Ricondo v. State

• Decision Date: 13 April 1983
• Docket Number: No. 04-81-00033-CR,04-81-00033-CR
• Citation: 657 S.W.2d 439
• Parties: Felix RICONDO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 439

657 S.W.2d 439

Felix RICONDO, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00033-CR.

Court of Appeals of Texas San Antonio.

April 13, 1983.

Thomas S. Rocha, Jr., San Antonio, for appellant.

Anton Paul Hajek, III, Asst. Dist. Atty., San Antonio, for appellee.

Before BUTTS, TIJERINA and DIAL, JJ.

OPINION

DIAL, Justice.

This is an appeal from a conviction for murder.

In the early morning hours of September 17, 1977, the body of Hugo Saenz was found hanging from a shower stall in the Bexar County Jail. His cause of death was found to have been manual and ligatur strangulation. Five inmates of the jail were charged with the murder, including appellant, who was indicted as a habitual. The appellant was tried by a jury separately from the co-indictees. One of the other defendants had entered a plea of guilty, and another had been tried and found guilty prior to the appellant's trial. The jury found the appellant guilty. Only one enhancement allegation was presented for punishment; the jury found it true and assessed punishment at sixty-five (65) years.

The State's theory of the case was that the deceased, Saenz, was murdered at the request of one Robert Riojas, who was not an inmate of the jail at the time. Saenz had murdered Riojas's sister, Connie Zuniga. The killers were to be rewarded by Riojas with either money or heroin. The State was not able to prove Riojas's connection by direct evidence. They did establish that the deceased had murdered Riojas's sister, that Riojas had visited two of the defendants in jail before the homicide, and left each of them $20.00. Two eyewitnesses testified that all five defendants acted together in the killing. After the killing, the eyewitnesses were warned by two of the participants to say nothing, and they were offered heroin in the jail.

In his brief and supplemental brief, appellant brings a total of twenty-one (21) grounds of error. Appellant's ground of error number one and supplemental ground of error number two complain of a question asked by the prosecutor while the appellant was on the stand. He asserts error when the State cross-examined him as to why he remained silent while in custody. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The question asked was why the appellant had not made a statement about his involvement in the crime charged when he appeared before a magistrate at a bond hearing. Where a defendant takes the stand, he is treated in every respect as any other witness except where some statute forbids certain matters to be used against him, such as his failure to testify at a former hearing. Franklin v. State, 606 S.W.2d 818, 825 (Tex.Cr.App.1978), Tex.Code Crim.Proc.Ann. art. 38.08 (Vernon 1979). In the case at bar, while testifying in his own behalf in response to questions by his attorney, appellant specifically complained of a prior lack of opportunity to tell his version of how the offense occurred. The jury had already heard that numerous inmates were transported from the jail to the sheriff's office for interrogation about the homicide. With this background, the appellant then testified,

Nobody has asked me what happened up there, nobody except my wife and (my attorney) ... this is when I started writing letters to the sheriff ... I put in the letter that I wanted to talk to them, that I had not done anything wrong and that I was innocent and I wanted to talk to them ... nobody even came to speak to me ... they put me in there without asking me what I knew about it.

The appellant created the impression before the jury that he had had no opportunity to broadcast his innocence to any official. No litigant should expect to make such accusations free from the effective challenge of cross-examination. The prosecutor asked the question, "Let me ask what prevented you, if it were the truth, from standing there, and telling Judge Esquivel you didn't have anything to do with it and it was Tellez and Villarreal?" We know the purpose of a hearing before a magistrate and we know that the accused is there advised of his right to remain silent, but the jury does not. Tex.Code Crim.Proc.Ann. art. 15.17 (Vernon Supp.1982-1983). The appellant opened up this area of inquiry, and he cannot be heard to complain of the State's action in further probing the area on cross-examination. Hartman v. State, 507 S.W.2d 553, 556 (Tex.Cr.App.1974); Hunter v. State, 468 S.W.2d 96, 100 (Tex.Cr.App.1971). Appellant's ground of error number one and supplemental ground of error number two are overruled.

