Yanez v. State, 13-04-327-CR.

• Decision Date: 16 February 2006
• Docket Number: No. 13-04-327-CR.,13-04-327-CR.
• Citation: 187 S.W.3d 724
• Parties: Efrain Avila YANEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

187 S.W.3d 724

Efrain Avila YANEZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-04-327-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

February 16, 2006.

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Joseph A. Connors III, for Efrain Avila Yanez.

Rene A. Guerra and Theodore C. Hake, for The State of Texas.

Before Justices HINOJOSA, YAÑEZ, and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

A jury convicted appellant Efrain Yanez of capital murder of a child and attempted murder of the child's mother and stepfather.¹ The trial court assessed the automatic life sentence on the capital murder offense, and a jury assessed punishment at a life sentence on the second count, after finding the enhancement allegation true. The trial court ordered both sentences to run concurrently in the Institutional Division of the Texas Department of Criminal Justice. By four issues, Yanez asserts that the trial court reversibly erred by (1) denying a pretrial hearing on his motion to testify free from impeachment, (2) admitting evidence, (3) disallowing prior conviction impeachment evidence of one of the victims, and (4) denying a lesser included offense jury instruction on the capital murder charge. We affirm.

I. BACKGROUND

A. Relevant Facts

Alleging capital murder, Count 1 of the indictment states Yanez intentionally and knowingly caused the death of Klarissa Danielle Duran, a child younger than six years of age, by shooting her with a firearm, enhanced. Alleging attempted capital murder, Count 2 states that Yanez intentionally and knowingly attempted to kill Roberto Duran and Romelia Palomo, also enhanced. Palomo and Yanez had a minor son, Junior, who was thirteen years old at the time in question. A divorce granted Yanez standard visitation rights. Palomo married Duran. Klarissa was their child.

On May 28, 2003, Yanez called Palomo to request visitation with Junior. Palomo denied the request because the family was on the way to visit a relative who had a baby at a nearby hospital. A few minutes later, Yanez arrived at the house in a 1996 black Kia Sephia, requested to see his son, and accused Palomo of distancing Junior from Yanez. Junior visited with Yanez outside the residence until the family was ready to leave. On her way to the family car, Palomo asked Junior to visit with Yanez the following day. Duran sat in the driver's seat, Palomo sat in the front passenger seat, and Klarissa sat in the rear passenger seat. Junior sat in the back seat with his step-sister Klarissa, and closed the door. Meanwhile, through his rear view mirror, Duran saw Yanez approach the driver's side of the vehicle. Duran rolled down his window. Duran testified that the next and last thing he saw before Yanez shot him in the face was the barrel of a gun.

Palomo testified that she saw Yanez approach the driver side window, heard the first shots, and then felt pain in her leg. She got out of the car and saw Yanez open the back door of the car. Junior had left the car. Palomo saw Yanez hold the gun and aim it into the back seat of the car. Palomo heard the gun click twice indicating to her that the gun was out of bullets. She attempted to move around the back of the car while pleading with Yanez not to hurt her daughter who was still in the back seat. Palomo saw Yanez reload the gun. Yanez walked toward Palomo and shot her again in the leg. She fell to the ground. She next saw Yanez place half his body in the vehicle and shoot twice into the back seat of the car. Without saying a word, Yanez went back to his vehicle and fled the scene. A neighbor, observing the shooter from the top of a roof, testified he saw the shooter enter the car halfway and then the neighbor heard two shots fired. Four years old at the time of her death, Klarissa died as the result of two gunshot wounds to the head. Yanez was eventually apprehended and pled not guilty to the charges.

B. Relevant Procedural History

The defense filed numerous pre-trial motions, including (1) a motion to suppress the evidence that was found in the glove compartment of the Kia, (2) a motion for a pretrial hearing to testify free of impeachment,² and (3) a motion to impeach the credibility of a potential witness, the victim Roberto Duran, with prior convictions. The trial court deferred ruling on the merits of the motion to testify free of impeachment. At trial, the defense objected at the time the State introduced the glove compartment evidence. Prior to cross-examination of Duran, the trial court revisited the State's motion in limine as to impeachment evidence of Duran's prior felony convictions. At a hearing outside the presence of the jury, the trial court ruled that, because Duran's most recent conviction and incarceration were more then ten years prior to the date of the offense, Yanez could not use Duran's felony convictions to impeach him.

