In re E.O.E.

• Decision Date: 05 May 2016
• Docket Number: No. 08–14–00144–CV,08–14–00144–CV
• Citation: 508 S.W.3d 613
• Parties: IN the MATTER OF E.O.E., A Juvenile.
• Court: Texas Court of Appeals

508 S.W.3d 613

IN the MATTER OF E.O.E., A Juvenile.

No. 08–14–00144–CV

Court of Appeals of Texas, El Paso.

May 5, 2016

Jo Anne Bernal, El Paso, TX, for Appellee.

Jose Salayandia, Quinonez & Salayandia Law Firm, PLLC, El Paso, TX, for Appellant.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

The State charged E.O.E., with the offense of aggravated assault with the use of a deadly weapon pursuant to Section 53.045 of the Texas Family Code. A jury trial was held on February 11, 2014, in which a jury found him to have engaged in delinquent conduct. E.O.E. now appeals the jury's finding. He brings four issues for review, arguing that the trial court erred when it denied his: (1) self-defense instruction to the jury; (2) motion to suppress; (3) motion for mistrial due to alleged Brady violations; and (4) motion for a new trial based on alleged claims of prosecutorial misconduct. For the reasons that follow, we affirm.

Factual Background

The Fight

An altercation over alcohol arose between E.O.E. and Jorge Quinones at a house party on June 30, 2013. E.O.E. became argumentative and aggressive when Quinones denied him access to the ice chest containing the alcohol. He confronted Quinones, stating that "he didn't give a f* *k, he didn't care what anybody said and whoever got in his face, he was going to f* *k everybody up." This verbal exchange escalated into a physical fight when E.O.E. punched Quinones first, but missed. The fight began at the main entrance of the home, moved to the parking lot, and eventually into the street. Quinones testified that he was protecting his family when the fight began. Quinones noticed at some point during the fight that E.O.E. pulled a knife and began swinging it at him. Quinones told E.O.E. to put the knife down so that they could fight "hand in hand, no knifes [sic]," but E.O.E. continued swinging the knife at Quinones. When the party moved into the street, E.O.E. and his friends threw rocks at Quinones. Quinones explained that he continued chasing E.O.E. and his friends away from the house in order to protect his family. Once the fight was over, Quinones noticed that he had been stabbed in his abdomen. Quinones gave his statement to the police on September 13, 2013, in which he referred to E.O.E. as the "fat kid, six, one, heavy, dark skin, about 17 years old, very short hair." He was unable to make a positive identification in any photo lineups.

Appellant's Arrest

Officer Jesus Munoz received a call around midnight regarding a fight in progress and arrived at the scene shortly thereafter. The radio dispatch indicated that some of the individuals fled the scene. Officer Munoz spoke with Quinones who indicated that he was involved in a physical altercation in which he was stabbed. Quinones gave Officer Munoz a description of his attacker. He described the person as a "Hispanic juvenile," of medium build, and provided Officer Munoz with a clothing description. Officer Munoz immediately dispatched this description over his radio to other officers in the surrounding area, but failed to later include the description in his written report. Officer Rodolfo Moreno received Officer Munoz's dispatch call concerning a fight involving weapons on the corner of Elm St. and Porter Ave. He was already in the vicinity of where the fight occurred when he received the call. The dispatch call he initially heard did not indicate that there had been a stabbing. As he approached the intersection, Officer Moreno encountered E.O.E. along with two other juveniles walking eastbound on Porter Ave. The trio were located only three or four houses away from the house where the fight occurred, and were walking away from the scene. When the two juveniles accompanying E.O.E. noticed Officer Moreno, they fled southbound while E.O.E. continued walking eastbound. As Officer Moreno approached E.O.E. in his vehicle, he noticed that E.O.E. kept looking over his shoulder and reaching for his back pocket with his left hand. Officer Moreno testified that he was concerned that E.O.E. might be carrying a weapon given the nature of the dispatch call. E.O.E. initially refused to stop at Officer Moreno's request, but finally did so after the third request. Once he stopped, he voluntarily raised his hands in the air and walked toward Officer Moreno, sweating profusely. According to Officer Moreno, the profuse sweating indicated that he was either running or had just finished doing something physical. When Officer Moreno asked E.O.E. what he was doing and where he was coming from, the juvenile responded: "[We] were just walking by some party and there were—some guys were trying to jump [us], like beat [us] up and that's why [we] were running away from the property." Officer Moreno testified both at the suppression hearing and at trial that E.O.E.'s response, his vicinity to the fight, the time of night, and his consistent efforts to reach for his back pocket caused him to become suspicious of his activities. Accordingly, Officer Moreno conducted a pat down and found a knife in the juvenile's back left pocket. When Officer Moreno asked E.O.E. what was in his pocket, he responded, "I think it's a knife." Officer Moreno secured the knife onto his belt and continued questioning. While attempting to contact E.O.E.'s mother, Officer Moreno received an update over the radio indicating that there was a stabbing where the fight took place. Another officer who was at the fight scene—Officer Argomedo—contacted Officer Moreno on the radio to ask him if he still had a subject detained, to which Officer Moreno responded in the affirmative. Officer Argomedo asked for a clothing description and Officer Moreno told him the suspect was wearing a "red top, black pants," and Officer Argomedo instructed Officer Moreno to "hold onto [the subject]." Officer Argomedo met Officer Moreno at the street location where Officer Moreno stopped E.O.E. to confirm that he was indeed the suspect they were looking for.

