Curtis Wayne Ratliff v. Linda Ann King--Appeal from 169th District Court of Bell County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2009 » Curtis Wayne Ratliff v. Linda Ann King--Appeal from 169th District Court of Bell County

State: Texas

Court: Criminal Court of Appeals

Docket No: 03-08-00424-CV

Case Date: 08/31/2009

Plaintiff: Carlos Garza

Defendant: The State of Texas--Appeal from 399th Judicial District Court of Bexar County

Preview:Carlos Garza v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County
MEMORANDUM OPINION

No. 04-04-00338-CR

Carlos GARZA, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2003-CR-0873 Honorable Juanita A. Vasquez-Gardner, Judge Presiding Opinion by: Phylis J. Speedlin, Justice Sitting: Catherine Stone, Justice Sarah B. Duncan, Justice Phylis J. Speedlin, Justice Delivered and Filed: August 24, 2005

AFFIRMED Carlos Garza appeals from his murder conviction and sentence of twenty years incarceration. Because we overrule each of his issues on appeal, the trial court s judgment is affirmed. Background

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On November 14, 2002, Carlos Garza and three friends went to the Regency Manor Apartments to take his girlfriend, Ashley Murakami, home. After leaving Ashley s apartment, but while still in the complex, Garza and his friends were confronted by another resident, Ron Villarreal, and Ron s brother, Rick Sanchez. Garza was a member of the Bloods gang, while Ron and Rick were believed by Garza to be members of the rival Crips gang. When Ron and Rick saw Garza and his friends leaving Ashley s apartment, they began making gang signs and taunting remarks from across the courtyard. Because Garza had a prior encounter with Ron and Rick several weeks earlier in which threats were made, and because Garza was aware that Ron frequently carried brass knuckles and believed that Ron might have other weapons, Garza had recently obtained a gun and was carrying it with him. The two groups of young men came face to face with each other in a breezeway near the apartment office. At some point during this confrontation, Garza drew his weapon and fatally shot both Ron Villarreal and Rick Sanchez. Garza then left the complex in his car with his friends; he was arrested at his mother s home later that night. Garza was charged with capital murder under Texas Penal Code section 19.03. Tex. Pen. Code Ann. 19.03(a)(7)(A) (Vernon Supp. 2004-05)(defining capital murder to include intentionally and knowingly causing the death of more than one person during the same criminal transaction). The State waived the death penalty and Garza was tried by a jury. The jury charge instructed that Garza was charged with capital murder, but also included instructions on self defense and the lesser included offenses of murder, manslaughter, and deadly conduct. See Tex. Pen. Code Ann. 9.31(a), 19.02(b), 19.04, 22.05 (Vernon 2003). The jury found Garza guilty of murder and recommended a sentence of twenty years incarceration, which the trial court imposed. This appeal followed. Garza raises four issues on appeal: (1) the trial court abused its discretion in admitting bad act evidence in violation of the notice requirements of Texas Rule of Evidence 404(b); (2) the evidence was legally insufficient to support the jury s general verdict of murder; (3) the jury instruction on self defense was incorrect; and (4) the trial court abused its discretion in denying a mistrial after a violation of Garza s motion in limine pursuant to Texas Rule of Evidence 609(f). Admission of Evidence In his first issue, Garza contends that the trial court abused its discretion in admitting four photographs depicting gangrelated graffiti on Garza s bedroom walls because the State failed to provide Garza with notice of its intent to introduce the photographs as required by Rule 404(b). SeeTex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990) (appellate court reviews a trial court s ruling on the admissibility of evidence under an abuse of discretion standard to determine whether the decision was outside the zone of reasonable disagreement). Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Tex. R. Evid. 404(b); Taylor v. State, 920 S.W.2d 319, 321 (Tex. Crim. App. 1996). Such evidence may be admissible for other purposes, such as proof of motive or intent, provided that reasonable notice of the State s intent to introduce the evidence in its case-in-chief is provided to the defendant upon request. Tex. R. Evid. 404(b); Amis v. State, 87 S.W.3d 582, 587 (Tex. App. San Antonio 2002, pet. ref d). While we do not necessarily agree that the photographic evidence directly implicates Rule 404(b), we conclude that any error in admitting the photographs is not reversible error. See Tex. R. App. P. 44.2(b) (non-constitutional error in criminal cases that does not affect the substantial rights of the defendant must be disregarded); see also Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (substantial right is affected, and reversible error committed, when error had a substantial and injurious effect or influence in determining the jury s verdict); Miranda v. State, 813 S.W.2d 724, 739 (Tex. App. San Antonio 1991, pet. ref d) (improper admission of evidence is not reversible when the same facts are proven by other testimony introduced without objection). During its case-in-chief, the State questioned Ashley Murakami about three statements that she made to the police within hours of the shootings in which she denied knowing where Garza lived. Ashley admitted that she lied to the police in her first two statements in an effort to protect Garza and to avoid being asked to show the police where he lived. After Ashley testified at trial that she had, in fact, been to Garza s house prior to the shootings and admitted that she had initially lied to the police about this issue, the prosecutor asked her to identify photographs that had been taken of Garza s bedroom walls after he was arrested. When the State moved to introduce the photographs into evidence, Garza objected that the photographs were not relevant, that they were more prejudicial than probative, and that Garza had not been given notice of the State s intent to introduce them in accordance with Rule 404(b). The State responded

