Opinion
No. 13-08-00409-CR
Delivered and filed November 4, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 214th District Court of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA.
MEMORANDUM OPINION ON REHEARING
On August 30, 2010, appellant Manuel Chapa Garcia filed a motion for rehearing, requesting that the Court reconsider its disposition of his appeal. We grant the motion for rehearing, withdraw our previous opinion and judgment of August 25, 2010, and substitute the following in its place. Garcia challenges his conviction for manslaughter by a jury, for which he was sentenced to ten years' incarceration. See Tex. Penal Code. Ann. § 19.04 (Vernon 2003). By one issue, Garcia argues that the trial court denied his due process rights under the United States Constitution when it refused to allow him to present evidence, related to his self-defense theory, of perceived danger and that the deceased was the first aggressor. We affirm.
I. Background
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
[Defense counsel]: Your Honor, I don't plan on going into anything but reputation. I'm not going into any specifics. [The prosecution] may want to go into specifics, but I don't plan on going into it.
[Court]: You're saying that you're going to ask if they know his reputation in the community, whether that's good or bad?
[Defense counsel]: For certain character traits, yes, sir. For being an aggressive person, being a bully, being unpeaceful. Those are the character traits I want to go into.
. . . .
[Court]: I'll allow slight leeway. Call your witness.
Garcia then called Marcos Munoz as a witness, who testified, in relevant part, as follows:
[Defense counsel]: Mr. Munoz, do you know a man — or did you know . . . [the deceased]?
[Munoz]: Yes, sir.
[Defense counsel]: About how long a period of time have you known him?
[Munoz]: About three years.
[Defense counsel]: Did you know his reputation in the community in which he resided or in the area that he worked, did you know his reputation for being a peaceful person?
[Munoz]: No, sir.
[Defense counsel]: You didn't know his reputation for being a peaceful person?
[Munoz]: No, sir.
[Defense counsel]: Okay. So then if you don't know his reputation, you can't testify whether-
At this point, the trial court interrupted Garcia's counsel, and the following exchange occurred at the bench:
[Court]: I gave you some leeway. He answered your question and he said no. So that's it for him.
[Defense counsel]: I don't think he understands, Judge.
[Court]: I think he did. You asked him twice. So that's it for him. Do you have somebody else?
[Defense counsel]: Let me ask him a couple of more questions about —
[Court]: He's already —
[Prosecutor]: He says he doesn't know.
[Court]: Excuse me, please.
[Prosecutor]: Sorry.
[Court]: He already answered the question. He said no, I don't know his reputation, period. And you asked him twice. So do you have somebody else you want to put on?
[Defense counsel]: I do, Your Honor, but I want to make sure they don't make the same mistake he made. And I need to talk to that witness if that's the case.
[Court]: No. I'm going to let — we're in trial. If you have a witness, you put him on. If you don't have a witness, you don't put him on.
[Defense counsel]: I don't have anyone, Judge.
[Court]: That's it?
[Defense counsel]: That's it.Garcia then rested his case. The jury was charged on the indicted offense of murder and also on the lesser-included offenses of aggravated assault, manslaughter, and criminally negligent homicide. The jury charge included an instruction on self-defense. The jury returned a guilty verdict on manslaughter alone. After further proceedings on punishment, the jury sentenced Garcia to ten years' incarceration in the Institutional Division of the Texas Department of Criminal Justice and assessed a $10,000 fine. Garcia filed a motion for new trial, arguing, in relevant part, that the trial court prevented the jury from hearing evidence relevant to his self-defense theory when the court excluded the testimony of Munoz and Margarita Herrero, the deceased's ex-wife, at the guilt-innocence phase of the trial. Garcia then filed an amended motion for new trial, to which he attached the affidavits of Munoz and Herrero. The affidavits contained summaries of the proffered testimonies regarding the deceased's alleged past acts of violence and aggression against them and his reputation for violence and aggression in the community. After hearing the motion and purporting to "admit" the two affidavits as evidence, the trial court denied Garcia's motion.
II. Discussion
By one issue, Garcia complains that his constitutional rights were violated when the trial court denied him "a fair opportunity to present testimony relevant to his defense of self defense," which Garcia argues would have shown perceived danger and that the deceased was the first aggressor. See Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005); Potier v. State, 68 S.W.3d 657, 659 (Tex. Crim. App. 2002) (en banc); see also U.S. Const. amend. VI. Garcia's complaint focuses on the exchange between his defense counsel and the trial court following Munoz's testimony at the guilt-innocence phase of the trial; specifically, he argues in his brief as follows:Defense counsel tried to first offer the testimony of each of the defense witnesses. . . . Mr. Munoz took the stand, but apparently did not understand the nature of the questions put to him and gave an unexpected response. Defense counsel attempted to question Munoz further but the court would no[t] permit it. Defense counsel then requested time to confer with the second witness before she testified to make sure she understood the nature of the questions that she would be asked. The trial court denied defense counsel this request. Defense counsel decided not to call the witness and rested.
A portion of the evidence about which Garcia complains on appeal — testimony by Munoz and Herrero regarding the deceased's prior violent acts — was not introduced at the guilt-innocence phase of his trial. It is clear from the record that Garcia only intended to introduce and did attempt to introduce evidence of the deceased's alleged reputation in the community for violence and aggression. Thus, even though the substance of the proposed testimony regarding specific violent acts appears in the record before us through the affidavits of Munoz and Herrero attached to Garcia's motion for new trial, we are faced with a procedural hurdle in that the evidence was never offered at trial. See Tex. R. Evid. 103(b) (providing that an offer of proof shall be made "as soon as practicable, but before the court's charge is read to the jury. . . ."). Garcia does not acknowledge or address this circumstance in his brief to the Court. Because Garcia did not introduce the testimony of Munoz and Herrero regarding alleged specific prior acts of aggression and violence, the trial court did not have the opportunity to rule on the admissibility of that testimony. See Tex. R. App. P. 33.1(a); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (holding that preservation of error requires objection and ruling on that objection); Hill v. State, 902 S.W.2d 57, 60 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd) (holding that the trial court's adverse ruling must explicitly appear in the record, and absent any notation as to the trial court's decision, error is waived). And absent a ruling by the trial court on this portion of the evidence about which Garcia now complains, this Court is left with no cognizable complaint regarding testimony of the deceased's specific prior violent acts on which to pass judgment. See Tex. R. App. P. 33.1(a). Garcia has therefore waived this portion of his argument, and we overrule his issue to the extent it complains of evidence regarding the deceased's prior violent acts.
In his brief, Garcia also points to actions by the trial court during the punishment phase of the trial, but those actions are irrelevant for purposes of this appeal as Garcia's challenge relates only to his self-defense theory at the guilt-innocence phase of his trial.
Finally, to the extent that Garcia complains of the exclusion of testimony by Herrero regarding the reputation of the deceased, he has waived that complaint. Herrero was never called as a witness at the guilt-innocence phase of the trial, and the trial court thus had no opportunity to rule on the admissibility of her testimony. See Tex. R. App. P. 33.1(a); see also Valle, 109 S.W.3d at 509; Hill, 902 S.W.2d at 60.