Esequeil Loredo v. State

NO.

12-06-00287-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ESEQUEIL LOREDO, § APPEAL FROM THE THIRD

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM

OPINION

Esequeil

Loredo appeals from his conviction for aggravated assault. In five issues, he argues that the trial

court failed to give a required jury instruction, that evidence about gang

membership was improperly admitted, and that the evidence is legally and

factually insufficient to support the conviction. We affirm.

Background

On March 1, 2001, a group of inmates

in the Michael Unit of the Texas Department of Criminal Justice killed inmate

Rogelio Garza. The evidence is not

without contradiction, but it appears that the inmates assaulted Garza to

discipline him for incurring debts he could not pay, debts he had incurred by

using contraband tobacco and heroin he could not afford. Garza had an enlarged spleen. The assault caused his spleen to burst, and

he died as a result of internal bleeding that followed. There was some testimony that Appellant

participated in the assault, but the State’s theory of his liability was that

he was a party to the offense, that he instigated it, and that he served as a

lookout.

Appellant was indicted for the

capital murder of Rogelio Garza on September 5, 2002. On January 19, 2006, Appellant was indicted

for the aggravated assault of Rogelio Garza.

The second indictment was returned outside the statute of limitations

for aggravated assault, but it was alleged in the second indictment that the

first indictment had been pending from September 5, 2002 until January 18,

2006. The second indictment also alleged

that Appellant was an habitual offender.

Appellant filed a pretrial motion to set aside the second indictment,

and the trial court denied that motion.

Appellant pleaded not guilty to the

second indictment, and a jury trial was held.

The jury convicted him of aggravated assault. After a separate punishment hearing, the jury

found the enhancement allegations to be true and assessed punishment at thirty–nine

years of imprisonment. This appeal

followed.

Statute of Limitations

In his first issue, Appellant argues

that the question of whether the State had proved that the indictment was

brought within the statute of limitations should have been submitted to the

jury. In his fourth and fifth issues,

Appellant argues that the State failed to prove that this prosecution was not

barred by the statute of limitations. We

will address these issues together.

Tolling of

the Statute of Limitations

Prosecutions for aggravated assault

must be initiated within three years of the assault. Tex.

Code Crim. Proc. Ann . art. 12.01(6) (Vernon 2006). That period of limitations may be tolled for

the period of time that an earlier indictment is or was pending. See Tex.

Code Crim. Proc. Ann . art. 12.05(b) (Vernon 2006). A prior indictment tolls the statute of

limitations under Article 12.05(b) when the subsequent indictment alleges the

same conduct, same act, or same transaction.

Hernandez v. State , 127 S.W.3d. 768, 774 (Tex. Crim. App.

2004).

At trial, a defendant may assert a

limitations defense by requesting a jury instruction on the issue if there is

some evidence before the jury, from any source, that the prosecution is

limitations barred. See Proctor

v. State , 967 S.W.2d 840, 844 (Tex. Crim. App. 1998). If there is some such evidence and the

defendant requests a jury instruction on the limitations defense, then the

State must prove beyond a reasonable doubt that the prosecution is not

limitations barred. Id .

Analysis

Appellant requested a jury

instruction on the statute of limitations defense. On appeal, he argues that the jury

instruction should have been given because the defense was raised and that he

is entitled to an acquittal or a new trial because there is insufficient

evidence that the prosecution was brought within the statute of limitations. The parties agree that the second indictment

would be limitations barred if not for the tolling provided by the first

indictment. Appellant argues that the

first indictment did not toll the statute of limitations because the tolling

allegation in the second indictment had the following perceived deficiencies:

1) The tolling allegation in the second indictment alleged a

different offense.

2) The second indictment “did not allege that the indictment

previously pending was for an offense against the same victim.”

3) The second indictment “does not allege that the

indictment previously pending was for the same conduct charged in the

indictment.”

4) The second indictment “does not allege that the grand

jurors found that a prior grand jury had returned an indictment against the

defendant.”

