Moreno v. State

• Decision Date: 29 August 2019
• Docket Number: No. 05-18-00271-CR,05-18-00271-CR
• Parties: Ricky MORENO, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

586 S.W.3d 472

Ricky MORENO, Appellant

v.The STATE of Texas, Appellee

No. 05-18-00271-CR

Court of Appeals of Texas, Dallas.

Opinion Filed August 29, 2019

Christi Dean, Assistant Public Defender, Dallas, TX 75207-4399, for Appellant.

Faith Johnson, Dallas County District Attorney, John Creuzot, Dallas County District Attorney, Kimberly Duncan, Assistant District Attorney, Lori Ordiway, Frank Crowley Courts Bldg., 133 N. Riverfront Blvd., LB 19, Dallas, TX 75207-4399, for Appellee.

Before Chief Justice Burns, Justice Myers, and Justice Molberg

Opinion by Justice Myers

A jury convicted appellant Ricky Moreno of aggravated kidnapping and assessed punishment at forty-five years' imprisonment and a $10,000 fine. In ten issues, appellant contends the evidence was (1) legally and (2) factually insufficient to support the jury's rejection of his affirmative defense of duress; (3) the evidence was legally insufficient to support the jury's rejection of his justification defense of necessity; (4) the trial court improperly instructed the jury on the law of parties; (5) the trial court erred in admitting video evidence; the trial court erred in excluding from the guilt–innocence phase testimony from (6) Dr. Lisa Clayton, (7) Dr. Michael Pittman, and (8) Detective Michael Yeric; (9) the trial court erred in denying appellant's pretrial motion to suppress; and (10) the sentence was disproportionate to appellant's conduct during the offense and punishments received by other bystanders. The State also brings a cross-point seeking modification of the judgment.

Based on the evidence the jury heard during the guilt–innocence phase of the trial, we conclude there is legally sufficient evidence supporting the jury's rejection of appellant's affirmative defense of duress and justification defense of necessity. However, we conclude the trial court erred in categorically excluding from the guilt–innocence phase appellant's proffered testimony from Detective Yeric and expert witnesses Dr. Pittman and Dr. Clayton, and we conclude appellant was harmed by this error. Accordingly, we reverse and remand.

BACKGROUND AND PROCEDURAL HISTORY

I. Guilt–Innocence

On the evening of July 1, 2016, Dallas Police Officer Jacob Deloof and other officers responded to a 911 call regarding a possible dead body in the backyard of a home located at 755 Elwayne Avenue. At first the officers did not see anything, but then they heard noise coming from a "finished, garage-type ... structure" that was located on the property. They received additional information about an armed suspect inside the structure, and officers surrounded it, set up a perimeter, and took cover. A man, Martin Armijo, exited the structure and fled on foot. While multiple officers chased Armijo, Officer Deloof entered the structure. He and other officers found an injured woman, Avigail Villanueva, holding a shirt to her head. There was a large laceration on her scalp

and there appeared to be blood on her face and blood running down her arms. Deloof testified that she was "hysterical," "physically shaking," and "she was extremely scared." He added that "[s]he was just extremely worried about her own safety and getting away from the situation." Officers took her outside, and medical professionals from Dallas Fire and Rescue cared for her. She was taken to the hospital for medical treatment.

Officer Kristen Greene was one of the officers who pursued Armijo. She jumped a fence to get to Jonelle Avenue, the street that was to the west of Elwayne, eventually seeing Armijo. He insisted he had done nothing wrong and claimed the real suspect, someone armed with a shotgun, had fled across the street. She held Armijo at gunpoint and waited for backup to arrive. He continued to insist the suspect had fled across the street and gone in a westbound direction.

Officers handcuffed Armijo and put him in a squad car. Officer Greene and her partner then returned to the garage-type structure and went inside, finding the dead body of complainant Jonathan Gutierrez. Officers secured the scene and called the medical examiner's office, the homicide division, and the crime scene division.¹

Justin O'Donnell, a crime scene analyst with the Dallas Police Department, and his supervisor, Maurice Thomas, photographed the crime scene and collected evidence. O'Donnell photographed the exterior of the property and the inside of the structure, observing and photographing what appeared to be blood on a computer tower, the floor, and the wall. O'Donnell also photographed Gutierrez's body. He had injuries on his arms and head, and his hands were bound with duct tape. O'Donnell observed and photographed a bottle of bleach, which he did not collect but swabbed for possible DNA evidence. He photographed an assault rifle found inside the structure near Gutierrez's body. He also collected two handguns, an "Essex Arms .45 auto" and a "Kimber .45 caliber semiautomatic handgun," and gun magazines.

