Gutierrez v. State

• Decision Date: 01 February 1989
• Docket Number: No. 68508,68508
• Citation: Gutierrez v. State, 764 S.W.2d 796 (Tex. Crim. App. 1989)
• Parties: Juan Manuel GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 796

764 S.W.2d 796

Juan Manuel GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.

No. 68508.

Court of Criminal Appeals of Texas En Banc.

Feb. 1, 1989.

Mike DeGeurin, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Larry Q. Urquhart and Jack Frels, Asst. Dist.

Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

Appellant was convicted of murder. The jury assessed punishment at twenty-five years' confinement. On original appeal to this Court, appellant raises three points of error. In one point of error, appellant alleges that the trial court erred in refusing him the opportunity to present impeachment evidence. In another point of error, appellant alleges that the trial court violated his Sixth Amendment right to confrontation by unduly restricting his cross-examination of a State's witness. Finally, appellant asserts that the trial court improperly overruled his motion for a new trial. Finding no merit in appellant's points of error, we affirm the conviction.

IMPEACHMENT EVIDENCE

In his second point of error, appellant contends that the trial court erred when it denied him the opportunity to present evidence impeaching the testimony of a State's witness.

Juan Antonio Adame was an eyewitness to the murder of his brother, Pedro Adame. Called by the State in the prosecution of appellant, Juan Adame testified that on the night of the murder he accompanied his brother to a lounge. While they were drinking with friends, appellant entered the lounge and asked to talk to Pedro. The two went outside. Juan followed his brother and appellant to the doorway and watched. He saw that appellant was standing approximately two feet from his brother when suddenly appellant took two steps backward, pulled out a gun and fired it four or five times, killing Pedro Adame.

During the presentation of the State's case-in-chief, and germane to the appellant's point of error, the prosecutor examined Juan Adame as follows:

"Q. Mr. Adame, when you went to your brother's body did you see any kind of weapon around him?

"A. There was nothing.

"Q. Did you see any kind of weapon?

"A. Nothing.

"Q. Did your brother even have a weapon that night?

"A. No.

"Q. Did your brother even carry a gun?

"A. No.

"[APPELLANT'S ATTORNEY]: Objection as to whether, Your Honor, that day or when, Your Honor.

"THE COURT: Set a time on it.

"QUESTIONS BY [STATE'S ATTORNEY] CONTINUED:

"Q. In the last year had you ever seen your brother carry a gun.

"A. No."

After the State rested, appellant sought to introduce the testimony of Angelita Ramirez. Before the jury, Angelita Ramirez was called to the stand and appellant's trial attorney asked, "What if anything, first attracted your attention to [Pedro Adame]?" The State's trial attorney objected on relevancy grounds and the trial court sustained the objection. The jury was excused from the courtroom and the following colloquy took place:

"[APPELLANT'S ATTORNEY]: Is the court telling me that I cannot ask this question as to whether or not she has of her own knowledge testimony to contradict testimony previous to this admitted before the court?

"THE COURT: You are asking a question that I can't answer....

"[APPELLANT'S ATTORNEY]: That's what you told me.

"THE COURT: Well, I can answer your question if you are attempting to develop evidence that at some time within the last year she has seen the deceased in this case carry a pistol, then I am sustaining the objection because that would be attempted impeachment on a collateral issue. No issue has been raised yet. There is not evidence that the deceased even had a pistol."

Appellant contends that the trial court impermissibly erred when it refused to allow him to present evidence that the victim had been seen carrying a pistol within the past year.

The State responds that, since the appellant never actually established the specific questions he intended to ask and the specific testimony to be elicited, he failed properly to preserve error. We disagree.

This Court has held that a defendant is not limited to any one method of showing what excluded testimony would have been. Moosavi v. State, 711 S.W.2d 53 (Tex.Cr.App.1986). In the instant case, appellant's attorney clearly explained to the trial court what Angelita Rodriguez' testimony would have been. Indeed, the trial court told appellant's trial counsel that "if you are attempting to develop evidence that at some time within the last year she had seen the deceased in this case carry a pistol, then I am sustaining the objection." The trial judge in this case certainly knew what he was excluding. Moosavi, 711 S.W.2d at 56. We find that trial counsel's concise statement as to the expected testimony of Angelita Rodriguez was sufficient to preserve error for our review.

The State also argues that the trial court properly excluded the proposed testimony as it was merely an attempt to impeach a witness on a collateral matter. We are compelled to agree.

