Cordova v. State

• Decision Date: 31 August 2009
• Docket Number: No. 07-08-0142-CR.,No. 07-08-0143-CR.,07-08-0142-CR.,07-08-0143-CR.
• Citation: 296 S.W.3d 302
• Parties: Carlos Jose CORDOVA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

296 S.W.3d 302

Carlos Jose CORDOVA, Appellant, v. The STATE of Texas, Appellee.

No. 07-08-0142-CR.

No. 07-08-0143-CR.

Court of Appeals of Texas, Amarillo, Panel D.

August 31, 2009.

James E. Wooldridge, Amarillo, TX, for Appellant.

Jeromie Oney, Assistant District Attorney, Pampa, TX, for Appellee.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

In October 2006, appellant Carlos Jose Cordova was charged in two separate indictments with aggravated robbery with a deadly weapon.¹ The two charges were tried together and the jury convicted appellant as charged. Presenting four issues, appellant now appeals from his convictions² and the resulting concurrent sentences of forty-five years' imprisonment. We will affirm the trial court's judgments.

Background

Layne Conner testified he does not like banks, so he kept cash in the home in Pampa, Texas, he shared with his wife Mae and their nine-year-old grandson. In May 2006, he had over $30,000 in cash and $5000 in checks divided among three bank bags he kept in a locked filing cabinet in a back room of the house. Mr. and Mrs. Conner and their grandson were visiting family in another part of the state for several days when Mr. Conner considered buying a vehicle. He testified he wanted to make sure he had enough cash for the purchase, so on Wednesday May 17, he called their adult daughter Mayla Arreola, who also lived in Pampa. He told his daughter about the cash, and asked her to open the cabinet and count the cash. Mayla testified she counted between $32,000 and $34,000, and called her father with the count. He told her not to tell anyone about the money. Mayla, however, told her husband and told her friend Tiffeni Martinez. Tiffeni Martinez was close to the Conners, and had been in their home many times. Mae Conner described her as a "second daughter."

The Conners returned to their home Saturday evening, May 20. The next morning, two masked gunmen kicked in the back door of the home. One forced Mrs. Conner to get on the floor and held her at gunpoint with a shotgun. The other first told Mr. Conner to get on the floor, then went directly to the back room. Mr. Conner testified he heard the gunman open a filing cabinet drawer, and try to open the locked cabinet. The gunman returned to Mr. Conner and told him to open the cabinet. As Mr. Conner went to a bedroom to get the key, the gunman followed. Telling Mr. Conner to hurry, the man fired his pistol toward a bed and threatened to shoot Mr. Conner in the heart. Mr. Conner later discovered his grandson was hiding under that bed.

When the gunman told Mr. Conner he wanted the money, Mr. Conner responded, "What money?" The gunman replied, "You know what money I'm talking about." With his back to the gunman, Mr. Conner opened the cabinet and gave the gunman two of the three bank bags, containing a total of some $4900. Both gunmen left the house, again threatening to kill Mr. Conner. They also took Mrs. Conner's purse, which contained $800 in cash. Mr. Conner followed the robbers outside in time to hear car doors slam, and see a "newer Jeep" drive away.

Mae Conner testified as follows concerning her immediate reaction to the robbery:

Q: What did you do then [after her husband told her the robbers were gone]?

A: Well, [Mr. Conner] had taken out the back door to see if he could see anything. I picked up the phone. I was—I was—You know, I was shaking and I picked up the phone and I called Mayla first, and I said "Who did you tell about the money?" I said "We were just robbed at gunpoint." She said "Nobody." I said "I've got to go." And then I called 9-1-1.

Q: Why did you call Mayla first?

A: I don't really know. I just knew that other than us, she was the only one that knew, so I called her first to see. I really don't know why I called her first. I wasn't on the phone with her just that long, long enough to say that, and I said "I've got to go." And I got up and called 9-1-1.

Tiffeni Martinez is married to Andrew Martinez. They also lived in Pampa. Andrew Martinez and appellant are cousins. Appellant then lived in Amarillo.

A CrimeStoppers tip from Amarillo eventually led police to Priscilla Badillo. Badillo testified at trial concerning a conversation she heard in Amarillo on the Friday before the Sunday robbery. The conversation was between Davey Enriquez³ and another man.⁴ She said the conversation involved "[s]omething about [appellant's] cousin that ... lived here in Pampa had told him about some money, something about a kid and a gun, and that's about it." When she heard a news report Sunday evening about the robbery in Pampa, she recalled the conversation she had overheard on Friday.

