Opinion
NO. 03-14-00585-CR
02-19-2016
Leovardo Cantos, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 13-2081-K277, HONORABLE STACEY MATHEWS, JUDGE PRESIDINGMEMORANDUM OPINION
Appellant Leovardo Cantos was convicted of aggravated assault with a deadly weapon and sentenced to fifteen years' imprisonment. During the guilt-innocence phase of the trial, the trial court admitted testimony concerning a previous assault committed by Cantos. In one issue, Cantos contends that the trial court abused its discretion in admitting the extraneous offense evidence because its prejudicial effect far outweighed its probative value. We will affirm the trial court's judgment.
BACKGROUND
The facts recited herein are taken from the testimony and exhibits presented at trial. --------
Cantos and the complainant, Juan Davila, played for opposing teams in an amateur softball league. On November 14, 2013, their teams played each other. During the game, Cantos and Davila were involved in a brief altercation at second base, characterized by the umpire as "incidental contact." Words were exchanged between Cantos and Davila, and play resumed after umpires admonished both men.
When Davila's team took the field following the incident, Cantos was overheard by a teammate in their dugout as muttering, "You have something coming to you." During Cantos's at bat, Cantos hit the ball to the pitcher, who passed the ball to the first baseman, Davila. Cantos, jogging toward first base, raised his arms and accelerated, knocking down Davila. Upon regaining his feet, Davila threw the baseball near the ground at Cantos's feet. The ball may have ricocheted and struck Cantos's leg. Cantos and Davila began "jawing" at each other, which quickly escalated into an exchange of blows. Cantos knocked Davila down and began kicking him in the head as he lay on the ground. The two men were separated and both were ejected from the game for fighting. An off-duty police officer who had been playing in the game called the Round Rock police to report the assault. Shortly after the game, several individuals viewed Cantos's Facebook profile and saw the following post:
I guess next time you will think twice about taking out someone's knee in softball. Haha! How's your face? Cause my foot is killing me!!! Not to mention how far u flew when u were "standing your ground." Lmao. U picked the wrong Mexican homeboy!!!The morning after the game, Davila complained of a headache and dizziness and was taken to the hospital, where he underwent emergency brain surgery.
Cantos was subsequently indicted for aggravated assault. The indictment included a deadly weapon allegation. At trial, Cantos argued self-defense, in response to which the State sought to introduce evidence of a prior assault by Cantos to rebut the defensive theory and to show intent and lack of mistake. Over Cantos's objection, the trial court admitted the testimony of Austin Police Department Officer Andrew McRae, who testified that on an occasion in which Cantos was under arrest for another offense, Cantos had threatened to physically harm McRae and, when McRae attempted to open the door of the police car to remove Cantos, had kicked the door, spraining McRae's wrist.
The jury found Cantos guilty of aggravated assault and made an affirmative finding that Cantos used a deadly weapon. The trial court sentenced Cantos to fifteen years' imprisonment. This appeal followed.
DISCUSSION
The erroneous admission of extraneous-offense evidence is non-constitutional error. Sandoval v. State, 409 S.W.3d 259, 304 (Tex. App.—Austin 2013, no pet.). We will disregard non-constitutional error, except where it affects an appellant's substantial rights. Tex. R. App. P. 44.2(b); Gray v. State, 233 S.W.3d 295, 299 (Tex. Crim. App. 2007). A substantial right is affected when "the error had a substantial and injurious effect or influence in determining the jury's verdict." Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Where the error did not influence the jury or had but a "slight effect," substantial rights are not affected. Sandoval, 409 S.W.3d at 304.
In determining the effect or influence of improperly admitted evidence, our focus is not on the propriety of the trial's outcome or whether there was sufficient evidence to support the verdict. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003); Sandoval, 409 S.W.3d at 287. Instead, we review the entire record "to ascertain the effect or influence on the verdict of the evidence." Sandoval, 409 S.W.3d at 287. "We consider all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with other evidence in the case," and may also consider "the jury instructions, the parties' theories of the case, closing arguments, voir dire, and whether the State emphasized the error." Id. at 288. A significant additional factor in the evaluation of harmless error is the presence of "overwhelming" evidence supporting the finding in question and whether the erroneously admitted evidence was cumulative. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002); see also Bagheri, 119 S.W.3d at 763.
Assuming, without deciding, that the admission of the extraneous offense evidence was error, we cannot conclude that the error was harmful. Cantos does not argue that the error had a substantial or injurious effect or influence on the verdict. In his brief, Cantos instead argues that because of the wealth of additional evidence admitted at trial demonstrating that Cantos acted as the initial aggressor, the extraneous offense evidence merely "could not have been that helpful to the jury in resolving the issue of self-defense." Cantos's argument undermines any subsequent contention that the admission of such evidence was harmful or had a "substantial effect."
