Opinion
NUMBER 13-17-00677-CR NUMBER 13-17-00678-CR NUMBER 13-17-00679-CR
08-02-2018
GILBERT C. GARZA A/K/A GILBERT LARA GARZA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Jackson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant Gilbert C. Garza a/k/a Gilbert Lara Garza appeals his convictions for three counts of retaliation, third-degree felonies, which were enhanced to second-degree felonies under the repeat and habitual offender statute. See TEX. PENAL CODE ANN. §§ 12.42(a), 36.06 (West, Westlaw through 2017 1st C.S.). Appellant received a sentence of twenty years' confinement on each count to run concurrently. By two issues, appellant contends (1) that the trial court improperly allowed evidence that he allegedly used a child as "a shield" during his commission of the charged offenses and (2) that the trial court improperly admitted evidence that appellant called a witness and told her that he set her business on fire. We affirm.
Appellant presents the same two issues in all three appellate cause numbers, and we issue one memorandum opinion combining the three appeals.
I. THE EVIDENCE
The State presented the testimony of Rose Bermea, appellant's sister and neighbor, who testified that when she arrived home from work on January 10, 2017, she "heard a lot of noise, yelling and sounds like something breaking at" appellant's house and that after becoming frightened, she called the police. The State later recalled Bermea who testified that she received a phone call from appellant on February 7, 2017, and appellant told her that he had set her business on fire. Bermea clarified that although appellant had told her that he set her business on fire, he had not actually done so.
Deputy Stephen Lang with the Jackson County Sheriff's Office testified that on January 10, 2017, he was dispatched to appellant's home, and when he knocked on the door, appellant "started being aggressive." According to Deputy Lang, appellant "was saying he was going to grab his guns, shotgun, start firing . . ." so he went back to his patrol unit for cover. Because Deputy Lang could not see appellant's hands he did not know if appellant had a gun.
According to Deputy Lang, other officers, who were also present at the scene, were instructed to stand down, and Deputy Lang was instructed to stay at appellant's home alone. The other officers who were not identified at trial left appellant's home.
It appears that multiple officers went to appellant's home on more than one occasion and at different times.
Subsequently, Chief Deputy Rick Boone and Trooper Jason McCarrell arrived at appellant's home, and Deputy Lang went to get an arrest warrant. When Deputy Lang returned to appellant's home, he was instructed to wait for the children to leave for school in the morning before serving the warrant. Deputy Lang stated he stayed at the residence alone and that he parked on the opposite side of the residence one or two blocks away to watch the residence. When Deputy Lang and other officers went to serve the warrant the next day, appellant was not home.
Chief Deputy Boone with the Jackson County's Sheriff's Office testified that at approximately 10:45 p.m. on January 10, 2017, he received a call from dispatch and proceeded to appellant's home with Trooper McCarrell. Officer Lang was present at appellant's home when Chief Deputy Boone arrived with Trooper McCarrell. Granado police officer, Karl Cranek also arrived at appellant's home. Chief Deputy Boone explained that the officers present were in uniform except for him who was wearing "an outer carry vest" that was "clearly marked with sheriff on it."
According to Chief Deputy Boone, as soon as he knocked on appellant's door, appellant said, "I'm going to kill y'all fucking cops. I'm going to blast y'all. Got my shotgun." Chief Deputy Boone said, appellant "made a personal threat to me . . . said he was going to kill me, kill my wife and fuck my daughter." Chief Deputy Boone stated that appellant "brought one of his boys out by the collar, had him outside of the door" and the only part of appellant that was exposed was his head.
According to Chief Deputy Boone, he sent Deputy Lang to get an arrest warrant. When Deputy Lang returned with the warrant, all of the officers left appellant's residence except for Deputy Lang who remained at appellant's home.
Trooper McCarrell testified that on January 10, 2017, he worked at the Jackson County Sheriff's Office and that he accompanied Chief Deputy Boone to appellant's home. Trooper McCarrell stated that when he knocked on the door, appellant said, "You woke my kids up. Now I'm going to kill your ass. You're a dead mother fucker." According to Trooper McCarrell, appellant told his girlfriend that he needed "the other clip," which Trooper McCarrell "interpreted as a magazine for a gun." Trooper McCarrell said, "[h]e asked for the 30-round clip and then he states this mother fucker is dead . . . ." Trooper McCarrell claimed appellant told the children the following: "You hear that. Those are fucking cops. They don't do anything but harass people . . . . Don't worry about it because when he comes in we're going to blast these mother fuckers. They're dead." According to Trooper McCarrell appellant showed him an object that he could not see and said, "I'm going to shoot you right now. Look at my gun."
During appellant's case-in-chief, his girlfriend, Samantha Garza, testified that on the night of the incident, she and appellant had a brief argument, went to bed, and were awakened by a police officer who knocked on the door. According to Samantha, she and appellant went outside on the porch to talk with an officer, and she told the officer that they were fine. Samantha claimed once they told the officer everything was fine, he left. Samantha clarified that appellant did ask her two sons to come outside so that the officer could see that they were fine. Samantha denied that appellant treated her sons "rough" and that appellant used the children as human shields. Samantha claimed that when the officer first arrived, appellant and the family felt threatened by the officer's presence because the officer was banging on the door and her children were scared. Samantha explained they were scared because the officer "never explained why they were there."
