Hernandez v. State

Decision Date15 January 1997
Docket NumberNo. 10-95-325-CR,10-95-325-CR
Citation938 S.W.2d 503
PartiesJose Antonio HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Rick Davis, Bryan, for appellant.

Bill R. Turner, District Attorney, Stephen Keathley, Assistant District Attorney, Bryan, for appellee.

Before DAVIS, C.J., and CUMMINGS, and VANCE, JJ.

OPINION

CUMMINGS, Justice.

A jury convicted appellant, Jose Antonio Hernandez, on October 12, 1995, for offenses committed in April and September 1993. Hernandez was convicted of three counts of delivery of a controlled substance. 1 Punishment was assessed by the trial judge at ten years' incarceration in the Institutional Division of the Texas Department of Criminal Justice. In nine points of error, Hernandez contends: (1) tape recordings between Hernandez and an undercover narcotics officer were made in violation of the Texas Penal Code and were thereby erroneously admitted into evidence; (2) jury misconduct occurred when one juror translated the audio tapes from Spanish to English during jury deliberations; (3) the trial court erred in denying his objection to misjoinder and motion to sever; (4) and (5) the trial court erred by refusing to strike two venire members for cause; (6) the trial court erred by declining his request for additional preemptory challenges; (7) the evidence is factually insufficient to support the jury's rejection of the defense of entrapment; (8) the evidence is factually insufficient to support the jury's finding of guilt under the law of the parties for delivery of cocaine; and (9) the evidence is legally insufficient to show that, but for his conduct, the crime would not have occurred. We affirm.

I. FACTUAL BACKGROUND

Officer Ricardo Ledesma, an undercover agent with the Brazos Valley Narcotics Task Force, contacted Hernandez for the first time on April 15, 1993. Acting undercover, Officer Ledesma called Hernandez in order to purchase some marijuana and some cocaine. Officer Ledesma covertly recorded this conversation. During the conversation, Hernandez agreed to make arrangements for Officer Ledesma to purchase the drugs the next day. On April 16, Officer Ledesma, following Hernandez's instructions, traveled to four different locations before the sale of the marijuana and the cocaine was completed. Neither Hernandez nor any of the other men Officer Ledesma dealt with on April 16 were arrested at that time.

The other transaction for which Hernandez was indicted occurred on September 22, 1993. On this date Officer Ledesma contacted Hernandez by telephone, wanting to purchase a pound of marijuana, and again recorded the conversation. During this conversation, Hernandez and Officer Ledesma agreed to meet at a store in Bryan. After arriving at the agreed location in a white El Camino, Hernandez got into Officer Ledesma's vehicle and instructed him to drive to Hernandez's home where Hernandez exited the vehicle and directed Officer Ledesma to follow the El Camino. After purposefully becoming separated from the El Camino so as to alert the surveillance units to the change of plans, Officer Ledesma finally met Rudy Ramirez, the driver of the El Camino, in a deserted parking lot where the sale of the marijuana took place. After the sale was completed and Officer Ledesma and Ramirez left the scene, the surveillance officers stopped and arrested Ramirez. Hernandez was arrested at a later time the same day. From the time Hernandez first approached Officer Ledesma at the original meeting place to the end of the drug sale, Officer Ledesma recorded all the conversations.

Hernandez was charged with and convicted of two counts of delivery of marijuana, one occurring on April 16, 1993 and one occurring on September 22, 1993, and one count of delivery of cocaine which occurred on April 16, 1993. It is from these convictions that Hernandez appeals.

II. POINTS OF ERROR
A. Were the Tape Recordings Made by an Undercover Officer Admissible at Trial?

In his first point of error, Hernandez contends the tape recordings of the telephone conversations between Officer Ledesma and Hernandez and of the conversations which took place during the September 22 transaction were made in violation of the Texas Penal Code and were therefore erroneously admitted into evidence in contravention of the Code of Criminal Procedure and the United States and Texas Constitutions. U.S. CONST. amend. IV, XIV; TEX. CONST . art. I, § 9; TEX.CRIM. PROC.CODE ANN. art. 38.23(a) (Vernon Supp.1997).