Officer Moreno's 2008 Incident

At the conclusion of Officer Moreno's trial testimony, E.O.E. inquired into his involvement in an on-duty shooting that occurred in 2008. The trial court conducted a bill of review outside the presence of the jury. Officer Moreno was working undercover at a 7–Eleven on East Yandell in El Paso, Texas, along with his partner. The two officers were patrolling the block when they heard gunshots coming from the store. Officer Moreno and his partner went immediately to the store. Inside, they encountered the suspect with a gun. Officer Moreno's partner instructed the suspect repeatedly to put his weapon down, but instead, the suspect pointed his gun toward Officer Moreno. Both Officer Moreno and his partner opened fire on the suspect. The Internal Affairs division of the El Paso Police Department (EPPD) conducted an investigation of the shooting pursuant to their protocol. No criminal charges were filed, and EPPD neither sanctioned nor brought any disciplinary actions against Officer Moreno. The deceased shooter's wife, however, brought a civil lawsuit against Officer Moreno. Officer Moreno initially testified during trial, prior to the bill of review, that he was found "not guilty" in that suit. He also referenced a jury trial, and indicated that his "charges were dropped." However, Officer Moreno's bill of review testimony indicated that the civil lawsuit was in fact dismissed with prejudice, and Officer Moreno never went before any kind of jury, civil or criminal, and no charges whatsoever were ever filed.

DNA Expert Kathy Serrano's Testimony

Kathy Serrano testified at trial as an expert witness in DNA testing and analysis. Serrano conducted a presumptive blood test on the knife retrieved from E.O.E. to determine whether blood existed on the knife. Her analysis detected blood on the knife and she documented her findings in her forensic biology laboratory report. On cross-examination, E.O.E. inquired into the absence of the knife photographs contained in Serrano's report. Serrano testified that while she took photographs of the knife in this case, she did not include them in her report. She went on to indicate that her typical process for most cases involved producing the report without the photographs. Serrano explained that she only provided the photographs upon request because they were part of her case notes and not part of her final findings or report. When the State attempted to show the photographs to Serrano, E.O.E. objected on the ground that the State's actions of withholding the photographs constituted a Brady violation. E.O.E. conducted voir dire to inquire further into the issue. At the time the court issued the discovery order addressing both the Brady material and the expert witness disclosures, the State had no knowledge that the photographs existed. It was not until a pretrial hearing, held ten days before trial, that the State came into possession of the knife photographs. E.O.E. then moved for mistrial and requested that the trial court strike Serrano's testimony. The State responded that the motion for mistrial should be denied because the photographs had not been admitted into evidence and the jury had not even seen them yet. The trial court ultimately sustained E.O.E. objection to the photographs, but denied the motion for mistrial. It then struck Serrano's entire testimony from the record and instructed the jury to disregard it.

SELF–DEFENSE INSTRUCTION

In his first issue, E.O.E. contends the trial court erred by not including a self-defense instruction to the jury. "When reviewing a trial court's decision to deny a requested defensive instruction, we view the evidence in the light most favorable to the defendant's requested submission." Lee v. State, 442 S.W.3d 569, 576–77 (Tex.App.–San Antonio 2014), citing Bufkin v. State, 207 S.W.3d 779, 782 (Tex.Crim.App.2006). In analyzing a charge issue, our first determination is whether error exists in the charge. Id. at 576–77, ...