Martin Hernandez v. The State of TexasAppeal from 185th District Court of Harris County (Memorandum Opinion Per Curiam)

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State: Texas

Court: Texas Northern District Court

Docket No: 01-06-00779-CR

Case Date: 04/30/2013

Plaintiff: Martin Hernandez

Defendant: The State of TexasAppeal from 185th District Court of Harris County (Memorandum Opinion Per Curiam)

Preview:Opinion issued April 30, 2013

In The

Court of Appeals
For The

First District of Texas
------------------------

NO. 01-06-00779-CR ---------------------- MARTIN HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1074124

MEMORANDUM OPINION
A jury found Martin Hernandez guilty of murder. After finding an

enhancement paragraph to be true, the jury assessed his punishment as life imprisonment, plus a $10,000 fine. In five points of error, Hernandez contends

that (1) the evidence is legally and factually insufficient to support his first-degreemurder conviction, (2) the trial court erred by allowing the in-court identification of Hernandez, (3) the trial court erred by admitting expert testimony on the Mexican Mafia and Hernandez's membership in the organization, (4) the trial court erred by failing to exclude a lay witness's testimony about the Mexican Mafia and about Hernandez's membership in the organization, and (5) the trial court erred by allowing the in-court identification of Hernandez's wife, Elizabeth. We affirm the judgment of the trial court. Background Ismael Perez was shot and killed in the parking lot of an after-hours bar named Las Lomas in the early morning hours of Sunday, August 10, 2003. Ismael's older brother, Ariel Perez, was also shot but survived. Hernandez was ultimately arrested and charged with Ismael's shooting. During the guilt or

innocence phase of Hernandez's trial, the jury heard from five eyewitnesses, all of whom testified to slightly different versions of the events. 1) Guilt/Innocence Phase - Eyewitnesses a) Jose Melendez Jose Melendez is an off-duty security guard who lived a block away from the intersection of Fulton Street and Frawley Street. According to Melendez, there were three bars located at that intersection when the shooting occurred--Santos,
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Pinos, and Las Lomas--and Melendez frequently went there looking for his father. Las Lomas is an after-hour bar where patrons, like Melendez's father, would go after Santos and Pinos closed at 2 a.m. On the night of the shooting, Melendez got off of work and went to Las Lomas looking for his father. He arrived at Las Lomas around 2:35-2:40 a.m. Less than ten minutes later, Melendez was standing outside of the entrance talking with the bar's security guard when two men he identified as "Luis" and "Cuate" exited the bar arguing. "Cuate" is Ariel Perez's nickname. According to Melendez, the argument escalated into a physical fight in the parking lot across the street from the bar. Melendez testified that Ariel did not appear interested in fighting and that Luis appeared to be the instigator. According to Melendez, another man and a woman exited Las Lomas shortly after Luis and Ariel. The man, who Melendez had previously seen walking in and out of the bar that evening, was wearing a long-sleeved shirt and blue pants and had short, combed-back hair, a mustache, and a small goatee. Melendez watched as the couple walked across the street to a white Pontiac Grand Am with black tinted windows that was parked in the same parking lot where Luis and Ariel were fighting. Melendez saw the man put the woman in the passenger seat before retrieving an assault rifle from the driver's side of the vehicle. The man then walked around the back of the other vehicles parked near the rear of the lot and walked up behind where Luis and Ariel were fighting. According to Melendez, the
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gunman fired a shot in the air, and then shot Ariel, who had just been punched by Luis and was attempting to get up off the ground. Melendez testified that a woman he knew as Sylvia jumped on the gunman's back at that point and was trying to break up the fight. The woman was later identified as Sylvia Guerra, Ariel's estranged common-law wife. According to Melendez, the gunman threw Sylvia off and then turned around and pointed the assault rifle at her as she lay on the ground. The gunman walked away when someone yelled out, "not her." Melendez saw the gunman and Luis walking to the white Pontiac when Ariel's brother came running from the parking lot of another bar across the street. Ariel's brother, Ismael Perez, grabbed Luis and began

fighting with him. When Ismael fell to the ground, the gunman walked up to within two feet of Ismael and shot him in the arm, leg, and chest. The gunman then walked back to the white Pontiac, threw the rifle in the back seat, and drove off with the woman still sitting in the passenger seat, and Luis, who had jumped in the back seat after grabbing Ismael's chain necklace and wallet. Melendez

