Opinion
01-21-00533-CR
01-24-2023
CHRISTOPHER RODRIGUEZ, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1582645
Panel consists of Justices Kelly, Landau, and Farris.
MEMORANDUM OPINION
PETER KELLY JUSTICE
Christopher Rodriguez was convicted of capital murder and sentenced to life imprisonment. See Tex. Penal Code § 19.03. On appeal, he argues that the trial court erred by admitting evidence of an extraneous offense and by denying his motion to suppress a witness's in-court identification. We affirm.
Background
A. Movie theater parking lot shooting
On New Year's Day 2017, Rodriguez contacted Faith Deleon to "hang out." Deleon went to a nearby house, where she met Rodriguez. Both Rodriguez and Deleon were juveniles. While they were hanging out, talking, and smoking marijuana together, Rodriguez indicated to Deleon that he "wanted money, clothes, . . .[and] needed stuff." He asked Deleon to send text messages to contacts in her phone whom she knew sold marijuana. Deleon understood Rodriguez to mean that they would purport to be purchasing marijuana and then rob the dealer.
Deleon complied and texted the drug dealers in her phone with messages asking for marijuana. Daniel Gerding was the first to reply and expressed he had marijuana for sale. When Deleon told Rodriguez that Gerding responded, Rodriguez coordinated the transaction with Gerding through Deleon's phone, posing as Deleon. Rodriguez and Gerding agreed to meet at a movie theater in Cypress, Texas later that evening.
Around 9:20 p.m., Rodriguez drove himself and Deleon to the movie theater parking lot. Rodriguez drove a Nissan Titan truck. He parked and texted Gerding from Deleon's phone to ask what car to expect Gerding would be driving. Gerding replied that he was driving a Toyota Camry. When Gerding arrived, Rodriguez and Deleon got into the backseat of the Camry. Rodriguez sat behind Gerding, who was in the driver's seat. Deleon sat behind Collyn Timmons, Gerding's best friend. Deleon testified that she and Rodriguez planned that she would grab the marijuana, and Rodriguez would "take everything else." Instead of passing Deleon the entire quantity of marijuana, Gerding gave her only a small piece to inspect. While Deleon was looking at it, unsure what to do next, she noticed Rodriguez growing frustrated.
Suddenly, Rodriguez drew his 9 mm Smith & Wesson Luger pistol, "racked" the slide, and demanded that Gerding and Timmons give him the marijuana and their personal items. Rodriguez began waving the gun towards them. Gerding refused, opened his car door, and tried to get out. Rodriguez grabbed the back of Gerding's shirt, reached around to the driver's seat, and shot Gerding in the back twice. Rodriguez then aimed the gun at Timmons's face and fired once more, shooting Timmons through the jaw. Shocked and terrified, Deleon exclaimed, "Oh, my God. Why would you do that?" and quickly left the Camry. She ran back to the Nissan Titan. Rodriguez followed her to the truck and drove them away from the scene.
As they fled, Rodriguez took Deleon's phone from her and threatened to harm her if she told anyone what happened. He later stomped on the phone, attempting to destroy it. He threw the phone and the gun into a wooded area in the neighborhood before he took Deleon home.
Meanwhile in the movie theater parking lot, Timmons, though shot in the face, noticed Gerding standing beside the open driver's door. Gerding leaned in and told Timmons to call 911. Blood streaming from Timmons's wounds prevented him from accessing his cell phone. He dropped it on the ground and attempted to go get help. He first approached patrons leaving the movie theater and then went into the lobby. Once moviegoers realized that Timmons and Gerding had been shot, they called 911 and administered first aid. A patron applied pressure to Gerding's chest and attempted to reassure him, but Gerding died from internal bleeding. Timmons was airlifted to the hospital. Once there, he underwent surgery to repair his jaw and survived the shooting.
Law enforcement connected Deleon to the crime when they found Gerding's phone outside the movie theater and discovered the text messages setting up the marijuana deal. About a month after the shooting, law enforcement found Deleon at her high school and transported her to the police station for an interview. Deleon told the officers about the robbery plan and shooting, provided Rodriguez's name, and identified him in a photograph.