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that the photographs were relevant to the credibility of the witness and as evidence of Garza s gang affiliation, that Garza had been given notice of the State s intent to introduce evidence of Garza s gang affiliation, and, alternatively, that the photos did not constitute evidence of a bad act under Rule 404(b) because they did not involve any criminal conduct on the part of the defendant or the witness. The trial court admitted the four photographs with the following contemporaneous limiting instruction: Ladies and gentlemen, photographs 8 State s Exhibits 8 through 11 inclusive are admitted. They are being admitted to aid you, if they do, in assessing the credibility, if any, of Ms. Murakami. Later, during its cross examination of Garza in the defense case, the State re-offered the same photographs for an additional purpose as proof of Garza s gang affiliation and his motive or intent in shooting the victims. The court readmitted three of the four photos for that purpose and gave a second limiting instruction that the three photographs were being admitted for the additional purpose, to help ... establish the Defendant s proof of [sic] motive and/or intent, if any. On appeal, the State contends that the photos were primarily offered not as Rule 404(b) evidence, but to impeach Ashley s credibility because her testimony at trial conflicted with her prior statements to the police. We note that the State is free to impeach its own witness. Tex. R. Evid. 607. When evidence is offered and admitted for impeachment purposes only, it should be accompanied by a limiting instruction. Adams v. State, 862 S.W.2d 139, 148 (Tex. App. San Antonio 1993, pet. ref d). Here, when the photographs were admitted during the State s case-in-chief, the trial court properly instructed the jury that they were to be considered only in assessing the witness s credibility. When a limiting instruction is given, there is a presumption that the jury will properly consider the evidence. Abdnor v. State, 871 S.W.2d 726, 740 (Tex. Crim. App. 1994). The evidence was properly admitted during the State s case-in-chief under Rule 607 and was accompanied by a limiting instruction which we must presume the jury followed. Additionally, even if the court erred in subsequently admitting three of the four photos as Rule 404(b) evidence, // such error is not reversible because the same facts were admitted during trial without any defense objection. See Nonn v. State, 117 S.W.3d 874, 883 (Tex. Crim. App. 2003); Miranda, 813 S.W.2d at 739. Garza contends that the photographs were unduly prejudicial because of their potential to influence the jury to decide the case on the basis of Garza s gang affiliation. The record contains extensive evidence from multiple sources that Garza was involved with the Bloods gang. // The meaning of some of the gang-related graffiti shown in the photographs was described to the jury by Garza himself. At one point during the State s examination of a law enforcement officer, counsel asked the court to direct Garza to display his tattoos to the jury; he did so with no defense objection. The jury saw a CK tattoo on Garza s arm, a symbol that was also depicted in the photographs of Garza s walls. The witness, an experienced gang unit officer, identified Garza s tattoos and described what they meant to him based on his experience; he testified that CK stands for Crip killer. Garza also testified that his CK tattoo meant Crip killer. Because the gang symbols depicted in the photos were also before the jury through other evidence of Garza s gang affiliation, which was admitted without objection, any error in admitting the photos for purposes of showing gang affiliation and intent or motive is not reversible. // See Nonn, 117 S.W.3d at 883; Miranda, 813 S.W.2d at 739. We overrule Garza s first issue. Sufficiency of the Evidence In his second issue, Garza contends the evidence is legally insufficient to support his conviction for murder. Specifically, Garza argues that the jury s verdict is logically inconsistent because either Garza was justified in using deadly force against both Ron and Rick in self defense, in which case he should have been acquitted, or he was not entitled to use deadly force against either, in which case he should have been found guilty of capital murder. To determine the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). Appropriate deference must be given to the jury s decision, and our evaluation should not substantially intrude upon the fact finder s role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Our review for legal sufficiency is only to ensure that the factfinder reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm the trial court s judgment. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997); Suarez v. State, 31 S.W.3d