Closely related is supplemental ground of error number three which complains of the prosecutor asking the appellant the following question: "Did you ever request to go before the Bexar County Grand Jury when your case was being considered, so you could tell them you didn't have anything to do with this case?" To this question appellant's attorney interposed the following objection: "I will object to anything--whether he requested or didn't request to go before the Grand Jury is a thing of the past and it has absolutely nothing to do with this case." A general objection that fails to inform the trial court of the basis of the complaint does not preserve error. Gutierrez v. State, 628 S.W.2d 57, 62 (Tex.Cr.App.1980). This objection was too general. Carr v. State, 600 S.W.2d 816, 817 (Tex.Cr.App.1980).

Appellant claims for the first time on appeal that this question was a violation of appellant's right to remain silent and his privilege against self-incrimination. Grounds of error on appeal must comport with an objection by counsel at trial, otherwise nothing is presented for review. Milligan v. State, 554 S.W.2d 192, 195 (Tex.Cr.App.1977). For the reasons stated and for the further reason that appellant invited the inquiry by his direct testimony, supplemental ground of error number three is overruled.

Appellant's supplemental ground of error number four contends that the trial court erred in permitting Lieutenant Carreon of the Bexar County Sheriff's Department to testify that appellant elected to remain silent when questioned about the murder. The testimony was that following the homicide, all inmates in that section of the jail were brought to the sheriff's office for questioning. On direct examination appellant stated that he had never been brought over for questioning. On cross-examination the appellant specifically denied ever talking to Lieutenant Carreon. The State was clearly entitled to prove that the interview had taken place, and appellant is in no position to complain of evidence he himself developed. Bosley v. State, 414 S.W.2d 468, 472 (Tex.Cr.App.1967); Garza v. State, 397 S.W.2d 847, 849 (Tex.Cr.App.1965). The trial judge permitted the State to prove that there was an interview but not the subject matter of the interview. The Court sustained all objections to questions attempting to elicit anything that the appellant might have said during the interview. The jury was at no time informed that the appellant refused to talk, if he so did. No error is shown, and appellant's supplemental ground of error number four is overruled.

Appellant's seventh, eighth and ninth grounds of error maintain that the trial court erred in refusing to permit him to show, through a custodian of jail records, the dates and reasons why the deceased was moved from floor-to-floor in the jail. Following the State's objections of relevancy and hearsay, appellant was permitted to develop testimony, in the absence of the jury, that the deceased had been moved from one jail floor to another eight times for various reasons. Testimony did not include the necessary predicate for any exception to the hearsay rule. The State's objection was again sustained.

The appellant's theory of defense was that others had killed the deceased, and though present, the appellant did not participate. The excluded evidence had no bearing on any issue in the case. It did not refute any evidence offered by the State, nor would it have aided the appellant's theory of defense. Whether evidence is relevant to any issue in a case lies within the sound discretion of the trial court and should not be disturbed unless a clear abuse of that discretion is shown. Williams v. State, 535 S.W.2d 637, 640 (Tex.Cr.App.1976). Grounds of error seven, eight and nine are overruled.

Grounds of error ten and eleven complain of the prosecutor asking the defense witness, Johnny Salinas, if Robert Riojas was his heroin connection and if Robert Riojas had paid him to kill the deceased. Salinas admitted that he had already entered a plea of guilty to participating in the murder of Saenz. He admitted that he was a heroin addict, that he had sold heroin and had been convicted several times for narcotic related offenses. He further admitted that Riojas had visited him twice since he had been in jail. The prosecution may always offer evidence to show motive, because it is relevant as a circumstance tending to prove the commission of an offense. To be admissible, however, the evidence must fairly tend to raise an inference in favor of the existence of the motive. Bush v. State, 628 S.W.2d 441, 444 (Tex.Cr.App.1982); Porter v. State, 623 S.W.2d 374, 385 (Tex.Cr.App.1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491. Where all the co-indictees who testified admitted that they were narcotic addicts, and several witnesses testified to the presence of heroin in the jail, it was permissible for the State to ask the witness, Salinas, if his motive for participating in the killing was to avenge Riojas and to obtain heroin. Riley v. State, 168 Tex.Cr.R. 417, 328 S.W.2d 306, 307 (1959). Appellant suggests that the questions of the prosecutor were in bad faith and should not have been permitted. The subject matter of the questions was relevant and admissible on the issue of motive. Facts in the record give basis for the questions and demonstrate no bad faith on the part of the questioner....