B. Motel parking lot shooting
Law enforcement investigated an aggravated assault in a motel parking lot that occurred on the day before the movie theater parking lot shooting. Police found shell casings in the motel parking lot and an insurance card for a white 2010 Nissan Titan truck.
The complainant in the motel parking lot incident, Carmelo Perez, was a hesitant witness. Eventually he told police that, while staying at a motel, a man and woman asked him and a friend to book a room for them. Perez worked out a deal where he would book the room for the couple, who did not have valid identification, in exchange for the strangers paying him a small "tax." After the room was booked, the man refused to pay Perez. They began arguing.
As Perez walked away, he showed the man that he had a gun in his waistband. The man said something that made Perez turn around. When he did, the man was holding a pistol. Perez attempted to hide behind a truck but was struck in the leg when the man fired his pistol. Perez did not immediately seek medical attention because he did not want to be involved with law enforcement. At trial, Perez identified Rodriguez as the shooter.
The white Nissan Titan truck had been reported stolen a few days earlier and was eventually recovered. A police officer at the scene when the truck was eventually recovered identified Rodriguez as the person who had fled the vehicle. Deleon also told law enforcement about Rodriguez driving a white truck.
C. Trial
Soon after his arrest, the State charged Rodriguez with capital murder. The juvenile court waived its jurisdiction over Rodriguez. He was tried before a jury as an adult. The jury convicted Rodriguez, and he was sentenced to life imprisonment.
Extraneous Offense
In his first issue, Rodriguez argues that the trial court erred in admitting evidence of the motel parking lot shooting because it was inadmissible under Rule 404(b) and its probative value was substantially outweighed by the danger of unfair prejudice. We disagree.
A. Standard of review
"A trial judge's decision on the admissibility of evidence is reviewed under an abuse of discretion standard and will not be reversed if it is within the zone of reasonable disagreement." Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). Abuse of discretion occurs only if the decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim. App. 2010); see Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). We may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We will uphold an evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 366, 344 (Tex. Crim. App. 2009).
B. The trial court's Rule 404(b) ruling
Before and during trial, Rodriguez argued that the trial court should bar the State from adducing evidence and testimony concerning Rodriguez's commission of an aggravated assault against Carmelo Perez in a motel parking lot. The motel parking lot shooting occurred on the day before the murder in the movie theater parking lot. Specifically, Rodriguez contended that the evidence violated Rules of Evidence 402, 403, and 404(b). He argued that the crimes were totally unrelated and dissimilar and that any probative value of the evidence was outweighed by its prejudicial effect. The State responded that the evidence was relevant and admissible for the non-character conformity purpose of demonstrating identity and opportunity. The State argued that the evidence supported identifying Rodriguez as the shooter in the movie theater parking lot because the motel parking lot shooting placed the murder weapon in Rodriguez's hand the day before. It also associated him with a white Nissan Titan truck that was involved in both crimes, and the two crimes occurred about six miles apart. The State argued that the evidence was admissible to corroborate Deleon's accomplice testimony concerning the identity of the shooter. The trial court ruled that the evidence was admissible for the purpose of establishing Rodriguez's identity as the shooter in the movie theater parking lot.
Evidence of a crime, wrong, or other act is not admissible to prove a person's character to show that on a particular occasion the person acted in accordance with the character. Tex. R. Evid. 404(b)(1). Such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Tex. R Evid. 404(b)(2); Montgomery, 810 S.W.2d at 387. Once the defendant places his identity at issue, the State may offer extraneous offense evidence to prove the defendant's identity if there are some distinguishing characteristics common to both offenses. Reed v. State, 550 S.W.3d 748, 762 (Tex. App.- Texarkana 2018, no pet). Identity can be shown either by establishing that the two crimes have a pattern or characteristics that are so distinctively similar or because there is a single unique characteristic that links them. Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008). The similarities may be common characteristics such as time and place, mode or manner of commission of the crimes, attire, or any other element that marks both crimes as having been committed by the same person. Id. "Generic" similarities or those that only show the type of crime committed do not suffice to identify the perpetrator of the charged offense. Id.
Both sides agree that identity was at issue during the trial. On appeal, Rodriguez argues that the evidence should not be admissible under Rule 404 because the two criminal acts are not similar. The State responds that the weapon and vehicle used in both instances are the same, and those characteristics are sufficient to show the trial court did not abuse its discretion in admitting the extraneous act under Rule 404.