believed that the license plate numbers of the Grand Am were "C, H, P or F" and either "95" or "9S." Melendez, who denied drinking alcohol or using drugs either before or after he arrived at Las Lomas that evening, remained at the scene and gave a videotaped interview to police later that morning. He reviewed a book of 40-50 photos at the
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police station, but was unable to identify anyone. Melendez testified that the police came to his home three times between August 10, 2003 and December 1, 2005, and each time they brought two or three photo arrays with them. On one such occasion, nine months after the shooting, Melendez identified Luis Olvera as the "Luis" he saw fighting with the Perez brothers. On December 1, 2005--more than two years after the shooting--Melendez identified Hernandez from a photo array as the person who shot Ismael and Ariel Perez. Melendez stated that he was positive that Hernandez was the gunman when the police showed him the photo array. Melendez also identified both Hernandez and Olvera at trial. Melendez, who was standing about thirty-five feet away from the melee, acknowledged during cross-examination that there may have been some discrepancies between his trial and grand jury testimony, but it was essentially the same. In particular, Melendez conceded that the gunman probably fired five to eight shots; as opposed to the twenty shots he told the grand jury. Melendez also admitted that he told the grand jury that Ariel, Ismael, Olvera, and Sylvia were together in the parking lot across the street when Ariel was shot, even though he testified at trial that Ismael ran across the street after Ariel was shot. Melendez also told the grand jury that Ismael was going after the gunman when he was shot, not lying on the ground as he had testified earlier. He also acknowledged that

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although he testified at trial that Guerra jumped on the gunman's back, he told the grand jury that no one had gotten near the gunman. b) Ariel Perez Ariel Perez testified that he had had five or six mixed drinks at another bar before going to Las Lomas to meet his brother, Ismael, on August 10, 2003. He arrived shortly after 2:00 a.m. and was, by his own account, intoxicated. Ariel parked across the street from the bar and as he was crossing the street, he was approached by "Luis," who he had known as a teenager. Luis was angry with him and they argued. After Luis took off the football jersey he had been wearing and threw it to the ground, the two men began to fight. Ariel said that he pushed Luis to the ground and tried to walk away. His brother Ismael walked over at that point and began arguing with Luis. Luis and Ismael's argument quickly escalated into a physical fight. Ariel said he was standing back and watching the two men fight when he was shot without warning. Ariel, who lost consciousness after he was shot, did not see Guerra, the man who shot him, or the gun. Although he had vague memories of speaking with paramedics, he did not regain full consciousness until he awoke in the hospital three days later. Ariel testified that he later identified Luis Olvera in a photo array as the person named "Luis" with whom he and Ismael had been fighting with that night.
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c) Sylvia Guerra Sylvia Guerra testified that she and her brother-in-law, Ismael, were at Las Lomas that night. Guerra saw two men enter the bar--one man was bald, with a tattoo on the back of his head, and wearing a football jersey, the other man was tall, light-skinned, but had no other distinguishing characteristics that she could remember. Guerra watched as the two men walked over to where Ismael was playing pool. The bald man in the jersey briefly greeted Ismael and hugged him before walking away. According to Guerra, the bald man made a furtive gesture to his taller companion when he hugged Ismael. As the two men were leaving, Guerra also saw a woman, who was dancing with another man, make some sort of gesture to the man in the jersey, who responded by nodding his head in apparent agreement. As soon as the two men walked out of the bar, Ismael's phone rang and he went outside to answer it. Guerra's phone rang a few minutes later and she, too, exited the bar to answer her phone. Guerra explained that while she was outside, she started talking to her nephew, Jose Gomez, who had just driven up in his car. Guerra testified that she saw her estranged husband, Ariel, park his truck and walk over to the Las Pinos parking lot, where Ismael was talking with the two men she had just seen in the bar. Guerra heard the man in the jersey cursing loudly at Ariel

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and Ariel respond, "You want to fight me while I'm drunk?" concerned and walked over to where the men were arguing.

