Opinion
No. 05-11-00101-CR
03-28-2012
DANIEL CORTEZ, JR., Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed March 28, 2012
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F08-35228-I
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Fillmore
A jury convicted Daniel Cortez, Jr. of aggravated robbery with a deadly weapon, but could not agree on punishment. A second jury sentenced Cortez to sixty years' imprisonment and assessed a $5,000 fine. In four issues, Cortez asserts the evidence is insufficient to support the verdict and the trial court erred by admitting a photographic lineup into evidence, by denying Cortez's request to reopen the evidence during the guilt/innocence phase, and by denying Cortez's request in the second punishment hearing to introduce evidence related to Cortez's innocence. We affirm the trial court's judgment.
Background
At approximately 1:30 a.m. on September 14, 2008, Norma Vega and her friend, Rubi, took Vega's cousin, Chris, and his friend, Paul, to Paul's apartment in Irving. Rubi went upstairs with the two men to look at some furniture she was considering purchasing while Vega stayed in the car. Vega parked the car directly under a light in the parking lot.
Vega saw two Hispanic men, one in his thirties and the other between twelve and fourteen years of age, approach the car. The older man and Vega made eye contact as the two men passed the car, and Vega got a “weird feeling.” She began looking into the car's mirrors to determine where the men were, but could not see them. Within a few minutes, the two men approached Vega again on the driver's side of the car. The older man was less than two feet away from Vega and had a gun pointed at her. The man told Vega to get out of the car and to “keep walking straight.” He said that, if Vega looked back, he would shoot her. Vega walked quickly through the parking lot. When Vega looked back, she saw the two men driving away in her car. Vega's purse, cellphone, and medication were in the car.
Vega testified she got a “very good” look at the older robber and would recognize him again. Vega described the older man as weighing approximately 150 pounds, having a light complexion, and wearing khaki shorts, a T-shirt, and a brown-checked shirt over the T-shirt. The older man had a mustache and “maybe like a goatee kind of thing right here (indicating).” During the robbery, her focus was on the gun, and she did not notice any visible tattoos or scars on the older robber.
Detective Charlie Cavazos of the Irving Police Department testified that Vega's car was found the next day. A technician was able to obtain a partial palm print from the inside door handle on the driver's side. The palm print was not matched to Cortez. The Weatherford Police Department recovered Vega's purse. Detective Kevin Hilliard of the Weatherford Police Department testified he found property belonging to Vega in a van being driven by Andrea Medina. Medina was staying in a hotel room with Cortez. Hilliard questioned both Medina and Daniel Cortez, III, Cortez's son, about where the property came from and developed Cortez as a suspect.
Hilliard contacted Cavazos. Based on his conversation with Hilliard, Cavazos assembled a photographic lineup containing Cortez's picture. Four days after the offense, Cavazos showed the photographic lineup to Vega. Although Cavazos recalled showing Vega only one photographic lineup consisting of six pictures, Vega recalled at least three sheets containing six pictures each. Both Cavazos and Vega testified that Vega immediately identified Cortez as the older robber. Vega also identified Cortez at trial as the older robber and testified she did not have any doubt that Cortez was the person who robbed her.
The jury convicted Cortez of aggravated robbery, but could not agree on punishment. Following a second punishment hearing, a second jury sentenced Cortez to sixty years' imprisonment and assessed a $5,000 fine.
Sufficiency of the Evidence
In his first issue, Cortez argues the evidence is insufficient to support the jury's finding that he committed the aggravated robbery. Cortez asserts Vega's identification was incorrect because she was unable to testify about his extensive tattoos, her “apparent body language” at trial showed that she would not look at him and was hesitant to identify him, and the palm print from Vega's car did not match his print.
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011), cert. denied (U.S. Mar. 19, 2012) (No. 11-944). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our judgment for that of the jury”).
Vega testified she was parked under a light and saw the robber when he walked past her car the first time and when he returned with a gun. When the robber passed the car the first time, Vega made “eye contact' with the robber. When the robber returned with the gun, he was less than two feet from Vega. According to Vega, she got a very good look at the robber and would recognize him again. Although she did not recall whether the robber had any tattoos, her attention during the robbery was focused on the gun.
When Vega saw the photographic lineup, she immediately identified Cortez as the robber. Further, although she was hesitant at trial to look at Cortez, she testified without hesitation that she had seen the robber in the courtroom and described the clothes Cortez was wearing at trial.
Cortez's complaints relate to inconsistencies in the evidence and the credibility of the witnesses. However, the jury heard all the testimony. It was the role of the jury to judge the credibility of the testimony, and we must defer to that determination. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Reviewing all the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have found beyond a reasonable doubt that Cortez committed the offense. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. We resolve Cortez's first issue against him.
