      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00844-CR



                                   Benito Carrillo, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
       NO. D-1-DC-2005-300119, HONORABLE BOB PERKINS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Benito Carrillo of the offense of murder. See Tex. Penal

Code Ann. § 19.02(b)(1) (West 2003). The district court assessed punishment at fifty years’

confinement. In four issues on appeal, Carrillo contests the factual sufficiency of the evidence,

alleges two evidentiary errors, and asserts that the district court made an impermissible comment on

the weight of the evidence. We will affirm.


                                        BACKGROUND

               Carrillo was indicted for intentionally or knowingly causing the death of his

stepfather, Martin Garcia, on or about January 15, 2005. The indictment also alleged three prior

felony convictions.
               Garcia’s death followed an altercation with Carrillo in a mobile home occupied by

Garcia and various members of their family, several of whom testified at trial.1 Carrillo’s sister,

Monique Lopez, testified that Carrillo arrived at the home at approximately 12:30 a.m., and an

altercation began between Carrillo and their sister, Candi Lopez. According to Monique, Candi

“didn’t want him there,” the two were “pushing each other” around, and eventually Candi hit Carrillo

either on his head or his shoulder with a broom or a mop. Monique witnessed her other brother,

Marty, as well as her cousins, Jesse and Juan, attempt to separate Candi and Carrillo. Monique

testified that their mother, Ofilia, also witnessed the altercation and at some point began screaming

for her husband, Martin Garcia. Monique testified that she saw Garcia come out of the master

bedroom, approach Carrillo, and begin to hit him repeatedly in the face. Monique then saw Marty,

Jesse, and Juan attempt to separate Garcia and Carrillo. Monique testified that the fight soon moved

from the living room to the kitchen, where it became increasingly violent, and later continued

moving toward the master bedroom. Monique testified that she went to the kitchen to check on

Ofilia, who had fainted. After leaving the kitchen, Monique found Garcia lying in the master

bathroom “full of blood.” Marty was also present, “[t]rying to pick [Garcia] up to move him to the

bed.” Monique testified that most everyone else, including Carrillo, had gone outside. When Marty

removed Garcia’s shirt, Monique observed stab wounds and “a lot” of blood on Garcia’s chest.

               Monique’s statement to the police was admitted into evidence for the jury’s

consideration. In it, Monique told a different story. In the statement, Monique explained that, after


       1
          With one exception discussed below, police statements from these family members,
markedly inconsistent with their subsequent testimony, were admitted at trial for “record purposes
only” and not considered by the jury. Our recitation of facts is derived from the trial testimony.

                                                 2
Candi said that she did not want Carrillo in the house, Carrillo approached Candi and “started to

punch [her].” Candi began fighting back, and family members attempted to separate the two. The

two were temporarily separated, but then Candi made a comment to Carrillo and he “started hitting

[her] again,” eventually throwing her “against the kitchen table” and pulling her hair. According to

Monique’s police statement:


       That was when Martin came out of his bedroom and approached [Carrillo] quickly
       and punched him to get him to let go of Candi. [Carrillo] let go of Candi and punched
       Martin back. . . . Martin stumbled and ended up against the refrigerator. When
       Martin turned around to face [Carrillo], [Carrillo] had already reached his hand into
       his pocket and pulled out a folding knife that was all silver. [Carrillo] opened the
       knife and charged toward Martin thrusting his hand toward Martin in a stabbing
       motion. Martin was stepping back to get out of [Carrillo’s] way and that was when
       I saw Martin’s shirt with blood on it in the stomach area. . . . [Carrillo] kept stabbing
       Martin. . . . [Carrillo] finally stopped and got up and went outside.


               Candi Lopez also testified. Repeatedly saying that the incident “happened so fast,”

Candi recounted that she could not remember many of the details of what happened that night. After

the State refreshed Candi’s memory by showing her a copy of the statement she gave to the

police, Candi did remember that when Carrillo and Garcia were fighting, Carrillo “pulled out

a knife” and “started stabbing” Garcia. Candi testified that she did not see Garcia with a knife at

any point during the incident.

               Carrillo’s cousin Juan Gutierrez testified that, after Garcia hit Carrillo, Carrillo “went

up to him and started stabbing him.” When asked how many times Carrillo stabbed Garcia,

Gutierrez testified that Carrillo stabbed him “several times.”          Gutierrez also testified that




                                                   3
when Garcia ran away from the kitchen and into the bedroom, Carrillo followed Garcia and

continued stabbing him.

               The testimony of Carrillo’s other cousin, Jesse Gutierrez, was largely consistent with

the testimony of the other family members, although Jesse didn’t remember seeing a knife until the

end of the incident. Jesse testified that he witnessed Carrillo stabbing Garcia in the bathroom and

that he and Monique unsuccessfully tried to take the knife away from Carrillo.

