Ortiz v. State

• Decision Date: 10 August 2004
• Docket Number: No. 14-02-01101-CR.,14-02-01101-CR.
• Citation: 144 S.W.3d 225
• Parties: Raul ORTIZ, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

144 S.W.3d 225

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

No. 14-02-01101-CR.

Court of Appeals of Texas, Houston (14th Dist.).

August 10, 2004.

Appeal from the 262nd District Court, Harris County Ogden L. Bass, J.

James E. Lindeman, III, Houston, for Appellant.

Alan Curry, Houston, for State.

En Banc Court consists of Chief Justice HEDGES and Justices YATES, ANDERSON, HUDSON, FOWLER, EDELMAN, FROST, SEYMORE, and GUZMAN.

OPINION

J. HARVEY HUDSON, Justice.

Appellant, Raul Ortiz, was charged by indictment with murder. He was convicted by a jury of the lesser included offense of deadly conduct. The jury assessed punishment at confinement for seven years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. In three points of error, appellant contends the trial court erred (1) in charging the jury on deadly conduct as a lesser included offense to murder, (2) in failing to instruct the jury to disregard the State's improper jury argument, and (3) in failing to grant a mistrial due to the State's improper jury argument. We affirm.

Cesar Ramos celebrated his sixteenth birthday at a party held on the front porch of his parents' house. Invitation to the party was by word of mouth. Although Cesar was a minor, his father permitted him to serve beer and punch "spiked" with Everclear.¹

Monica Perez, one of Cesar's friends, arrived at the party at 6:00 p.m. with several of her friends. Appellant called Monica on her cell phone sometime after 9:00 p.m., and she told appellant she was at a party. Appellant arrived at the party with Miguel Ortiz, Roger Torres, and Robert Cervantes. Later that evening, a fight broke out between two girls. The fight was gang related, and Christine Ortuno, a friend of Monica's, was hit in the face because she was wearing a red shirt. The fight gradually escalated to a number of girls. During the melee, Cesar's friend, Anthony Hadnot, hit a guest, Anita Lopez, in the face when she allegedly attacked his girlfriend. Predictably, this spawned yet another dispute between, Anthony and Miguel Ortiz, who took umbrage at Anthony hitting a girl. Miguel then pulled out a semi-automatic pistol and pointed it at Anthony. Anthony foolishly told Miguel to shoot the gun. Miguel fired the gun in the air.

Rather than being intimidated by Miguel, the crowd grew angry and began pressing in on him. Perceiving they had overstayed their welcome, appellant, Miguel, Roger, and Robert retreated to appellant's car. As appellant drove away from the party, his car was showered with bottles thrown by the crowd. Appellant drove approximately one or two blocks, stopped the car, opened the driver's side door, pulled out a pistol, and fired several shots. Appellant then closed the door and drove away.

As the car drove away, Cesar noticed his younger brother, Edwin, laying on the ground. Edwin told Cesar that someone had hit him and raised his shirt. Cesar saw a "lump" on the surface of Edwin's stomach. Cesar and another person helped Edwin into the house where they laid him on a sofa. When Edwin started throwing up, they turned him over and discovered a bullet hole in his back. An ambulance was summoned, and although Edwin was still alive when the patrol officers arrived, he died shortly after being transported from the scene. The medical examiner testified that Edwin died of a gunshot wound to the chest. The bullet entered on the lower part of the left side of the chest, almost towards the back, lodging just under the skin on the right side of the chest.

The patrol officers recovered 3 spent nine-millimeter casings (two Eldorado casings and one Winchester) in the street about a block from the Ramos house. The officers also held those individuals who were still at the scene and separated witnesses for the purpose of taking statements. Officer Todd Miller of the Houston Police Department homicide division was able to develop a suspect. After obtaining appellant's name, Miller compiled a photo array, which included appellant's picture. Miller showed the photo array to Cesar and Monica; both identified appellant. Miller then obtained an arrest warrant for appellant. Appellant was arrested several days later at school.

After being advised of his legal rights, appellant waived those rights and agreed to make a formal statement. Appellant told police that when several people started throwing bottles at his car, Miguel pulled out a gun and pointed it at someone. Miguel then got in the car. When people continued throwing bottles at the car, Miguel stuck the gun outside the window and fired several shots. Appellant then drove the car a short distance away where he stopped. Appellant said that after he stopped the car, Miguel fired several more shots from the car. Appellant claimed that Miguel was the only person in the car with a gun.

