Renteria v. State

• Decision Date: 04 October 2006
• Docket Number: No. AP-74829.,AP-74829.
• Citation: 206 S.W.3d 689
• Parties: David RENTERIA, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

206 S.W.3d 689

David RENTERIA, Appellant, v. The STATE of Texas.

No. AP-74829.

Court of Criminal Appeals of Texas.

October 4, 2006.

Rehearing Denied November 22, 2006.

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Scott Segall, El Paso, for appellant.

John L. Davis, Asst. D.A., J. Landon K. Schmidt, Asst. D.A., El Paso, Matthew Paul, State's Attorney, Austin, for state.

OPINION

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

A jury convicted appellant of murdering a child under the age of six years. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase. Appellant raises twenty-two points of error in this direct appeal. We will affirm in part and reverse in part.

Appellant was a 32 year-old registered sex offender on probation for committing an indecency offense against an eight-year-old girl when he was arrested for the murder of the five-year-old girl in this case. On November 18, 2001, this five-year-old victim disappeared from a Wal-Mart store where she was shopping with her parents. The next day, her nude, partially burned body with a partially burned plastic bag over her head was discovered in an alley sixteen miles from the Wal-Mart. When she was set on fire, she already had been manually strangled. The medical examiner testified that the victim also received two blows to her head. The medical examiner also testified that the victim could have been sexually assaulted, although he found no physical evidence of sexual assault.

Appellant's palm print matched a latent palm print that was lifted from the plastic bag covering the victim's head. A search of appellant's van revealed blood stains containing the victim's DNA. Appellant and his van were at the Wal-Mart when the victim disappeared. A Wal-Mart security guard briefly spoke to appellant, and Wal-Mart surveillance cameras showed a man wearing a light-colored hat, a dark shirt, and dark shorts walking out with the victim. Earlier that day appellant, wearing clothes very similar to those worn by the man walking out of the Wal-Mart store, had been at a nearby Sam's store with his father. While at Sam's, appellant purchased oranges, and the victim's autopsy revealed pieces of orange wedges in her stomach.

Appellant was arrested on December 3, 2001, and he gave a written custodial statement to the police. This statement was not admitted into evidence at appellant's trial. In this statement, appellant claimed that an "Azteca" gang member nicknamed "Flaco," whom appellant had known in jail, and several other persons, whom appellant did not know, were primarily responsible for the victim's murder. Appellant claimed that he helped these people commit the offense out of fear they would harm his family. He also claimed that his involvement in the offense was limited to luring the victim out of the Wal-Mart and helping "Flaco" and the others dispose of and burn her body after the others had murdered her. At the end of his December 3rd statement, appellant made what he characterizes as an expression of remorse.¹ Appellant stated:

First of all, I want to mention my deepest sympathy for the family. It is a tragedy that should never have happened, young or old. I want to say that my participation in this was due to the fact that I was in fear of my family's life. These guys just knew too much and they came at me full force. I was just looking for a way for my family not to be hurt. God I wish there was something I could do to make this different for everybody. Right now I am just hoping that my family will be protected from those that attempt to harm them. I am right now feeling deep confusion and not knowing what other person would have done in my shoes or circumstances. I hope that the individuals responsible are brought to justice. I hope that somebody out there does know a little bit more about this and does come out and forth.[²]

Appellant argues in his sixth point of error that he was denied the protections of the Sixth and Eighth Amendments and the Fourteenth Amendment's due process clause when, at the punishment phase of trial, the trial court would not permit him to use this remorse evidence during cross-examination of a State expert witness. The record from the punishment phase reflects that the State presented the expert testimony of Dr. Gripon, who testified, based on supported-by-the-record hypotheticals, that a person like appellant would be a future danger to society in part because this hypothetical person was unremorseful.

