Perez v. State, No. 01-05-00611-CR (Tex. App. 5/25/2006)

• Decision Date: 25 May 2006
• Docket Number: No. 01-05-00611-CR.,01-05-00611-CR.
• Court: Texas Court of Appeals
• Parties: MANUAL PEREZ, Appellant<SMALL><SUP>1</SUP></SMALL> v. THE STATE OF TEXAS, Appellee.

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MANUAL PEREZ, Appellant¹ v. THE STATE OF TEXAS, Appellee.

No. 01-05-00611-CR.

Court of Appeals of Texas, First District, Houston.

Opinion issued May 25, 2006.

On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 987689.

Panel consists of Justices TAFT, HIGLEY, and BLAND.

MEMORANDUM OPINION

TIM TAFT, Justice.

A jury convicted appellant, Manual Perez, of murder and assessed punishment at 30 years in prison. See TEX. PEN. CODE ANN. 19.02 (Vernon 2003). We determine (1) whether the trial court abused its discretion by overruling appellant's motion for mistrial regarding an eyewitness in-court identification procedure and (2) whether the trial court erred by refusing appellant's request to include the lesser-included offense of manslaughter in the jury charge. We affirm the judgment of the trial court.

Background

On May 13, 2004, appellant and his girlfriend, Charlotte Jones, attended a party with neighbors Elvira Hernandez, Gloria Escobedo, Jose Perales, and Hilario Mejia at their apartment complex. Jones left the party, but appellant remained downstairs at the barbeque until approximately 6:30 p.m.

At approximately 9:00 p.m., Hernandez and Escobedo were upstairs in their apartment and decided to go to the store to buy more beer. Escobedo explained that she walked out of her apartment's front door, followed by Hernandez, and that appellant was in the hallway. Before Escobedo reached the top of the stairwell, she heard two shots, turned, and saw Hernandez on the floor. Appellant was standing behind Escobedo with a gun. Escobedo then testified that "[appellant] looked at [Escobedo] and he looked back down at [Hernandez] and he shot a third time . . . ." Escobedo explained that appellant stepped over Hernandez's body, walked past Escobedo close enough to "rub shoulders," and walked down the stairwell.

At trial, Escobedo had difficulty identifying appellant in the courtroom. The State asked Escobedo if she saw appellant sitting in the courtroom. Escobedo was hearing impaired and needed a sign-language interpreter to testify. She also had retinitis pigmentosa, an eye disease that prevented her from seeing at a distance. The trial court allowed Escobedo to step down from the witness stand to take a closer look at the people sitting in the courtroom. Escobedo identified a man sitting in the audience as the murderer. The State then showed Escobedo a photograph of appellant, State's Exhibit 13, which she correctly identified as appellant. The trial court then ordered appellant to remove his glasses and to stand closer to Escobedo so that she could get a good look at him. Defense counsel objected because Escobedo was being directed to go to a certain person after she had been given the opportunity to walk around and to identify appellant and could not. The trial court overruled the objection. Escobedo then correctly identified appellant. Appellant moved for a mistrial because of the in-court identification procedure and controversy over a sign signal that Escobedo had used. The trial court denied appellant's motion for mistrial.

Perales testified that appellant had walked downstairs carrying a gun immediately after the shots had been fired and had told Mejia and Perales that he had shot Hernandez. Evidence was also introduced that, at the time of his arrest, appellant was in possession of the weapon shown at trial to have been used to shoot Hernandez and that he had gunshot residue on both hands, indicating that he had recently fired a firearm.

Appellant testified that he and Escobedo had been neighbors for a year. Prior to the night that Hernandez was killed, appellant claimed, that on three occasions when she was drunk, Hernandez had tried to steal his money and had tried to beat him. Appellant testified that after he had left the party, Hernandez approached him, making accusations about a broken table and threatening to kill him with a knife. At that time, appellant was inside his apartment and Hernandez was in the hallway outside his apartment. Appellant testified that he went inside his apartment to get his gun just to scare Hernandez, not to kill her. Appellant admitted that he shot Hernandez four times. Appellant requested charges on the lesser-included offenses of manslaughter and negligent homicide,² but the trial court denied his request.

