Delacerda v. State

• Decision Date: 21 July 2011
• Docket Number: No. 01–09–00972–CR.,01–09–00972–CR.
• Parties: Rogelio DELACERDA, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

425 S.W.3d 367

Rogelio DELACERDA, Appellant

v.The STATE of Texas, Appellee.

No. 01–09–00972–CR.

Court of Appeals of Texas,

Houston (1st Dist.).

July 21, 2011.

Leah M. Borg, Houston, TX, for Appellant.

Lisa G. Porter, Assistant District Attorney, Harris County Criminal Justice Center, Patricia R. Lykos, Harris County District Attorney, Houston, TX, for Appellee.

Panel consists of Justices KEYES, SHARP, and MASSENGALE.

OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Rogelio Delacerda, of murder and assessed punishment at thirty-five years' confinement and a $10,000 fine.¹ In twelve issues, appellant contends that the trial court (1) lacked jurisdiction due to an allegedly invalid order assuming jurisdiction from the juvenile court; (2) erroneously allowed the State to ask improper commitment questions during voir dire; (3) failed to pronounce that a defense exhibit was admitted, which precluded the jury from having all the evidence during deliberations; (4) and (5) erroneously permitted an officer to characterize an interview with appellant, conducted while he was a juvenile, as “not helpful” and erroneously denied appellant's motion for mistrial relating to the officer's testimony; (6) erroneously permitted an officer to testify regarding a statement by a witness made while viewing a photospread; (7) erroneously admitted three photographs located in the autopsy report without the proper predicate; (8) erroneously denied appellant's requested accomplice-witness jury charge instruction; (9) erroneously overruled appellant's objection to the transferred intent instruction in the charge; (10) erroneously denied appellant's motion for mistrial after the State mentioned a hearsay statement not introduced in evidence during its closing argument; (11) erroneously permitted an officer, during the punishment phase, to testify regarding the national criminal activity of the Latin Kings gang, without showing any connection to appellant; and (12) erroneously denied appellant's motion for mistrial after the State described the activities of the Latin Kings and called appellant a “gangster” during its punishment-phase closing argument.

We affirm.

Background

On January 21, 1997, the complainant, seventeen year old Jesus “Robert” Contreras, was walking home from Stephen F. Austin High School in southeast Houston with his twin brother, Albert, and their friends, Gene Cantu, Raul Rodriguez, Chris Aviles, and Julio Lara. As the group walked home on Dumble Street, a newer-model navy blue truck drove past. Albert Contreras testified that he saw three people inside the truck—a male driver, a male passenger, and a female sitting in between—and one person lying in the truck bed, who kept “popping his head up.” Albert stated that he recognized the person in the back of the truck as someone whom he had seen around school two or three times, but he did not know his name. Albert testified that no one in his group said anything to the truck's occupants as they drove past, but the truck stopped and the passenger looked at the boys after the truck had driven by. Albert did not recognize the passenger as a fellow student.

The truck continued down Dumble and turned right onto Polk Street. As the boys crossed the intersection of Dumble and Polk, Albert saw that the truck had stopped and the person in the back of the truck was speaking to the people in the truck's cab. Albert testified that the truck made a U-turn and turned back onto Dumble, driving in the same direction that the boys were walking, and passed the boys as they reached a tire shop. At the tire shop, the passenger pulled out a gun and shot approximately five or six times at the group. After the passenger stopped shooting and the truck drove away, Albert looked for his brother and found him underneath a piece of plywood, leaning against the wall of the tire shop. Robert had a gunshot wound to his left lower back and died later that night at the hospital. Albert testified that neither he nor his brother was involved in a gang and that neither of them had had any altercations with other students at school in the week before the shooting. The State did not ask Albert on direct examination whether he viewed a police photospread or whether he identified anyone in that photospread.

