Beltran v. State

• Decision Date: 15 April 1987
• Docket Number: No. 68877,68877
• Citation: 728 S.W.2d 382
• Parties: Noe BELTRAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 382

728 S.W.2d 382

Noe BELTRAN, Appellant, v. The STATE of Texas, Appellee.

No. 68877.

Court of Criminal Appeals of Texas En Banc.

April 15, 1987.

Jeffrey L. Jackson, Michael J. McNamara, Harlingen, for appellant.

Reynaldo S. Cantu, Jr., Dist. Atty. and Gilbert A. Garcia, Asst. Dist. Atty., Brownsville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This appeal is taken from the conviction of capital murder. V.T.C.A., Penal Code, § 19.03(a)(2). The death penalty was assessed by the court after the jury returned affirmative findings to the two special issues submitted pursuant to Article 37.071(b)(1) and (2), V.A.C.C.P.

On appeal appellant raises ten points of error, all relating to the penalty stage of trial. He contends the court erred in admitting a probation officer's file which included an FBI "rap sheet," that the court erred in failing to grant a new trial because of jury misconduct, that the evidence was insufficient to sustain the affirmative answer to Special Issue No. 2 submitted under Article 37.071, supra, and that the court erred in failing to receive the jury's verdict, leaving Special Issue No. 2 unanswered.

Although the appellant does not challenge the sufficiency of the evidence to sustain the conviction obtained at the guilt stage of the trial, a recitation of all the facts at the guilt stage of the trial will place the points of error in proper perspective.

The evidence shows that Enrique Arechiga and his wife, Carmen, owned and operated the Disco de Oro Tortilla Factory in Brownsville. Enrique testified that he first noticed the "robber" around 2:20 p.m. on March 4, 1981. At the time his son, Valentin, was standing near the cash box giving change to a customer, while Carmen stood by the counter waiting on customers. Enrique testified that the intruder first pointed a pistol at Valentin, who immediately handed over an unspecified amount of money from the cash drawer. At this point Carmen moved toward the drawer and said, "If that's what he wants, money." According to Enrique, "She opened up the drawer and handed over another bunch of money." Enrique also stated, "When my wife handed him over this second bunch of money, at that same moment the individual fired."

"Q Are you saying she was still in the act of handing the money when he fired?

"A At the same time that she opened up the drawer and throws the money at him, he fires.

"Q How much money do you think was in that cash box at that time?

"A Eighty or sixty dollars in $1 bills."

Valentin testified that he was working at the tortilleria when the appellant entered. He stated that he had noticed a sports car pull up in the alley next to the tortillaria and that shortly thereafter he "saw this man come into the door and pointed a gun and said, 'El dinero!' "

"Q What did he say?

"A He said, 'El dinero!' After that I opened the cash box. I gave him the money.

"After that, my mother gave him some more, and he shot.

"He went out the door that he came in. I tried to run after him.

"I get to the alley but the car had already left.

"I come back in and I see my mother was dead.

"After that, I called the ambulance; the ambulance came and they just took my mother."

Valentin also testified that he saw the appellant jump into the passenger's side of the sports car after the shooting took place. Guadalupe Benavidez, a former employee at the tortillaria, testified that he also observed appellant's escape in the sports car and identified the vehicle.

Both Enrique and Valentin made an in-court identification of the appellant. They also testified that they had previously identified appellant's picture in a photospread, as well as picking him out of a lineup. The lineup was conducted on March 14, 1981. Both men identified the derringer pistol appellant wielded during the robbery. Benavidez testified to substantially the same facts and identified appellant as the victim's assailant.

Guadalupe Rodriguez testified that on March 4, 1981, she was at home sitting on her bed when she heard a noise coming from the tortilla factory. From her window Rodriguez saw a man walk out of the tortillaria and then run towards a red car parked in the alley. She testified that another person drove the vehicle. Rodriguez identified a photograph of the appellant as being the same man who exited the tortillaria and also made an in-court identification of the appellant.

