De La Paz v. State

• Decision Date: 25 March 2009
• Docket Number: No. PD-0292-08.,No. PD-0295-08.,PD-0292-08.,PD-0295-08.
• Citation: 279 S.W.3d 336
• Parties: Mark DE LA PAZ, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

279 S.W.3d 336

Mark DE LA PAZ, Appellant v. The STATE of Texas.

No. PD-0292-08.

No. PD-0295-08.

Court of Criminal Appeals of Texas.

March 25, 2009.

April Elaine Smith, Mesquite, for Appellant.

Kristin C. Hagge, Assistant District Atty., Dallas, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

Appellant, a former Dallas Police Department Narcotics detective, was convicted of (1) tampering with physical evidence for knowingly making false statements in a police report, and (2) aggravated perjury for making the same false statements under oath. The court of appeals reversed the convictions, holding that the trial court's admission of extraneous-offense evidence violated Rule of Evidence 404(b) and was harmful.¹ We granted review to address the application of Rule 404(b) in this context.² We find that the extraneous offenses were admissible to prove a fact of consequence-appellant's knowledge that his statements were false when he made them.

I.

A. The State's Case: The Arrest of Jose Vega

The events that led to appellant's conviction arose out of the wrongful arrest of Jose Vega. Roberto Gonzalez, who had already been convicted for his part in Vega's wrongful arrest, testified that he and appellant's confidential informant, Daniel Alonso, manufactured fake drugs³ and then planted them in a Cadillac parked at the garage where Jose Vega worked. The next day, he and Alonso met appellant and another officer at a 7-11 to arrange a "buy-bust" deal. Appellant did not search either of them or their car. Gonzalez and Alonso then drove to the garage. Appellant, and his partner, Eddie Herrera, followed in appellant's red Chevy truck to do "moving surveillance."

According to Gonzalez, Alonso got out of the car alone and walked into the garage bay where Vega was working under a van. Shortly thereafter, Alonso walked out of the bay, over to the garage restroom, and then back to the car. A surveillance videotape set up across from the garage, also captured the events: Alonso got out of his car, walked into the bay, and then turned left out of sight for about twenty seconds. He then walked out and around to an outside bathroom. Alonso then came back to his car and, with Gonzalez in the passenger seat, drove off. The tape also showed appellant and his partner driving by twice.

Back at the 7-11, Alonso delivered two of the fake kilos to appellant. Appellant paid Alonso for his work, and Alonso in turn paid Gonzalez $300. Appellant called in a report that Alonso had just purchased two kilos of cocaine from Vega and that there was more in the Cadillac parked outside the garage. This report was called in to "a direct entry clerk" to obtain a warrant. Uniformed officers appeared and arrested Vega, and then, in a search pursuant to the warrant, police found the rest of the "cocaine" in the Cadillac.

In both a supplemental police report⁴ and under oath at a previous trial,⁵ appellant testified that, as he and his partner drove by the garage, he observed Alonso come into contact with Vega inside the garage bay. No one else witnessed that contact. Vega testified that he was working under a van the entire time; he never even knew Alonso was in the garage. Gonzalez testified that Vega was under a van the entire time. Herrera testified that, although he saw Alonso walk into the bay, he lost sight of him as they drove away. The video operator, Detective Ledbetter, testified he did not see (nor did the video show) Alonso come into contact with anyone. He said he could not see into the bay from his camera angle: "There's just no angle that you could get there that you could see straight into that bay." Herrera testified that, after Vega's arrest came under scrutiny, appellant asked him to lie to Public Integrity and to stick to the story in the police report-that they actually saw the contact between Alonso and Vega inside the bay. After he was shown the surveillance video, Herrera knew "that there was no way they were going to believe that." Nevertheless, out of loyalty to his partner and friend, Herrera perjured himself when he testified before the grand jury. By the time of trial, he was cooperating with the State and hoping that his felony charges would be dismissed. On cross-examination, defense counsel intimated that Herrera was also cooperating because he wanted his old police job back.

B. Appellant's Defense

Appellant's defense was that his statements were true because he saw the contact between Alonso and Vega. Therefore, he had no intent to deceive, as is required for aggravated perjury, and he made no false police report, as is required for tampering with physical evidence.