At trial and on appeal, the State argues that the facts are like the facts in Edwards v. State, where the trial court admitted an extraneous crime to prove identity of the defendant when both crimes involved the same weapon. See Edwards v. State, 228 S.W.3d 450, 451-52 (Tex. App.-Amarillo 2007, pet. ref d). In Edwards, the appellate court upheld the trial court's decision to admit an extraneous burglary as evidence of the defendant's identity in the charged aggravated robbery and aggravating kidnapping case. Id. at 451. The evidence established that shotguns that the defendant stole during the extraneous burglary were discovered in a car connected to the defendant, and that the defendant used the shotguns during commission of the charged offenses. Id. Identity was at issue in the charged offenses. Id. at 452. The court reasoned, "Of import was the identity between the weapons taken in Oklahoma, the ones used to rob the [complainants in the charged case] and the ones later found in the car for the weapons and appellant's tie to them is what identifies him as a robber." Id. (emphasis in original).
Here, the evidence included that Perez positively identified Rodriguez as the perpetrator of the shooting in the motel parking lot. A law enforcement officer testified at trial that fired shell casings recovered from both parking lots established that Rodriguez possessed and discharged the same semiautomatic firearm during both offenses. Rodriguez was in possession of the firearm when he was apprehended two months later. Rodriguez drove the same truck in both crimes, and he was accompanied by the same person, Deleon, in both instances.
We cannot say that the trial court's decision to admit the extraneous evidence from the motel parking lot was "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Gonzales, 304 S.W.3d at 843. The evidence was non-character conformity evidence relevant to establishing Rodriguez's identity as the shooter in the movie theater parking lot. The trial court did not abuse its discretion by admitting the extraneous offense evidence under Rule 404.
C. The trial court's Rule 403 ruling
The trial court also did not abuse its discretion in admitting the evidence under Rule 403. Texas Rule of Evidence 403 provides that a trial court may exclude otherwise 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. Evidence is unfairly prejudicial when it has an undue tendency to suggest an improper basis for reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000).
When conducting a Rule 403 analysis, the trial court must balance the inherent probative force of the proffered evidence along with the proponent's need for it against any tendency to suggest a decision on an improper basis, any tendency to confuse or distract the jury, any tendency that the evidence would be given undue weight by the jury that has not been equipped to evaluate its probative force, and the likelihood that presenting the evidence will consume an inordinate amount of time. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). These factors may well blend together in practice. Id. at 642.
Evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable than it would be without the evidence. Tex. R. Evid. 401. To be relevant, evidence must be both material and probative. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). That is, to be relevant, proffered evidence must "have influence over a consequential fact." Mayes v. State, 816 S.W.2d 79, 84 (Tex. Crim. App. 1991). Relevant evidence need not, by itself, prove or disprove a particular fact if it provides at least a "small nudge" toward proving or disproving a material fact. Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). In determining relevance, courts must examine the purpose for which evidence is being introduced. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). "It is critical that there is a direct or logical connection between the actual evidence and the proposition sought to be proved." Id.
First, the inherent probative value of the extraneous offense evidence was high. The evidence included that Perez positively identified Rodriguez as the shooter in the motel parking lot. A law enforcement officer testified that fired shell casings recovered from both scenes were discharged from the same firearm, establishing that Rodriguez possessed the firearm during both offenses. Rodriguez was in possession of the firearm when he was apprehended two months later. Deleon accompanied Rodriguez during both shootings. They occurred within 48 hours of each other, and about six miles apart. The evidence was pertinent to establishing Rodriguez's identity as the shooter in the movie theater parking lot.
