          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                           NO. 03-01-00423-CR
                                           NO. 03-01-00424-CR



                                       Mike Cruz Garza, Appellant

                                                       v.

                                      The State of Texas, Appellee


       FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
            NOS. 7114 & 7115, HONORABLE JOE CARROLL, JUDGE PRESIDING



                 Appellant was convicted of intoxication manslaughter and aggravated assault with a deadly

weapon. 1 These charges arose out of an automobile collision. In one issue on appeal, he contends that

evidence of the victim=s intoxication should have been admitted during the punishment phase of trial. We

will affirm the convictions.


                                  Factual and Procedural Background

                 These offenses arose from a traffic accident that occurred about a mile east of Lampasas.

The accident occurred about 9:30 p.m. during a light rainfall. As described by witness Jeremy Herring,

appellant=s Jeep, traveling west, made a quick turn across all traffic lanes and collided with the left fender of


   1
      Cause number 03-01-00423-CR is the appeal from the conviction for intoxication manslaughter,
which involved the death of Martin Ybarra. See Tex. Pen. Code Ann. ' 49.08 (West Supp. 2002). Cause
number 03-01-00424-CR is the conviction for aggravated assault, which involved injury to Johnny Ybarra.
 See Tex. Pen. Code Ann. ' 22.02 (a) (West 1994).
a Pontiac Sunbird traveling east. The Pontiac=s driver, Martin Ybarra (Ybarra), died. His passenger, his

adult son John, was injured.

                 Appellant was tried by a jury in both the guilt-innocence and punishment phases.

Punishment was assessed at twenty years and a $10,000 fine for intoxication manslaughter and fifteen years

and a $10,000 fine for assault.2 The trial court had granted the State=s motion in limine to prevent appellant

from discussing the fact that Ybarra=s post-mortem blood test showed a blood alcohol level of .10. During

guilt-innocence, however, appellant did ask John if he had been drinking and if it appeared to him that his

father had. The son=s response to both questions was, ANo.@ In an off-the-record hearing before the

punishment phase, appellant presented his request to introduce Ybarra=s blood alcohol level. The court

overruled his request. Appellant made a bill of exception to preserve error. In one issue on appeal, he

urges that the trial court erred in refusing to admit this evidence.


                                                  Discussion

                 The trial court has broad discretion in determining the admissibility of evidence, and its ruling

should not be reversed on appeal absent a clear abuse of discretion. Allridge v. State, 850 S.W.2d 471,

492 (Tex. Crim. App. 1991). A ruling that falls within the zone of reasonable disagreement cannot be

disturbed on review. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).




   2
       Appellant had two prior convictions for driving while intoxicated.



                                                       2
                 Appellant argues that evidence of Ybarra=s blood alcohol level should have been admitted

at punishment because the defendant may offer evidence during the punishment phase of trial as to Aany

matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the

defendant@ and Athe circumstances of the offense for which he is being tried.@ Tex. Code Crim. Proc. art.

37.07, ' 3(a)(1) (West Supp. 2002). He asserts that the definition of relevance3 as found in the Texas

Rules of Evidence is not adequate in the context of the punishment phase of a criminal case. See Rogers v.

State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (definition Anot a perfect fit in the punishment

context@). Instead, relevance is a question of Awhat is helpful to the jury in determining the appropriate

sentence for a particular defendant in a particular case.@ Id. Under this broader theory, admissibility is a

function of policy rather than relevance. Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000).

These policy concerns include: Aadmitting the truth in sentencing, giving complete information for the jury to

tailor an appropriate sentence for appellant, and the policy of optional completeness.@4 Id. at 285.



   3
     Relevant evidence is that evidence Ahaving 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.
   4
      AWhen part of an act . . . is given in evidence by one party, the whole on the same subject may be
inquired into by the other, and any other act . . . which is necessary to make it fully understood or to explain
the same may also be given in evidence . . . .@ Tex. R. Evid. 107.




                                                       3
                Appellant argues only that the evidence of the victim=s intoxication was admissible to give

the jury complete information about the offense to assist them in assessing a proper sentence. He urges that

the evidence of the victim=s intoxication is not impermissible Anegative victim impact evidence.@ On the

contrary, we conclude that this evidence falls squarely within that category.




                                                     4
Victim Impact Evidence

                The purpose of victim impact evidence at the punishment stage is to assist the jury in

assessing the accused=s personal responsibility and moral guilt in terms of the trauma or loss the accused=s

actions caused. See Miller-El v. State, 782 S.W.2d 892, 896-97 (Tex. Crim. App. 1996); Richards v.

