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concluding that there was " reasonable connection" between shell casings "spent . . . months before the crime was committed" that were recovered from defendant's bedroom and those used during commission of crime alleged
Summary of this case from Keller v. StateOpinion
No. 04-04-00438-CR
Delivered and Filed: July 19, 2006. DO NOT PUBLISH.
Appeal from the 186th Judicial District, Bexar County, Texas Trial Court No. 1998-CR-6354, Honorable Fred Shannon, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
In accordance with Texas Rule of Appellate Procedure 50, this court's opinion and judgment dated February 8, 2006 are withdrawn, and this opinion and judgment are substituted. We substitute this opinion to address the trial court's denial of Quesada's motion to suppress based on alleged violations of the Due Process Clause. Appellant Eric Quesada was charged with the murder of Michael Newhouse and the attempted capital murder of Benjamin Poehlman. The jury found Quesada guilty and sentenced him to seventy-five years and fifty years, respectively, in the Institutional Division of the Texas Department of Criminal Justice. Quesada appeals his conviction based on the improper admission of the State's evidence, insufficient evidence supporting his conviction and the failure to transfer venue. We affirm the trial court.
Factual Background
On June 27, 1998, eighteen year old Michael Newhouse was traveling north on IH-35 in Live Oak, Bexar County, Texas, along with girlfriend Shauna Hilburn and friends Benjamin Poehlman and Isaac Cardenas. Herman Hernandez, in a small, dark colored vehicle, pulled next to Newhouse's vehicle and shots were fired hitting Newhouse's vehicle eight times, fatally striking Newhouse and paralyzing Poehlman. Kathleen Wuest was traveling directly behind Newhouse and described Hernandez' front passenger as having a medium build and dark hair. Testimony of Poehlman and Cardenas corroborated her description. Hilburn testified that as Hernandez' vehicle passed, she made eye contact with the front seat passenger, whom she identified as Quesada. She also identified Jesus Cruz as the back seat passenger. Hilburn further explained that Newhouse and Quesada were friends before a feud caused Newhouse to avoid Quesada. Testimony at trial included statements by Wuest describing a "little mini machine gun" coming out of the right rear passenger side window. This was supported by the testimony of Cardenas and Poehlman, both sitting in the rear seat, who testified to hearing two different types of gunfire, one very rapid, potentially an automatic firearm, and the other a single shot firearm. Both Cardenas and Poehlman described the firearm coming from the back window as looking like a Tec-9. Approximately eleven shell casings were recovered from the scene. Further witness statements provided officers with a license plate number registered to Herman Hernandez. San Antonio Police Department (SAPD) officers went to Hernandez' residence where a dark colored Nissan, bearing the same license plate number, was parked. After several individuals left the residence in the vehicle in question, the officers effected a felony stop of the vehicle and identified Hernandez as the driver and Quesada as the front seat passenger. Additionally, a spent shell casing, lodged between the spoiler and the roof of the trunk, was recovered. Before an arrest warrant for Quesada could be obtained, however, Quesada fled to Mexico. After several years fighting extradition, Quesada was eventually tried and convicted on one count of murder and one count of attempted capital murder.Admissibility of Shell Casing and Photograph of Defendant
Quesada alleges the trial court improperly admitted shell casings retrieved from his residence, prior to the charged offense, in violation of Rules of Evidence 401, 402, 403, 404(b) and the Due Process Clause. Quesada also complains a redacted photograph of himself holding a firearm was admitted in evidence in violation of Rules of Evidence 403 and 404(b). The trial court denied Quesada's motion to suppress the shell casings and the photograph. The evidence regarding the shell casings included spent shell casings gathered from Quesada's residence months before the crime was committed. On March 9, 1998, three months prior to the murder, an unrelated chain of events led school officials at McCollum High School in San Antonio, Texas to alert SAPD officers to photographs found in the possession of student Herman Hernandez. Two of the photographs showed a tattoo-covered Quesada brandishing a handgun. Officer Martin Toubin and Quesada's probation officer, Kurt Goslin, requested and received consent from Quesada's mother to search Quesada's bedroom for possible firearms. Although no firearms were located, Officer Toubin collected 57 spent shell casings from Quesada's bedroom. During trial, Edard Love, Jr., a firearm and tool mark examiner with Bexar County testified that 54 of the 57 shell casings recovered from Quesada's bedroom, as well as the bullet recovered from the body of