               Carrillo’s mother, Ofilia Garcia, testified repeatedly that she did not remember or did

not know what happened the night of the incident. Ofilia admitted, however, that she saw her son

stab Garcia “two or three” times.

               Tanya Tarpley, the wife of Carrillo’s grandfather, also testified. Like the other family

members who witnessed the incident, Tarpley had difficulty in court remembering exactly what

happened. At one point during her testimony, Tarpley explained that she was in the kitchen when

Carrillo and Garcia were fighting with each other, and she “ran out the door” and hid because she

“knew some [expletive] was going to start because, you know, Martin doesn’t like [Carrillo]

anyway.” However, in her statement to the police, Tarpley stated that the reason she ran away

was because Carrillo “had already hit [Tarpley] once before.” Over an objection by defense

counsel, the district court allowed Tarpley to testify to this prior inconsistent statement for

the purpose of impeachment.

               The jury also heard evidence from police officers who arrived at the crime scene.

Officer Mark Horn was the first to arrive. Horn testified that Carrillo was found hiding underneath

the trailer in which the family lived. Horn further testified that he located Garcia in the master



                                                  4
bedroom. Horn explained that Garcia “didn’t look good” and, because Horn “was fearful that

[Garcia] wasn’t going to make it,” he decided to ask Garcia who had stabbed him and record

Garcia’s statement using his car video camera in conjunction with his lapel audio transmitter. Horn

testified that, when asked who his assailant was, Garcia answered, “Benito Carrillo.” Over a

Confrontation Clause objection by defense counsel, this statement was admitted into evidence as a

“dying declaration.” See Tex. R. Evid. 804(b)(2).

               Travis County deputy medical examiner Elizabeth Peacock conducted the autopsy

on Garcia and determined that Garcia sustained multiple wounds to his body, including a four-inch-

deep stab wound on the back of his shoulder, a defensive stab wound on his finger,2 and two fatal

wounds to his chest area. Peacock testified that Garcia sustained a total of eight stab wounds and

five other “cutting injuries that didn’t go deep into the body.”

               The court’s charge included instructions regarding the law of defense of a third

person3 and the law of self-defense.4 The State argued during its closing statement that Candi was

       2
          Peacock testified that a defensive wound is “a wound sustained usually to the extremities
as the person undergoing an assault puts up their extremities between the assailant and the weapon
and their vital areas.”
       3
          Texas law provides that a person is justified in using force or deadly force against another
to protect a third person if:

       (1) under the circumstances as the actor reasonably believes them to be, the actor
       would be justified under Section 9.31 or 9.32 in using force or deadly force to protect
       himself against the unlawful force or unlawful deadly force he reasonably believes
       to be threatening the third person he seeks to protect; and

       (2) the actor reasonably believes that his intervention is immediately necessary to
       protect the third person.

Tex. Penal Code Ann. § 9.33 (West 2003). The court’s charge included an instruction based on

                                                  5
being attacked by Carrillo and, therefore, that Garcia was justified in using force against Carrillo in

order to protect Candi. See Tex. Penal Code Ann. § 9.33 (West 2003). The State made a generic

reference to a person’s right under the statute to use “force or deadly force” in defending a third

person. While consistent with the penal code, the court’s instruction regarding defense of

third persons had omitted references to “deadly force.” After the State made the reference to

“deadly force,” the district court interrupted the State’s attorney, Ms. Powers, and offered the

following clarification:


       THE COURT: Ms. Powers, let me also point out to the members of the jury, in
       terms of the charge that I gave you on defense of a third person, it doesn’t have any
       reference to deadly force. I think—did you just put up the generic charge there?

       MS. POWERS: No, sir, we did not.



section 9.33 but omitted the references to “deadly force.”
       4
           Texas law provides that a person is justified in using deadly force against another:

       (1) if he would be justified in using force against the other under Section 9.31;

       (2) if a reasonable person in the actor’s situation would not have retreated; and

       (3) when and to the degree he reasonably believes the deadly force is immediately
       necessary:

                (A) to protect himself against the other’s use or attempted use of unlawful
                deadly force; or

                (B) to prevent the other’s imminent commission of aggravated kidnapping,
                murder, sexual assault, aggravated sexual assault, robbery, or aggravated
                robbery.


Tex. Penal Code Ann. § 9.32 (West 2003).

                                                  6
       THE COURT: I noticed you kept on mentioning deadly force when you were
       reading from that. I don’t have any of that in this defense of a third person since
       there is no allegation of deadly force being used by any party at that particular point.

       MS. POWERS: That’s correct.

       THE COURT: So that’s not to be considered.