In-Court Identification Procedure

In his first point of error, appellant contends that "the trial court erred in overruling [appellant's] motion for mistrial after the only eyewitness failed to identify him and the prosecutor pointed him out for the witness and asked her to identify him again in front of the jury." Specifically, appellant complains that the in-court identification procedure employed during Escobedo's testimony was impermissibly suggestive and so prejudicial to appellant that the trial court should have granted his motion for mistrial.

We review a trial court's denial of a motion for a mistrial under an abuse-of-discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is an extreme remedy for prejudicial events that occur at trial and should be exceedingly uncommon. Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jurors and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). The grant of a mistrial should not be a common remedy, and even when a prosecutor intentionally elicits testimony or produces other evidence before the jury that is excludable at the defendant's option, our law prefers that the trial continue. Bauder, 921 S.W.2d at 698.

Appellant relies primarily on Loserth v. State to support his argument that the in-court identification procedure was suggestive and was therefore improper. See id., 963 S.W.2d 770 (Tex. Crim. App. 1998). In Loserth, the court held that the witness's pre-trial identification was suggestive, therefore tainting the witness's in-court testimony. Id. at 771. Although appellant cites to cases that apply the two-part test in Loserth, he does not complain on appeal that Escobedo's pre-trial identification of him was based on an impermissibly suggestive procedure, but, rather, that Escobedo's in-court identification was the result of an impermissibly suggestive procedure. Therefore, the central question is whether the trial court abused its discretion by requiring appellant to stand and to take off his glasses so that Escobedo could correctly identify him. See Guerrero v. State, 838 S.W.2d 929, 932 (Tex. App.-El Paso 1992, no pet.).

Escobedo was first asked to identify generally her neighbor of one year, appellant, in the courtroom. However, Escobedo was not able to identify appellant from the witness stand because she could not see at far distances due to her eye disease. The trial court allowed Escobedo to walk around the courtroom to identify appellant. She identified a man in the audience who was not appellant. The State showed Escobedo State's Exhibit 13 which was a picture of appellant. She correctly identified appellant as the person in the photograph. The State asked the trial court to allow the man in the audience to stand next to appellant to see if she could identify which was appellant. Appellant's counsel objected, stating:

[APPELLANT'S COUNSEL]: Your Honor, I'm going to object as to [sic] she was already given the opportunity to walk around and see if she could identify the defendant. She has not been able to and now she's been directed to go to a certain person.

[COURT]: All right. I'm going to overrule that objection because she walked behind counsel table to a man in the audience and looked at him. And I did not see her look at anybody at counsel table. I'm also going to order him to take off his glasses.

[APPELLANT'S COUNSEL]: Your Honor, I'm going to object as to the interpreter is pointing to the defendant so obviously, she's going to ID him.

The trial court ordered appellant to stand and to remove his eyeglasses. The State asked Escobedo if she recognized appellant. The sign-language interpreter stated that Escobedo signed, "I don't have a really good look at his face. And that could be [appellant]. It looks like him." Appellant's counsel objected, stating, "Judge, I'm objecting. [Escobedo] had no response when the interpreter was making—she said `It looks like him.' She at no point—she was standing right in front of me, never did she say anything looks like him." The trial court excused the jury from the courtroom and questioned the interpreter under oath about whether the interpreter had translated the answer based on Escobedo's answer. The interpreter said that that had been Escobedo's answer and showed the trial court the hand signal that Escobedo had signed. Appellant's counsel objected and moved for mistrial. The trial court denied appellant's motion for mistrial. Appellant elected not to file a motion to suppress any in-court identification.

The jury was brought back into the courtroom, and the State continued to question Escobedo and asked whether "the man in the white shirt" was appellant. Escobedo responded, "That's [appellant]. That's the person. I can see—I had a chance to see him. So yes, I do know that is him." The State asked that the record reflect that Escobedo had identified appellant. Appellant made no further objections regarding Escobedo's in-court identification of him.

The Court of Criminal Appeals held in Moore v. State that stringent procedures for in-court identifications are not required. Moore v. State , 424 S.W.2d 443, 444-45 (Tex. Crim. App. 1968); see Wrenn v. State, 478 S.W.2d 98, 100 (Tex. Crim. App. 1972) (holding that district court is "not required to hold an in-court lineup or to force the state to furnish multi-person confrontations during the...