Second, the State needed the evidence to establish Rodriguez's identity as the shooter. The evidence connected Rodriguez to the murder weapon at the time of the murder as well as to the white Nissan Titan truck involved in both incidents. The evidence demonstrated that Rodriguez discharged the same firearm in both instances. It also corroborated Deleon's accomplice witness testimony. See Tex. Code Crim. Proc. art. 38.14 ("A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."). Aside from Perez and Deleon's identifications of Rodriguez, there were no other eyewitness identifications.[*]
Balanced against these two factors, it was unlikely that the extraneous offense evidence confused or distracted the jurors from the central issues in the case, prompted them to reach a verdict on an improper basis, or influenced them in an irrational way. The circumstances of the extraneous offense were no more heinous than the charged offense. See Stone v. State, 635 S.W.3d 763, 773 (Tex. App.-Houston [14th Dist] 2021, pet. ref d) (stating testimony of extraneous robbery was no more heinous than charged robbery offense). The evidence was not unduly graphic. The State did not offer any photographs of Perez's injury. The testimony was limited to what was required to show the connection between the motel parking lot shooting and the movie theater parking lot shooting, for purposes of identifying Rodriguez as the shooter in both instances.
Any potential to impress the jury that the defendant should be convicted because he acted in conformity with his character was minimized through a limiting instruction in the court's charge. Jabari v. State, 273 S.W.3d 745, 752 (Tex. App.-Houston [1st Dist] 2008, no pet.) (stating impermissible inference of character conformity minimized by limiting instruction). Lastly, the State's evidence did not take an inordinate amount of time. The trial spanned four days and the State called nineteen witnesses. Five witnesses testified either about the extraneous aggravated assault or about both the capital murder and the extraneous aggravated assault. A crime scene officer, the lead investigator for the motel parking lot shooting, and a firearms analyst testified to circumstantial evidence linking Rodriguez to the aggravated assault. Deleon and Perez also testified to the commission of the extraneous offense.
Weighing all the factors together, the trial court did not abuse its discretion in concluding that the prejudicial effect of the extraneous offense did not substantially outweigh the probative value. See Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) ("[Rule 403] envisions exclusion of evidence only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'") (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
We overrule Rodriguez's first issue.
Motion to Suppress
In his second issue, Rodriguez contends that the trial court erroneously denied his motion to suppress Perez's in-court identification of him because a pretrial incident tainted Perez's identification.
A. Relevant facts
Rodriguez moved to suppress any in-court identification of him made by Perez, asserting that an impermissibly suggestive pretrial incident irreparably tainted any identification of Rodriguez that Perez might make at trial. Rodriguez argued that an incident while a deputy was transporting Perez to appear as a witness tainted the identification. The court held a hearing outside the jury's presence. During the hearing, Perez testified about the identification incident and about the circumstances of his interaction with Rodriguez at the time of the motel parking lot shooting.
Regarding the identification incident, Perez testified that a Harris County Sheriffs Office Deputy transported him from the Tarrant County jail, where he was incarcerated, to the Harris County jail pursuant to a bench warrant related to Rodriguez's case. Perez testified that while the deputy was driving him to Houston, the deputy asked Perez why he was being transported to Harris County and whether he was a defendant or witness. When Perez responded that he was going to be a witness "on the man who shot" him, the deputy looked up Perez's name in his police laptop. Perez testified that from where he was sitting in the backseat of the patrol car, he was able to see the deputy's computer screen through the plexiglass barrier and over the deputy's shoulder. The laptop showed textual information about Rodriguez's case and a photograph of Perez. The deputy clicked on a case number that brought up Rodriguez's photograph and asked Perez if the photograph was the man he would be identifying. Perez looked at the picture from the backseat and thought the face was familiar. He testified that he couldn't fully see the photo, so he asked the deputy if the person in the photograph had a tattoo between his eyes. When the deputy said yes, Perez affirmed that the photograph was of the man who had shot him.
Perez also testified about his interactions with Rodriguez in the motel parking lot. He stated that he spoke with Rodriguez for fifteen or twenty minutes before the shooting. They had a face-to-face, close-range conversation during that time. It was late at night and dark outside, but there were overhead lights by the motel office that illuminated the area. He was able to see Rodriguez's face clearly. After the incident, once questioned by law enforcement, he described Rodriguez to be about the same height as he is, Hispanic, short-haired, with a "Texas" accent and a cross-shaped tattoo between his eyes. He stated that Rodriguez wore a "flashy, dress shirt" and drove a white Nissan Titan truck with a metal toolbox in the back.
At the conclusion of the hearing, the State conceded that the pretrial incident was not a valid identification procedure and that the State would not be offering evidence or testimony of the out-of-court identification. After argument, the court overruled Rodriguez's objection to the in-court identification and denied his motion to suppress it.
