Pantoja v. State

• Decision Date: 09 June 2016
• Docket Number: NO. 02–15–00204–CR, NO. 02–15–00205–CR,02–15–00204–CR
• Citation: 496 S.W.3d 186
• Parties: Rigoberto Pantoja, Appellant v. The State of Texas, State
• Court: Texas Court of Appeals

496 S.W.3d 186

Rigoberto Pantoja, Appellant

v.The State of Texas, State

NO. 02–15–00204–CR

NO. 02–15–00205–CR

Court of Appeals of Texas, Fort Worth.

Delivered: June 9, 2016

Rehearing Overruled June 30, 2016.

Discretionary Review Refused October 5, 2016

Richard Henderson, Richard Henderson, P.C., Fort Worth, for Appellant.

Sharen Wilson, Dist. Atty., Debra Windsor, Asst. Dist. Atty., Chief, Post-Conviction, Andy Porter, Kevin Boneberg, Anndi Risinger, Asst. Crim. Dist. Attys., Fort Worth, for the State of Texas.

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

OPINION

SUE WALKER

, JUSTICE

I. INTRODUCTION

Appellant Rigoberto Pantoja pleaded guilty to the offenses of aggravated assault and attempted capital murder. A jury assessed his punishment at twenty years' confinement and sixty years' confinement, respectively, and the trial court sentenced him accordingly. Pantoja perfected this appeal, raising two issues: (1) the trial court abused its discretion by permitting the State to cross-examine Pantoja's father concerning images on Pantoja's cell phone, and (2) the trial court erred by not granting Pantoja's motion for new trial because the sixty-year sentence Pantoja received constitutes cruel and unusual punishment. We will affirm the trial court's judgment for the reasons set forth below.

II. FACTUAL AND PROCEDURAL OVERVIEW

One evening in September 2014, Pantoja gathered with friends to watch a prize fight involving Floyd Mayweather. After using alcohol and cocaine at the party and afterwards, Pantoja and some of his friends from the party ended up at a mobile home park in Mansfield, Texas. They were joined by a few individuals already at the mobile home park. This group included Pantoja, Luis Romero, Javier Martinez, Eduardo Vazquez, Francisco Curiel, and Hector Salinas. At around midnight, Pantoja started “talking crazy,” pulled out a gun, and fired twice, striking Curiel in the face with one of the shots. Pantoja then put his gun to Salinas's head and pulled the trigger, but the gun was out of bullets so Pantoja pulled out a knife and stabbed Martinez three times in the neck. Pantoja then attacked Romero, cutting Romero's neck with the knife. The police and ambulance personnel arrived, and Curiel, Martinez, and Romero all survived their injuries.

After Pantoja pleaded guilty to the offenses of aggravated assault and attempted capital murder, the case proceeded to a jury trial on punishment. The State called twelve witnesses; Pantoja called four members of his family to testify on his behalf. They explained that Pantoja is a loving and caring brother, son, and uncle. Pictures showing Pantoja in this capacity were introduced before the jury. Pantoja had filed an application requesting community supervision in both cases, and the jury was charged on that issue in both cases. As set forth above, the jury returned verdicts assessing Pantoja's punishment at twenty years' confinement and sixty years' confinement for the offenses of aggravated assault and attempted capital murder, respectively.

III. CROSS–EXAMINATION REGARDING IMAGES FOUND ON CELL PHONE

In his first issue, Pantoja asserts that the trial court should have sustained his objections to the State's cross-examination of Pantoja's father regarding images found on Pantoja's cell phone depicting “satanic, cocaine use, guns, and other prejudicial images.” Specifically, Pantoja argues on appeal that these images had “no relevance whatsoever to the case” under Texas Rules of Evidence 401

and 402 and that the State's references to these images at trial “were highly and unduly prejudicial.”¹

A. Pertinent Facts

Immediately before the defense called Pantoja's father Jose to testify, and outside the presence of the jury, the State indicated that it intended to cross-examine Jose regarding images obtained from Pantoja's cell phone. The prosecutor explained that he had shown the images to defense counsel and summarized the issue to the trial court as follows:

The content of the phone contained those photos, which I have shown to Defense counsel. So it's our argument, Judge, I believe, and Defense counsel even said it on opening, that he has a strong Catholic faith. And, you know, obviously, the angle with putting up family members is an argument that he is a good person. I believe Defense counsel intends, from what he showed me just briefly here, introducing some photographs in which are depicted items of his faith, and I think those are questions that Defense may intend exploring—areas that he may intend exploring.

