Opinion
NO. 01-10-00242-CR
08-25-2011
LUIS ABRAHAM REQUENO-PORTILLO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd Judicial District Court
Harris County, Texas
Trial Court Case No. 1206159
MEMORANDUM OPINION
A jury found appellant, Luis Abraham Requeno-Portillo, guilty of the offense of murder and assessed his punishment at confinement for ninety-nine years. In two issues, appellant contends that trial court erred in limiting his cross-examination of a witness and denying him the right to counsel by limiting his closing argument.
See TEX. PENAL CODE ANN. § 19.02 (Vernon Supp. 2010).
We affirm.
Background
Houston Police Department ("HPD") Officer L. Verbitskey testified that on February 9, 2009, he was dispatched to a lot in the 800 block of Rush Creek to assist in the investigation of the murder of the complainant, Noe Fuenes. Upon his arrival, Verbitskey found several items "scattered about" the complainant's body, including a bottle of "Liquid Nails," a bottle of Lysol, some knotted fabric with a "suspicious red stain," and a knife. He then bagged the items from the scene and sent them to a laboratory for processing.
HPD Homicide Sergeant J.C. Padilla testified that he began the investigation of the complainant's death by first speaking with the complainant's uncle, Fredesunido Osorio, and he was able to identify three suspects: Mercedes Antonio Menjivar, Pedro Ronaldo Menjivar-Orellana, and appellant. According to Osorio, on February 8, 2009, he and the complainant had been eating dinner at a restaurant when the complainant met a man with whom he left the restaurant. Although the complainant left his money and car keys with Osorio, he did not return to the restaurant.
Jose Martinez testified that he had known appellant, Menjivar, and Menjivar-Orellana from when they had grown up in the same neighborhood in El Salvador. On the night of February 8, 2009, he was at a party at his mother's house with several people, including appellant and Menjivar-Orellana, who left the party in a white van between 8:30 and 9:00 p.m. Before they left, Menjivar-Orellana received a telephone call from Menjivar, and both appellant and Menjivar-Orellana, who had a bandage on his hand, returned to the party about one hour after they had left. Martinez further testified that Menjivar-Orellana told him that he, appellant, and Menjivar had stabbed a young man with a knife because he belonged to another gang and appellant had cut Menjivar-Orellana while he was holding the man down. Martinez also stated that appellant admitted to him that they had stabbed a man.
Jose Orellana testified that he had known appellant from when they grew up in El Salvador and Menjivar and Menjivar-Orellana are his cousins. On February 8, 2009, he was at a friend's house "hanging out" with several people including appellant and Menjivar-Orellana. Appellant and Menjivar-Orellana left the house around 7:00 p.m., and Menjivar-Orellana returned approximately thirty to forty-five minutes later wearing different clothes and with a bandage on his head. Orellana explained that he had owned a white van, but he gave it to Menjivar "for a payment that [he] owed him." The next day, Orellana saw appellant and Menjivar- Orellana washing the van, but Menjivar was not present. Orellana noted that he had spoken with Menjivar, who told Orellana about his having encountered the complainant at the restaurant on the night of the complainant's death. Menjivar said that the complainant had referred to Menjivar as "Salvatrucha," in reference to an El Salvadorian gang known as "MS 13." MS 13 is a "rival" gang of the "18th Mara," of which appellant was a member.
When appellant attempted to cross-examine Orellana about the van that he had given to Menjivar as a payment, he requested to take Orellana on voir-dire to avoid violating the State's previously filed motion in limine. On voir-dire, the following exchange took place:
[Appellant's Counsel]: Now, Mr. Orellana, you testified when [the State] was asking you questions that the van you had you gave over to [Menjivar]; is that correct?The trial court then refused to allow this testimony in front of the jury.
[Orellana]: Yes.
[Appellant's Counsel]: And you said it's because you owed him some money; is that correct?
[Orellana]: Correct.
