Saenz v. State, No. 13-06-076-CR (Tex. App. 4/2/2009)
| Decision Date | 02 April 2009 |
| Docket Number | No. 13-06-076-CR.,13-06-076-CR. |
| Parties | BALDEMAR SAENZ, III, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 377th District Court of Victoria County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and WITTIG1.
Appellant, Baldemar Saenz, III, appeals his conviction by a Victoria County jury for engaging in organized criminal activity. The underlying offense was capital murder. Appellant was sentenced to life imprisonment. Notice of appeal was timely given. Appellant raises ten issues which we address in order. We affirm.
Several members of the La Raza Unida gang were driving around in Victoria, Texas December 5, 2003. They spotted Michael Rodriguez. They believed Rodriguez was related or a friend to a member of the rival gang, Hermanidad de Pistolerors Latinos, (HPL). Some days before, on November 24, 2003, the HPL gang had attacked the home of Raza Unida member Robert Canchola, firing multiple shots into his home, killing his six-year-old son Robert Canchola, Jr. Members of the Raza Unida gang plotted revenge. The gang had decided that Rodriguez, an "innocent" like the Canchola boy, would be killed. When Rodriguez was spotted on December 5, he got into the vehicle of one of the Raza Unida members, and then was driven around for hours. He was taken to a field, shot multiple times, and left for dead. Police found his body later.
In his first issue, appellant maintains the trial court erred by denying his motion to change venue. In support of his motion, appellant introduced sixty-four exhibits consisting of fifty-six newspaper articles and eight video tapes. Some of the newspaper articles begin shortly after the murder and include updates as various parties were set for trial. Other articles published before the murder discussed the killing of the Canchola boy, and later articles reported trials of those accused of killing Canchola. Some articles were apparent publicity interviews with the District Attorney, who discussed why he was seeking the death penalty in one of the related cases. Otherwise, the evidence was typical newspaper reporting of criminal activity found almost daily in the newspapers of the state. Appellant argues that the reporting of the murder of the six-year-old was followed by consistent and frequent references to the death of the boy. Appellant claims there was a strong identifiable presence of prejudice caused by the coverage of this and similar cases. Appellant points to no evidence of prejudice other than the articles and tapes themselves. Neither does appellant argue any prejudice or predisposition of any of the venire.
Appellant states that the test to be applied in determining whether a trial court should grant a motion to change venue is whether the outside influences affecting the community climate of opinion as to a defendant are inherently suspect, citing DeBlanc v. State, 799 S.W.2d 701, 704-05 (Tex. Crim. App. 1990). We agree. More recently, the high court wrote that on appeal, the standard of review for this court is whether the trial court abused its discretion in refusing to grant the change of venue. Renteria v. State, 206 S.W.3d 689, 709 (Tex. Crim. App. 2006). The defendant seeking a change of venue bears a heavy burden to prove the existence of such prejudice in the community, that the likelihood of obtaining a fair and impartial trial jury is doubtful. Id. (citing DeBlanc, 799 S.W.2d at 704-705). Merely because a particular case is publicized in the media does not give rise to an automatic showing of prejudice; jurors do not have to be ignorant of the effects and issues of a particular case. Id. For a defendant to prevail in his motion to change venue, he must demonstrate that publicity about the case is pervasive, prejudicial and inflammatory. Id. A defendant must demonstrate an "actual, identifiable prejudice attributable to pretrial publicity on the part of the community from which members of the jury will come." Id.
Most of the newspaper articles are not about appellant. Many deal with Terry Michael Olesky, also charged with the murder of Rodriguez. Appellant's name appears in some articles, typically in a straight forward factual reporting style. Only one article deals directly with appellant. The proof marshaled by appellant and argued in his brief simply does not add up to either the standard of "pervasive, prejudicial and inflammatory" or "actual identifiable prejudice attributable to pretrial publicity." See id.; see also Ransom v. State, 789 S.W.2d 572, 578-579 (Tex. Crim. App. 1989). Accordingly, the trial court did not abuse his discretion by denying the motion. Appellant's first issue is overruled.
Appellant next alleges the trial court abused his discretion by denying his motion to sever. The pre-trial motion was based upon the fact that appellant himself had a federal conviction initially thought to have been a felony. Defense counsel learned that the conviction was a misdemeanor and informed the State. The State then moved to rejoin appellant and co-defendant Jonathan Salazar, which the court granted. Appellant reurged his motion to sever and was denied. Because of a disagreement as to whether article 36.09 of the Texas Code of Criminal Procedure applied to misdemeanors, the State agreed not to offer appellant's prior misdemeanor conviction in the trial. No evidence was presented at trial concerning the prior misdemeanor conviction of appellant.
Severance is not a matter of right, but lies within the sound discretion of the trial court unless a joint trial would prejudice a co-defendant as a matter of law. Garza v. State, 622 S.W.2d 85, 91 (Tex. Crim. App. 1981); Smith v. State, 998 S.W.2d 683, 686 (Tex. App.-Corpus Christi 1999, pet. ref'd). An appellant who challenges the denial of a motion for severance must satisfy the heavy burden of showing clear prejudice. King v. State, 17 S.W.3d 7, 16 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd); Silva v. State, 933 S.W.2d 715, 719 (Tex. App.-San Antonio 1996, no pet.).
A showing of clear prejudice based on an allegation that the co-defendants' defenses are inconsistent is apparently established if the co-defendants' respective positions are mutually exclusive to the extent that "the jury in order to believe the core of one defense must necessarily disbelieve the core of the other." Aguilar v. State, 39 S.W.3d 700, 702 (Tex. App.-Corpus Christi 2001, pet ref'd.). Article 36.09 of the code of criminal procedure provides, in relevant part:
Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.
Tex. Code Crim. Proc. art. 36.09 (Vernon 2005).
This code provision is discussed in Qualley, where the court reiterates that where evidence shows that there is a previous admissible conviction against one defendant, or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants. Qualley v. State, 206 S.W.3d 624, 637 (Tex. Crim. App. 2006). The "previous admissible conviction" portion of the statute acts only to shield a defendant from the introduction of the co-defendant's conviction. Id. The concept is that a defendant without a conviction may suffer "guilt by association" from the jury's exposure to the co-defendant's previous crime. Id. A severance on this basis is mandatory only when the moving defendant himself has no prior conviction that would be admissible at either the guilt or punishment stage of trial. Id. Even when the requisite circumstances are present, failure to grant a severance on this basis is harmless if the co-defendant's previous conviction was not in fact admitted at trial as was the case here. Id. Thus, appellant was not entitled to a severance on the stated basis of a previous admissible conviction because the prejudice, if any, would be to his co-defendant, not to himself. See id.
Appellant also complains that during the trial, evidence was introduced that co-defendant Salazar committed the offense of deadly conduct. First, there was no showing that Salazar was convicted. Thus, the mandatory language of article 36.09 has no application. Tex. Code Crim. Proc. art. 36.09. Appellant also argues that the admission of a drive-by shooting by Salazar constitutes prejudice to himself because he was shown to be connected to the same or similar acts. He further argues that evidence that Salazar had a motive to commit murder, when there was no such evidence presented against appellant, preventing him from having a fair trial. No such objections concerning motive or connection to appellant were made to the trial court and are thus waived. Tex. R. App. P. 33.1(a)(1). The only material objection was a reiteration of prior objections based upon the premise of a conviction by a co-defendant.
To establish prejudice, the defendant must show a serious risk that a specific trial right would be compromised by a joint trial, or that a joint trial would prevent the jury from making a reliable judgment about guilt or innocence, and that...
To continue reading
Request your trial