Newhouse, the bullet retrieved from Newhouse's vehicle, the shell casing recovered from Herman Hernandez's vehicle, and nine of the shell casings collected at the crime scene were all fired from the same Smith Wesson Series 9 mm semiautomatic pistol. Two of the remaining shell casings found at the crime scene were fired from a different weapon, potentially a Tec-9 or an AA Arms firearm. The evidence from the crime scene was subsequently retained with the investigation relating to the murder. The evidence collected from Quesada's bedroom was retained as part of a separate investigation by a different police department. Unfortunately, as part of normal office procedure, the ballistics evidence, specifically the 57 shell casings, collected in association with the search warrant on the Quesada residence was destroyed. Additionally, during trial, the State offered a redacted version of one of the photographs showing Quesada from the waist up, with no visible tattoos or gang related signs, holding a firearm in his right hand. The admission of the spent shell casings found in Quesada's bedroom and the redacted photograph form the basis for Quesada's evidentiary objections.A. Standard of Review
We review a trial court's ruling on a motion to suppress under an abuse of discretion standard, and will not disturb the decision unless its rulings are "arbitrary and unreasonable," and "without reference to any guiding rules and principles." Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990); Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.-Amarillo 1991, pet. ref'd). As long as the trial court's ruling is within the "zone of reasonable disagreement," there is no abuse of discretion. See Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App. 1996). A review of a due process violation requires a bifurcated standard of review, "giving `almost total deference to a trial court's determination of historical facts' and reviewing de novo the court's application" of due process of law. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000).B. Analysis
1. Texas Rules of Evidence 401 402 Quesada first argues that the shell casings retrieved from his residence are not relevant based on the lack of a sufficient link to the charged offense. A piece of evidence is relevant if it tends 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 tending to affect the probability of the truthfulness or falsity of a fact at issue is logically relevant. Montgomery, 810 S.W.2d at 376. Rule 402 further requires all relevant evidence be admissible, unless the opponent of the evidence demonstrates that the evidence should be excluded due to a constitutional, statutory or other evidentiary provision. Tex. R. Evid. 402. A reasonable connection clearly exists between the firearm used to expend 54 of the shell casings from Quesada's bedroom and the firearm used to expend not only nine of the shell casings found at the scene of the crime, but also the shell casing retrieved from the vehicle used during the commission of the crime and the bullets retrieved from Newhouse's body and vehicle. The shell casings in question are directly linked to both the murder weapon and to Quesada by their presence in his bedroom and are therefore logically relevant to the factual issues in dispute. Because Quesada was indicted for, inter alia, the offense of murder, the State's indictment required proof that Quesada intentionally or knowingly caused the death of Newhouse with a firearm. The shell casings amount to circumstantial evidence of that fact, specifically a connection between Quesada and not just a weapon, but the murder weapon. Because the shell casings were relevant to prove essential elements of the charged offense, we cannot say the trial court's decision to admit such evidence pursuant to Rules 401 and 402 falls outside the zone of reasonable disagreement. 2. Texas Rule of Evidence 403 Quesada next argues both the shell casings and the redacted photograph of himself holding a firearm should have been excluded under Rule 403. Tex. R. Evid. 403. Rule 403 presumes the admissibility of all relevant evidence and permits a trial court to exclude this evidence only when the probative value is substantially outweighed by the unfair prejudice. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). Mozon sets forth a four-prong test to determine the disparity between the prejudice of admitting the evidence and its probative value:(1) how compellingly the evidence makes a fact of consequence more or less probable;
(2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way;
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and