Outside the structure, O'Donnell photographed two articles of clothing, a pair of shorts and a black shirt. He observed, photographed, and collected a baseball bat found at the crime scene. A folding knife was found under a bed and also collected as evidence. Thomas likewise processed trash bags found outside the structure.

Growing up in the Pleasant Grove area of Dallas, Texas, Villanueva met Jonathan Gutierrez when she was thirteen years old. They dated for a couple of years and broke up, but they got back together when Villanueva turned eighteen years of age. They had five children together. They lost custody of their children in 2014 because of their drug addictions, and the four oldest were placed in the custody of Villanueva's mother while Gutierrez's mother took custody of the youngest child. Villanueva and Gutierrez ended their relationship in 2015.

Villanueva, like Gutierrez, was a methamphetamine and heroin user, and Villanueva regularly bought and used drugs at the garage-type structure of Thomas Johnson (also known as "T"), which was located behind his parents' home at 755 Elwayne Avenue in Dallas, Texas. Villanueva met Martin Armijo there, and they dated for five or six months. When they broke up, Armijo told Villanueva he did not want to have anything to do with her and to stop texting and calling him. Villanueva testified that Armijo had a reputation in the community for being violent, and he encouraged that reputation.

On July 1, 2016, Villanueva wanted to get some heroin and methamphetamine. She planned to go to Johnson's neighborhood to look for it because that was the only place where she knew she could find it. But before going, she contacted Armijo because he had previously told her that if he ever saw her in the neighborhood without him, he would beat her. Fearing she would "bump into" Armijo, she texted him "to see where he was." He responded, "I got your BD [baby daddy] with me." Armijo then called her and the first thing Villanueva said to him was, "[W]hat are you talking about?" He answered, "I got Jonathan with me." Villanueva recalled that "nothing bad at all" "popped into my head" at first; she merely thought the two men had become friends. But then Armijo said, "I been having him for the past couple hours." Not sure what that meant, Villanueva asked: "[W]hat do you mean for the past couple hours? What do you mean you been having him?" And Armijo said, "Yeah, I got him right here." Villanueva told Armijo she still did not know what he was talking about, and he explained that he had been torturing Gutierrez, also known as "Spook," "for the past couple hours." Villanueva testified that she was so shocked she could not say anything. Armijo then asked her where she was, and Villanueva lied. She said she was at her mother's house because she "was scared of what he was going to think or do if he found out where I was—where I really was."

Villanueva immediately called her mother, who was at the bank, to find out where she was, and Armijo called on the other line and told her to "come outside." This led Villanueva to believe Armijo was at her mother's house in Mesquite, Texas, so she lied again, telling him she was with her mother. Armijo answered, "Well, I'm outside," and he said that he could "do federal time for what I'm doing." Armijo again asked her where she was, and Villanueva said she was with her mother, that she would call him when they were finished, and that her mother would take her to him.

Villanueva recalled that, probably thirty to forty-five minutes later, she called Armijo and told him her mother would not take her to Johnson's apartment, but she would drive her to a nearby gas station. At that point, Villanueva was about two blocks from that gas station, and she could hear Armijo on the phone telling appellant Ricky Moreno to grab the keys and go pick her up at the gas station. Appellant arrived alone at the gas station a few minutes later.

Villanueva testified that she had known appellant for "[a] few years," and she frequently saw him at Johnson's house or in the neighborhood. After appellant picked her up at the gas station, she asked him what was going on, and he said Armijo "had been having Jonathan since that night before." Villanueva told him that Armijo had said he "only had him for a few hours," and it looked like appellant "kind of got scared that I told him that." She said that appellant "told me not to tell Martin what he told me." She went inside the gas station to get something to drink, and after she got back in the car, she asked appellant, "How bad was it? Was it something serious?" He "kind of told me, he was like, ‘Yeah, yeah.’ " They drove to another gas station where appellant cashed some lottery tickets because he wanted to buy cigarettes, after which they drove to 755 Elwayne Avenue. Asked to describe appellant's demeanor, Villanueva thought "[h]e looked kind of nervous." She also recalled that he "kept smoking cigarettes on the way over" and "really didn't say much."

When they pulled up in...