Ortiz v. State, 08-90-00363-CR

• Decision Date: 26 February 1992
• Docket Number: No. 08-90-00363-CR,08-90-00363-CR
• Citation: 825 S.W.2d 537
• Parties: Francisco ORTIZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 537

825 S.W.2d 537

Francisco ORTIZ, Appellant, v. The STATE of Texas, Appellee.

No. 08-90-00363-CR.

Court of Appeals of Texas El Paso.

Feb. 26, 1992.

Norbert J. Garney, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. of El Paso County, El Paso, for state.

Before WOODARD, KOEHLER and BARAJAS, JJ.

OPINION

KOEHLER, Justice.

A jury convicted Francisco Ortiz, Appellant, of aggravated sexual assault and assessed punishment at 65 years' imprisonment. In five points of error, Appellant seeks review of the trial court's judgment. We affirm.

In Point of Error No. One, Appellant contends the trial court abused its discretion in failing to grant his motion for continuance. In Points of Error Nos. Two through Five, Appellant argues that the trial court abused its discretion in the admission of various types of evidence. The underlying facts of the case, in brief, indicate that Appellant and others abducted the two complaining witnesses (G______ and M______) at knife point, took the victims to a nearby house, locked the exits, thwarted attempted escapes, forced them to ingest illicit drugs and sexually abused both victims orally, vaginally and rectally. After being released hours later, the victims went home and later contacted the authorities.

In his first point of error, Appellant argues the trial court erred in not granting his written motion for continuance following his claim of surprise as a result of the introduction of previously undisclosed inculpatory evidence. Initially, we note that reversal of a trial court's denial of an accused's motion for continuance is required only upon a showing that the court abused its discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex.Crim.App.1982), cert denied, 462 U.S. 1144, 103 S.Ct. 3128, 77 L.Ed.2d 1379 (1983). In attempting to show that the trial court abused its discretion, Appellant contends that the State unexpectedly introduced testimony indicating G______ identified Appellant as one of her assailants in a series of photo lineups which entitled him to a continuance pursuant to Tex.Code Crim.Pro.Ann. art. 29.13 (Vernon 1989).

The record reveals Appellant filed a motion for discovery approximately two months prior to trial, but no ruling appears of record. Immediately prior to trial, the court ordered the State to reveal any lineups to Appellant during the pending lunch break and asked Appellant whether he wished a continuance to which his counsel stated, "I'll have to reserve that until the evidence is brought forward." Subsequently, the jury was selected, sworn and sent to lunch. After lunch, the trial began without further mention of the continuance offered by the trial court. On the following day, G______ took the stand and identified both Appellant and his codefendant as two of the numerous actors who assaulted her repeatedly. She also testified about photo lineups conducted by a sheriff's department investigator. Appellant's codefendant cross-examined G______ attempting to impeach her on how she assigned names to the individuals she selected from the lineups.

Next, the investigator began to explain the photo lineups and testified that a photo of Appellant's twin brother was used in the lineups. Appellant obtained a hearing outside the presence of the jury and objected on the grounds of surprise alleging that the information regarding the identifications by G______ was not made available to him until immediately prior to trial. Appellant argued that the surprise revelation that his twin had been a part of the lineups was "just devastating inculpatory evidence that has been withheld from me...." Appellant also argued that he would need more time to prepare for trial and moved for a continuance which was overruled.

Subsequently, the investigator continued to explain how the lineups were conducted. She testified that out of seven photo lineups, G______ identified four suspects, including Appellant--but specifically excluding his twin brother. Appellant's trial preparation apparently included the potential defensive theory of misidentification, but he was unaware that G______ had specifically excluded the twin as a suspect. Thus, Appellant's anticipated misidentification defense was diminished. After another bench conference, the court ruled that he would allow the investigator to continue to testify about the presence of the twin in lineups. The investigator then testified that G______ specifically eliminated the twin because his eyes were different than Appellant's.