5) The second indictment “does not allege that the grand

jurors had found that a prior indictment had been determined to be invalid, or

otherwise ceased to exist.”

6) The second indictment does not allege the date on which

the grand jurors found the prior indictment to be invalid.

Appellant provides no citation to

authority for the proposition that these deficiencies mean the statute of

limitations was not tolled by the first indictment. He repeats these arguments with respect to

the sufficiency of the evidence, again without citation to authority. The assertion that the prosecution is time

barred and that the tolling allegation is insufficient because the offenses are

different is incorrect. In Hernandez ,

127 S.W.3d at 774, the Texas Court of Criminal Appeals held that “a prior

indictment tolls the statute of limitations under Article 12.05(b) for a

subsequent indictment when both indictments allege the same conduct, same act,

or same transaction.” The first

indictment alleged that Appellant knowingly or intentionally caused Rogelio

Garza’s death on March 31, 2001.

The second indictment, as amended, alleged that Appellant intentionally,

knowingly, or recklessly caused serious bodily injury to Rogelio Garza by

striking Garza with his foot or hand and that the conduct was the same as that

alleged in the first indictment.

As a matter of pleadings, the second

indictment alleges that it is the same conduct that is covered by each

indictment. As a matter of proof, the

evidence adduced at trial showed a single incident that included the killing of

Rogelio Garza on March 31, 2001 as well as the aggravated assault of Rogelio

Garza on March 31, 2001. There were not

two incidents, or two transactions, or two Rogelio Garzas.

Appellant’s arguments that the State

did not allege and did not prove that it was the same victim in each indictment

or that it was the same conduct in each indictment are similarly without

merit. The only evidence was that it was

the same victim in each indictment and the same conduct. With respect to pleadings, the court of

criminal appeals has not required that tolling allegations be pleaded with the

same degree of particularity as would be expected of an allegation of the

charged offense. Ex parte Smith ,

178 S.W.3d 797, 803 (Tex. Crim. App. 2005).

The second indictment did allege, in conclusory fashion, that it was the

same conduct that was the basis of the first indictment. Even if this pleading

was insufficient, complaints about pleadings are waived if they are not

challenged prior to trial. Id . Appellant did preserve these complaints by

filing a pretrial motion to set aside the indictment, but does not presently

challenge the trial court’s ruling denying that motion.

Appellant’s argument that the second

indictment did not allege the grand jurors found that a prior grand jury had

returned an indictment against him is belied by the second indictment, which

states that an indictment charging the same conduct was pending, and provides

the cause number. Appellant’s argument

that the grand jurors did not find the previous indictment to be invalid or the

date on which it became invalid is apparently a reference to Texas Code of

Criminal Procedure, Article 12.05(c), which provides that the definition of “during

the pendency” of the previous indictment is measured from the date it is filed

until the date it is determined to be invalid.

It is possible to read the “during the pendency” language to mean that

there is no pendency until the previous indictment has been found to be

invalid. In other words, an indictment

tolls the statute of limitations only after it has been found to be

invalid. Appellant offers no support for

this construction of the statute, nor have we found any.

The court of criminal appeals has

held that it is absurd to construe Article 12.05 to allow only invalid

indictments to toll the limitations period.

See Vasquez v. State , 557 S.W.2d 779, 784 (Tex. Crim. App.

1977), overruled on other grounds , Proctor v. State , 967

S.W.2d 840, 844 (Tex. Crim. App. 1998).

Furthermore, a dismissal of an indictment is sufficiently akin to a

finding of invalidity that it ends the tolling period under the statute. See McAlister v. State ,

119 S.W.3d 460, 462 (Tex. App.– Fort Worth 2003, no pet.). Absent more explicit direction, we cannot

conclude that the tolling period does not exist in this case simply because the

State had not dismissed the first indictment before the second indictment was

returned. By statute, the statute of

limitations was tolled from the time the first indictment was filed until it

was determined to be invalid. At the

time of trial, the first indictment was still pending. Therefore, the endpoint of the tolling period

had not been reached, and the first indictment tolled the statute of

limitations starting from the time it was returned and ending, if it did, at

some point after the second indictment was returned.