[Appellant's Counsel]: How much money did you owe him?
[Orellana]: About $4,500.
[Appellant's Counsel]: And why did you owe [Menjivar] $4,500?
[Orellana]: Because he's the one that brought me over from El Salvador.
[Appellant's Counsel]: And I take that to mean that you were brought over by some people who [Menjivar] paid money for them to bring you from your country to the United States?
[Orellana]: Correct.
[Appellant's Counsel]: Now, currently then, I'm assuming, did you ever pay him the $4,500 back?
[Orellana]: No. I still owe them.
[Appellant's Counsel]: Approximately how much do you owe him?
[Orellana]: $4,500 because he gave me the van back.
[Appellant's Counsel]: Now, and that's basically what I wanted to cover your honor.
[Trial Court]: What's the materiality?
[Appellant's Counsel]: Well, the materiality, your honor, is that now that he basically said that so and so was a partner in a crime and he's going to the penitentiary, obviously he doesn't have to pay back the $4,500.
[The State]: . . . . this is against [Menjivar]. He owes [Menjivar] money. . . . Judge, that has no relevance at all in this trial at hand. . . . But I would say this testimony is not relevant. Judge, it's
also blatant 403 by [appellant's counsel] insinuating he is an illegal immigrant and brought here illegally.
[Trial Court]: Court's not going to permit it. Bring the jury.
HPD Criminalist P. Ancira testified that she tested the items retrieved from the crime scene that had previously tested positive for blood to see if she could retrieve any DNA from the items. She used buccal swabs from Menjivar-Orellana, Menjivar, and appellant and a "bloodstain card" from the complainant to analyze the evidence retrieved from the crime scene. Ancira excluded appellant as a "possible contributor of the DNA" found on the knife, under the complainant's fingernails, on the interior of the van, and on the Lysol bottle. However, Menjivar could not be excluded as a possible contributor of the DNA found at the scene.
Cross-Examination
In his first issue, appellant argues that the trial court erred in limiting his cross-examination of Orellana because he had a "motive and incentive to lie." He asserts that the trial court "precluded" him from establishing the bias of Orellana, which was revealed by the fact that Orellana owed Menjivar $4,500. Appellant asserts that this provided Orellana with a motive to testify against appellant and his friends and the trial court, in not allowing him to question Orellana on this subject, violated Texas Rule of Evidence 613(b), which permits a party to examine witnesses regarding bias and prejudice, and his Sixth Amendment right to confront the witnesses against him.
A trial court has the discretion to decide the admissibility of evidence, and, absent an abuse of that discretion, its rulings will not be overturned. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). To determine whether a trial court has abused its discretion, we consider "whether the [trial] court acted without reference to [the pertinent] guiding rules and principles; that is, whether the court acted arbitrarily or unreasonably." Fox v. State, 115 S.W.3d 550, 558 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd).
Through the Confrontation Clause of the Sixth Amendment, an accused enjoys the right "to be confronted with the witnesses against him" by an opportunity to cross-examine the witnesses. U.S. CONST. amends. VI, XIV; Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986); see Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The right to cross-examine witnesses requires that an accused be given wide latitude to explore a witness's story, test his perceptions and memory, and impeach his credibility, including any fact that would tend to establish his "'ill feeling, bias, motive, and animus'" against the accused. Parker v. State, 657 S.W.2d 137, 139 (Tex. Crim. App. 1983) (quoting Simmons v. State, 548 S.W.2d 386, 388 (Tex. Crim. App. 1977)). Rule 613(b) further recognizes the right of litigants to cross-examine witnesses on the issues of bias and prejudice.