After the State passed the witness, both Appellant and his codefendant declined to cross-examine the investigator arguing they needed more time to prepare due to the surprise testimony eliminating the twin as a suspect. Again, the court overruled the motion for a continuance. Subsequently, the State rested, and the codefendants moved for a mistrial due to the surprise testimony and also moved for directed verdicts. After the motions were overruled, the codefendants rested, and both the State and defense closed.

Appellant asserts that the photo lineups were added to the file after he had reviewed the State's file without further notice to Appellant's counsel. He argues that such a failure of the State (compounded by the trial court's admission of the testimony) served to deprive him of a fair trial absent a continuance. We disagree. Appellant does not argue that the State intentionally failed to disclose the information, nor does he cite any authority which would require the State to notify him of the contested evidence on its own initiative. We again note that Appellant's motion for discovery seeking such evidence was not ruled upon by the court.

After trial begins, a continuance may be granted pursuant to Tex.Code Crim.Pro.Ann. art 29.13 if (1) an unexpected event occurs which (2) could not have been anticipated through the exercise of reasonable diligence to the extent that (3) the surprise precludes the existence of a fair trial. Due to the absence of an order on Appellant's discovery motion, we conclude that reasonable diligence of obtaining such an order would have provided adequate opportunity to view the State's file, discern the presence of the lineups, and thereby eliminate any surprise or unexpected occurrence. See Williams v. State, 768 S.W.2d 337, 341 (Tex.App.--Houston [14th Dist.] 1989, pet. ref'd). Moreover, the court specifically asked Appellant, in a pretrial hearing the day before the evidence was introduced, if he needed more time to prepare considering the anticipated disclosure of such evidence as contemporaneously ordered by the court. Appellant declined the invitation and attempted to "reserve" that option. Since the trial court did not authorize or condone such a reservation, we find it to be of no effect. Consequently, the trial court did not abuse its discretion as no "unexpected" or "surprising" event occurred during trial which warranted a continuance. Id. As a result, Appellant's first point of error is overruled.

The remaining points of error contend that the trial court abused its discretion in admitting various types of evidence. The standard of review requires us to apply the following rules to each of these points. Texas Rules of Criminal Evidence 103(a) states that "[e]rror may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected,...." See also Tex.R.App.P. 81(b)(2). Evidence which has a tendency to make the existence of any consequential fact more or less probable is generally admissible. Tex.R.Crim.Evid. 401, 402. However, Rule 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, ... or needless presentation of cumulative evidence." The trial court is provided wide discretion in liberally construing the rules of evidence to determine the admissibility of evidence. Egger v. State, 817 S.W.2d 183, 185 (Tex.App.--El Paso 1991, pet. ref'd). To be successful, Appellant must demonstrate that the court clearly abused its discretion by acting arbitrarily and unreasonably, without reference to any guiding rules or principles. See Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.--Amarillo 1991, pet. ref'd).

In Point of Error No. Two, Appellant contends that the trial court erred in admitting prejudicial, inflammatory and irrelevant testimony of his affiliation with a gang. Prior to trial, Appellant obtained a motion in limine forbidding the State to introduce such evidence. The testimony was elicited from the sheriff's department investigator who stated she was aware of some people in El Paso County involved in a gang called Ortiz 13. She did not, however, explicitly say that Appellant was a member of that gang. While Appellant objected to admission of the testimony as being both irrelevant and inflammatory when offered by the investigator, the testimony had previously been admitted without objection in the testimony of G______. During the previous admission of the evidence, G______ testified, "Ortiz [Appellant] screamed at me that he's the boss there, Ortiz 13." It was this testimony, not that of the investigator, that expressly linked Appellant to the gang, and it was admitted without objection. The prior admission of this more harmful evidence serves as a procedural default by Appellant which waives error, if any, to the subsequent introduction of such testimony because an objection is required every time inadmissible evidence is presented. Johnson v. State, 803 S.W.2d 272, 291 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991). Without necessitating application of the rules of evidence, Point of Error No. Two is overruled.

In Point of Error No. Three, Appellant argues the trial court erred in admitting testimony of the arresting officer that Appellant was wanted in connection with outstanding aggravated sexual assault warrants. After trial had begun,...