On cross-examination, Albert testified that he told police that he thought he could identify the person in the back of the truck as someone he had seen at school.² Houston Police Department (HPD) Officer P. Guerrero showed Albert a photospread. When asked on cross-examination if he could identify anyone in the photospread, he responded that he did not recognize the person whom he saw in the back of the truck. Albert also stated that when he viewed the photospread he did not recognize the people in the cab of the truck, nor did he recognize the shooter. On redirect, Albert testified that he did not remember identifying the person in the back of the truck when the police showed him the photospread. The next morning, the State recalled Albert and asked him to identify the photospread that he viewed. Albert identified his signature on the second page of the display, which was located next to the position of the second picture. Albert reiterated that he could not recall identifying anyone in the display.

Raul Rodriguez testified that he recognized the passenger as someone with whom he thought he had gone to middle school, and he stated that, although the passenger was Hispanic, he had distinctive “Asian-looking” eyes. Raul acknowledged that, at the time of the shooting, he, Julio, who was shot in the leg during this altercation, and Gene were all members of a neighborhood gang called PSV, located in the Second Ward. To Raul's knowledge, neither Robert nor Albert Contreras was a member. At trial, Raul identified appellant as the shooter.³

Carlos Martinez, who also attended school with Robert and his friends, testified that after school on the day of the shooting he met up with his friends, David Cruz and Tommy Barron, to get a ride home. He testified that, as they were waiting for their ride, David showed them a gun that he had in his waistband. Carlos stated that David's cousin picked them up in a truck and that he was accompanied by a male passenger and a female sitting in between; Carlos did not know any of the people in the truck. Carlos testified that he, David, and Tommy all jumped in the back of the truck and lay down. At one point, Carlos heard someone in the front of the truck ask David “Is that them?” and he heard David reply, “I think so.” Carlos did not look to see to whom they were referring. While they were in the truck, Carlos saw David hand a gun to the passenger. Carlos testified that he was scared and did not know what was about to happen. Carlos then testified that he heard the passenger ask David “if he wanted [the passenger] to shoot at him,” and after David responded, “I don't know,” Carlos heard gunshots. Carlos stated that no one in the bed of the truck fired a gun.

After the shooting, the driver dropped the boys off at a park, and the passenger handed the gun to David. Carlos stated he had no idea that a shooting was going to happen and that he “caught a ride with the wrong people that day.” Carlos testified that when he initially spoke to the police he told them that David was the shooter because David had told Carlos and Tommy that he “didn't want nobody to take the blame for him.” However, later on the same day that he gave this statement, Carlos told police that the passenger was the shooter.

On cross-examination, Carlos stated that he knew David had been having trouble with PSV members and that David had a gun with him on the day of the shooting. He also stated that, after they were already in the back of the truck, he heard David say, “Now you're going to learn about drive-bys.” Carlos testified that he knew what this meant but that it was too late for him to get out of the truck. Carlos also testified that, the Friday before the shooting, David had told Tommy that he and his friend had been beaten up by PSV members and that David was going to “pop a cap at,” or shoot, those involved. Carlos further testified that after he had given his first statement to police, in which he named David as the shooter, he asked the officer driving him home what would happen if he had lied in his statement and the officer replied that he would be in “big trouble.” At this point, Carlos decided, on his own, to “tell the truth” because he did not want to get into trouble. When Carlos spoke to the officers a second time, he named appellant as the shooter.

David Cruz testified that on the Friday before the shooting he and one of his friends were walking home when they were “jumped” by approximately twenty to thirty PSV members. After this incident, David called his cousin, Jose Carreon, told him that he was having problems with people from school, and asked Jose if he could take him home from school the next week. On Saturday, Jose and appellant came to David's house to talk about the situation and to offer advice and support. David testified that appellant gave him a gun “for protection.” David brought the gun to school on Tuesday, January 21, and showed it to his friend Edgar, who had been involved in the incident on the previous Friday. David could not recall if he showed the gun to anyone else. He stated that right before school let out on Tuesday he had another altercation and was chased by a group of unnamed boys.

David testified that Jose, accompanied by his girlfriend, Emily Hugo, who owned the truck, and appellant, picked him up from school. When they arrived, appellant asked David for the gun, and, after he handed it over, David climbed in the back of the truck with Tommy and Carlos. David stated that the three boys were lying down in the back because they did not want other students to see where they lived, and he gave directions to Jose while lying down. After...