It is improper to utilize extrinsic evidence to impeach a witness on collateral matters. McManus v. State, 591 S.W.2d 505, 524 (Tex.Cr.App.1979). The issue then is whether the matter sought to be introduced for impeachment purposes was collateral to the issues at trial; that is, "[c]ould the fact as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?" McCormick & Ray, Texas Practice, Evidence, Section 684, p. 527 (2d Ed.1956). See also, Keller v. State, 662 S.W.2d 362, 365 (Tex.Cr.App.1984); Bates v. State, 587 S.W.2d 121, 133 (Tex.Cr.App.1979). Appellant argues that the proposed testimony is not collateral as it is relevant to his theory of self-defense.

In a homicide case, when there is some evidence of an act on the part of the deceased sufficient to raise an issue as to whether the defendant justifiably caused the death in self-defense, evidence of both the general reputation of the deceased for being of violent or dangerous character, and prior specific acts of violent misconduct committed by the deceased which illustrate his violent character are admissible. Lowe v. State, 612 S.W.2d 579 (Tex.Cr.App.1981); Beecham v. State, 580 S.W.2d 588 (Tex.Cr.App.1979); Dempsey v. State, 159 Tex.Crim. 602, 266 S.W.2d 875 (1954). This type of evidence is admissible to either show the reasonableness of a defendant's claim of apprehension of danger or to show who was the aggressor at the time of the killing. Thompson v. State, 659 S.W.2d 649, 653 (Tex.Cr.App.1983). Appellant's proposed testimony shows neither.

Merely carrying a weapon is not per se a violent or aggressive act of and by itself. Thompson, 659 S.W.2d at 654. See also, Johnson v. State, 650 S.W.2d 414, 416 (Tex.Cr.App.1983). Thus, appellant's would-be evidence is not relevant to show that appellant was the aggressor at the time of the killing. Thompson, 659 S.W.2d at 654.

Moreover, the proposed testimony does not show the reasonableness of appellant's claim of apprehension of danger. The Texas Penal Code provides that a person is justified in using force against another when and to the degree "he reasonably believes the force is necessary to protect himself against the other's use or attempted use of force." V.T.C.A., Penal Code, Section 9.31. This provision squarely places the defendant's state of mind at the time of the homicide in issue; when it is invoked, the deceased's reputation for violence and commission of prior specific acts of violence which are known to the defendant are probative of whether the defendant reasonably believed the force he used was necessary to protect himself. Thompson, 659 S.W.2d at 654; Dempsey, 266 S.W.2d at 877. See also, Dixon v State, 634 S.W.2d 855 (Tex.Cr.App.1982). Angelita Ramirez' testimony in no way relates to appellant's knowledge at the time of the killing. Her testimony would have related only to what she observed at a time previous to the homicide. Her testimony, therefore, is collateral to any issues before the jury at appellant's trial.

The trial court did not err when it refused to admit the testimony of Angelita Ramirez as it would have constituted impeachment of a witness on a collateral matter. Appellant's second point of error is overruled.

RIGHT TO CONFRONTATION

In his first point of error, appellant contends his right to confront a State's witness was denied when the court restricted his cross-examination of the deceased's brother.

As stated previously, Juan Adame was an eyewitness to his brother's murder. After witnessing the shooting, Juan attempted to find appellant. He removed the truck key from his brother's pants pocket and pursued appellant in his brother's truck. He first went to pick up his son and a man named Lee Rodriguez. While searching for appellant the three were stopped by the police. Juan Adame and Lee Rodriguez were arrested for carrying a hand gun that was found behind the seat of the truck. Juan, however, was released after it was determined that the gun belonged to Rodriguez.

After Juan had testified to these events, appellant wanted to cross-examine him as to: (1) where he was when the police found the hand gun; (2) if Lee Rodriguez was on probation at the time of his arrest; (3) if Pedro Adame was on probation at the time of the killing; (4) why he did not go to a different door when he followed his brother and appellant outside the lounge; and, (5) whether his son was also arrested when the three were stopped while trying to find appellant. The trial court, however, sustained various objections made by the State and appellant moved onto other areas of inquiry. (Excerpts from the record, containing the questions asked, the State's objections thereto and the trial court's rulings, are set out in the appendix.) Appellant claims that the trial court's actions deprived him of his Sixth Amendment right to cross-examine a witness against him.

Cross-examination is the...