Photographic Lineup
In his second issue, Cortez asserts the trial court erred by admitting the photographic lineup into evidence. Cortez specifically argues the lineup was unnecessarily suggestive because it focused “on his face, rather than on his numerous distinctive tattoos.” However, at trial Cortez argued the photographic lineup was impermissibly suggestive because (1) the individuals had on different types of shirts, (2) there had been testimony the robber had a beard, but none of the individuals in the lineup had beards, and (3) Vega testified she viewed three lineups and the other lineups were not available for comparison.
To preserve error for appellate review, the complaint on appeal must comport with the objection at trial. Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (to avoid forfeiting complaint, party must “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it”). Cortez did not object in the trial court that the photographic lineup was unduly suggestive because it failed to display his tattoos. Accordingly, he has failed to preserve this complaint for our review. We resolve Cortez's second issue against him. Motion to Reopen
In his third issue, Cortez contends the trial court erred by denying his request to reopen the evidence. After both the State and Cortez had closed and the guilt/innocence charge had been read to the jury, Cortez requested leave to reopen the evidence and introduce testimony from Maria Santibanez that Cortez had numerous tattoos on his body at the time of the offense. The trial court denied the request.
We review the trial court's denial of a request to reopen the evidence under an abuse of discretion standard. Wilkinson v. State, 423 S.W.2d 311, 313 (Tex. Crim. App. 1968); Reeves v. State, 113 S.W.3d 791, 794 (Tex. App.-Dallas 2003, no pet.). A trial court shall allow the introduction of evidence at any time before the conclusion of argument if it appears necessary to the due administration of justice. Tex. Code Crim. Proc. Ann. art. 36.02 (West 2007) “'[D]ue administration of justice' means a judge should reopen the case if the evidence would materially change the case in the proponent's favor.” Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). To establish a material change, the proponent of the evidence must show the evidence is more than “just relevant-it must actually make a difference in the case.” Id. Thus, the trial court abuses its discretion by denying a motion to reopen if the evidence the movant seeks to present would materially change the case in the movant's favor. Reeves, 113 S.W.3d at 794.
Vega described the man who robbed her and testified her purse was in the car. Cortez's son and Medina had Vega's purse in their possession. After questioning Medina and Cortez's son, Detective Hilliard identified Cortez as a suspect. Detective Cavazos included Cortez in a photographic lineup. When Vega viewed the photographic lineup, she immediately identified Cortez as the man who robbed her. Vega also identified Cortez as the robber during trial. She testified that she had a very good look at the robber and had no doubt it was Cortez.
Cortez's counsel raised the issue of whether the robber had tattoos multiple times during his cross-examination of Vega and established that Vega did not recall seeing any tattoos. However, Vega also testified the robber was wearing two shirts and that she was focused on the gun in the robber's hand. The record reflects that, during closing arguments, Cortez had his shirt sleeves rolled up to his elbows and his arms and hands on the table in view of the jury. Cortez's counsel's closing argument was based primarily on Vega incorrectly identifying Cortez as the robber. One of the primary bases of counsel's argument was that Vega did not recall the robber having tattoos.
Cortez's defensive theory that, because she could not recall that the robber had any tattoos, Vega had incorrectly identified Cortez as the robber was fully developed at trial. We cannot conclude that Santibanez's testimony would have materially changed the case in Cortez's favor. Accordingly, the trial court did not abuse its discretion by denying Cortez's motion to reopen the evidence. We resolve Cortez's third issue against him.
Evidence at Punishment Phase
In his fourth issue, Cortez asserts the trial court erred by excluding evidence from Cortez and Medina during the second punishment hearing relating to Cortez being innocent of the robbery. We review the trial court's ruling on the admissibility of evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011). A trial court abuses its discretion when it acts outside the zone of reasonable disagreement. Id.
During the punishment hearing, either side may introduce evidence on matters “relevant” to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (West Supp. 2011). Evidence is relevant to sentencing if the evidence is “helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.” Rodriguez v. State, 203 S.W.3d 837, 842 (Tex. Crim. App. 2006). Once a jury finds a defendant guilty, exonerating evidence is not relevant to an assessment of punishment. Nixon v. State, 572 S.W.2d 699, 701 (Tex. Crim. App. [Panel Op.] 1978); Willamson v. State, 990 S.W.2d 404, 406, 407 (Tex. App.-Dallas 1999, no pet.) (concluding exonerating evidence inadmissible during retrial of punishment); see also McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007). Here, the offered testimony from Medina and Cortez bore solely on the identification of Cortez as the robber, a fact not at issue in the punishment phase. Accordingly, the trial court did not err by excluding the evidence. We resolve Cortez's fourth issue against him.
We affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110101F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DANIEL CORTEZ, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00101-CR
Appeal from the Criminal District Court No. 2 of Dallas County, Texas. (Tr.Ct.No. F08- 35228-I).
Opinion delivered by Justice Fillmore, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 28, 2012.
ROBERT M. FILLMORE
JUSTICE