State, 932 S.W.2d 213, 215-16 (Tex. App.CEl Paso, 1996 pet. ref=d). However, Anegative victim impact

evidence,@ that is, evidence introduced for the purpose of showing that a defendant=s punishment should be

lessened because of the victim=s character, is not permissible. In Clark v. State, 881 S.W.2d 682, 699

(Tex. Crim. App. 1994), the defendant sought to introduce evidence that the victim was not a person of

good character. His theory was that the jury might find that the defendant was a greater threat to society if

they believed he murdered a particularly valuable member of the community and that the jury might have

placed less value on the victim=s life if they knew of her Atrue@ character. The court of criminal appeals

rejected that logic and held that the trial court properly excluded the evidence. Id. at 699.

                Similarly, in Richards v. State, 932 S.W.2d at 215, the defendant sought to introduce

evidence that the victim=s character and reputation for peacefulness and law-abiding were bad. The

defendant argued that he was entitled to introduce evidence that the victim=s death was not as much of a

loss to society as his widow would like for the jury to believe. He asserted that one of his strongest

arguments for mitigation of his punishment was that Athe deceased was no more a model citizen that the

widow alleged [a]ppellant to be.@ Id. The court held that the trial court did not abuse its discretion in

finding that the negative evidence Richards sought to introduce was not relevant to the issue of appellant=s

personal responsibility and moral guilt. Id at 215-16.



                                                     5
                 Appellant sought to introduce evidence of Ybarra=s blood alcohol content. Appellant

asserts this evidence is admissible to show the jury the Acontext@ of the offense so the jury has the complete

picture. Appellant did not further articulate a reason for the admissibility of the evidence.

                 Appellant relies on Sunbury v. State, 33 S.W.3d 436, 438-42 (Tex. App.CHouston [1st

Dist.] 2000, pet. ref=d). In Sunbury, appellant had committed eight robberies during a two-week Aspree.@

Id. at 438. At punishment, the state called sixteen witnesses who testified about the circumstances of the

appealed-from robbery and about the other seven robberies. Id. In rebuttal, appellant sought to introduce

evidence that sentence had already been imposed for two of the robberies. Id. at 440-41. The trial court

excluded that evidence. On appeal, appellant argued that he received a substantially harsher sentence

because the jury was operating on the mistaken impression that he had not been punished for any of the

robberies. Id. at 442. The appellate court decided that the excluded evidence would have been useful to

the jury and was Arelevant to sentencing@ because it completed the picture in front of the jury. Id.

                 The type of evidence in Sunbury differs from that which appellant sought sought to

introduce here. That a defendant has already been punished for an offense that might be perceived by the

jury as part of an overall Aspree@ is evidence related to the degree of the accused=s culpability and helps the

jury properly assess punishment. The evidence completed the picture drawn by the State with regard to the

other offenses. In contrast, appellant=s evidence, as shown by his bill of exceptions, simply showed

Ybarra=s blood alcohol level. In other words, he argues that he should be punished less because the victim

was intoxicated. This is Anegative victim impact evidence.@




                                                      6
                As in Sunbury, the defendant in Mendiola sought to introduce evidence to meet the State=s

evidence concerning other offenses. In Mendiola, the State introduced evidence of an indictment for a

previous offense; the defendant sought to counter with evidence that the previous indictment had been

dismissed. The trial court excluded the evidence of dismissal. 21 S.W.3d at 284. The Court of Criminal

Appeals reversed and remanded for a post-Rogers reconsideration of admissibility. Again, the evidence in

Mendiola was offered to complete or rebut the picture painted by the State with regard to the defendant=s

other offenses, which is evidence relevant to his culpability. Neither Mendiola nor Sunbury involved a

defendant attempting to introduce evidence concerning the victim=s character as is appellant in this case.


                                                Conclusion

                In short, Athe language >any matter the court deems relevant to sentencing= does not mean

that anything goes.@ Brooks v. State, 961 S.W.2d 396, 401 (Tex. App.CHouston [1st Dist.] 1997, no

pet.). We hold that appellant=s proffered evidence was improper Anegative victim impact evidence@ and

properly excluded by the trial court. We overrule appellant=s sole point of error and affirm the conviction on

both causes.




                                                  David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed


                                                      7
Filed: August 30, 2002

Do Not Publish




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