Hernandez v. State, No. 03-04-00356-CR (TX 1/26/2006)
| Decision Date | 26 January 2006 |
| Docket Number | No. 03-04-00356-CR.,03-04-00356-CR. |
| Parties | JOHN ANTHONY HERNANDEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
Appeal from the District Court of Comal County, 22nd Judicial District, No. CR2004-066, Honorable Jack H. Robison, Judge Presiding.
Affirmed.
Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
John Anthony Hernandez appeals his conviction for engaging in organized criminal activity. See Tex. Pen. Code Ann. § 71.02(a)(1) (West Supp. 2005). Finding that appellant had a prior felony conviction and with an affirmative finding of a deadly weapon, the jury assessed punishment at 55 years' imprisonment and a $10,000 fine. In nine issues, appellant challenges the trial court's (i) admission of evidence relating to gang membership, (ii) refusal to order a witness to testify after invoking his Fifth Amendment privilege, (iii) appointment of a substitute judge for two days of trial, and (iv) erroneous charge. Because the trial court did not commit reversible error, we affirm the judgment of conviction.
Because appellant does not challenge the sufficiency of the evidence, we will summarize the relevant evidence. The evidence at trial showed that on the night of April 28, 2002, Pablo Esquivel was fatally stabbed by assailants sitting in an automobile. Esquivel and his wife, Amelia, had spent the afternoon cleaning and mowing their property which was located on a dead-end street in an area of New Braunfels that had been abandoned after it had flooded in 1998. Because the area was no longer inhabited, there was no lighting and little traffic. Esquivel and other residents had moved to nearby neighborhoods following the flood. On the evening of April 28, Esquivel and some relatives were preparing barbeque at the property. They observed a car drive by, turn around at the end of the street, and leave; minutes later, it returned again to the dead-end portion of the street, turned around and then stopped in front of Esquivel's property.
Witnesses observed Esquivel approach the car with a flashlight. He appeared to recognize the vehicle's occupants and began to converse with them. In response to an inaudible comment from an occupant in the car, Esquivel responded in Spanish, "Oh, it's you." He turned the flashlight off and, leaning on the car, spoke to the car's occupants. Because the area was dark, the relatives could not see inside the car. Although they could not hear the conversation, they observed that there was no shouting and the conversation did not appear to be heated. After a brief conversation, Esquivel uttered a swear word, fell back, and threw a beer can at the car. He staggered to his car and fell to the ground. The vehicle sped away, spinning its tires. Witnesses observed that Esquivel had been stabbed and was bleeding profusely. As relatives ran to a nearby house to call an ambulance and others tried to render aid, Esquivel died. They gave a description of the vehicle to the police.
Approximately an hour later, after police had been alerted to the description of the car, a New Braunfels police officer stopped a vehicle matching the description for a traffic violation. Appellant, who owned the car, was driving. Santiago Suarez was in the passenger seat, and Daniel Correa was in the back seat. Pursuant to appellant's consent and a search warrant, police recovered a folding knife and a Leatherman tool from the center console area that appeared to have been recently rinsed off, cash in the amount of $5,540 located in a fishing tackle box in the car's trunk, and an envelope from appellant's pocket containing $690.96. The envelope had bloodstains on it. As they placed appellant under arrest, the officers observed bloodstains on appellant's pants.
The scientific evidence at trial showed that there were no latent fingerprints on the knife or Leatherman tool, and that samples obtained from the folding knife and the bloodstains on appellant's pants revealed DNA consistent with that of the deceased. Karen Scalise, a forensic DNA analyst with the Texas Department of Public Safety crime lab in Austin, testified that "there was no doubt in [her] mind" that Esquivel's DNA was on the knife blade. Others testified that appellant and Correa were members of the Mexican Mafia, that Suarez was a prospective member, and that they were looking for a nephew of the deceased who owed appellant a drug debt.
