Vasquez v. State

Decision Date15 June 1995
Docket NumberNo. 08-93-00335-CR,08-93-00335-CR
Citation902 S.W.2d 627
PartiesFrank Christopher VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Shawna L. Reagin, Houston, for appellant.

John B. Holmes, Dist. Atty. of Harris County, Houston, for appellee/State.

Before BARAJAS, C.J., and LARSEN and CHEW, JJ.

OPINION

BARAJAS, Chief Justice.

Frank Christopher Vasquez appeals his conviction for the offense of murder. A Harris County jury found Appellant guilty of the offense and assessed punishment at 60 years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine, whereupon the trial court entered judgment in accordance with the jury's verdict. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Chad Elvert Ketchum, 19, died at the hands of ostensible friends. During a party at Appellant's residence, a band of heavily armed young men with whom Ketchum was acquainted broke into his vehicle, stole its stereo equipment, set the vehicle ablaze, drove him to an isolated location, and shot him with assault rifles and handguns as he begged for his life.

Appellant hosted a party the evening of August 21, 1992. It was a raucous event, occupying both the front and backyards of Appellant's residence and involving use of alcohol and marijuana. Throughout the party, two SKS assault rifles were on the front porch, and guests periodically handled them. For undetermined reasons, there developed at the party a conspiracy to burglarize the victim's vehicle, steal some of its contents, and kill him.

During the course of the party, while Appellant occupied the victim in the backyard, Appellant's younger brother, Henry Hernandez, George Ramirez, David Gonzalez, Ceasar Ramirez, and Bryant Martinez agreed to burglarize the victim's vehicle. The vehicle was described as a "Blazer" and was parked in front of Appellant's residence. Hernandez, George Ramirez, David Gonzalez, Ceasar Ramirez, and Martinez smashed the vehicle's windows with crowbars, 1 and Hernandez and George Ramirez removed some of the vehicle's stereo equipment and placed it in Chris Moore's car. Shortly thereafter, George Ramirez started the vehicle with a screwdriver. Martinez and John Smithwick then drove the vehicle a short distance to another location in the same neighborhood to remove additional stereo equipment, while Adrian Ramirez and David Gonzalez followed them in Adrian Ramirez's car. Moore and George Ramirez also followed in Moore's car for a short distance, but returned to the party after losing sight of the other two vehicles. After John Smithwick and Adrian Ramirez successfully removed two amplifiers from the vehicle, Adrian Ramirez placed them in his car, and the four actors returned to the party. At an undetermined later time he doused the victim's vehicle in gasoline and set it ablaze. 2

While the burglars were away, the murder was taking shape. Greg Gonzalez witnessed the burglary of the victim's vehicle in the front yard and watched as it was driven away. He walked to the backyard to see two cars parked in an alleyway adjacent to the yard, where Moore had parked his car behind John Smithwick's car. Greg Gonzalez ran up to the first car and recognized among the passengers Henry Hernandez and the victim, who was in the rear seat. Ceasar Ramirez was driving the first car, and its other occupants included Joseph Villareal and Frank Smithwick. Greg Gonzalez then approached the second car, noted the driver and a rear seat passenger, and recognized Appellant occupying the front passenger seat. Moore was driving the second car, and George Ramirez was seated in the rear seat. Greg Gonzalez asked Appellant where they were going, and Appellant said they were going to kill someone. When asked who they were going to kill, Appellant gestured toward the victim. Greg Gonzalez then got into the car, positioning himself in the rear seat behind the driver. Sometime before he got in, he observed a .45-caliber handgun in Appellant's possession.

The two cars drove a short distance to a four-lane dead-end street in front of an elementary school. The two cars stopped side by side, Appellant briefly speaking with Ceasar Ramirez, the driver of the other car. On Appellant's instructions, Moore turned his car around, crossed the median, and parked on the other side of the street. The occupants of the other car got out and removed two bayoneted rifles from the trunk. They fired the weapons and the victim could be heard screaming. Aside from begging Appellant and his accomplices not to shoot him, the only discernible thing the victim said was, "Mom!" The other rear seat passenger, George Ramirez, then said, "Give me the gun. I'll show them how to do it." George Ramirez got out of the car and was handed the .45 by Appellant. Three more shots were fired, and the victim stopped screaming.