During the charge conference, the defense requested a manslaughter instruction, arguing that the lesser charge of manslaughter was supported by the evidence and would provide the jury with the range of mental states defined in the penal code. The trial court denied the request. After the jury's guilty verdict, the trial court entered the judgments of conviction and sentence on the two counts. The trial court denied Yanez's motion for new trial. This appeal ensued.

II. MOTION FOR RULE 609 PRETRIAL HEARING

By his first issue, Yanez asserts that the trial court committed reversible error by denying a pretrial hearing on his rule 609(a) motion to testify free from impeachment through prior convictions.³ He maintains that article 28.01 of the Texas Code of Criminal Procedure and Theus v. State, 845 S.W.2d 874 (Tex.Crim.App. 1992), required the trial court to provide him a pretrial opportunity to contest the use of such evidence. See TEX.CODE CRIM. PROC. ANN. art. 28.01 (Vernon 1989). The State responds that the trial court did not err by deferring a ruling on the motion pending trial proceedings and Yanez did not preserve error by not obtaining an adverse ruling at trial.

A. The Record

By his motion, Yanez sought, in part, a preliminary determination that impeachment evidence of his prior convictions was more prejudicial than probative. He sought an opportunity, pretrial, to contest the objectionable evidence on grounds that rule 609(f)⁴ and Theus afforded him the right to contest the State's use of such evidence. Yanez presented his request to the trial court for a pretrial hearing during a pretrial conference. The trial court deferred a ruling. By not granting the pretrial hearing requested, the trial court implicitly denied his motion. TEX. R. APP. P. 33.1(a)(2).⁵ The question before us is whether the implicit denial of a pretrial hearing to contest the State's impeachment evidence constitutes reversible error.

B. Standard of Review

We review a ruling on the denial of a pretrial hearing on an evidentiary motion for abuse of discretion. See Cox v. State, 843 S.W.2d 750, 752 (Tex.App.El Paso 1992, pet. ref'd) (holding, in the context of a motion to suppress, that the decision of whether or not to conduct a pretrial hearing on a motion to challenge the admissibility of evidence rests within the sound discretion of the trial court). Such discretion permits trial courts, upon proper objection, to elect to determine the admissibility of the challenged evidence during the trial on the merits. Id. An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (en banc). In other words, an abuse of discretion occurs only when the trial court's decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id. at 391. Still, we need not reverse if we determine that the error did not affect appellant's substantial rights. TEX. R. APP. P. 44.2(b). In other words, we need not reverse if, after examining the record as a whole, we have fair assurance that the error did not influence the jury's deliberations to appellant's detriment or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim. App.1998); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). Furthermore, if we can uphold the trial court's decision on any theory applicable to the case, we will do so. Metts v. State, 22 S.W.3d 544, 550 (Tex.App.-Fort Worth 2000, pet. ref'd).

C. Discussion

1. Denial of a Pretrial Hearing

Specifically, in his motion, Yanez requested that the trial court "conduct an evidentiary hearing to determine the admissibility of impeachment evidence" before trial on the merits. In effect, he requested that the trial court convene a pretrial evidentiary hearing, conduct a rule 609 balancing test, and rule on the impeachment evidence. In substance, his motion constituted a motion to suppress impeachment evidence of prior convictions, on grounds that the evidence was more prejudicial than probative, after a rule 609 balancing test pretrial. See TEX.CODE CRIM. PROC. ANN. art. 28.01,-1(6) (Vernon 1989); TEX. R. EVID. 103; see also Hill v. State, 643 S.W.2d 417, 419 (Tex.App.Houston 14th Dist. 1982), aff'd, 641 S.W.2d 543 (Tex.Crim.App.1982)(citing Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App. 1981) (holding that a motion to suppress is a specialized objection regarding the admissibility of evidence)).⁶ Article 28.01 is not mandatory upon the trial court but is directed to the court's discretion. Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim.App.1988). The court may elect to determine the merits of the motion at the time when the subject matter of the motion is first brought before the court during trial, rather than at a pre-trial hearing. Id. at 649; Bell v. State, 442 S.W.2d 716, 719 (Tex.Crim.App.1969). Further, a determination on the admissibility of evidence is to be made by ...