Rosalinda Elizondo, appellant's mother, testified during appellant's case-in-chief, that she was present on the night of the incident and that appellant and Samantha were involved in a brief argument. Elizondo described the argument as a lover's quarrel and responded that the argument had not been threatening or serious and was like arguments between other couples. Elizondo stated that the couple then went to sleep. According to Elizondo, she heard a loud banging on the door by a police officer. Elizondo overheard the conversation appellant had with the officer. Elizondo said the officer never told appellant and Samantha what they needed and at no point did the officer inform them that someone had called the police and that the officers were there for a welfare check. According to Elizondo none of the officers said they had a search warrant. Elizondo stated that she was extremely frightened of the police officers because they had guns pointed at the residence. Elizondo denied that appellant threatened to shoot the officers.
Elizondo referred to the officer and officers during her testimony.
Elizabeth Baladez, appellant's sister, testified during appellant's case-in-chief that on the date of the incident, appellant called her to go to his home, and when she arrived, there were police officers outside his home with guns. Baladez stated that she went into the home and that she spoke with appellant who did not know "what was going on at that time." Baladez said, "My mom was crying, the kids were crying, and he just didn't know what was going on." Baladez testified that she decided to go back outside to talk to the officers and that when she did the officers would not tell her why they were at appellant's home. The officers told her that "they needed to speak with" appellant and that "[t]hey just wanted him out." Baladez said that the officers informed her that Bermea had reported that she heard arguing occurring in the home. Although the officers informed her about Bermea's report, Baladez expressed confusion about why the police were at the home. According to Baladez, she went back inside and convinced appellant to go outside to talk to the officers, and when they went back outside, the officers "had guns drawn directly at" them. Baladez stated that she believed that everything was now okay, but she realized it was not when she decided to step off the porch. Baladez said,
Well, what made me not think everything was okay was because when I was going to step down the stairs, directly I could see that officer that was, you know, that came around the corner of the trailer, just had his gun pointed directly at me. That's when I stopped and I said, oh, my gosh, he's going to kill us, you know. Then I thought I shouldn't have done this. I shouldn't have came back out, you know. I just didn't know what to think so I just stood there. I could—he was so close I could, you know, see his eyes just looking at me, pointing that gun directly at me and my brother, and so I just stopped. That's when he started talking to the officer that was in front of him—
. . . .
[Appellant] told him, what is the problem, you know, we're inside, we're sleeping, and you know, one time the officer said calm down, lower your voice. [Appellant] said my voice is always loud. I'm a loud person. That's how I am. I'm not yelling, but you would be upset also if somebody came banging on your windows and your doors, you know, your family is asleep, everybody is asleep, and you don't explain what you want or what you're here for . . . .
According to Baladez, everyone in the home came out and let the officers know that everything was okay, appellant went inside, all the officers left, and Baladez left. Baladez testified that an officer acknowledged that everything was okay, that the officers would leave, and that if they needed to talk to appellant again, the officers would contact him. Baladez said that she proceeded home thinking that everything was okay when appellant called her once more stating that the police had surrounded his home with their guns drawn. Baladez testified that when she went back to the home, the officers did not let her back inside. Baladez stated that she stayed outside the home for approximately forty-five minutes but left at around 1:30 a.m.
Appellant also called Officer Steve Thompson of the Edna Police Department as a witness who testified that on January 10, 2017, he arrived at appellant's home, and he spoke with Deputy Lang. According to Officer Thompson, the officers were waiting for Baladez's arrival, and when she arrived, she went into appellant's home. Officer Thompson stated that when Baladez exited the home, she informed the officers that no one in the home was under duress. Officer Thompson clarified that Baladez told him that none of appellant's family members felt threatened by appellant. Officer Thompson testified that after speaking with the sheriff, the officers decided that because no one in the family had been threatened, the officers would stand down. Officer Thompson explained, "We have children in the house. We have a mother in the house. We have wife in the house. You know, there's time to push the issue and times not to push and we chose at that time not to push the issue to get somebody hurt."
Officer Thompson testified that he spoke to appellant who was upset, "hollering, yelling, cussing." Officer Thompson stated that after speaking with appellant and discovering that everyone in the home was okay, the officers informed appellant that they were leaving and that everything was over for the evening but that there was still the issue of appellant threatening the officers with a gun. According to Officer Thompson, appellant agreed to meet with the officers the next day. Officer Thompson said that appellant told him "if you want to arrest me, call me, I'll turn myself in tomorrow." Officer Thompson denied that officers pointed their guns at Baladez. Officer Thompson testified that he left before Trooper McCarrell and Chief Deputy Boone arrived at appellant's home.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review the admission of evidence under an abuse of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We will find an abuse of discretion only if the trial court's ruling lies outside the zone of reasonable disagreement or is arbitrary or unreasonable. Id.; State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Rule 403 states that the trial "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403. Preservation of any trial court errors in the admission of evidence requires the party to properly object and a get a ruling on that objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Moreover, the party must object every time the objectionable evidence is offered or obtain a running objection. Id. If the party fails to object every time that the objectionable evidence is offered and does not obtain a running objection, any error in the admission of the objected-to evidence is cured. Id.