       MS. POWERS: That’s correct. And as the judge pointed out to you, the testimony
       in this case shows that Martin never used deadly force, never used deadly force. You
       are justified in using force against force, the same level of force, to protect yourself
       against someone’s assault or attack. If Martin reasonably believed that Candi was
       being assaulted and attacked with use of fist and hands, then he is justified in using
       his fists and hands in defending her, and that is what happened in this case.


Carrillo did not object to the district court’s statements.

               The jury found Carrillo guilty of murder as alleged in the indictment. During

sentencing, Carrillo pleaded true to the enhancement paragraphs alleged in the indictment and the

district court assessed punishment at fifty years’ confinement. This appeal followed.


                                           DISCUSSION

Factual sufficiency of the evidence

               In his first issue, Carrillo asserts that the evidence is factually insufficient to support

his conviction. Specifically, Carrillo claims that the evidence supports his theory that he was acting

in self-defense when he stabbed Garcia. We disagree.

               In a factual sufficiency review, we view the evidence in a neutral light and ask

whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then determine whether the evidence

supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether

                                                   7
the verdict is against the great weight and preponderance of the conflicting evidence. Id. at 415. We

will not reverse a case on a factual sufficiency challenge unless we can say, with some objective

basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s

verdict. Id. at 417. The fact-finder is the exclusive judge of the witnesses’ credibility and the weight

to be given to their testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).

                When the issue of self-defense is submitted to the jury, we must also

determine whether a rational trier of fact could have found against the defendant on that issue, that is,

found beyond a reasonable doubt that the defendant’s conduct was not justified. Zuliani v.

State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 914

(Tex. Crim. App. 1991).

                As a general rule, a person is justified in using deadly force in self-defense if he

reasonably believes that deadly force is immediately necessary to protect himself against the other’s

use or attempted use of unlawful deadly force and if a reasonable person in his situation would not

have retreated. Tex. Penal Code Ann. § 9.32 (West 2003).

                Whether Carrillo reasonably believed that the use of deadly force was immediately

necessary under the circumstances was a fact issue for the jury. See Saxton, 804 S.W.2d at 913-14.

The evidence at trial established that Garcia was unarmed and never wielded a weapon at any point

during the altercation with Carrillo. Multiple witnesses testified that, using his fists alone, Garcia

fought Carrillo in response to Carrillo’s physical confrontation with Candi. A rational jury could

have concluded that Garcia’s intervention did not justify Carrillo’s decision to stab Garcia with a




                                                   8
knife, nor did it justify Carrillo’s decision to pursue Garcia and continue to stab him with a knife

after Garcia attempted to flee.

               We find that the evidence is not so weak that the verdict is clearly wrong and

manifestly unjust and that the verdict is not against the great weight and preponderance of the

evidence. Consequently, we hold that the evidence is factually sufficient to support Carrillo’s

conviction, and we overrule his first issue.

Comments by the district court

               In his second issue, Carrillo asserts that the district court’s clarifying remarks during

the State’s closing argument were improper and constituted reversible error. Carrillo relies on article

38.05 of the code of criminal procedure, which provides, in relevant part, that a trial judge shall not,

“at any stage of the proceeding previous to the return of the verdict, make any remark calculated to

convey to the jury his opinion of the case.” Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979).

               Carrillo has not preserved error on this issue. Unless fundamental error is present,

“counsel must object to the trial judge’s comments during trial in order to preserve error.” Blue v.

State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000); Williams v. State, 191 S.W.3d 242, 251 (Tex.

App.—Austin 2006, no pet.). In the context of article 38.05, fundamental error is present if the

judge’s comments imparted information to the jury that “tainted the presumption of innocence.”

Blue, 41 S.W.3d at 132. That is not the case here. The judge’s comments simply clarified the law

applicable to the case. The jury charge omitted the statutory term “deadly force” from its

definition of “defense of a third person,” but the State’s attorney used that term in her

closing argument and, in so doing, possibly confused the jury. The district court sought, with



                                                   9
its clarifying remarks, to avoid any confusion concerning the charge. The judge’s comments did

not taint Carrillo’s presumption of innocence and, therefore, the district court did not commit

fundamental error in making them.

               Absent fundamental error, Carrillo needed to object during trial if he believed the

judge’s comments were improper. He did not; therefore, any error is waived. See Tex. R. App. P.

33.1(a). We overrule Carrillo’s second issue.

Admission of extraneous offense evidence

               In his third issue, Carrillo asserts that the district court erred in admitting evidence

that Carrillo had previously hit Tanya Tarpley, one of the State’s witnesses.

               We review a trial court’s decision regarding the admissibility of evidence for abuse

of discretion. Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). We must uphold the trial

court’s ruling if it was within the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d

540, 542 (Tex. Crim. App. 2000).

