximately 9:00 p.m., Hernandez and Escobedo were upstairs in their apartment and decided to go to the store to buy more beer. Escobedo explained that she walked out of her apartment's front door, followed by Hernandez, and that appellant was in the hallway. Before Escobedo reached the top of the stairwell, she heard two shots, turned, and saw Hernandez on the floor. Appellant was standing behind Escobedo with a gun. Escobedo then testified that "[appellant] looked at [Escobedo] and he looked back down at [Hernandez] and he shot a third time. . . ." Escobedo explained that appellant stepped over Hernandez's body, walked past Escobedo close enough to "rub shoulders," and walked down the stairwell.
At trial, Escobedo had difficulty identifying appellant in the courtroom. The State asked Escobedo if she saw appellant sitting in the courtroom. Escobedo was hearing impaired and needed a sign-language interpreter to testify. She also had retinitis pigmentosa, an eye disease that prevented her from seeing at a distance. The trial court allowed Escobedo to step down from the witness stand to take a closer look at the people sitting in the courtroom. Escobedo identified a man sitting in the audience as the murderer. The State then showed Escobedo a photograph of appellant, State's Exhibit 13, which she correctly identified as appellant. The trial court then ordered appellant to remove his glasses and to stand closer to Escobedo so that she could get a good look at him. Defense counsel objected because Escobedo was being directed to go to a certain person after she had been given the opportunity to walk around and to identify appellant and could not. The trial court overruled the objection. Escobedo then correctly identified appellant. Appellant moved for a mistrial because of the in-court identification procedure and controversy over a sign signal that Escobedo had used. The trial court denied appellant's motion for mistrial.
Perales testified that appellant had walked downstairs carrying a gun immediately after the shots had been fired and had told Mejia and Perales that he had shot Hernandez. Evidence was also introduced that, at the time of his arrest, appellant was in possession of the weapon shown at trial to have been used to shoot Hernandez and that he had gunshot residue on both hands, indicating that he had recently fired a firearm.
Appellant testified that he and Escobedo had been neighbors for a year. Prior to the night that Hernandez was killed, appellant claimed, that on three occasions when she was drunk, Hernandez had tried to steal his money and had tried to beat him. Appellant testified that after he had left the party, Hernandez approached him, making accusations about a broken table and threatening to kill him with a knife. At that time, appellant was inside his apartment and Hernandez was in the hallway outside his apartment. Appellant testified that he went inside his apartment to get his gun just to scare Hernandez, not to kill her. Appellant admitted that he shot Hernandez four times. Appellant requested charges on the lesser-included offenses of manslaughter and negligent homicide, but the trial court denied his request.
Appellant does not complain on appeal of the denial of his request for a lesser-included offense charge on negligent homicide.
In-Court Identification Procedure
In his first point of error, appellant contends that "the trial court erred in overruling [appellant's] motion for mistrial after the only eyewitness failed to identify him and the prosecutor pointed him out for the witness and asked her to identify him again in front of the jury." Specifically, appellant complains that the in-court identification procedure employed during Escobedo's testimony was impermissibly suggestive and so prejudicial to appellant that the trial court should have granted his motion for mistrial.
We review a trial court's denial of a motion for a mistrial under an abuse-of-discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). A mistrial is an extreme remedy for prejudicial events that occur at trial and should be exceedingly uncommon. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jurors and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). The grant of a mistrial should not be a common remedy, and even when a prosecutor intentionally elicits testimony or produces other evidence before the jury that is excludable at the defendant's option, our law prefers that the trial continue. Bauder, 921 S.W.2d at 698.
Appellant relies primarily on Loserth v. State to support his argument that the in-court identification procedure was suggestive and was therefore improper. See id., 963 S.W.2d 770 (Tex.Crim.App. 1998). In Loserth, the court held that the witness's pre-trial identification was suggestive, therefore tainting the witness's in-court testimony. Id. at 771. Although appellant cites to cases that apply the two-part test in Loserth, he does not complain on appeal that Escobedo's pre-trial identification of him was based on an impermissibly suggestive procedure, but, rather, that Escobedo's in-court identification was the result of an impermissibly suggestive procedure. Therefore, the central question is whether the trial court abused its discretion by requiring appellant to stand and to take off his glasses so that Escobedo could correctly identify him. See Guerrero v. State, 838 S.W.2d 929, 932 (Tex.App.-El Paso 1992, no pet.).