Appellant put on evidence of an out-of-court experiment: photographs taken from the street into the garage bay to show that it was possible for him to have seen Vega and Alonso making contact. These photographs were taken by a defense investigator and they show the investigator's father standing approximately three feet inside the garage bay. Appellant testified that he saw Alonso and Vega making contact as they stood about three or four feet inside the garage bay.

Q. Tell the jury — when you started looking back, tell the jury what you're seeing going on.

A. As I'm driving, I'm making sure there's not a car coming towards me. And then as I'm getting up there, I turn back around for a brief second, and then that's when I see Daniel Alonso walk right inside the bay of the garage.

Q. Okay. And how far did you see him go inside the garage?

A. It was — he just made the turn and came in maybe about three or four feet. It was maybe real close in there. He wasn't all the way to the back. He was right there at the front of the bay.

Q. Okay. And when you saw him at that location, did you see anything else?

A. Yes, I did. I saw a Hispanic male wearing a blue work shirt and he looked-dark hair and a mustache. That's all I saw.

Q. Okay. And how long did you have this vision of Daniel Alonso and this other person?

A. I just had it for a brief-a brief moment. As soon as I saw him come in contact, then I went back around.

Appellant said that he wrote the statement about Alonso and Vega coming into contact in his report for his "recollection when I go to testify in court." He said that his purpose was to tell the truth, and that he "was not trying to influence anything." He also denied telling Herrera to "stick with" his story.

On cross-examination appellant said that, although it turned out that Alonso had set Vega up with fake "cocaine," he did not make a false statement in the police report or testify falsely because he did see Alonso come into contact with Vega in the garage bay. Appellant said that the photos his investigator took of his father standing in the bay "show that you could see someone inside there." Appellant accused Vega and Herrera of lying.

C. The State's Proffer of Extraneous Offenses and the Trial Court's Ruling and Limiting Instruction.

After the defense rested, the State proffered evidence of two of appellant's other "buy-bust" deals. In each, appellant's police report stated that he witnessed either the exchange of drugs or the contact between the confidential informant and the suspect. The State contended that these police reports were false and that, in each instance, appellant did not see what he said he saw. The State argued that the extraneous offenses, which occurred very close in time to the charged offense, were admissible to rebut "the defensive theory that our witnesses lied in the Vega case." Appellant objected that the extraneous offenses were not admissible to rebut appellant's general denial of the offense, or to rebut any defensive theory that the State's witnesses were lying, because it was the State that elicited appellant's testimony that Vega and Herrera were liars. Thus, evidence of the two other "buy-bust" deals was inadmissible under Rules 404(b) and 403.

The State responded that "the prosecutor didn't elicit the evidence. The Defense put on their theory that Mr. Delapaz is telling the truth and everybody else is lying. He raised that on his direct examination. All Mr. Shook did was further explore that." The trial court found "that the proffered evidence could tend to rebut a defensive theory. The probative value outweighs any prejudicial effect, and it will be admitted."

D. Evidence of the Extraneous "Buy-Bust" Deals.

Evidence of the extraneous offenses was then offered by six witnesses. First, a police officer testified about appellant's statements in two different police reports: In the first case, "AO Delapaz observed AP Amador place the cooler into the informant's vehicle"; and in the second, "Arresting Officers Delapaz and Herrera were conducting surveillance at the location and observed Arrestee Hernandez come in contact with the confidential informant." After that testimony, the court orally instructed the jury:

The evidence the State is now offering is being admitted for the limited purpose to rebut a defensive theory that the State's witnesses lied. You cannot consider this evidence unless you first find and believe beyond a reasonable doubt that the defendant committed such other offenses if any were committed.

1. Roberto Amador

Roberto Amador testified that he was wrongfully arrested on June 6, 2001, when he went to talk to someone who had called him about buying his wrecker, which was in a transmission shop bay getting fixed. The caller who was appellant's confidential informant (C.I.) Jose Ruiz-arrived, walked around the wrecker, and then went outside and made a phone call. As he was talking on the phone, police arrived and made everyone in the shop stand up against the wall. They arrested Amador and let everyone else go. Amador testified that he never made a drug deal with Ruiz; he never walked near Ruiz' Explorer; and he never took...