Eduardo Pena v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-99-00470-CR

Case Date: 12/06/2000

Plaintiff: DAVID RAY TAMEZ

Defendant: THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

Preview:Eduardo Pena v. The State of Texas--Appeal from 175th
Judicial District Court of Bexar County
No
No. 04-99-00470-CR
Eduardo PENA,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-1577
Honorable Mary Rom n, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Catherine Stone, Justice
Paul Green, Justice
Karen Angelini, Justice
Delivered and Filed: December 6, 2000
AFFIRMED
A jury found appellant, Eduardo Pena, guilty of murder and assessed punishment at life in prison. Pena appeals his
conviction, complaining that (1) the trial court erred in not submitting the lesser included offense of assault in the jury
charge and refusing to submit the defense of sudden passion, (2) the court reporter did not transcribe a video tape
played during trial, and (3) the trial court erred in denying his motion for new trial. Pena does not challenge the
sufficiency of the evidence in support of the judgment. We affirm.
CHARGE ERROR
Pena asserts the jury charge at the guilt-innocence phase did not include an instruction on the lesser-included offense
of assault. Pena is incorrect. The jury charge included an instruction on the lesser offense of Aintentionally,
knowingly, or recklessly caus[ing] bodily injury@ (a Class A Misdemeanor), and an instruction on the lesser offense
of Aintentionally or knowingly caus[ing] physical contact . . . .@ (a Class C Misdemeanor).
Pena also asserts the trial court erred in denying his request for an instruction on the defense of sudden passion during
the punishment phase.
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A defendant is entitled to an instruction on every defensive issue raised by the evidence. Muniz v. State, 851 S.W.2d
238, 254 (Tex. Crim. App. 1993). The evidence raising such an issue may be Astrong, weak, contradicted,
unimpeached, or unbelievable.@ Id. At the punishment stage of a trial, the defendant may raise the issue of whether he
caused the death under the immediate influence of sudden passion arising from an adequate cause. Tex. Pen. Code
Ann. '19.02(d) (Vernon 1994). If the defendant proves the issue in the affirmative by a preponderance of the evidence,
the offense is a felony of the second degree. Id.
A defensive instruction is not required unless there was evidence from the accused admitting the offense, and then
claiming justification for having committed the offense because of other facts. McGarity v. State, 5 S.W.3d 223, 227
(Tex. App.CSan Antonio 1999, no pet.); Johnson v. State, 715 S.W.2d 402, 405 06 (Tex. App.CHouston [1st Dist.]
1986), pet ref=d, 738 S.W.2d 287 (Tex. Crim. App. 1987).
The State=s evidence did not raise the issue of sudden passion, and following is Pena=s testimony regarding the
incident:
Q. Mr. Pena, when you talked to the jury during the guilt-innocence phase of this trial, I asked you, I believe at least
three times, if you were angry, and do you recall what you said?
A. I said, no.
Q. And is that true?
A. Yes.
Q. Because I mean, what are you trying to do is to suggest to the jury that - - well, tell the jury what it is that you are
trying to tell them.
A. What I mean is when I looked outside and I seen my wife on the ground, the first thing that came to my mind was
that she was in danger.
Q. Okay.
A. I feared for her safety. And I knew by getting nearer I was going to be in danger myself.
Q. All right. So is that why you stabbed the victim in this case?
A. I did not do no such thing.
Q. All right. So, you deny killing this victim?
A. Yes.
Q. So the jury is wrong in convicting you?
A. I did not do it.
Q. Okay. Well, then, let me just be very clear with you. You are telling the jury that you did not cause the death of the
deceased while under the influence of, or immediate influence of a sudden passion arising from an adequate cause
because you did not kill the deceased; isn=t that right?
A. Yes.
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Pena did not admit to being involved in an altercation with the deceased, and, not only did he deny committing the
crime under the influence of sudden passion, he denied committing the crime at all. In view of Pena=s denials, the trial
court did not err in refusing to instruct the jury on the defense of sudden passion.
COURT REPORTER=S TRANSCRIPTION
Pena asserts he is entitled to reversal because the court reporter did not make a transcription of a video tape that was
played at trial and admitted into evidence. Pena did not object to the reporter=s failure to transcribe the video tape.
Acknowledging that he made no objection, Pena instead argues A[o]ne would have to be a mental contortionist to be
able to@ act as an effective advocate for one=s client and Awatch every movement of the Court Reporter to make sure
all testimony and evidence is being properly procured.@
The Court of Criminal Appeals faced the same issue, although not the same argument, in Williams v. State, 937 S.W.2d
479 (Tex. Crim. App. 1996). In that case, the defendant complained about the court reporter=s failure to take notes of
and transcribe the audio portion of a videotaped statement that was played to the jury during the guilt-innocence and
punishment phases of the trial. Id. at 486. The Court held that the defendant did not preserve error because he did not
object before the trial court to the court reporter=s failure to do so. Id. In the present case, Pena did not object;
therefore, he waived any error.
MOTION FOR NEW TRIAL
Pena asserts the trial court erred in denying his motion for new trial based upon discovery that the jury was in
possession of evidence containing inadmissible hearsay.
Pena asked for a new trial shortly after the jury was released from service on June 11, 1999. Defense counsel stated
there was Anot a Motion for New Trial@ before the court, but requested a new trial nonetheless. The State objected
that a motion was not properly before the court, and the court denied the request for a new trial. On June 29, Pena filed
a written motion for new trial. The motion was overruled by operation of law. Tex. R. App. P. 21.8(c).
The record does not reflect that the motion was properly presented within ten days of filing. See Tex. R. App. P. 21.6.
The movant bears the burden of actually delivering a motion for new trial to the trial court or otherwise bringing the
motion to the attention or actual notice of the court. Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998);
Bryant v. State, 974 S.W.2d 395, 400 (Tex. App.CSan Antonio 1998, pet. ref=d). Mere filing is not sufficient.
Carranza, 960 S.W.2d at 78. There is nothing here to show that Pena met this burden.
CONCLUSION
We overrule Pena=s points of error, and affirm the trial court=s judgment.
Catherine Stone, Justice
DO NOT PUBLISH
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