Opinion
No. 05-04-01682-CR
Opinion Filed August 23, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from Criminal District Court, Dallas County, Texas, Trial Court Cause No. F01-54033-IH. Affirmed.
OPINION
The trial court found Roman Zuniga Pargas guilty of aggravated kidnapping on his plea of nolo contendre, found the enhancement paragraph true, and assessed a fifteen-year sentence. In a single issue, appellant contends the trial court erred in admitting evidence of extraneous offenses at the guilt-innocence phase of trial. We affirm the trial court's judgment as modified. BACKGROUND Appellant and the complainant were married and had two children. The complainant was returning home from work when appellant confronted her in her front yard. Appellant threatened her with a gun and forced her back into her truck. After taking her to one of the beauty salons that she owned to confirm whether she had been there earlier, appellant took her back home. He locked their two children out of the house and forced the complainant to remain in the bedroom with him. When the complainant saw the police arriving, she ran out of the bedroom. THE EVIDENCE 1. The Complainant The complainant testified that she owned and worked at two beauty salons-one on Harry Hines and one on Jim Miller. On the night in question, she went from the Harry Hines salon to the Jim Miller salon to "pick up money." She always picked up the money, appellant never did. Because of what Paula Salazar, an employee at the Jim Miller salon, said to her, she immediately went home. She found appellant pacing up and down in front of their house. He questioned her about where she had been and if she had telephoned Salazar. Her response caused appellant to accuse her of lying, "pull his gun out[, a]nd fix it." Appellant wanted to go check with Salazar and grabbed the truck keys out of her hand. The complainant wanted to drive because appellant was drunk. Instead, he forced her inside the passenger side of the truck by pulling on both of her arms. Appellant drove and held his gun in his right hand. As they drove toward the Jim Miller salon, appellant was weaving, and a vehicle behind them honked at him. That vehicle pulled up beside their truck's passenger side and appellant shot across the complainant at the other vehicle. Appellant threatened to kill both Salazar and the complainant on the way to the Jim Miller salon. When they arrived at the Jim Miller salon, appellant put his gun inside his pants and began to question Salazar on whether she had received a telephone call from the complainant. Salazar denied that the complainant had telephoned her. Appellant told the complainant, "let's leave." The complainant tried to hold on to the salon door, but appellant pulled her away and forced her back inside the truck. Appellant then drove away and told the complainant that he was going to take her to the "field[,] . . . kill you[,] . . . [and] bury you." He drove to a park and stopped in front of a recreation center. The complainant attempted to calm appellant down, even asking him not to leave her. Eventually, she convinced him they should go home. When they arrived at the house, her children were not inside the house. Appellant locked the front gate and the house and told her they were going to bed. He also told her she could leave, but she would not go because her children were not there. After appellant testified, the State called the complainant to testify in detail about an incident that occurred in 1995 when appellant hit and kicked her and took her out of the house. He said he was taking her "to a place." As appellant was locking the door, she ran toward a neighbor's house and he ran after her. When her legs gave out, he caught her and took her back home. Another time he shot at her to scare her. 2. Paula Salazar Salazar testified that appellant had telephoned her five times on the day in question. Each time, he asked if the complainant had telephoned her. Each time, Salazar told appellant the complainant had not telephoned her. When the complainant came to the salon to pick up the money that night, she did not stay long because Salazar told her appellant was upset. Later that night, appellant and the complainant came by and appellant confronted Salazar telling her that the complainant said she had telephoned Salazar. He also called both Salazar and the complainant "lying bitches." The complainant appeared frightened and asked Salazar to call the police. Appellant grabbed the complainant by her arms and forced her to leave. 3. Lisa Mills Mills, a Dallas Police Officer, testified that she and her partner, Jeremy Arnott, responded to a call from appellant's and the complainant's residence. The Pargas children said the complainant and appellant had just left. Both boys, ages nineteen and fifteen, seemed terrified. They thought their mother was going to be killed. And the older boy was afraid if appellant found out he had called the police, he would be killed. The boys said that when the complainant arrived at the house, appellant ran out of the house, chased her, grabbed her, and forced her into a car. One of the boys thought he heard the sound of a gun being "racked" and he heard appellant say "get in the car, I'm going to kill you." Mills and Arnott went to the Jim Miller salon, but appellant and the complainant had just left. Salazar was visibly shaken and told the police that appellant had a gun in his waistband and she was afraid for the complainant. As Mills and Arnott left the salon, Mills received a call from the dispatcher that appellant and the complainant had returned to their residence. When Mills and Arnott arrived back at the Pargas residence, she saw the "suspect vehicle" parked there. The Pargas children came out of a neighbor's house. They told Mills and Arnott that appellant had dragged the complainant inside and he had locked them out. Someone had a key and let Mills and her partner into the Pargas residence. The complainant was in the living area and appellant was in the back bedroom "under the covers." Another police "element" was at the scene. Matt Edwards, a Dallas police officer, entered the back bedroom seconds before Mills did. Appellant's gun was under the mattress and his hand was on the side of the bed near the gun. Neither the children or the complainant would talk to Mills in front of appellant. Edwards searched the truck and found a shell casing on the passenger side of the truck. 