However, a trial court retains wide discretion to impose reasonable limits on cross-examination based on concerns such as harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant. Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435; Lopez, 18 S.W.3d at 222. And a defendant's right to cross-examine witnesses must be balanced against the probative value of the evidence. Lopez, 18 S.W.3d at 222. "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985); Walker v. State, 300 S.W.3d 836, 844-45 (Tex. App.—Fort Worth 2009, pet. ref'd). When a defendant complains about the denial of the opportunity to cross-examine a witness generally about matters concerning the witness's credibility, he, to preserve error, need not show what his cross-examination would have revealed, but only the general subject matter about which he desired to examine the witness and, if challenged, show on the record why such testimony should be admitted into evidence. Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987).
The State called Orellana to testify that he saw appellant clean the interior of a white van the day after the murder. During his cross-examination of Orellana, appellant, outside the presence of the jury, took him on voir dire and elicited testimony that he owed Menjivar $4,500 for helping him to illegally enter the United States from El Salvador. Orellana explained that he originally gave Menjivar the van as partial payment, but Menjivar gave the van back to him and he still owed Menjivar the full $4,500. When the trial court asked appellant's counsel about the relevance of his line of questioning, counsel stated, "Well, the materiality, Your Honor, is that now that he basically said that [Menjivar] was a partner in a crime and he's going to the penitentiary, obviously he doesn't have to pay back the $4,500." The State argued that the testimony was not relevant because Orellana owed the debt to Menjivar, not appellant. The State further argued that the testimony would be more prejudicial than probative because it "insinuate[es]" that Orellana is an illegal immigrant. See TEX. R. EVID. 403.
Although great latitude should be allowed in cross-examining witnesses to reveal possible bias, prejudice, or self-interested motives to falsify testimony, the cross-examiner bears the burden of demonstrating the relevance of the proffered evidence to the issue of bias or prejudice. Chambers v. State, 866 S.W.2d 9, 26-27 (Tex. Crim. App. 1993). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. in order to demonstrate that proffered testimony is relevant to the issue of bias or prejudice, one must establish a specific connection between a witness's testimony and an actual bias or interest. See Crenshaw v. State, 125 S.W.3d 651, 654 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd); Ellis v. State, 99 S.W.3d 783, 789 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (proffered testimony not relevant to determine fact at issue).
Here, appellant argues that the "credibility" of Orellana "could have been severely questioned if the jury were to hear his possible motive or bias for the testimony he gave." However, appellant has failed to show the relevance of the excluded testimony to the issue of bias or the merits of the case. Based on the record presented, the line of cross-examination sought by appellant did not demonstrate any bias or prejudice by Orellana against appellant. The testimony elicited concerned a debt owed not to appellant, but to Menjivar, a co-defendant who had already pleaded guilty to the offense of murder. Even if the testimony was somehow marginally relevant, the trial court retained wide discretion to impose a limit on the cross-examination. See Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435; Lopez, 18 S.W.3d at 222. Accordingly, we hold that the trial court did not violate rule 613(b) or appellant's Sixth Amendment right to confront witnesses in limiting appellant's cross-examination of Orellana. We overrule appellant's first issue.
Jury Argument
In his second issue, appellant argues that the trial court erred in restricting his jury argument by sustaining the State's objection to a portion of his closing argument because it denied him the right to counsel.
The following exchange took place during appellant's closing argument:
[Appellant]: Keep in mind, ladies and gentlemen, you can't convict on just an assumption. It's got to be proof beyond a reasonable doubt. And that proof has to go through testimony that you're going to believe that's credible, evidence like DNA.Appellant argues that because the statement is "clearly non-objectionable" and the trial court sustained the State's objection, he was "denied the right to present his defense in closing argument."
[The State]: Judge, I'm going to object. That's a misstatement of the law.
[The Court]: Be sustained.
A trial court has broad discretion in controlling the scope of closing argument, but it may not prevent defense counsel from making a point essential to the defense. Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.). A defendant has the legal right to argue any theory supported by the evidence. Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997); Lemos, 130 S.W.3d at 892. Prohibiting counsel from making a particular jury argument constitutes a denial of the defendant's right to counsel when that argument is one the defendant is entitled to make. McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1060, 110 S. Ct. 1535 (1990); Lemos, 130 S.W.3d at 892. However, only when a trial court restricts defense counsel from doing something it had the legal right to do is it considered a deprivation of the right to counsel. Jackson v. State, 992 S.W.2d 469, 476 (Tex. Crim. App. 1999); Lemos, 130 S.W.3d at 892.