Article 38.23 of the Code of Criminal Procedure provides that "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." TEX.CRIM. PROC.CODE ANN. art. 38.23(a). Under the current version of section 16.02 of the Penal Code, it is a second degree felony to unlawfully intercept any wire, oral or written communication. TEX. PENAL CODE ANN. § 16.02(b)(1), (f) (Vernon 1994). Section 16.02 as it is presently written does, however, provide an affirmative defense to prosecution if the person intercepting the communication is a party to the communication and is acting under color of law. Id. § 16.02(c)(3). While Hernandez concedes that the affirmative defense under section 16.02(c)(3) applies to Officer Ledesma, he nevertheless maintains that this affirmative defense does not make Officer Ledesma's actions lawful but merely provides an excuse for his criminal conduct, which still renders the intercepted communications inadmissible under article 38.23(a). Hernandez's argument is based on the current wording of section 16.02. 2 However, at the time of the alleged offenses, section 16.02(b) read, "[e]xcept as specifically provided by Subsection (c) of this section, a person commits an offense if he: [ ... ]" (emphasis added). 3 The statute then enumerated eleven exceptions as to when no violation of section 16.02(b) occurred. 4

The two versions of section 16.02 are distinguishable in that the circumstances which were considered "exceptions" in the previous version are now labeled "affirmative defenses," which in essence merely alters the burden of proof. When a penal statute expressly includes an exception to its violation, the State is required to negate the existence of the exception in the charging instrument and then prove beyond a reasonable doubt that the criminal conduct does not fall within the exception. TEX. PENAL CODE ANN. § 2.02(b) (Vernon 1994). Unlike an exception to an offense, the State bears no burden in regard to an affirmative defense. Id. § 2.04(b) (Vernon 1994). The defendant, to avoid criminal responsibility, must prove the affirmative defense by a preponderance of the evidence. Id. § 2.04(d). Because the version applicable to the present case contained statutory "exceptions" rather than "affirmative defenses," the rationale of Hernandez's argument is misplaced. 5

We must now decide if the tape recordings were made in violation of section 16.02(b) as it read in 1993. In Texas, a statute must apply in all cases not expressly excepted. Garcia v. State, 829 S.W.2d 796, 800 (Tex.Crim.App.1992); State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 600 (1957). The Amarillo court applied this rule of law to the same version of section 16.02 that is applicable to the present case. See Kent v. State, 809 S.W.2d 664, 668 (Tex.App.--Amarillo 1991, pet. ref'd). In Kent, the appellant's probation was revoked because he had violated section 16.02(b) of the Penal Code by having a tap placed on his estranged wife's telephone. Id. at 667. Despite the appellant's urging, the court refused to add an exception of interspousal wiretapping to section 16.02(b). Id. at 667-68. The court opined that "[t]he specification of exceptions makes plain the legislative intent that the statute should apply in all circumstances not excepted." Id. at 668. Logically, the converse is also true: where the legislature has expressly defined an exception to the operation of a statute, such exception must apply in all cases where the circumstances fall within it.

In the present case, Officer Ledesma's recording his conversations with Hernandez on each of three different occasions fell within one of the defined exceptions to section 16.02. 6 Former section 16.02(c)(3) reads, "It is an exception to the application of Subsection (b) of this section that a person acting under color of law intercepts a wire, oral, or electronic communication if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception." 7 When Officer Ledesma made the tape recordings, he was "acting under color of law" and was a party to the conversation. Consequently, the tape recordings were obtained lawfully and were properly admitted into evidence. Hernandez's first point of error is overruled.

B. Did Jury Misconduct Occur When a Juror Translated a

Tape Recording from Spanish to English During Jury

Deliberations?

In his second point, Hernandez contends the trial court erred in overruling his motion for new trial based on jury misconduct. Hernandez argues that a juror's translating one of the tape recordings from Spanish to English constituted jury misconduct because it resulted in new evidence being brought into the jury room.

This is a case of first impression in Texas; however, we are not without guidance. The Rules of Appellate Procedure provide that a defendant is entitled to a new trial "where after retiring to deliberate the jury has received other evidence ..." TEX.R.APP. P. 30(b)(7). It is well-settled that a juror may not relate details of the crime scene, learned after deliberations begin, which are not in evidence, Shivers v. State, 756 S.W.2d 442, 444 (Tex.App.--Houston [1st Dist.] 1988, no pet.), or his...

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