Escobedo was first asked to identify generally her neighbor of one year, appellant, in the courtroom. However, Escobedo was not able to identify appellant from the witness stand because she could not see at far distances due to her eye disease. The trial court allowed Escobedo to walk around the courtroom to identify appellant. She identified a man in the audience who was not appellant. The State showed Escobedo State's Exhibit 13 which was a picture of appellant. She correctly identified appellant as the person in the photograph. The State asked the trial court to allow the man in the audience to stand next to appellant to see if she could identify which was appellant. Appellant's counsel objected, stating:
[APPELLANT'S COUNSEL]: Your Honor, I'm going to object as to [sic] she was already given the opportunity to walk around and see if she could identify the defendant. She has not been able to and now she's been directed to go to a certain person.
[COURT]: All right. I'm going to overrule that objection because she walked behind counsel table to a man in the audience and looked at him. And I did not see her look at anybody at counsel table. I'm also going to order him to take off his glasses.
[APPELLANT'S COUNSEL]: Your Honor, I'm going to object as to the interpreter is pointing to the defendant so obviously, she's going to ID him.
The trial court ordered appellant to stand and to remove his eyeglasses. The State asked Escobedo if she recognized appellant. The sign-language interpreter stated that Escobedo signed, "I don't have a really good look at his face. And that could be [appellant]. It looks like him." Appellant's counsel objected, stating, "Judge, I'm objecting. [Escobedo] had no response when the interpreter was making — she said `It looks like him.' She at no point — she was standing right in front of me, never did she say anything looks like him." The trial court excused the jury from the courtroom and questioned the interpreter under oath about whether the interpreter had translated the answer based on Escobedo's answer. The interpreter said that that had been Escobedo's answer and showed the trial court the hand signal that Escobedo had signed. Appellant's counsel objected and moved for mistrial. The trial court denied appellant's motion for mistrial. Appellant elected not to file a motion to suppress any in-court identification.
The jury was brought back into the courtroom, and the State continued to question Escobedo and asked whether "the man in the white shirt" was appellant. Escobedo responded, "That's [appellant]. That's the person. I can see — I had a chance to see him. So yes, I do know that is him." The State asked that the record reflect that Escobedo had identified appellant. Appellant made no further objections regarding Escobedo's in-court identification of him.
The Court of Criminal Appeals held in Moore v. State that stringent procedures for in-court identifications are not required. Moore v. State, 424 S.W.2d 443, 444-45 (Tex.Crim.App. 1968); see Wrenn v. State, 478 S.W.2d 98, 100 (Tex.Crim.App. 1972) (holding that district court is "not required to hold an in-court lineup or to force the state to furnish multi-person confrontations during the trial"); Johnson v. State, 462 S.W.2d 955, 956 (Tex.Crim.App. 1971) (upholding denial of motion for "multi-person show up at the time of any in-court identification," noting such request to be "an ingenious contention"); Mullen v. State, 722 S.W.2d 808, 812 (Tex.App.-Houston [14th] 1987, no pet.) (holding that district court did not err by denying motion for in-court lineup); Baskin v. State, 672 S.W.2d 312, 314 (Tex.App.-San Antonio 1984, no pet.) (holding that district court not required to hold in-court lineup). In Moore, a motion was filed requesting "that if the State's Counsel requires the witness to identify this Defendant that such identification be made when the Defendant is seated or standing with other persons of the same general age, race and sex." Id., 424 S.W.2d at 444. The Court of Criminal Appeals held the motion to be without merit. Specifically, the Court of Criminal Appeals stated:
We know of no law which prohibits a court from requiring that a defendant sit at the counsel table with his attorney during the trial. Nor do we know of any law which prohibits state's counsel from pointing to a defendant in the courtroom and referring to his physical appearance in the presence of witnesses.
Id. at 445. We hold that the State's mere action of directing the attention of Escobedo to appellant and asking her whether appellant was involved in the offense, particularly when the evidence otherwise showed that Escobedo had known him as a neighbor before the offense was committed, was not improper. See id.; Guerrero v. State, 838 S.W.2d 929, 931 (Tex.App.-El Paso 1992, no pet.). Unlike pretrial identification procedures, any concern as to whether a witness's in-court identification of the defendant is reliable "can be tested on cross-examination, and any taint arising from a defendant's presence with his attorney can be thereby exposed." Jordan v. State, 500 S.W.2d 638, 641 (Tex.Crim.App. 1973). Requiring the defendant to stand next to the incorrectly identified audience member and the State's directing Escobedo's attention toward appellant did not render Escobedo's in-court identification so unreliable as to require a mistrial. See Wrenn, 478 S.W.2d at 100.