While the presence of "overwhelming" evidence supporting the finding in question is but one factor in the evaluation of harmless error, a summary review of the record before us, with particular emphasis on "the nature of the evidence supporting the verdict," and consideration of the extraneous offense evidence "in connection with other evidence in the case," strongly reinforces our conclusion that the improperly admitted evidence could not have influenced the jury or could have had but a slight effect on its deliberations. Sandoval, 409 S.W.3d at 287-88; see also Motilla, 78 S.W.3d at 357. At trial, of those witnesses purporting to have seen who initiated the altercation following the play at first base, six testified that Cantos either tackled or punched Davila. Only one, Gabriel Orozco, Cantos's teammate and coach, in direct contradiction to the other witnesses' testimony, testified, "Juan throws a punch, misses and connects with the second one, and it's just—they start scuffling from there." Several witnesses testified that they saw Cantos actually kick Davila in the head. No evidence was introduced justifying Cantos's actions.
With respect to the baseball thrown by Davila prior to the assault, five witnesses testified that Davila threw the ball to the ground near Cantos, never striking him, directly or indirectly, with the ball. Two witnesses testified that while they saw the ball strike Cantos, it had ricocheted off the ground before doing so. Only one witness—Orozco—testified that Davila intentionally struck Cantos with the ball.
Danny Teller, Cantos's teammate, testified that prior to Cantos's at-bat immediately preceding the assault, he heard Cantos mutter, "Yes, you have something coming to you." Officer Brian Hollywood of the Round Rock Police Department, the only witness not familiar with Cantos and Davila prior to the game in question, similarly testified that following the initial confrontation between Cantos and Davila at second base, he overheard Cantos state, "That's okay. You're going to get yours." Several witnesses testified to having seen Cantos's Facebook status following the game, in which he wrote, "I guess next time you will think twice about taking out someone's knee in softball. Haha! How's your face? Cause my foot is killing me!!! . . . . Lmao. U picked the wrong Mexican homeboy!!!"
The allegedly improperly admitted testimony in question played little role in the proceedings. Extraneous offenses were not discussed during voir dire. At trial, McRae briefly testified:
He made several statements. 'Open these doors. See if I don't punch you in the face. Get someone else to open up this door. I swear to God you open this door, I'm going to fuck you up. I'm not even playing. Seriously, bro, when we get to the fucking station, get somebody else to open the fucking door because if you're anywhere near me, ooh.'When asked what happened then, McRae responded, "When I opened the door, Mr. Cantos had his back facing away from the door and kicked the door very hard to the point that it sprained my wrist." Though the State did reference the extraneous offense in its closing argument, it occurred in the broader context of challenging the defensive theory of self-defense and was enumerated as merely one more piece of evidence supporting the determination that Cantos was the aggressor.
Although counsel for Cantos did not request a limiting instruction regarding the extraneous offense evidence, the trial court sua sponte included a limiting instruction in the jury charge. The charge included the following instruction:
The Defendant is on trial solely on the offense alleged in the indictment. The State has introduced evidence of a crime, wrong, or act other than the offense alleged in the indictment in this case, and with reference to such crime, wrong, or act, you are instructed that said evidence was admitted only for the purpose of showing proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident, if it does.On appeal, we generally presume that the jury followed the trial court's instructions in the manner presented. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (jury presumed to disregard parole during deliberation when so instructed); Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1998) (jury presumed to follow instruction to disregard evidence). The presumption is rebuttable, but the appellant must rebut the presumption by pointing to evidence that the jury failed to follow the court's instruction. See Colburn, 966 S.W.2d at 520. Cantos has identified no evidence to rebut the presumption that the jury heeded the trial court's instruction that evidence of the extraneous offense was admitted only for the purpose of rebutting evidence that Cantos acted in self-defense.
Given the "overwhelming" evidence presented at trial in refutation of the defense's theory of self-defense and, more generally, of Cantos's guilt, as well as the brevity of testimony on the issue and its relative lack of importance in the State's case, we conclude that the error did not influence the jury or had but a slight effect in its determination of Cantos's guilt. We therefore overrule Cantos's only point of error.
CONCLUSION
Having overruled Cantos's sole point of error, we affirm the judgment of the trial court.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Pemberton and Field Affirmed Filed: February 19, 2016 Do Not Publish