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323, 326 (Tex. App. San Antonio 2000, no pet.). The jury was instructed that, [a] person commits capital murder when such person murders more than one person during the same criminal transaction. The charge also instructed the jury on the lesser-included offense of murder, stating, a person commits the offense of murder if he intentionally or knowingly causes the death of an individual. In addition, an instruction on self defense was included upon Garza s request. Under the relevant portion of this instruction, if the jury found beyond a reasonable doubt that Garza reasonably believed that he was in imminent danger of death or serious bodily injury from either Ron Villarreal or Rick Sanchez, but not both of them, and that a reasonable person in his situation at the time and place in question would not have retreated, then they were instructed to find Garza not guilty of capital murder and to consider whether he was guilty of the lesser included offense of murder. As noted, the jury found Garza guilty of murder. The record contains evidence from a number of sources from which the jury could have found that Garza had a reasonable belief that he was in imminent danger of death or serious bodily injury from one of the victims, Ron Villarreal, at the time of the shootings. Several witnesses testified about a prior confrontation that occurred between Garza and the two victims approximately one month before the shootings in November 2002. Gerald Gonzalez, one of Garza s friends who was with him during the prior incident and on the night of the shootings, testified that during the prior confrontation, Ron Villarreal was wearing a set of brass knuckles and took a swing at Garza. // Garza and several other witnesses testified that they believed Ron and Rick to be members of the Crips gang based on their clothing and language, and their prior experiences with them. Garza testified that he carried the gun with him to the apartments on the night of the shootings because he thought his life was in danger from Ron and Rick; he stated he was afraid for his life before and during the confrontation. Ashley, Garza s girlfriend, testified that she had previously warned Garza that Ron might have weapons and that Garza should be careful whenever he came to the apartment complex. Garza s friend Gerald also testified that, based upon his prior experiences with Ron and Rick and his belief that at least one of them was carrying a weapon, he was in fear for his life when Ron and Rick began following him and Garza on the night of November 14th. Roxanne Fernandez, Ashley s roommate, testified that she witnessed part of the November 14, 2002 confrontation from Ashley s apartment window. Roxanne testified that she saw one of the victims wearing brass knuckles before she heard the gun shots. She further testified that she did not see any other weapons on either victim. Other witnesses, including police officers and the medical examiner, testified that the body of one of the victims, Ron Villarreal, was recovered with a set of brass knuckles still clutched in his hand. There was also testimony from police officers indicating that brass knuckles would be considered a deadly weapon capable of causing death or serious bodily injury under certain conditions. No other weapons were found on either of the victims. We conclude the evidence is legally sufficient to support the conclusion that Garza was justified in using deadly force to defend himself against only one of the victims, Ron Villarreal. The evidence indicated that one and only one of the victims had a deadly weapon at the time of the shootings. While Garza admitted that he shot both of the victims, the jury had evidence to support the conclusion that he was only justified in using deadly force against Ron Villarreal, the victim that posed an imminent threat of death or serious bodily injury. Based on the instructions they were given, the jury was permitted to find Garza guilty of murder based on his intentionally or knowingly causing the death of the other victim who did not pose such an immediate threat. Garza s second issue is overruled. Jury Charge Issues In his third issue, Garza contends the self defense instruction contained in the jury charge was erroneous. Specifically, Garza argues that the abstract and application portions of the self defense instruction were incorrect and confusing. Garza also argues the trial court erred by including a limitation on self defense pursuant to 9.31(b) of the Texas Penal Code that was not supported by the evidence. See Tex. Pen. Code Ann. 9.31(b)(5)(A) (Vernon 2003). Our review of a jury charge for error is a two-step process. See Ochoa v. State, 119 S.W.3d 825, 828-29 (Tex. App. San Antonio 2003, no pet.). First, we must determine if there is error in the charge. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Ochoa, 119 S.W.3d at 828. If so, we must determine whether sufficient harm resulted from the error to require reversal. Ochoa, 119 S.W.3d at 828. The standard of review differs depending on whether the appellant

