Luis Abraham Requeno-Portillo v. State

Opinion issued August 25, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00242-CR

———————————

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 [1] 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.

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?

[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.

The trial court then refused to allow this testimony

in front of 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.

[The State]: Judge,

I’m going to object. That’s a

misstatement of the law.

[The Court]: Be sustained.

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.”

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. [2] 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).

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).

[1] See

Tex. Penal Code Ann. § 19.02

(Vernon Supp. 2010).

[2] 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].