Having concluded that there was not

a pleading or a proof issue with respect to the tolling provision, the question

remaining is whether the issue should nevertheless have been submitted to the

jury. The trial court’s duty to instruct

the jury on a statute of limitations defense is triggered only upon request and

where there is an evidentiary dispute as to whether the offense was committed

within the limitations period. See

Proctor , 967 S.W.2d at 844 .

In Howlett v. State , 994 S.W.2d 663, 668 (Tex. Crim. App.

1999), the court of criminal appeals concluded that the trial court was not

required to give an instruction on limitations because there was no factual

dispute as to whether the offense was committed within the limitations

period. In an earlier case, the court of

criminal appeals held that a jury instruction on limitations is not required

when the tolling of the indictment is beyond factual dispute. See Ex parte Morin , 172 Tex.

Crim. 322, 323 , 356 S.W.2d 689, 689 (Tex. Crim. App. 1962).

It is the requirement that the

limitations defense have evidence to support it that Appellant did not

meet. See Proctor ,

967 S.W.2d at 844 (there must be some evidence before the jury that the

prosecution is limitations barred). The

relevant facts about the indictments were undisputed. Appellant makes a number of legal arguments

about the insufficiency of the tolling allegations. The pleading related complaints are not

important because Appellant does not argue that the trial court erred when it

overruled those complaints. With respect

to the evidence supporting the defense, there is no reasonable dispute that it

was the same transaction or occurrence that each indictment described. As such the statute of limitations was

tolled, and it was not error for the trial court not to instruct the jury on a

limitations defense.

Appellant’s arguments about the

sufficiency of the evidence also fail.

The State is required to prove the prosecution is not limitations barred

only if the “defendant requests a jury instruction on the limitations defense”

and “there is some evidence before the jury, from any source, that the

prosecution is limitations-barred.” Proctor ,

967 S.W.2d at 844 . There being no

evidence before the jury that the prosecution was limitations barred, the State’s

obligation to prove that the prosecution was not limitations barred was not

triggered. We overrule Appellant’s

first, fourth, and fifth issues.

Gang Evidence–Guilt/Innocence

In his second issue, Appellant

argues that the trial court erred when it allowed “gang identification”

evidence to be admitted during the guilt/innocence phase of the trial. This complaint is not preserved for our

review.

Prior to trial, Appellant filed a

motion in limine to restrict testimony about his gang affiliation. During trial, and before the State called one

of the inmate witnesses, the prosecutor alerted the court and Appellant that

she wished to introduce “gang information” to show motive, plan, and “same

transaction evidence.” Appellant’s

counsel argued that the evidence should not be admitted, and a lengthy

discussion ensued between the court and the lawyers. The court alerted the parties that it was

going to allow the evidence, but also said that it had not heard any evidence

yet and that their discussion had been about whether a motion in limine should

be granted. The court told Appellant’s

counsel that its limine ruling was preliminary and the court would consider and

rule on objections, if made, when the evidence was offered.

The State then called the inmate,

who testified that Appellant approached him and asked him to help discipline

Garza. The inmate testified that it was

understood that the discipline order came from third parties. When asked who the third parties were, he

said, “Mexican Mafia.” The State

responded, “No, I mean the people, names,” and the witness agreed to a list of

inmates who comprised the third parties.

Appellant did not object to this

testimony, and no other testimony or evidence about gangs was introduced during

the guilt/innocence phase of the trial.

To preserve a complaint for appeal, a defendant must object, state the

grounds for the objection with sufficient specificity, and obtain an adverse

ruling.

Tex. R. App. P . 33.1 (a)(1(A); Wilson v. State , 71

S.W.3d 346, 349 (Tex. Crim. App. 2002).

The denial of a motion in limine does not preserve a complaint. Roberts v. State , 220 S.W.3d

521, 533 (Tex. Crim. App. 2007); Martinez v. State , 98 S.W.3d

189, 193 (Tex. Crim. App. 2003).