So it's become relevant on a number of levels. It's relevant certainly to punishment because of his character for being a peaceful, law-abiding citizen when you have depicted on his personal cell phone items of drug sales, drug use, as well as that of his counter to what Defense argument—what Defense has already raised, a strong Catholic faith, the items of satanic worship. So we believe that these are areas for proper exploration in cross-examination of his character witnesses and in punishment.

After further argument from defense counsel and the prosecutor, the trial court ultimately instructed the prosecutor to “whenever you are ready to ask the questions, approach up here and then I'll make a ruling at that time.”

The jury returned to the courtroom, and the defense called Jose to testify. Jose testified on direct examination that Pantoja is his nineteen-year-old son. Jose testified that Pantoja lived at home with his parents. Pantoja worked and helped his parents with expenses and chores around the house. Jose said that Pantoja had never exhibited signs of violence and that he had no knowledge of any drugs or guns kept by Pantoja in the family's home. Jose identified photos that were admitted into evidence of Pantoja at his first communion with his two sisters, of Pantoja's bedroom showing pictures of the Lady of Guadalupe and other saints hanging on the bedroom walls, and the car Pantoja used to drive with a rosary hanging off of the rearview mirror. Jose identified other family photos of Pantoja as a child and as an adult at the swimming pool with his nephew. Jose testified that he was surprised when he learned of this case involving his son and that he thought his son was not the person “who did that.” He agreed that he tried to raise his son “better than that.”

The State proceeded with its cross-examination of Jose and after several questions asked to approach the bench; the prosecutor obtained a ruling from the trial court that he could “ask [Jose] if he's aware” that Pantoja had pictures of drugs, guns, and satanic worship on his cell phone. The actual images from Pantoja's cell phone—State's Exhibits 67–78—were not admitted into evidence and are not part of the appellate record; the jury did not see them. Instead, on cross-examination of Jose, the State simply asked him to review State's Exhibits 67–78 and queried whether he was aware that his son kept pictures of cocaine, guns, other items associated with the use and sale of narcotics, and satanic worship on his phone. Jose answered, “No.” The entire exchange before the jury is set forth below:

Q. [PROSECUTOR]: Sir, I'm going to show you State's Exhibit 67 through 78, and I want you to look through these to—just look through them, if you could, please.

THE COURT: Just look at them.

Q. [PROSECUTOR]: Now, sir, were you aware or did you know that your son kept pictures of cocaine, guns and other items associated with the use and sale of narcotics?

[DEFENSE COUNSEL]: Your Honor, I'm going to object at this time. There's—he's asking for facts that are not in evidence and, you know, he's asking is he aware. Still our objection is these things are unauthenticated; they're hearsay and irrelevant.

THE COURT: I'll overrule that objection. He can answer if he knows.

THE WITNESS: No.

Q. [PROSECUTOR]: Sir, were you aware that your son kept pictures of satanic worship on his cell phone?

A. No.

B. The Law Concerning Cross–Examination of a Character Witness at Punishment

Article 37.07, section 3(a) of the Texas Code of Criminal Procedure

governs the admissibility of evidence during the punishment phase of a noncapital case. Sims v. State, 273 S.W.3d 291, 295 (Tex.Crim.App.2008) ; see Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp.2015). Article 37.07, section 3(a)(1) provides that

evidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and ... any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1)

. The definition of “relevant” as stated in rule 401 does not readily apply to article 37.07. Sims, 273 S.W.3d at 295 ; see

Hayden v. State, 296 S.W.3d 549, 552 (Tex.Crim.App.2009) (“Borrowing from the definition of ‘relevant’ in Texas Rule of Evidence 401 is of little avail because the factfinder's role during the guilt phase is different from its role during the punishment phase.”). Evidence is “relevant” to a punishment determination if that evidence will assist the factfinder in tailoring an appropriate sentence in a particular case. Sims, 273 S.W.3d at 295 ; see

Henderson v. State, 29 S.W.3d 616, 626 (Tex.App.—Houston [1st Dist.] 2000, pet. ref'd) (“[T]he plain language of article 37.07, section 3(a) indicates that evidence of a defendant's conduct may be admissible even if the conduct does not constitute an offense or bad act.”). When a defendant requests community supervision—as Pantoja did here—a trial court may reasonably deem any character trait that pertains to the defendant's...