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made a timely objection at trial. See Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004). If the error in the charge was the subject of a timely objection, reversal is required if there is some harm to the defendant as a result of the error. Tex. Code Crim. Proc. Ann. art. 36.19; Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (on rehearing). If no proper objection was made at trial, reversal is required only if the error is so egregious that the defendant was denied a fair and impartial trial. Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d at 171. The degree of harm is determined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. With respect to Garza s first complaint that the self defense instruction was incorrect and confusing, Garza does not direct us to any place in the record where he objected to the charge on this basis, and we find none. Without an objection, we must determine whether any error in this portion of the charge caused Garza egregious harm. See Almanza, 686 S.W.2d at 171. The charge includes an abstract paragraph on the issue of self defense followed by several paragraphs applying the law to the facts of the case and providing the jury with the various possible outcomes based upon their findings. The first application paragraph provides that if the jurors find that Garza murdered both of the victims, but further find that Garza was entitled to the justification of self defense as to both victims, then the jury should acquit Garza based on self defense. The second application paragraph provides that if the jurors find that Garza was not entitled to the justification of self defense as to both victims, then the jury should find against the defendant on this plea of justification. The third and last application paragraph provides: If you find from the evidence beyond a reasonable doubt that, at the time and place in question, the defendant reasonably believed that he was in danger of death or serious bodily injury from Rick Sanchez, but that he did not reasonably believe he was in danger of death or serious bodily injury from Ronald Villarreal, or the defendant reasonably believed that he was in danger of death or serious bodily injury from Ronald Villarreal, but that he did not reasonably believe he was in danger of death or serious bodily injury from Rick Sanchez, and that a reasonable person in defendant s situation at the time and place in question would not have retreated, then you will find the defendant not guilty of capital murder, and next consider whether the defendant is guilty of the lesser included offense of murder. A reasonable jury would understand the charge as written to mean that if they believed beyond a reasonable doubt that Garza was entitled to the justification of self defense as to both victims, then he should be acquitted. A reasonable jury would also understand from the charge as written that if they believed Garza was not entitled to the justification of self defense as to either victim, they should find against Garza on the issue of self defense; however, if they believed that Garza was entitled to the self defense justification as to only one of the victims, then he should be found not guilty of capital murder and the jury should next consider the lesser included offense of murder. Viewing the court s charge as a whole, we conclude that the charge sufficiently presents the applicable law and protects the defendant s rights. See Dooley v. State, 999 S.W.2d 796, 799 (Tex. App. Tyler 1998, pet. ref d); see also Washington v. State, No. 04-0000336-CR, 2001 WL 984796, at *2 (Tex. App. San Antonio Aug. 29, 2001, no pet.) (not designated for publication). Garza has failed to meet his burden of showing that error existed in this portion of the charge and that any such error caused him egregious harm. Almanza, 686 S.W.2d at 171. With respect to Garza s second complaint that the trial court erred in including a limitation on self defense pursuant to 9.31(b) of the Texas Penal Code, a specific objection to the limitation was raised at trial. We therefore must determine whether the inclusion of the limitation was error, and, if so, whether it caused some harm to Garza. See Almanza, 686 S.W.2d at 171. Section 9.31 defines self defense as a justification for the use of force in certain circumstances and subject to certain limitations. Tex. Pen. Code Ann. 9.31. One such limitation is that the use of force against another in self defense is not justified if the actor sought an explanation from or discussion with the other person concerning the actor s differences with the other person while the actor was unlawfully carrying a weapon. Tex. Pen. Code Ann. 9.31 (b)(5)(A). On appeal, Garza contends there is no evidence in the record to support the inclusion of this limitation and there was no fact issue for the jury to resolve. We disagree.