Appellant did not object to the trial court’s characterization of the

discussion as being about a motion in limine and never gave the trial court an

opportunity to consider whether the inmate’s nonresponsive answer should have

been stricken. Because there was no

objection at the time the evidence was admitted, no complaint is preserved for

our consideration. See Hatchett v.

State , 930 S.W.2d 844, 849 (Tex. App.–Houston [14th Dist.] 1996, pet.

ref’d). We overrule Appellant’s second

issue.

Gang Evidence–Punishment

In his third issue, Appellant argues

that the trial court erred when it allowed an expert witness to testify to

anything more than the fact that he was a gang member. Appellant cites twelve objections raised in

the trial court and then argues that evidence of his gang membership should not

have been allowed at all. We will

address the broader argument.

Testimony

Robert Grant is the Regional

Security Threat Coordinator for the Texas Department of Criminal Justice. Since 1993 he has worked in the prison system

on gang related issues, first as an intelligence officer investigating gang

membership and activities and then supervising those who do that investigative

work. Part of his duties include

reviewing the work of investigators who identify gang members. He testified that the review is highly

structured and that other agencies rely upon their determinations. Grant testified that his office had

determined that Appellant was a member of the Mexican Mafia, a prison

gang. This determination was made after

consideration of intercepted mail between inmates, tattoos on Appellant’s body,

intercepted letters that Appellant had written, and a list of gang members

recovered from an admitted gang member.

Grant also testified that the

Mexican Mafia was a violent prison gang with a hierarchical structure and a

written constitution. The written

constitution, according to Grant, states that the Mexican Mafia is a criminal

organization, and that it would be involved in drug sales, extortion, murder

for hire, assaults, and other activities that advanced the organization. He testified that the Mexican Mafia had been

involved in a number of violent activities in the prison and that the leaders

of the organization were able to control the organization even from solitary

confinement. He testified that the gang

would discipline its own members if they misbehaved, and that discipline

decisions were made by someone other than the entry level gang members.

Analysis

In his first and fourth

subarguments, Appellant argues that it violates his rights to free association

to allow testimony about his gang membership.

Citing Dawson v. Delaware , 503 U.S. 159 , 112 S. Ct. 1093 ,

117 L. Ed. 2d 309 (1992), Appellant argues that admission of irrelevant

evidence of gang membership is constitutional error. Dawson is distinguishable from

this case because the holding in Dawson turned on the narrow

stipulation of facts about the gang of which Dawson was a member. In lieu of the State calling an expert

witness, the parties stipulated that the Aryan Brotherhood was a “white racist

prison gang that began in the 1960’s in California in response to other gangs

of racial minorities. Separate gangs

calling themselves the Aryan Brotherhood now exist in many state prisons

including Delaware.” Id .,

503 U.S. at 162 , 112 S. Ct. at 1096 . The

evidence tended to show that Dawson was a member of the Aryan Brotherhood

prison gang in Delaware. But because the

stipulation did not contain any further information about the Delaware gang, or

link the beliefs of the California gang to the Delaware gang, or provide any

information about the beliefs of the gang beyond the fact that the California

gang held racist beliefs, the Court concluded that the evidence was irrelevant

to that proceeding. Id .,

503 U.S. at 166 , 112 S. Ct. at 1098 . The

Court recognized that in cases where membership in a gang is linked by proof to

the crime itself, evidence of membership or beliefs may be relevant. Id . (citing Barclay v.

Florida , 463 U.S. 939, 949 , 103 S. Ct. 3418 , 77 L. Ed. 2d 1134

(1983)). The Court believed that racist

beliefs did not play a part in the murder in Dawson because the

victim was white, but the Court allowed that evidence could be relevant if the

State had presented evidence beyond the defendant’s own abstract beliefs. Id ., 503 U.S. at 167 , 112 S.Ct.

at 1098 .