Another witness, Danielle Holmes, testified she lived in Amarillo and that appellant, Enriquez and a third person came to her home on Saturday evening, May 20, while Holmes's neighbor Woody was there. Enriquez stayed in the car but appellant came inside her home and talked with Woody. Appellant told Woody they were going to Pampa, and asked if Woody was going. According to the conversation, appellant "was supposed to keep control of the little boy and that there was a lot of money involved." Appellant also told Woody that appellant's cousin had called to say that "It's set up...." Holmes talked Woody out of going to Pampa with the others, testifying she "had a real bad feeling."

Holmes testified appellant returned to her home hours later, before daybreak Sunday morning, again to speak to Woody. She again overhead part of their conversation. Woody asked appellant, "Well, what happened?" Appellant responded, "It didn't go as planned." Some time later, after Holmes had moved to another house, appellant and Enriquez came to her house, "wanting to know who told on them." The men told her they had been "pulled over and questioned." When Holmes heard news reports of the Conners' robbery, she also concluded the reports were describing the same events she heard appellant discuss at her home. She contacted CrimeStoppers.

After Mayla Arreola admitted she had told her friend Tiffeni Martinez about her parents' hidden cash, the Pampa police detective working on the case visited with Andrew and Tiffeni Martinez. During that visit, the detective learned that Andrew had a cousin in Amarillo, appellant. The detective testified that Andrew said he had not spoken with his cousin in "a year, year and a half." Subpoenaed telephone records, however, showed many calls between the Martinez's phone and appellant's in the days surrounding the robbery, including six calls on May 19 and three on May 20, as well as several calls in days following.

The Conners did not identify the robbers. Mr. Conner testified the man who went to the back room had a "Spanish" accent and was "a lot smaller" than the larger man holding a shotgun on his wife. Mrs. Conner testified that both men were "Hispanics" and the one holding the shotgun on her was stockier than the other.

Analysis

Limitation of Appellant's Voir Dire Examination

We begin with appellant's second issue, by which he argues the trial court abused its discretion by imposing limitations on his voir dire examination of the venire on the subjects of reasonable doubt and the State's burden of proof.

During voir dire, the State voiced several objections concerning appellant's questioning of the panel regarding the State's burden of proof, some of which the court sustained. Eventually, after the district attorney and defense counsel sparred over whether the defense was mischaracterizing the State's voir dire, the court questioned the panel on the presumption of innocence and the burden of proof. The court then announced, "All right. At this time I believe the jury is sufficiently qualified regarding the burden of proof. We'll need to move on to voir dire regarding the law applicable [to] other aspects of the law that may be applicable to this case and voir dire questions regarding issues that may be applicable to this case." The court then advised defense counsel he had an additional thirty minutes to voir dire. Without voicing an objection, defense counsel continued his voir dire. On completion of voir dire, the panel was excused, and both sides informed the court of their challenges.⁵ Defense counsel then stated,

I'd move that this venire panel be vacated and a new one brought in because the Court shut down my voir dire and I was not able to ask the questions that I needed to ask in order to explore and examine these venire members' subjective perceptions about certain things and specifically the issue of beyond a reasonable doubt. For that reason and with the Court's treatment of Defense Counsel in front of the venire panel, I believe it's tainted this jury's perception of Defense Counsel which will affect Mr. Cordova's right to have a fair trial.

The court denied appellant's motion. On appeal, appellant contends the trial court abused its discretion by not allowing him to finish his voir dire regarding reasonable doubt and the burden of proof. The State argues that appellant did not preserve this issue for our review. We agree.

Courts have described the purposes of voir dire as (1) to develop rapport between the officers of the court and the jurors; (2) to expose juror bias or interest warranting a challenge for cause; and (3) to elicit information necessary to intelligently use peremptory challenges. Dhillon v. State, 138 S.W.3d 583, 587-88 (Tex. App.-Houston [14th Dist.] 2004, pet. stricken); S.D.G. v. State, 936 S.W.2d 371, 380 (Tex.App.-Houston [14th Dist.] 1996, pet. denied). A trial court may impose reasonable restrictions on the exercise of voir dire examination, including reasonable limits on the amount of time each party can question the jury panel. Caldwell v. State, 818 S.W.2d 790, 793 (Tex.Crim.App.1991), overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex.Crim.App. 1995); Ratliff v. State, 690 S.W.2d 597, 597 (Tex.Crim.App.1985). We...