According to the pathologist, Dr. Lawrence Dahm, the deceased died as a result of a gunshot wound to the chest. The doctor testified that the bullet "nicked" the deceased's right lung and struck the aorta, causing it to burst. The destruction of the aorta and the pulmonary artery resulted in extensive hemorrhaging and quickly filled the victim's chest with blood. The bullet exited the deceased's body on the left side of her back. The bullet was found on top of a counter by Raul Villarreal, an emergency medical technician.

Appellant's attorney testified that he had been appointed by the court to represent the appellant. He identified two photographs taken of appellant's left arm showing the absence of the tattooed initials "LX" or "LT," which were supposed to have been on the assailant's upper left forearm according to a composite received into evidence. Defense counsel was the only witness called by the defense before both sides closed.

In his first two points of error appellant contends that the trial court erred in admitting into evidence a probation office file (State's Exhibit No. 30) and more particularly the inclusion therein of an FBI "rap sheet," and in overruling the motion for new trial based on the admission of said exhibit.

Probation Officer Alfonse Lee of Cameron County testified at the penalty stage of the trial he first met appellant in December 1980, after appellant was placed on probation for the felony offense of driving while intoxicated. Lee testified he kept a probation file on appellant, was custodian of the file, made all entries therein and the file had been in his possession since appellant was placed on probation. He stated the entries were made in the normal course of carrying out his duties as a probation officer. It was shown that other probation officers had access to the file and Lee was not always aware who had custody of the file.

Appellant objected to State's Exhibit No. 30 on the ground that much of the information in the file was gross hearsay, had been placed therein by individuals other than Lee who were not available for cross-examination and that a proper predicate had not been laid for the file's admission as a business or official record. See Articles 3731a and 3737e, V.A.C.S., then in effect. The objection was overruled and the exhibit was admitted.

After both sides closed at the penalty stage but before the exhibit was read or delivered to the jury, ¹ the appellant objected again and asked that State's Exhibit No. 30 be withdrawn, and if not, at least, that the FBI "rap sheet" included therein be withdrawn. It was pointed out that counsel did not have sufficient time to examine the entire file when it was first offered. The court noted it had rushed counsel at the time and allowed the objection. It was argued that the FBI report was not made by the probation officer in the ordinary course of business, was placed in the file on June 22, 1981, after the indictment had been returned and after the first setting of the trial on June 15th, and over three months after Probation Officer Lee's last contact with appellant. Appellant argued that the rap sheet containing "double and triple hearsay" was placed into the probation file in order to get it into evidence for otherwise it could not be considered as admissible evidence. Again, it was pointed out that the probation file in its entirety was full of "double, triple, quadruple hearsay," including reports to the probation officer from appellant's mother-in-law, etc.

The State countered that the objection was not timely, was not specific enough and that the FBI or NCIC record could be considered an official record and was admissible under Article 3737e, V.A.C.S. The objections and motion to withdraw the exhibit were overruled.

It is observed that the FBI "rap sheet" purports on its face to originate in Washington, D.C., and it purports to have compiled information received from unnamed sources in Houston, Brownsville and Bay City, Texas. The "rap sheet" was of one "Beltran, Noe Diaz" or "Beltran, Noe Dias," and it was not shown that the person named therein was the same person as Noe Beltran named in the indictment. See Nichols v. State, 504 S.W.2d 439, 441 (Tex.Cr.App.1974). No one from the Federal Bureau of Investigation testified about the compilation of the "rap sheet." Probation Officer Lee testified he made all entries into the file but he did not compile the FBI "rap sheet."

As exceptions to the hearsay rule Article 3731a and 3737e, V.A.C.S., in existence at the time of the instant trial, were applicable to criminal cases. Porter v. State, 578 S.W.2d 742, 746 (Tex.Cr.App.1979), cert. den. 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982). "However, in some circumstances, evidence within the ambit of a recognized exception to the hearsay rule is not admissible if it does not have the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional rights of confrontation and cross-examination." Porter at p. 746 and cases there cited.

The documents and letters in Porter were from a federal parole officer's file pertaining to the defendant's supervision and progress while on federal parole. Determining the letters were "hearsay upon hearsay" as well as opinions, this Court wrote:

"The sources of these opinions are in most cases unnamed, and in no case are the authors or the unnamed sources shown to be competent to make the statements attributed to them. It...