Therefore, to prove the relevance of

a defendant’s membership in an organization or group, the State must show (1)

proof of the group’s violent and illegal activities, and (2) the defendant’s

membership in the organization. See

Mason v. State , 905 S.W.2d 570, 577 (Tex. Crim. App. 1995). In this case, the State showed that the

offense was linked to gang membership and provided a great deal of context

about the activities of the gang including its goals as stated in a written

constitution, which included violent acts.

Texas courts have consistently held that evidence of gang membership is

admissible when it is relevant in the punishment phase of trial. Jones v. State , 944 S.W.2d 642,

653 (Tex. Crim. App. 1996); Beasley v. State , 902 S.W.2d 452, 456

(Tex. Crim. App. 1995). The evidence

admitted here was relevant because it linked the offense to Appellant’s gang

membership, and so Appellant’s right to associate was not violated.

In his second and third

subarguments, Appellant argues that a witness may not testify about a defendant’s

character unless the witness was familiar with that person’s character prior to

the offense. See Hernandez v.

State , 800 S.W.2d 523, 525 (Tex. Crim. App. 1990). In his twelfth subargument, again citing Hernandez ,

Appellant argues that Grant could not testify that he was a gang member because

the prison authorities had not confirmed that he was a member of a gang at the

time of the assault. But the holding in Hernandez

is based on the specific language of a precursor to Texas Rule of

Evidence 405. In relevant part, the

current version of Rule 405 provides that “[i]n a criminal case, to be

qualified to testify at the guilt stage of trial concerning the

character or character trait of an accused, a witness must have been familiar

with the reputation, or with the underlying facts or information upon which the

opinion is based, prior to the day of the offense.” Tex. R. Evid. 405

(emphasis added). Assuming that this was

character or reputation evidence, this portion of Rule 405 applies only to the

guilt stage of trial. The gang evidence

was introduced at the punishment phase, and so this part of Rule 405 and Hernandez

do not apply.

In his fifth, eighth, ninth, tenth,

and eleventh subarguments, Appellant argues that his right to confront and

cross examine witnesses as guaranteed by the Texas and U.S. constitutions and

the evidentiary rules regarding hearsay were violated when Grant was permitted

to testify about Appellant’s gang status based on correspondence between

inmates that was intercepted by prison officials. The letters themselves were not admitted.

In the appropriate circumstances, an

expert may rely upon hearsay in formulating an opinion. Tex.

R. Evid. 703. Appellant did not

contest that the witness was an expert.

In fact, when discussing her objections to his testimony, Appellant’s

counsel did not object on the grounds that the witness was not an expert and

said, “I’m sure he is an expert.”

Some of the letters were from

Appellant himself. No confrontation

issues or hearsay issues are raised by the expert relying on Appellant’s own

words. See Crawford v.

Washington , 541 U.S. 36, 51 , 124 S. Ct. 1354, 1364 , 158 L. Ed. 2d 177

(2004) (The Confrontation Clause “applies to ‘witnesses’ against the

accused--in other words, those who ‘bear testimony.’”); Tex. R. Evid. 801(e)(2)(A) (statements by party/opponent are

not hearsay). Grant also relied on

letters from other individuals, mostly relating to gang activity. Appellant cites Crawford and Russeau

v. State , 171 S.W.3d 871 (Tex. Crim. App. 2005) 1 as support for

his argument that relying on these letters violates his Sixth Amendment right

to confrontation. In Crawford ,

the Supreme Court held that it violated the Sixth Amendment to allow

testimonial hearsay to be admitted without giving the defendant the opportunity

to question the declarant. Crawford ,

541 U.S. at 59 , 124 S. Ct. at 1369 .

Statements are testimonial hearsay if they are ex parte in court

testimony or its functional equivalents, including affidavits, depositions,

prior testimony, or confessions or statements that are made under circumstances

where the speaker would reasonably believe that the statement would be used at

a later trial. Id ., 541

U.S. at 51–52, 124 S. Ct. at 1364 . In Russeau

the court of criminal appeals held that admitting ex parte affidavits of

government employees was error because those affidavits were testimonial

hearsay. Russeau , 171

S.W.3d at 881 .