Appellant, Correa, and Suarez were indicted separately. On May 17, 2004, the first day of appellant's trial, Correa pleaded guilty to murder. In his plea agreement, he judicially confessed that, "acting as a party with John Anthony Hernandez and Santiago Suarez Jr.," he did knowingly and intentionally murder Pablo Esquivel. Suarez had not pleaded guilty at the time of appellant's trial. Both Correa and Suarez invoked their Fifth Amendment privileges against testifying. Asserting that Correa had waived his rights against self-incrimination by pleading guilty, appellant asked the trial court to order him to testify. The court declined. Suarez's statements were introduced through the cross-examination of a police officer and the introduction by the defense of videotapes of his statements.
Because a toxicology report showed that the deceased had drugs in his body and Suarez admitted to the actual stabbing, appellant attempted at trial to show that Suarez committed the murder which may have been provoked by Esquivel. He sought to show that Suarez acted alone and that appellant did not anticipate the stabbing and that, in the alternative, the stabbing was done in self-defense.
The jury found appellant guilty of engaging in organized criminal activity by conspiring to intentionally and knowingly cause the death of Pablo Esquivel by stabbing or cutting him with a knife. The jury made a special finding that appellant used or exhibited a deadly weapon during the commission of the offense.
Appellant's first six issues all relate to the admissibility of evidence to which we apply an abuse of discretion standard of review. See Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). The trial court has wide discretion in determining the admissibility of evidence. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). The trial court's rulings should be sustained on appeal if correct on any theory of law applicable to the case. Weatherred v. State, 975 S.W.2d 323, 323 (Tex. Crim. App. 1998). A trial court abuses its discretion when its decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1991); Montgomery, 810 S.W.2d at 391 (op. on reh'g).
We first address appellant's fourth and fifth issues in which he challenges the admission of the expert testimony of Anita Seamans, a sergeant with the Live Oak Police Department, and Enrique Sanchez, a deputy with the Comal County Sheriff's Office. Specifically, appellant contends that neither witness "demonstrated adequate training or experience to qualify as an expert for the purposes of Rule 702." See Tex. R. Evid. 702. Appellant urges that neither expert had specialized knowledge and that their testimony permitted the jury to convict appellant solely on the basis of guilt by association. After hearings outside the presence of the jury,1 the district court found both officers to have specialized knowledge regarding gang identification as required by Rule 702 and allowed them to testify. See id.
The State urges that appellant waived any error because he failed to object to the admissibility of the same testimony through other witnesses and because the trial court gave a curative instruction regarding a portion of the testimony. Even if we assume that appellant failed to object to the same or similar testimony through lay witnesses, we cannot conclude that he has waived the issue. Texas courts have long recognized that experts can have a potentially prejudicial influence on juries. Whether or not designated as an expert in the presence of the jury, a witness appearing to testify on matters of expertise often appears inherently more credible to the jury than does a lay witness. Consequently, a jury may more readily accept the opinion of a qualified witness testifying on matters of expertise. E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 553 (Tex. 1995). We conclude that appellant did not waive error. We will consider the curative instruction in a separate issue.
The qualification of an expert witness is within the trial court's discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). Rule 702 permits a witness qualified by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would assist the trier of fact in understanding or determining a fact issue. Tex. R. Evid. 702. An expert's opinion must be more than "subjective belief or unsupported speculation," but need not reach the level of "known to a certainty" to be admissible. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 590 (1993); Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998). The inquiry is a flexible one. Daubert, 509 U.S. at 593. Rule 702 contains two initial hurdles that must be overcome before expert testimony will be admissible: the proponent of the testimony must establish that the expert's specialized knowledge will aid the trier of fact, and that the expert is qualified to testify on the subject. See Tex. R. Evid. 702.
Under the first prong, an expert's opinion should be based on specialized knowledge that is relevant to the facts in issue, and sufficiently reliable for the expert's testimony to assist the trier of fact. Roise v. State, 7 S.W.3d 225, 234 (Tex. App.-Austin 1999, pet....
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