Miller then separately interviewed Roger Torres and Robert Cervantes, who were in the car with appellant on the night of the shooting. Both Roger and Robert told Miller that appellant also fired shots from the car. Confronted with this discrepancy, appellant altered his account of what happened.

In his second statement, appellant admitted that after stopping the car, he retrieved a gun from under the seat. He claims he then fired two shots into the air. He reiterated, however, that Miguel fired his own pistol several more times directly into the crowd. The police subsequently recovered appellant's weapon, a 9 mm High Point, from his home. Thereafter, the police also recovered Miguel's weapon, a 9 mm Taurus.

The bullet recovered from the body of Edwin Ramos had insufficient land and groove impressions to positively link it to a weapon. However, ballistics tests eliminated Miguel's 9 mm Taurus as the murder weapon because test firings of that pistol produced well defined land and groove impressions that were not consistent with the faint impressions found on the bullet recovered from Edwin's body. The only other weapon fired at the scene of the murder was appellant's 9 mm High Point. Test firings of that weapon revealed that it made only very faint land and groove impressions. Because the land and groove impressions were so muted, the State's firearms examiner was not able to positively identify appellant's pistol as the murder weapon. However, because Miguel's weapon could not have fired the bullet recovered from the victim's body, circumstances strongly suggested that appellant fired the fatal shot.

Appellant was charged by indictment with murder. Included in the jury charge, however, was an instruction on the lesser included offense of deadly conduct. In his first point of error, appellant contends the trial court erred in submitting a charge on deadly conduct because the instruction does not meet the two-pronged test established in Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993). We find appellant's contention is without merit for a variety of reasons.

First, the etiology of the court's charge is not contained in the record before us. The record contains no suggestion as to why or how the deadly conduct instruction was included in the charge, and we have no way of discerning whether the instruction was requested by appellant's counsel, the prosecutor, or was included sua sponte by the trial court. It is well-established that a defendant cannot complain of error where he requested the charge given to the jury. Gutierrez v. State, 659 S.W.2d 423, 424 (Tex.Crim.App.1983); Hernandez v. State, 808 S.W.2d 536, 545 (Tex.App.-Waco 1991, no pet.); Henry v. State, 732 S.W.2d 443, 444 (Tex.App.-Beaumont 1987, no pet.). Thus, if appellant requested the charge at issue, no error is presented. Accordingly, appellant has failed to develop a record demonstrating the error being complained of on appeal.

We are aware that the Texas Court of Criminal Appeals has, in very broad language, absolved the defendant of presenting a record that demonstrates error. Rowell v. State, 66 S.W.3d 279, 281 (Tex.Crim.App.2001). There the court observed, "the appellant once bore the burden of presenting a record that demonstrated error, but the rule that so burdened him was revised in 1997." Id. Thus, the "current Rules do not assign a burden to either party, so the appellant could not have failed to satisfy it." Id. Despite this sweeping pronouncement, we do not believe the court intended so drastic a change in our jurisprudence as the literal language of its holding would suggest.

Under Rule 50(d) of the former rules of appellate procedure, the "burden [was] on the appellant, or other party seeking review, to see that a sufficient record [was] presented to show error requiring reversal."² Although simple in its terms, the rule was routinely cited for two distinctly different principles: (1) the party seeking review had the burden to develop a record demonstrating error in the court below, and (2) the party seeking review had the burden to deliver a record demonstrating error in the court below.³ It is clear under the new rules of appellate procedure that the "trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed." Tex.R.App. P. 35.3(c). Accordingly, the appellant is absolved of his former burden of transporting, delivering, filing, etc. the record with the appellate court. However, it is inconceivable that the appellant has also been relieved of his burden of developing a sufficient record in the trial court to demonstrate reversible error on appeal. For example, the new rules of appellate procedure still require preservation of error, i.e., "the record must show... by timely request, objection, or motion" that the trial court erred. Tex.R.App. P. 33.1. The rules also provide a procedure for perfecting a formal bill of exception. Tex.R.App. P. 33.2. Further, the Rules of Evidence require the proponent of evidence to make an offer of proof when the trial court excludes the evidence at issue. Tex.R....