(4) the proponent's need for the evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.Id. The ballistics examination directly connected the shell casings found in Quesada's residence with those retrieved from Newhouse's body. Additionally, Love testified that the firearm being held by Quesada in the redacted photograph is the same type of weapon used to extrude the shell casings at Quesada's residence, from Hernandez' vehicle and from the crime scene, as well as the bullets retrieved from Newhouse's body and vehicle. Because the contested shell casings and the photograph provide some probative value that Quesada had access to the weapon that fired the shots killing Newhouse and paralyzing Poehlman, we cannot say the trial court improperly found the evidence served to make a "fact of consequence more or less probable." State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005); see also Moss v. State, 75 S.W.3d 132, 141 (Tex.App.-San Antonio 2002, pet. ref'd) (admitting evidence of weapons and ammunition merely showed that defendant had access to various weapons, one of which he could have used to commit the robbery in question). We cannot say that either the casings or photograph, by themselves, amounts to evidence that would "impress the jury in some irrational but indelible way." Mechler, 153 S.W.3d at 440. The spent shell casings are simply evidence of a discharged firearm and the photograph merely shows Quesada holding a handgun, with all connections to tattoos or gang symbols removed. There is no indication that the jury was "distracted from consideration of the charged offense during the time needed to present [the contested evidence]." Id. at 441. The fact that Quesada was potentially in possession of the murder weapon is directly related to the offenses in question. Thus, irrespective of the amount of time needed to present the evidence, it cannot be said to have distracted the jury from the charged offenses. Finally, the shell casings and the photograph established a link between Quesada and his accessibility to the murder weapon. The State's case was primarily based on circumstantial evidence and therefore elevated the need for all evidence linking Quesada to the murder weapon. After evaluating the factors as outlined in Mozon, we are unable to conclude that the trial court's ruling admitting the shell casings and photograph amounted to an abuse of discretion in violation of Tex. R. Evid. 403. 3. Texas Rule of Evidence 404(b) Quesada argues that the shell casings found in his residence and the photograph of himself are evidence of other crimes, wrongs, or acts and therefore inadmissible under Rule 404(b). Tex. R. Evid. 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.") We disagree. As the State points out, possession of shell casings or a firearm alone are not evidence of a crime or bad act. Alternatively, the redacted photograph does not show any illegal activity or the commission of a wrongful act on Quesada's part. More importantly, the shell casings, like the photograph of Quesada, were not admitted to prove the character of Quesada, but rather introduced to provide a connection to the murder weapon. Accordingly, the trial court did not abuse its discretion in admitting the shell casings and the redacted photograph over Quesada's Rule 404(b) objection. 4. Due Process Violation Quesada next argues that because the physical evidence supporting the testimony, specifically the 57 shell casings, was destroyed before the defense had an opportunity to examine the evidence, the trial court should have suppressed the evidence. By all accounts, the shell casings were mislabeled as "found property" and were destroyed in accordance with normal police procedure. When an accused complains that the State failed to preserve potentially useful evidence, he must show that the evidence was (1) material, (2) favorable to the defense, and (3) destroyed in bad faith by the State. See Salazar v. State, 185 S.W.3d 90, 92 (Tex.App.-San Antonio 2005, no pet.). Moreover, "[t]o meet this standard of constitutional materiality, the missing evidence must possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable available means." California v. Trombetta, 467 U.S. 479, 489 (1984) (internal citations omitted). Although the destruction clearly makes it unavailable for comparison purposes, a showing that the evidence might have been favorable does not meet the materiality standard. Lee v. State, 893 S.W.2d 80, 87 (Tex.App.-El Paso 1994, no pet.); Hebert v. State, 836 S.W.2d 252, 254 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd); Gamboa v. State, 774 S.W.2d 111, 112 (Tex.App.-Fort Worth 1989, pet. ref'd.) (holding that an appellant must make a favorable showing that the evidence was favorable and material). Quesada did not allege at either trial or on appeal that the evidence was destroyed in bad faith, thus the mere failure to preserve the evidence is not a denial of due process. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Moreover, a showing of negligence on the part of the officers is not equivalent to bad faith. Saldana v. State, 783 S.W.2d 22, 23 (Tex.App.-Austin 1990, no pet.). Quesada's failure to meet the necessary burden with regard to either materiality or that the evidence would have been favorable to his defense, combined with the fact that all testimony supports the evidence was destroyed in accordance with normal practices of the police department, negates Quesada's claims of a due process violation. Quesada's points of error one through five are overruled.