Perez then testified before the jury concerning the events in the motel parking lot. He provided essentially the same information concerning his interaction with and identification of Rodriguez. He testified that his in-court identification was based on his memory of the motel parking lot incident and stated that he would never forget Rodriguez's face.
B. Standard of review
We review the trial court's denial of a motion to suppress evidence for an abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). When we review a trial court's denial of a motion to suppress, we give "almost total deference to a trial court's express or implied determination of historical facts" and review de novo the court's application of the law to the facts. Id. We view the evidence in the light most favorable to the trial court's ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The trial court is the "sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony." St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial court may choose to believe or disbelieve any part or all of a witness's testimony. Thomas v. State, 470 S.W.3d 577, 588 (Tex. App.-Houston [1st Dist.] 2015), aff'd, 505 S.W.3d 916 (Tex. Crim. App. 2016). We sustain the trial court's ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Id.
We review de novo the trial court's ruling on whether the pretrial identification impermissibly influenced the in-court identification. Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App. 2009). Due process "requires the suppression of an in-court identification only if (1) an impermissibly suggestive out of court procedure (2) gave rise to a very substantial likelihood of irreparable misidentification." Balderas v. State, 517 S.W.3d 756, 796 (Tex. Crim. App 2016). We consider (1) the witness's opportunity to view the defendant at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the defendant; (4) the witness's level of certainty at the time of the identification; and (5) the length of time between the offense and the identification. Gamboa, 296 S.W.3d at 582 (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)). When an in-court identification is based upon knowledge independent from the allegedly improper pretrial procedure, it is admissible. Lesso v. State, 295 S.W.3d 16, 25 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd).
C. Analysis
The trial court did not err in denying Rodriguez's motion to suppress because the pretrial identification did not impermissibly influence Perez's in-court identification. First, Perez testified that he was able to see Rodriguez at close range for approximately fifteen to twenty minutes as they conversed and then argued. Perez testified that the area had overhead lights in the parking lot, even though it was dark outside. He testified that he could clearly see Rodriguez's face.
Second, Perez testified that he "know[s] faces" and that he was able to recognize people that he had met before, even if it was only once. He also stated that once the argument began, he was focused entirely on Rodriguez. And after the shooting, he testified that he would not forget Rodriguez's face.
Third, Perez provided a detailed description of Rodriguez to police. He described him as a Hispanic man, in his late teens, of average height and weight, with short, dark hair and brown eyes. He said that Rodriguez spoke with a "Texas" accent and that he had a tattoo between his eyes in the shape of a short cross or a plus sign. See McGuire v. State, 631 S.W.3d 222, 231 (Tex. App.-Houston [14th Dist] April. 16, 2020, no pet.) (holding memory of shape and placement of defendant's tattoo suggests a high degree of attention). Perez stated that Rodriguez wore a "flashy, dress shirt" and drove a white Nissan Titan truck with a stainless- steel toolbox on the back. Rodriguez was unwavering in his identification and description of Rodriguez.
Fourth, although more than four years passed between the date of the motel parking lot shooting and the in-court identification, Perez had no difficulty recalling details of the shooting and his interactions with Rodriguez. He testified that he would never forget Rodriguez's face. See Thomas, 470 S.W.3d at 591-92 (affirming admission of complainant's in-court identification that occurred more than four years after the crime).
Finally, Perez repeatedly confirmed the independent origin of his in-court identification of Rodriguez. He explained that his identification was based on his memory of the crime and that he did not need to see a photograph of Rodriguez to recall his face. See Burkett v. State, 127 S.W.3d 83, 89 (Tex. App.-Houston [1st Dist] 2003, no pet.) ("Moreover, the complainant testified that her in-court identification of appellant was based on what she had observed on the day of the offense, and not on her observation of the photographic array.").
Under the totality of the circumstances, the trial court could have reasonably determined that the pretrial identification incident was not so impermissibly suggestive that it gave rise to a very substantial likelihood of an irreparable misidentification. See Gamboa, 296 S.W.3d at 582. The trial court did not err in admitting Perez's in-court identification. We overrule Rodriguez's second issue.
Conclusion
We affirm the judgment of the trial court.
[*] The trial court suppressed Timmons's identification of Rodriguez.