When the four burglars returned to Appellant's residence, some fifteen gunshots rang out somewhere in the neighborhood as they walked toward the house. Absent from the residence at the time were the victim, Appellant, Frank Smithwick, Henry Hernandez, Ceasar Ramirez, George Ramirez, Moore, and Greg Gonzalez. Another series of gunshots rang out less than a minute later. Less than three minutes thereafter, Appellant, Frank Smithwick, Ceasar Ramirez, George Ramirez, Greg Gonzalez, Joseph Villareal, and Moore returned to the residence in two cars. A panicked Frank Smithwick got out of one car with one of the assault rifles and told Adrian Ramirez to take it. Adrian Ramirez and Appellant then placed the rifles in the trunk of Adrian Ramirez's car. Appellant instructed someone to "get rid of the guns."

Adrian Ramirez and David Gonzalez did dispose of the guns, throwing the two rifles and the .45 into a wooded area. They were never recovered. The victim's body was discovered the following day in front of the elementary school. He had been shot nine times and died of three gunshot wounds to the head. Two .45-caliber slugs were recovered from his body.

II. DISCUSSION

Appellant attacks his conviction in nineteen points of error. In his first, second, seventh, eighth, thirteenth, and fourteenth points of error, Appellant claims the trial court erred by admitting into evidence the testimony of three witnesses. A trial court has broad discretion in determining the admissibility of evidence and we will not reverse absent a clear abuse of discretion. Allridge v. State, 850 S.W.2d 471, 472 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993); Lee v. State, 893 S.W.2d 80, 84 (Tex.App.--El Paso 1994, no pet.). Because this standard has been much defined by Texas civil courts, we cite their various formulations of it. Cf. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (quoting Texas Supreme Court's formulation of standard in Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986)). "A [party] who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden." Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court's actions. Rather, it is a question of whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d at 241-242; Amador v. Tan, 855 S.W.2d 131, 133 (Tex.App.--El Paso 1993, writ denied). Another way of stating the test is whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d at 242, (citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984)); Amador v. Tan, 855 S.W.2d at 133. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d at 242. A mere error of judgment is not an abuse of discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.1989); Hallmark v. Hand, 885 S.W.2d 471, 475 (Tex.App.--El Paso 1994, writ denied).

Bryant Martinez, Chris Moore, and Adrian Ramirez testified to numerous statements made by Appellant during and after the crime. The witnesses variously related that Appellant bragged to others that he shot the victim, that the victim begged for his life, that Appellant disposed of the murder weapons, how and why he did so, that he placed marijuana on the victim's body to make the crime appear drug related, that he would not be caught by police, and various instructions he gave to others concerning these and other matters related to the crime. Appellant objected to these statements, and the State responded that they were admissible under the hearsay exceptions for statements by a coconspirator and statements against interest. On appeal, Appellant argues the statements are neither.

Texas Rule of Evidence 801 defines hearsay as an out-of-court statement offered for the truth of the matter asserted. TEX.R.CRIM.EVID. 801(d). Rules 801 and 803 respectively exclude certain statements from the definition of hearsay and create exceptions for others. Although both effectively establish hearsay exceptions, the two rules are supported by entirely different rationales. 2 STEVEN GOODE, OLIN GUY WELLBORN III & M. MICHAEL SHARLOT, GUIDE TO THE TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL § 801.7 (Texas Practice 1993 and Supp.1995). The Rule 803 exceptions are premised on circumstantial evidence of a statement's reliability. Id. at § 801.1. Some of the operative theories of reliability are that businesses have strong incentive to keep accurate records and therefore do so, see TEX.R.CRIM.EVID. 803(6...

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