By contrast, the items here, letters

by inmates in the prison system, were not admitted and were not

testimonial. A letter from one gang

associate to another conducting gang business is not like an affidavit or a

deposition and is not a statement one would expect to be used at trial to prove

a fact. These letters are more like a

casual remark to an acquaintance, see Crawford , 541 U.S. at 51 ,

124 S. Ct. at 1364 , are not testimonial, and do not implicate the Confrontation

Clause.

In his sixth and thirteenth

subarguments, Appellant argues that the testimony by Grant was speculative and

therefore inadmissible. We disagree. Grant testified that the determination that a

prisoner was a gang member is made after careful consideration and on the basis

of a number of different criteria. He

testified that his group identified Appellant as a gang member based on his

name being on a list of gang members kept by another gang member, his

correspondence with gang members about the internal activities of the Mexican

Mafia, distinctive gang tattoos, a letter stating that Appellant had been “cleared

as a member,” and a letter from Appellant asking who his gang sponsor was,

apparently written after he had been transferred from one unit to another. There was a substantial basis for the expert

witness’s conclusion that Appellant was a gang member, and the trial court did

not err when it overruled Appellant’s objection that the testimony was

speculative.

In his seventh subargument,

Appellant argues that the witness had no personal knowledge that Appellant was

a gang member and that he was not qualified as an expert witness. If the appropriate predicate is shown, an

expert may testify about things beyond his personal knowledge. See Aguilar v. State , 887

S.W.2d 27, 29 (Tex. Crim. App. 1994); Tex.

R. Evid. 703. Appellant does not

argue that a predicate was not presented to permit Grant to testify about the

conclusions he drew from the evidence his investigators collected about

Appellant’s gang affiliation. As shown

above, Appellant did not object to the witness’s qualification as an expert

witness. Instead, Appellant’s counsel

stated that she was sure he was an expert.

The present complaint that he was not an expert is waived for failure to

make a contemporaneous objection. See

Tex. R. App. P . 33.1

(a)(1(A).

Finally, Appellant argues briefly

that discovery related to the expert witness was not provided in an timely

fashion. The prosecutor stated that she

turned the relevant documents over to Appellant’s counsel when she received

them. There was a broad ranging

discovery order entered prior to trial, but we cannot determine if these items

were required to be disclosed or provided.

In his one sentence argument on this point, Appellant does not identify

where these items are addressed in the discovery order. Even if there was a discovery violation, a

continuance, not exclusion of the evidence, is the ordinary remedy when a

discovery violation is not willful. See

State v. LaRue , 152 S.W.3d 95, 100 (Tex. Crim. App. 2004); Tamez

v. State , 205 S.W.3d 32, 40 (Tex. App.–Tyler 2006, no pet.). Appellant did not seek a continuance and did

not and does not argue that the violation, if any, was willful. We conclude that the trial court’s decision

to allow the testimony despite Appellant’s complaints about late discovery was

not an abuse of discretion. See Martinez

v. State , 867 S.W.2d 30, 39 (Tex. Crim. App. 1993).

In sum, the trial court did not err

when it allowed the State’s expert witness to testify that Appellant was a

member of a gang. The testimony was

based in part on hearsay and the synthesis of investigatory materials, but

Appellant has not shown that the expert’s conclusions were not based on the

kinds of materials experts may consider in reaching their opinions. Appellant’s right to confrontation was not

violated because no testimonial hearsay was presented or relied upon. Finally, the rules of evidence do not require

that an expert testifying during the punishment phase of a trial be aware of

the person’s gang membership at the time of the underlying offense. We overrule Appellant’s third issue.

Disposition

Having overruled Appellant’s five

issues, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 22,

2007.

Panel

consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Appellant provides no

argument with respect to the protection provided by the Texas Constitution in

this regard. Therefore, as the court did

in Russeau , we overrule his contentions based on the Texas

Constitution as inadequately briefed. See

Russeau , 171 S.W.3d at 881 (citing Tex.

R. App. P . 38.1(h)).