[THE STATE]: Now, what does it say about the hypothetical person [sic] regards to his feeling regarding others, the value of another person's life and being remorseful when the hypothetical person is — at nine o'clock the night of the violent murder is going to a convenience store only six-tenths of a mile from his house where he purchases two 32-ounce cans of beer?

[DR. GRIPON]: Well, assuming that that person appears no different than they normally do, it would raise the question as to rather [sic] what they've done has had any significant impact on them. So it would raise the question of whether the person feels remorseful or has any concern to any significant degree as to what they've done.

That's not a lot of information, and you don't have a lot to work with there, so that's kind of limited. But certainly it appears as though they're going on with their normal day-to-day activity even though they've had a rather extraordinary day.

[THE STATE]: Okay. Well, let me compound that with the morning after — after the violent murder the hypothetical person's probation officer pays him a visit, and she observes his behavior and sees nothing different than any other day.

[DR. GRIPON]: Well, that person would either have to be very well controlled and very well contained or have very little emotion generated by the actions of the day before. And I guess one conceivably — it's possible one could be that good an actor. But it really more reasonably raises the question as to really did all that have the impact that one would expect or probably hope for, but he would certainly lead you to believe that the events that preceded that didn't seem to have great impact on the individual.

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[THE STATE]: If I could just go back to the question regarding remorse. I talked to you about an incident at the 7-Eleven — at the convenience store; I'm sorry — at the convenience store and then the day after with the probation officer. And now 11 days after where the hypothetical person speaks with his therapist, and the therapist's observation is she finds him to be no different than any other day. What does that tell us about him being remorseful?

[DR. GRIPON]: Well, it tells us that at least outwardly there was no expression of anything that one could read or believe to be remorse, that that person appeared as best as that individual — and I don't know what their degree of assessment might be — but to the degree that they could assess them, and they knew them from before, that they appeared no different than they did before which would make you believe or lead you to believe or question whether there was any remorse.

The defense wanted to use the remorse evidence during its cross-examination of Gripon for the purpose of asking whether Gripon's opinion would change if the hypothetical person had expressed remorse. During a lengthy hearing outside the jury's presence on the admissibility of the remorse evidence, the defense claimed that the State had opened the door to its admission because the State's questioning of Gripon left the jury with a false impression that appellant had not expressed remorse (for example, the defense claimed that "since they have opened the door to claiming that he has never shown any remorse we are requesting that that statement come in and be able to cross-examine the doctor about the impact of that statement of his statement that there's no remorse"). The defense also claimed that, even if the State had not opened the door to the remorse evidence, this evidence nevertheless met the test of "relevancy" rendering it admissible, as a matter of federal constitutional law and as a matter of state statutory law, without regard to whether any other evidentiary rule (such as hearsay) excluded it (for example, the defense claimed "that the rules of hearsay do not apply in keeping out relevant information in front of this jury"). The trial court excluded the remorse evidence, but ruled that the defense could ask Gripon hypothetical questions concerning remorse.

The defense elicited testimony from Gripon that an expression of remorse by the hypothetical person "within, say two weeks of the alleged incident" would be "looked upon favorably, and it would tend to humanize this hypothetical individual, and it would tend to be a positive thing as opposed to the absence of remorse."

[DEFENSE]: All right. And with respect to this hypothetical person in the hypothetical question, if that person had shown some remorse within, say, two weeks of the alleged incident — or the hypothetical incident, would that change your perspective at all?

(The State objected to this question and the trial court overruled the State's objection)

[DR. GRIPON]: Well, you would have to consider that certainly. It might not change the — because there are many factors that play into whatever might have [sic] regarding that. But certainly, remorse would be looked upon favorably, and it would tend to humanize this hypothetical individual, and it would tend to be a positive thing as opposed to the absence of remorse.

During its closing jury arguments, the State emphasized that its hypothetical to Gripon was "complete" and later emphasized that appellant had not expressed "the slightest bit of remorse."

[STATE]: Let's just take a look at what Dr....