               While evidence of other crimes, wrongs, or acts is not admissible “to prove

the character of a person in order to show action in conformity therewith,” it may be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). The list

of exceptions under rule 404(b) is “neither mutually exclusive nor collectively exhaustive.” Prible v.

State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005) (quoting Montgomery v. State, 810 S.W.2d 372,

388 (Tex. Crim. App. 1990)).




                                                 10
               As discussed above, Tarpley’s statement to the police that she ran away from the fight

because Carrillo “had already hit [Tarpley] once before” was admitted for the purpose of impeaching

Tarpley’s trial testimony with a prior inconsistent statement. See Tex. R. Evid. 613(a). Extraneous

offense evidence may be admitted for impeachment purposes. See Lopez v. State, 928 S.W.2d 528,

536 (Tex. Crim. App. 1996). The district court, therefore, did not abuse its discretion in

admitting the evidence for that purpose. Nor did the court abuse its discretion in failing to give

an instruction limiting the jury’s consideration of the statement to that purpose, as Carrillo

did not request one. See Tex. R. Evid. 105(a) (“in the absence of such request the court’s

action in admitting such evidence without limitation shall not be a ground for complaint on

appeal.”). We overrule Carrillo’s third issue.

Admission of Garcia’s “dying declaration”

               In his fourth issue, Carrillo contends that the admission of Garcia’s “dying

declaration” identifying Carrillo as the assailant violated the Confrontation Clause of the

Sixth Amendment.

               We review alleged violations of the Confrontation Clause de novo. See Wall v. State,

184 S.W.3d 730, 742-43 (Tex. Crim. App. 2006); Muttoni v. State, 25 S.W.3d 300, 304 (Tex.

App.—Austin 2000, no pet.); see also Lilly v. Virginia, 527 U.S. 116, 137 (1999) (stating that courts

should “independently review” whether out-of-court statements violate Confrontation Clause).

               A “dying declaration” is admissible under the rules of evidence as an exception to the

hearsay rule. Tex. R. Evid. 804(b)(2). However, whether a statement is admissible under the rules

of evidence and whether the same statement is admissible under the Confrontation Clause are



                                                 11
separate questions. See Crawford v. Washington, 541 U.S. 36, 50-51 (2004); Wall, 184 S.W.3d at

734-35. The question under the Confrontation Clause is whether an out-of-court statement is

testimonial or nontestimonial in nature; testimonial statements implicate the Confrontation Clause,

nontestimonial statements do not. See Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006).5

               The State argues that, even if Garcia’s dying declaration was testimonial, it should

nevertheless have been admitted under the doctrine of forfeiture by wrongdoing. This doctrine is

an “equitable exception” to the Confrontation Clause, and provides that “one who obtains the

absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Davis, 126

S. Ct. at 2280; see Gonzalez v. State, 195 S.W.3d 114, 117 (Tex. 2006), cert. denied, 127 S. Ct. 564

(2006). The doctrine is often applied to situations in which the defendant “committed the

wrongdoing with the intent to procure the unavailability of the declarant as a witness.” Gonzalez,

195 S.W.3d at 120 (emphasis added). However, the court of criminal appeals has recently expanded

the doctrine, stating that it “may apply even though the act with which the accused is charged is the

same as the one by which he allegedly rendered the witness unavailable.” Id. at 125.

               We need not address the applicability of the forfeiture-by-wrongdoing doctrine here.

Even assuming, without deciding, that the admission of Garcia’s dying declaration violated the

Confrontation Clause, and that the doctrine of forfeiture by wrongdoing does not apply, any error




       5
          The Supreme Court has explained that “[a]lthough many dying declarations may not be
testimonial, there is authority for admitting even those that clearly are.” Crawford v. Washington,
541 U.S. 36, 55 n.6 (2004). However, it has not yet decided the issue of whether the Sixth
Amendment incorporates an exception for testimonial dying declarations, remarking that “[i]f this
exception must be accepted on historical grounds, it is sui generis.” Id. We need not decide this
issue today.

                                                 12
in admitting the statement was harmless. The identity of the person who stabbed Garcia was never

an issue at trial. Multiple witnesses testified to seeing Carrillo repeatedly stab Garcia. Carrillo’s

theory at trial was that he acted in self-defense. Carrillo made no attempt to claim that someone else

stabbed Garcia and caused his death. Therefore, we hold that the admission of Garcia’s dying

declaration that Carrillo stabbed him did not contribute to his conviction or punishment and was

harmless. See Tex. R. App. P. 44.2(a). We overrule Carrillo’s fourth issue.


                                          CONCLUSION

                  Having overruled Carrillo’s issues on appeal, we affirm the judgment of the

district court.




                                               Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Waldrop

Affirmed

Filed: February 23, 2007

Do Not Publish




                                                 13