Guerra was

The argument quickly erupted into a physical fight after the man in the jersey threw a punch at Ariel. According to Guerra, Ariel was on the ground, trying to get up when a third man, who was standing next to Guerra, shot him with an AK-47. Thinking that the gunman was going to shoot Ariel again, Guerra jumped on the gunman's back. She threw herself off of his back, landed on the ground and he pointed the gun at her. She heard someone yell "no, not her" and the gunman walked away from her. Guerra said that she was lying on the ground dialing 9-1-1 when she heard more gunshots and looked up and saw that Ismael had been shot. Guerra testified that Ismael was lying on the ground with the man in the jersey on top of him when he was shot. Guerra did not see who shot Ismael; she only saw one gun and she assumed it was the same man who had previously shot Ariel, but she did not know. According to Guerra, the gunman and the man in the jersey ran to the white Grand Am with tinted windows and drove away. Guerra testified that the gunman drove, the man in the jersey was in the backseat, and the woman she had seen dancing in the bar was sitting in the passenger seat. Guerra stated that the man in the jersey took Ismael's gold chain necklace before leaving in the car.

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Although Guerra did not remember what the gunman looked like at trial, the morning of the shooting Guerra told police that the gunman was tall, about 180 pounds, and wore a blue buttoned-up shirt with white stripes. Guerra testified that she viewed a photo array on August 20, 2003, and identified a man in one of the photos as someone with an 80% chance of being the gunman. Guerra also

admitted that she was shown another photo array on May 28, 2004 and that time she identified Jose Antonio Lancon as the gunman. Guerra testified that she knew Lancon, and that he was the man standing next to her who shot her husband and brother-in-law. Guerra admitted that she told the grand jury that she did not see Lancon with a gun. Over the objection of defense counsel, the trial court allowed the State to bring Elizabeth Hernandez into the courtroom and Guerra identified her as the woman she had seen dancing in Las Lomas, who was sitting in the passenger seat of the white Grand Am that sped away after the shooting. On cross-examination, Guerra admitted that she and Elizabeth had been sitting near each other in the courthouse hallway for a few days waiting to testify. She also admitted that an investigator had shown her an individual picture of Elizabeth instead of a sixperson photo array for purposes of identifying the woman in the white Grand Am. d) Jose Gomez Ariel and Ismael's nephew, Jose Gomez, testified that he had been talking to
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Sylvia for a few minutes in front of Las Lomas when she suddenly walked off. Gomez got out of his car and watched Sylvia walk over to where Ariel was arguing with a shirtless, tattooed man across the street.1 According to Gomez, Ismael, who had been trying to calm things down, suddenly started fighting with the tattooed man. Gomez testified that he saw another man emerge from a white Grand Am with an AK-47 and fire two shots at Ariel. The gunman then shot Ismael, who was wrestling on the ground with the tattooed man. According to Gomez, the gunman was standing less than a foot away from Ismael when he shot him three times. Gomez briefly followed the gunman in his car as he left the scene with three other people, one of whom appeared to be a woman, in a white four-door Grand Am with tinted windows. According to Gomez, the Grand Am was moving when the gunman got into the car. Gomez testified that he could not identify the gunman. e) Luis Olvera Luis Olvera testified that he went to Las Lomas with his girlfriend the night of the shooting to meet Hernandez, but his girlfriend changed her mind as soon as they arrived, and she waited in the car for him while he went in to tell Hernandez that he would not be staying. Olvera said that he spoke with "Anthony Lancon,"

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Gomez testified that the shirtless man had the word "Loy" tattooed on his back. Olvera, who admitted to arguing and fighting with Ariel and Ismael, testified that his nickname, "Lou" was tattooed on his back. 10

Raymond Torres, and another man in the parking lot outside Pinos for about ten to fifteen minutes before went into Las Lomas. When he arrived at Las Lomas, Olvera spoke briefly with Hernandez, who was there with a woman Olvera did not know, but he believed to be Hernandez's "girl." Olvera also spoke with Ismael Perez for "about a minute." According to Olvera, Ismael and his brother Ariel were acquaintances of his that he knew from childhood. Olvera, who was in the bar less than five minutes, left Las Lomas by himself and walked back across the street to talk to Lancon, Torres, and the other man. While he was talking to Lancon and the others, Olvera saw Ariel walking over from the Santos parking lot and called out to him. According to Olvera, Ariel, who seemed intoxicated or "on something" immediately started "going off" on Olvera and tried to hit him. Olvera "lost his cool," and took off the football jersey he wearing to get ready to fight. By this time, a crowd of about fifty people had gathered outside the bars and in the parking lot. According to Olvera, Ariel's