4. Jeremy Arnott Arnott testified that he and Mills responded to Pargas residence. When they arrived, the Pargas children appeared frightened. The children told them that appellant had taken their mother to the Jim Miller salon. The officers went to the salon and talked with Salazar. She appeared frightened and relayed that "she was afraid for [the complainant]." The dispatcher notified them that appellant and the complainant were back at their residence. The Pargas children were outside and afraid because they were locked out of the house. Arnott confirmed that Edwards had found the gun in the bedroom and took it into custody, and that they found a shell casing in the truck. 5. David Yzaguirre Yzaguirre, a Dallas Police Officer, testified that he translated for the other officers at the scene. The complainant told him that when she arrived home, appellant was upset and accused her of lying to him. Appellant forced her into the truck and to go with him to the Jim Miller salon. On the ride to the salon, appellant cursed her, threatened to kill her, had words with another driver regarding his weaving in and out of traffic, and shot at the other vehicle. Yzaguirre saw the spent casing on the passenger side floorboard. The older child told Yzaguirre that appellant was intoxicated, dragged the complainant around, and put her in the truck against her will. The complainant appeared to be in shock. Both children and the complainant, who appeared to be in shock, were distant and did not want appellant to hear them talking to the police. 5. Appellant Appellant testified that when he confronted the complainant about her statements not matching what Salazar had told him, it was the complainant who wanted to go talk to Salazar. The complainant agreed to get in the truck and she wanted him to drive. Although appellant agreed that he had a confrontation with another vehicle, he thought they were trying to steal his truck. He maintained the other vehicle was on his left side and he shot twice "up there" to scare them. He denied that he put the gun near the complainant's face and maintained that he "never, never would try to injure her." At the Jim Miller salon, they "stepped out of the truck" and appellant wanted to go inside the salon but, the complainant was holding the door and he could not get around Salazar. He never raised his voice or cursed at Salazar although she refused to tell him whether the complainant had been at the shop. Appellant never threatened to kill the complainant or Salazar. He only stopped at the recreation center because he and the complainant were so busy talking, he missed his street. He insisted that their children were inside the house when they got back from the salon and he never locked them out. 6. Issac Pargas Issac [sic] Pargas, appellant's and the complainant's fifteen year old son, testified that while appellant was living with him and the complainant, Issac had concerns for the complainant's safety. Appellant was possessive and jealous and always questioning her. Appellant would take the complainant into their bedroom, close the door, and yell at her. Issac tried to block out the things that happened between appellant and the complainant. 7. Ricardo Pargas Ricardo Pargas, appellant's and the complainant's nineteen year old son, testified that he was a freshman in college. He worried about what would happen when appellant was hitting the complainant. One month before the night in question, appellant came into the room and pointed his gun at Ricardo and held the gun to the complainant. Appellant was "kind of drunk." After appellant went to sleep, Ricardo took the gun and hid it. The next day, Ricardo confronted appellant about the incident and appellant acted like he did not remember what happened or that it was a joke. Appellant asked for the gun back so he could sell it. Ricardo returned the gun to appellant. On the night in question, appellant was outside when the complainant came home. He began questioning the complainant about where she had been and ended up screaming at her. Ricardo had the telephone in his hand trying to decide whether to telephone the police when he "heard a gun rack." It was then that both boys went to their neighbor's house and telephoned the police. Ricardo gave his key to the police so they could get in the house. EXTRANEOUS OFFENSES In his single issue, appellant argues the trial court abused its discretion in admitting extraneous acts of violence against complainant during the guilt-innocence phase of trial. Specifically, he contends the State only offered the evidence to show appellant "acted on the occasion in question in conformity with the prior activity" and thus the trial court's admitting these extraneous acts substantially prejudiced appellant's rights. The State responds that appellant's acts of violence against the complainant and her family were admissible to rebut a defensive theory-that he had never threatened or injured the complainant. 