We presume that the probative value of relevant evidence exceeds any danger of unfair prejudice under rule 403. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). "The rule envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value." Id. Thus, a trial court is not allowed to exclude relevant evidence merely because the trial court considers the evidence prejudicial. Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013). "Indeed, all evidence against a defendant is, by its very nature, designed to be prejudicial." Id. Moreover, we are mindful that trial courts are given "an especially high level of deference" regarding whether evidence should be admitted under rule 403. Robisheaux v. State, 483 S.W.3d 205, 223 (Tex. App.—Austin 2016 pet. ref'd) (citing and quoting U.S. v. Fields, 483 F.3d 313, 354 (5th Cir. 2007)).
To decide whether to exclude the evidence under rule 403, the trial court must balance the (1) inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). Under rule 403, we presume that relevant evidence has a probative value that substantially outweighs the danger of unfair prejudice from admission of that evidence. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (en banc).
III. EVIDENCE APPELLANT USED CHILD AS A SHIELD
By his first issue, appellant contends that the trial court reversibly erred by allowing evidence that appellant used a child as a shield during Deputy Lang's testimony.
However, subsequent to Deputy Lang's testimony, Trooper McCarrell testified that the officers "knew that there were two kids in the house and we knew that [appellant] was using them as a shield. . . ." Although appellant objected during Deputy Lang's testimony, appellant did not object to Trooper McCarrell's testimony that the officers knew that appellant was using the children as a shield. Thus, even if we assume it was error for the trial court to allow the complained-of evidence during Deputy Lang's testimony, any error in its admission was cured when the same evidence was admitted without objection during Trooper McCarrell's testimony. See Valle, 109 S.W.3d at 509. We overrule appellant's first issue.
IV. EVIDENCE OF APPELLANT'S COMMENTS TO BERMEA
By his second issue, appellant contends that the trial court improperly admitted Bermea's testimony that he called her and said, "I burned your shop." Appellant argues that this evidence was inadmissible pursuant to rule 403 because it was highly prejudicial and "reflected a certain degree of mean-spiritedness in appellant, but did not help to establish any element of the offense charged." The State responds that the evidence was admissible to show appellant's consciousness of guilt making the evidence relevant and more probative than prejudicial.
Appellant's witnesses contradicted the State's witnesses regarding whether appellant had been aggressive and had threatened the officers. Under appellant's theory of the case, appellant and the family were asleep when officers banged on their windows and doors, pointed guns at their home without explanation, and caused the children and appellant's mother to cry and feel threatened. Under appellant's theory, he was attempting to protect the family from aggressive officers who showed up at night with guns drawn who would not reveal the reason for their actions. The State on the other hand presented evidence that the officers were calmly conducting a welfare check on the family and upon their arrival, appellant threatened to kill the officers. Given the completely contradictory theories and presentation of the contrary evidence, it was within the trial court's discretion to conclude that the proffered evidence was needed by the State to show his consciousness of guilt. See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994) (listing examples of how a consciousness of guilt may be shown including, among other things, threats against witnesses). Appellant does not argue that the evidence was not inherently probative, and we cannot conclude that the trial court abused its discretion by so finding because a consciousness of guilt is highly probative to the issue of whether a person committed a crime. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.) (citing and quoting Ray, Texas Prac. Vol. 2, Law of Evidence, § 1538, at 242 (1980)) (explaining that a "consciousness of guilt" is strong evidence of guilt and stating that "any conduct on the part of a person accused of a crime subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged").
We must now balance the probative nature of the evidence and the State's need for the evidence with the other factors. See Gigliobianco, 210 S.W.3d at 641. The complained-of evidence did not have any tendency to suggest a decision on an improper basis because the State clearly proffered the complained-of evidence to support that appellant had a consciousness of guilt and had already presented sufficient evidence that appellant threatened to kill the police officers. See id. The main issue in the case was whether appellant committed retaliation by threatening to kill three police officers, and evidence that appellant called Bermea after the incident had but little tendency to confuse or distract the jury from the main issue. There is nothing in the record showing that the jury had not been equipped to evaluate the probative force of the evidence. See id. And, the presentation of the complained-of evidence did not consume an inordinate amount of time or merely repeat evidence already admitted. See id. at 641-42. Therefore, balancing the probative force of the complained-of evidence and the State's need for it with the other factors, we cannot conclude that the trial court abused its discretion in admitting the complained-of evidence over appellant's 403 objection. See id. We overrule appellant's second issue.
V. CONCLUSION
We affirm the trial court's judgments in appellate cause numbers 13-17-00677-CR, 13-17-00678-CR, and 13-17-00679-CR.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of August, 2018.