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To determine whether the limitation was warranted, we view the evidence in the light most favorable to giving the instruction. See Fink v. State, 97 S.W.3d 739, 743 (Tex. App. Austin 2003, pet. ref d). If there is any evidence raising a fact issue on the limitation, an instruction should be submitted. Bumguardner v. State, 963 S.W.2d 171, 175-76 (Tex. App. Waco 1998, pet. ref d). An instruction on this limitation is properly given when (1) self defense is an issue; (2) there is evidence the defendant sought an explanation from or discussion with the victim concerning their differences; and (3) the defendant was unlawfully carrying a weapon. See Bumguardner, 963 S.W.2d at 175. The issue of self defense was submitted to the jury and it is undisputed that Garza was unlawfully carrying a weapon when he shot the two victims. Therefore, we must examine the entire record to determine if there is any evidence that Garza sought an explanation from or discussion with Ron and Rick concerning their differences. Id. During the State s cross-examination of Garza, the following exchange took place: State: Okay, But you had been having some problems with them. Is that right? Garza: Yes, ma am. State: So you go over to where they are to try to talk to them about problems. Like what s your problem, you know, or trying to get an explanation for your differences. Garza: Yeah. ... State: Okay, you went over there you re telling us that you went over there to talk to them. Is that right? Garza: Yes, ma am. State: Okay. You went over there to figure out, hey, what to talk to them about problems or whatever the issue is that y all had been having. Garza: Yeah. That s okay. That s what I m saying. ... State: Okay. So you approach Rick and Ron? Garza: Yes, ma am. State: And according to you, to talk to them, to try to settle your differences. Is that right? Garza: Yes, ma am.

Evidence exists in the record which shows that differences existed between Garza and the two victims. Garza s own testimony raises a fact issue as to whether Garza sought an explanation from or discussion with the victims about their differences when he approached them; Garza also admitted that he was unlawfully carrying a gun when he approached Ron and Rick. Because there is evidence in the record from which a rational jury could find that Garza sought an explanation from or discussion with the victims while unlawfully armed, we conclude that the trial court properly submitted the 9.31(b)(5) instruction to the jury. See Bumguardner, 963 S.W.2d at 176; see also Fink, 97 S.W.3d at 743. Garza s third issue is overruled. Denial of Mistrial In his final issue, Garza contends that the trial court erred in denying Garza s motion for mistrial based on a violation of his motion in limine pursuant to Texas Rule of Evidence 609(f). Tex. R. Evid. 609(f). We review the denial of a
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motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999); Brasher v. State, 139 S.W.3d 369, 373 (Tex. App. San Antonio 2004, pet. ref d). During the punishment phase, the State called Garza s former juvenile probation officer as a witness. During Garza s cross-examination of the witness, defense counsel asked, What do you recall about Carlos family circumstances at the time you were directly supervising him? On redirect, the State asked, Are you aware that his mother was charged with murder? Garza s counsel immediately objected that the murder charge did not result in a conviction and was too remote under Rule 609. See Tex. R. Evid. 609. After a bench conference, the trial court sustained the objections under Rule 609. // Garza s counsel moved for a mistrial on the same grounds; the mistrial was denied. When the jury returned to the courtroom, the judge gave the following instruction: Ladies and gentlemen, you heard the last question that was asked by the prosecutor and I cannot stress to you enough how to for you to completely disregard that question. Disregard the answer. It should never have happened. The case referred to was dismissed by the State in February of 1986. It should be very apparent to you that that should have absolutely no bearing on Mr. Garza in his case.

The State contends that the trial court s prompt instruction to disregard the question and answer cured any harm. We agree. Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding an extraneous offense. Ovalle, 13 S.W.3d at 783; see Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999) (a jury is presumed to follow a trial court s instruction to disregard improperly admitted evidence); Salazar v. State, 87 S.W.3d 680, 685 (Tex. App. San Antonio 2002, no pet.). Here, the trial court issued a definitive instruction to disregard both the question and the answer, and also advised the jury that the charge had been dismissed in 1986. See Ovalle, 13 S.W.3d at 783-84. In addition, given that the improper question arose during the punishment phase, the question was not so inflammatory or so likely to prejudice the jury s view of the defendant that the jury would have been unable to follow the trial court s instruction to disregard. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (instruction to disregard renders reference to extraneous offense harmless unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury s mind ). We conclude that the trial court did not abuse its discretion in denying Garza s motion for mistrial; therefore, Garza s fourth issue is overruled. Conclusion The trial court s judgment is affirmed. Phylis J. Speedlin, Justice

Do Not Publish

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