Assuming without deciding that the trial court erred in sustaining the State's objection, we must determine whether the error was harmful. See TEX. R. APP. P. 44.2. The Texas Court of Criminal Appeals has held that an improper denial of a jury argument can constitute a denial of the right to counsel. Johnson v. State, 698 S.W.2d 154, 166 (Tex. Crim. App. 1985) (citing Riles v. State, 595 S.W.2d 858, 861 (Tex. Crim. App. 1980)). Denial of the right to counsel is an error of constitutional magnitude. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. A defendant's constitutional rights to counsel and to a jury trial encompass the right to have his theory of the case argued vigorously to the jury. Lemos, 130 S.W.3d at 892-93; see also United States v. DeLoach, 504 F.2d 185, 190 (D.C. Cir. 1974) (holding restrictions on defendant's closing argument violated constitutional right to counsel).
Because any such error would be constitutional, we determine whether the trial court's sustaining of the State's objection was harmless beyond a reasonable doubt. TEX. R. APP. P. 44.2(a); see also Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying the "harmless error" test, the primary question is whether there is a "reasonable possibility" that the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Our harmless error analysis should not focus on the propriety of the outcome of the trial; instead, we should calculate as much as possible the probable impact on the jury in light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). We consider the source and nature of the error, the extent that it was emphasized by the State, its probable collateral implications, the weight a juror would probably place on the error, and whether declaring it harmless would be likely to encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). This requires us to evaluate the entire record in a neutral, impartial, and even-handed manner, not "in the light most favorable to the prosecution." Id. at 586.
Here, in concluding that there is no harm, we note that the State's objection was not made until after appellant's counsel had made his argument that appellant's DNA was not recovered at the crime scene.See Wiltz v. State, 827 S.W.2d 372, 374 (Tex. App.—Houston [1st Dist.] 1992) (holding error in sustaining objection to defense counsel's argument harmless when counsel had already made argument to jury and trial court did not instruct jury to disregard), rev'd on other grounds, 863 S.W.2d 463 (Tex. Crim. App. 1993). Additionally, appellant was able to make essentially the same argument numerous times in his closing argument without objection. Accordingly, after carefully reviewing the record and performing the required harm analysis under rule 44.2(a), we conclude that the trial court's having sustained the State's objection did not contribute to appellant's conviction or punishment. See TEX. R. APP. P. 44.2(a). Because counsel was not prevented from making essentially the same argument elsewhere, any error in sustaining the objection was harmless. See Johnson v. State, No. 05-96-00811-CR, 1998 WL 245872 (Tex. App.—Dallas, May 18, 1998, pet. ref'd); James v. State, 660 S.W.2d 146, 148 (Tex. App.—Amarillo 1983, no pet.) (not designated for publication); see also Rische v. State, 746 S.W.2d 287, 291 (Tex. App.—Houston [1st Dist.] 1988), remanded on other grounds, 755 S.W.2d 477 (Tex. Crim. App. 1988).
Appellant, in his closing argument, also stated:
Then the analyst comes in and they check blood. They check for blood on the knife they found, on the Lysol bottle, on the interior of the van. And those questions I had, very few questions of the analyst. Did any of that DNA that was found, on the knife, on the panels, on the Lysol bottle, did any of it ever match up to [appellant]? And she said, no, none, none.
. . . .
There was stabbing going on, and someone gets cut, there's going to be something. They find DNA on sweat. Just like the doctor said. The analyst, they go in there and they did a thorough investigation, of the inside of that van. Not one single trace of evidence against [appellant].
We overrule appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).