brother Ismael showed up about that time and Olvera fought with both brothers. He admitted that Ariel and Ismael Perez did not have any weapons. Olvera said that he was wrestling with Ismael on the ground when Hernandez, who had been standing in the crowd, told him to move out of the way. Ismael was shot as Olvera tried to get out of the way. Olvera was also shot in the
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left hand. Olvera, who admitted that he did not see the actual shooting, stood up immediately afterwards and saw Hernandez holding a "rifle-type" gun, "probably an AK, SKS." Olvera also saw that Ariel had been shot and was lying on the ground. Olvera said the crowd quickly dispersed after the shooting and he wanted to get out of there, too, so he jumped into the backseat of Hernandez's car, a white, four-door Grand Am with tinted windows. According to Olvera, the woman who had been with Hernandez in the bar was driving and Hernandez was sitting in the front passenger seat. Olvera denied going back to Ismael and taking his chain and wallet. The next day, Olvera called Hernandez after he saw on the news that one of the brothers had died. Olvera testified that when he asked Hernandez what had happened, Hernandez replied, "Shit, I just started shooting." Olvera admitted that he has seven felony convictions and was currently serving a twenty-five-year prison sentence for murder. Olvera testified that he did not cooperate with the police in this case until they agreed to place him in a special rehabilitation program that that keeps him from being locked in a cell for twentythree hours a day. He also testified that Sergeant Enrique Muniz with the Texas Department of Public Safety deposited $700 into his prison trust fund, too. Olvera, who was admittedly drunk at the time of the shooting, went to Mexico for eleven months after the shooting.
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2) Guilt/Innocence Phase - The Investigation and the Informant Macario Sosa, a homicide investigator with the Houston Police Department, and his partner were the primary investigators assigned to the case. Sosa said the initial description they received of the gunman was a Hispanic male, approximately 20 to 23 years old, five-eight to five-ten, wearing a blue buttondown shirt with starched blue jeans, with a mustache and a goatee. Approximately a week after the murder, Sosa prepared three photo arrays that he showed to Melendez, Guerra, and Gomez, but none of them made an identification. Later that month, Sosa put together a fourth photo array that

included a photo of Luis Olvera. Sosa showed the fourth photo array to Guerra and Ariel. According to Sosa, Guerra said that she was eighty percent sure that Olvera was the gunman. Sosa testified that he had a hard time tracking Melendez down, but he was eventually able to show him the fourth photo array. Melendez identified Olvera only as the "Luis" he saw fighting with Ismael and Ariel. Several months later, Sosa prepared a photo array that included a photo of Jose Antonio Lancon. Sosa presented the array to both Melendez and Guerra. Melendez did not identify anyone from the photo array. Guerra, however,

identified Lancon as the gunman. As a result of Guerra's identification, Lancon was charged with the murder of Ismael Perez in May 2004.