1. Standard of Review We review the trial court's decision to admit evidence under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). As required by rule 404, the trial court determines whether the evidence has relevance apart from character conformity. See Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003). Further, we defer to the trial court's finding that the evidence's probative value was not outweighed by the danger of unfair prejudice and do not reverse a trial court's ruling if it was within the zone of reasonable disagreement. See id. We reverse the trial court's judgment "rarely and only after a clear abuse of discretion" and not on our independent judgment on whether unfair prejudice resulted from the trial court's admitting evidence of other wrongs. See id. (citing Montgomery, 810 S.W.2d at 392). 2. Applicable Law When a defendant waives jury trial and enters his plea of nolo contendere to the trial court on a noncapital offense, the proceedings become a unitary trial. See Lopez v. State, 96 S.W.3d 406, 412 (Tex.App.-Austin 2002, pet. ref'd) (citing Barfield v. State, 63 S.W.3d 446, 449 (Tex.Crim.App. 2001)). Consequently, no separate "guilt-innocence" phase of trial exists. See Washington v. State, 893 S.W.2d 107, 109 (Tex.App.-Dallas 1995, no pet.). Unadjudicated extraneous offenses and previous bad acts are admissible in punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2004-05). The admissibility of evidence at punishment in a noncapital felony offense is grounded in policy, not relevancy. See Daggett v. State, 103 S.W.3d 444, 451 (Tex.App.-San Antonio 2002, pet.granted) (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App. 2000)). The rationale behind the policy is that factfinder needs complete information to fashion an appropriate sentence. See id. When a defendant raises a defensive theory, he opens the door to extraneous offense or bad acts in rebuttal. See Roberts v. State, 29 S.W.3d 596, 601 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). A defendant, who testifies in an aggravated kidnapping prosecution that the complainant willingly left with him, opens the door for the State to rebut his statement with evidence of extraneous acts. See Schweinle v. State, 893 S.W.2d 708, 713 (Tex.App.-Texarkana 1995), rev'd on other grounds, 915 S.W.2d 17 (Tex.Crim.App. 1996) (per curiam). However, the defendant must generally elicit this defensive theory on direct examination unless the defendant testifies voluntarily or non-responsively on cross-examination. See Roberts, 29 S.W.3d at 601. To preserve error on extraneous acts, appellant must make a two-pronged objection. See Montgomery, 810 S.W.2d at 387-89. He must first object that the evidence is not relevant and then that its probative value is outweighed by its prejudice. See id. 3. Application of Law to Facts We begin by reminding the parties that this proceeding was a unitary one and all evidence was admitted in both punishment and guilt/innocence. The record shows that appellant pleaded nolo contendre to the indictment. Irrespective of his plea, appellant testified on direct examination that the complainant suggested they go to Salazar's to verify that the complainant had been there and the complainant herself asked appellant to drive the truck. Although appellant admitted he had fired his gun to scare the people who were attempting to "steal my truck," he denied he had shot anywhere near the complainant. Rather, he shot "up there." He never put his gun near the complainant's face and "would never try to injure her." On cross-examination, when the State began to question appellant about earlier extraneous assaults on appellant, appellant objected "to any extraneous situations." When the trial court replied "the door has been opened for that," appellant did not pursue or perfect his Montgomery objections. See id. Additionally, appellant never argues on appeal how this evidence was more prejudicial than probative. Nor can we conclude the evidence was more prejudicial than probative. We conclude the trial court did not abuse its discretion in admitting the evidence because (1) the hearing was a unitary proceeding during which the judge could obviously consider "extraneous acts of violence" in punishment, (2) the "acts" were offered to impeach appellant's testimony that he had never harmed and would never harm the complainant, (3) appellant did not make a proper Montgomery objection, and (4) on appeal, appellant never discloses how the "acts" prejudiced him. We resolve appellant's sole issue against him. We note the trial court's judgment reflects that appellant pleaded guilty to the offense. The record shows, however, that appellant entered a nolo contendere plea. Therefore, the judgment is not correct. We have the authority to modify incorrect judgments when we have the necessary information to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to show appellant entered a nolo contendere plea. As modified, we affirm the trial court's judgment.
The complainant testified that she and appellant were married for twenty years, but were not married at the time of trial. Appellant testified that he and complainant were living together on the date in question. Appellant testified that they had four children, but the complainant testified that appellant and she had two boys together.
However, although the statutes do not authorized a bifurcated trial in a plea of guilty before the trial court, "it is not necessarily a harmful error." Barfield, 63 S.W.3d at 450.