Appellant further contends that "[g]iven the obvious inconsistencies and half-truths in the testimony [of the other witnesses], Escobedo's eyewitness testimony was crucial to the State's case as the remaining evidence linking [appellant] to the murder was circumstantial and largely inconclusive." The witnesses' alleged inconsistencies and Escobedo's alleged misidentification of appellant goes to the weight and credibility of their testimony. See Thomas v. State, 915 S.W.2d 597, 601 (Tex.App.-Houston [14th] 1996, pet. ref'd) (holding that complaining witness's misidentification of photograph merely goes to weight and credibility of testimony). Escobedo's inability to identify appellant in the courtroom at first certainly did not prejudice the jury against the defense. See id.
We hold that the trial court did not abuse its discretion by overruling appellant's objection to Escobedo's in-court identification of appellant. Therefore we hold that the trial court did not err in denying appellant's motion for mistrial.
We overrule appellant's first point of error.
Lesser-Included Offense in Jury Charge
In his second point of error, appellant contends that "[t]he trial court erred in refusing [appellant's] request to include the lesser included offense of manslaughter in the jury charge at the guilt stage of the trial."
To be entitled to a charge on a lesser-included offense, (1) the lesser-included offense must be included within the proof necessary to establish the offense charged and (2) some evidence must exist in the record that would permit a jury rationally to find that the defendant is guilty only of the lesser offense. Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App. 2002). Manslaughter is a lesser-included offense of the offense of murder. Moore v. State, 969 S.W.2d 4, 9 (Tex.Crim.App. 1998). Manslaughter requires proof that the defendant acted recklessly, that is, that he consciously disregarded a substantial risk of which he was aware. See TEX. PEN. CODE ANN. §§ 6.03(c), 19.04(a) (Vernon 2003).
In determining whether there is evidence to support a charge on recklessness, a statement that the defendant did not intend to kill the victim "cannot be plucked out of the record and examined in a vacuum." Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App. 1986). However, the credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given. Banda v. State, 890 S.W.2d 42, 60 (Tex.Crim.App. 1994). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992).
Appellant contends that there was evidence at trial to support the charge of manslaughter because he testified that he felt threatened by Hernandez because she approached him in an angry, agitated manner with threats and demands for money. Appellant admitted that he retrieved a gun from his apartment because he wanted to scare Hernandez. Appellant testified as follows:
[APPELLANT'S COUNSEL]: Okay. And is there anything else that [Hernandez] argued with you about?
[APPELLANT]: Yes. That I had broken [the table]. If I did not pay that she was going — that she was going to get me with the knife and she was going to kill me. She was angry and drunk.
. . .
[APPELLANT'S COUNSEL]: Okay. Now, when she was telling you this, what did you do next?
[APPELLANT]: I went into the closet and I did get a gun just to scare [Hernandez] away but not to kill her.
. . .
[APPELLANT'S COUNSEL]: Okay. In this particular day, what did you do after that?
[APPELLANT]: Defend myself.
[APPELLANT'S COUNSEL]: Okay. What did you do to defend yourself?
[APPELLANT]: I got the gun and I shot her.
On direct examination, Escobedo, who was the only eyewitness to Hernandez's murder, testified as follows:
[ESCOBEDO]: I was almost to the stairs in the hallway when I heard a shot and felt the floor shake. It was like thunder or something like that. And then a second shot happened really fast and then a third one. And I turned and saw [Hernandez] fall to the ground. And [appellant] was standing there with a gun.
. . .
[STATE]: Okay. What did you do when you saw [appellant] with the gun?
[ESCOBEDO]: When I turned and saw him, I hid back behind the side of the wall by the stairwell because — and I screamed, [appellant], no, no. And [appellant] saw me and I saw him. We looked at each other. And he had the gun in his hand, and he would not move. He stayed there with his gun; and I said, no, no, no. [Appellant] looked at me and he looked back down at [Hernandez] and he shot a third time and I saw fire come from the gun.
Even though appellant claimed that he had obtained his gun because he wanted only to scare Hernandez, he admitted that he shot Hernandez four times and claimed that he was defending himself. Thus, appellant intended to shoot Hernandez; he did not merely shoot her recklessly.
One cannot accidentally or recklessly act in self-defense. See Martinez v. State, 16 S.W.3d 845, 848 (Tex.App.-Houston [1st] 2000, pet. ref'd); Avila v. State, 954 S.W.2d 830, 843 (Tex.App.-El Paso 1997, pet. ref'd); Johnson v. State, 915 S.W.2d 653, 659 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Although appellant recognizes in his brief that courts of appeals have held that a person cannot accidentally or recklessly act in self-defense, he asks this Court not to apply the law in this instance because he intended only to scare Hernandez. Appellant's testimony that he acted in self-defense precludes an instruction on an accidental or reckless murder. See Martinez, 16 S.W.3d at 848. Therefore, the trial court did not err in refusing appellant's requested charge on manslaughter.
We overrule appellant's second point of error.
Conclusion
We affirm the judgment of the trial court.