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Approximately seven months after Lancon was charged--and over two years after the shooting--Sosa received information which led him to interview an informant named Paul Ramirez. Ramirez, who had been charged with possession of one to four grams of cocaine and possession with intent to deliver cocaine over 500 grams of cocaine, agreed to provide Sosa with information about the shooting at Las Lomas in exchange for the dismissal of both felony charges. Ramirez acknowledged that he also received $1,000 from Sergeant Enrique Muniz and $2,000 from Crime Stoppers for his cooperation in this case. Ramirez testified that he was working as a wrecker driver in 2003 and was two blocks away from Las Lomas when he heard about the shooting over the radio. When he arrived at the bar, Ramirez spoke with a man he knew named Raymond Torres who told him what had happened. Based on his conversation with Torres, Ramirez met Hernandez at a gas station around 9:30 p.m. that evening and Hernandez told Ramirez about the shooting. Ramirez said that even though he had never met Hernandez before that evening, Hernandez told him about the shooting because both he and Hernandez were members of the same association and he was Hernandez's superior in the association. According to Ramirez, Hernandez told him that he was at Las Lomas with his wife when he ran into Raymond Torres; Torres took him across the street to meet Lancon who was also in the association, but whom Hernandez had never met. Hernandez told Ramirez that he was across
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the street from Las Lomas talking to Torres and Lancon, when "Lou," who was standing there with them "caught eyes" with one of the victims. Hernandez told Ramirez that "Lou" and the other man had "words" and then started fighting. According to Ramirez, Hernandez told him that "Lou" was getting beat up so he told Lancon to go get the SKS. Hernandez said that Lancon got the gun, but would not shoot, so Hernandez took the gun from him and shot the two men. Hernandez told Ramirez that Olvera was shot because he did not get out of the way fast enough. Ramirez said he had seen Hernandez several times since the shooting. According to Ramirez, Hernandez knew that Lancon had been charged with Ismael's murder, but he was was not worried about Lancon implicating him because Lancon had been in custody and Hernandez believed that if Lancon was going to implicate him, he would have already done so. Ramirez said that he had been to Hernandez's house, had seen a white Grand Am parked at his house, and had met Hernandez's wife. Ramirez identified Elizabeth Hernandez in court as Hernandez's wife. Ramirez also identified Hernandez from a photo array as the person who admitted to him that he was the gunman at Las Lomas. After interviewing Ramirez, Sosa presented a photo array containing Hernandez's photo to Jose Melendez and Melendez identified Hernandez as the person he saw shoot Ariel and
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Ismael Perez. Melendez also identified Hernandez in court as the gunman. Sosa also presented Hernandez's photo array to Guerra and Gomez, but neither of them were able to make an identification. Sosa also showed the photo array to Luis Olvera in January 2006. Olvera identified Hernandez from the photo array and in court as the person he saw holding a weapon immediately after he and Ismael were shot. The assistant medical examiner testified that one of the bullet entrance wounds was caused by a gun fired less than twelve inches from Ismael's body. 3) Guilt/Innocence Phase - The Defense Case Raymond Torres testified that he went to Las Lomas the night of the shooting with his wife. Torres knows Jose Antonio Lancon and saw him standing outside when he arrived shortly after 2:00 a.m. Torres said that he was inside of Las Lomas for approximately thirty minutes when he heard gunshots. Torres said that he immediately tried to exit the bar, but the security guard would not let them leave and kept them inside for approximately fifteen seconds. When he finally walked outside, Torres saw Lancon jump into a small, white car that was leaving the scene. Torres said that he did not see the shooting. Torres said that he knows Hernandez and did not see him inside or outside of Las Lomas after he heard the gunshots, but admitted that Hernandez could have been in the parking lot and

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Torres just did not see him. Torres said that he called Paul Ramirez who came to the scene in his wrecker truck. Larissa Torres testified that she was at Las Lomas with her husband Raymond on the night of the shooting. When they arrived, she saw Lancon standing outside, but she did not see Lancon after the shooting. She had never seen Hernandez prior to testifying at trial but said she did not see him inside or outside Las Lomas the night of the shooting. Larissa said that she did not see the shooting. 4) Punishment Phase Hernandez pleaded "Not True" to the enhancement allegation that he had been convicted of Aggravated Assault with a deadly weapon in Bexar County on May 6, 1992. During the punishment phase, the State presented evidence of Hernandez's prior convictions for assault, assault on a family member, and the enhancement offense of aggravated assault with a deadly weapon. Over Hernandez's objection, Paul Ramirez testified that, at the time of the shooting, both he and Hernandez were members of the Mexican Mafia, a criminal organization that made its money by dealing drugs and committing home invasions. Ramirez explained that the Mexican Mafia is composed of Soldiers at the bottom of the hierarchal structure, then Sergeants, Lieutenants, and finally a General at the very top of the organization. At the time of the shooting, Carlos
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"Khaki" Ruiz was the General for all of South Texas (including Houston), Ramirez was a Lieutenant for the Houston area who reported directly to Ruiz, and Hernandez, Lancon, and Raymond Torres were Soldiers. Olvera was a prospective member of the Mexican Mafia who later began as a Solider in the organization. Ramirez explained that although prospects are generally required to kill someone in order to join the organization, he joined the Mexican Mafia in prison and rose to the rank of Lieutenant without ever having committed a murder. According to Ramirez, Hernandez had been a Sergeant in Mexican Mafia in San Antonio, but he was demoted to Solider when he went to prison for aggravated assault. After the Perez shooting, Hernandez was promoted to the rank of Lieutenant. Ramirez testified that Hernandez was acting in accordance with the rules of the Mexican Mafia when he shot Ismael and Ariel Perez. Ramirez explained that according to Mexican Mafia rules, if one member sees someone harming or touching another member, he is required to kill that person. The member who did the killing would have to explain his actions to his superiors, if asked to do so, so that the organization would be able to cover for him if they were ever questioned by police. Ramirez said the Perezes were shot because they were fighting with Olvera who was affiliated with the Mexican Mafia. Ramirez acknowledged that he left the Mexican Mafia once he signed the contract with the police, but he pretended to remain a member to fulfill the contract
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terms. Ramirez admitted that he saw Hernandez approximately 40 to 50 times after he signed the contract. He also acknowledged that the organization dictates that informants must be killed if they cooperate with the police. Enrique Muniz, a Sergeant with the Texas Department of Public Safety, testified as an expert on the Mexican Mafia, over Hernandez's objections. According to Muniz, the Mexican Mafia is a prison gang known for engaging in criminal activities such as extortion, racketeering, smuggling narcotics, burglary, and murder for hire. Muniz testified that the Mexican Mafia is governed by their own set of rules and regulations that members refer to as the Bible or the Constitution. He later admitted that these rules are often ignored or not enforced. Muniz testified that Hernandez has three tattoos consistent with membership in the Mexican Mafia and that Hernandez is a confirmed member of the Mexican Mafia in the databases of the Texas Department of Criminal Justice and the Texas Department of Public Safety. The defense presented the testimony of Hernandez's brother-in-law, his cousin, his wife, and a friend who all described Hernandez as a good father to his wife's children and a non-violent, peaceful person. Hernandez's brother-in-law, cousin, and friend all denied knowing that Hernandez was a member of the Mexican Mafia.

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Hernandez's wife, Elizabeth, testified that she knew that her husband was a member of the Mexican Mafia. She also testified that she went to Las Lomas on the night of the shooting to meet up with him. According to Elizabeth, she drove to Las Lomas in her husband's Monte Carlo because her Grand Am had been giving her problems. Hernandez met her outside the bar, walked her over to the car, gave her some money, talked briefly with her, and then she left. Elizabeth denied being there when the shooting occurred. She also denied fleeing with her husband in her white Grand Am. Hernandez testified that he went to Las Lomas by himself in his wife's white Grand Am to meet Olvera. He said that a fight broke out and he turned around and saw Jose Lancon, who he had never met before, coming at him with a gun so he took the gun from him. Hernandez denied taking the gun from his car. Hernandez said there was a large crowed "moving around" and one to two people were "coming at him" so he fired into the ground. He said after he fired into the ground, he saw someone reach for their pocket and he fired again. Hernandez said that he felt his life was in danger when he saw someone with a gun, but then admitted that he did not see anyone with a gun. Hernandez said that the shooting had nothing to do with the Mexican Mafia, but he admitted that he was formerly a member of the organization.

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Hernandez denied that he ever told Paul Ramirez what happened at Las Lomas and said that everyone who had testified had lied about the events of that evening. Discussion In five points of error, Hernandez contends that (1) the evidence is legally and factually insufficient, (2) the trial court erred by allowing the in-court identification of Hernandez, (3) the trial court erred by admitting expert testimony on the Mexican Mafia and Hernandez's membership in the organization, (4) the trial court erred by failing to exclude a lay witness's testimony about the Mexican Mafia and about Hernandez's membership in the organization, and (5) the trial court erred by allowing the in-court identification of Hernandez's wife. 1) Sufficiency of the Evidence In his first point of error, Hernandez contends that the evidence is (a) legally insufficient to support the jury's finding that all the essential elements of the offense of murder were proved beyond a reasonable doubt, and (b) legally and factually insufficient to support the jury's rejection of his claim that the murder was committed under the immediate influence of sudden passion arising from an adequate cause.

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a) Murder We apply the Jackson v. Virginia sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense. Jackson, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); see Ervin v. State, 331 S.W.3d 49, 52

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