                                                                                      PD-1001-17
                                                                     COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                      Transmitted 10/9/2017 4:06 PM
                                                                      Accepted 10/10/2017 12:28 PM
                                                                              DEANA WILLIAMSON
                               NO. PD-1001-17                                                CLERK

                              IN THE                                      FILED
                    COURT OF CRIMINAL APPEALS                    COURT OF CRIMINAL APPEALS
                                                                       10/10/2017
                            OF TEXAS                              DEANA WILLIAMSON, CLERK
                            AT AUSTIN
                        _________________________

                     CHRISTIAN ANDRES OJEDA,
                                 Appellant

                                       v.

                         THE STATE OF TEXAS,
                                      Appellee
                        _________________________

                     On appeal in Cause No. F14-76216
                     from Criminal District Court No. 3
                          Of Dallas County, Texas
                And on Petition for Discretionary Review from
                   the Eighth District of Texas at El Paso
                       In Cause No. 08-15-00305-CR
                        _________________________

    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 _________________________

                            Counsel of Record:

Lynn Richardson                             Nanette Hendrickson
Chief Public Defender                       Assistant Public Defender
                                            Dallas County Public Defender’s Office
Michael Casillas                            State Bar Number: 24081423
Chief, Appellate Division                   133 N. Riverfront Blvd., LB 2
                                            Dallas, Texas 75207-399
                                            (214) 653-3550 (telephone)
                                            (214) 653-3539 (fax)

               ATTORNEYS FOR PETITIONER/APPELLANT
                           LIST OF PARTIES


APPELLANT
Christian Andres Ojeda

APPELLEE
The State of Texas

TRIAL COURT JUDGE
Judge Gracie Lewis
Criminal District Court Number Three
133 North Riverfront Boulevard
Dallas, Texas 75207

DEFENSE COUNSEL AT TRIAL
Robbie McClung and Richard Franklin
100 Highland Park Village, Suite 200
Dallas, Texas 75205

STATE’S ATTORNEY AT TRIAL
Terrance Downs and Elaine Evans
Dallas County District Attorney’s Office
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399

APPELLANT’S ATTORNEY ON APPEAL
Katherine A. Drew
Dallas County Public Defender’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399

STATE’S ATTORNEY ON APPEAL
Faith Johnson (or her designated representative)
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399



                                     ii
                                   TABLE OF CONTENTS


LIST OF PARTIES ................................................................................................... ii
INDEX OF AUTHORITIES ....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
STATEMENT OF THE CASE ................................................................................. 1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 2
STATEMENT OF FACTS ........................................................................................ 2
GROUNDS FOR REVIEW ....................................................................................... 2
         ARGUMENT................................................................................................... 2
GROUND FOR REVIEW 1, RESTATED ............................................................... 2
         Whether the Court of Appeal’s misapplied the rule in Resendez
         v. State and Zillender v. State.
GROUND FOR REVIEW 2, RESTATED ............................................................... 7
         Whether the Court of Appeals misapplied the harmless error
         analysis in Whitaker v. State.
CONCLUSION ........................................................................................................11
PRAYER FOR RELIEF ..........................................................................................11
CERTIFICATE OF SERVICE ................................................................................12
CERTIFICATE OF COMPLIANCE .......................................................................12




                                                     iii
                                  INDEX OF AUTHORITIES


Cases
Ojeda v. State,
  No. 08-15-00305-CR, 2017 WL 3405313 (Tex. App.—Dallas August 9,
  2017) ................................................................................................ 2, 3, 6, 7
Resendez v. State,
  306 S.W.3d 308 (Tex. Crim. App. 2009) ................................................ 6, 7
Whitaker v. State,
 286 S.W.3d 355 (Tex. Crim. App. 2009) .............................................. 7, 11
Zillender v. State,
  557 S.W.2d 515 (Tex. Crim. App. 1977) .................................................... 7
Rules
TEX. R. APP. P. 33.1(a)(1)(A) ......................................................................... 7
TEX. R. APP. P. 68.4(i) .................................................................................... 2
TEX. R. EVID. 103(a)(2) .................................................................................. 7




                                                        iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

          Christian Ojeda, Appellant, respectfully presents to this Honorable

Court his Petition for Discretionary Review of the Eighth District Court of

Appeals’ Opinion affirming the trial court’s judgment.

               STATEMENT REGARDING ORAL ARGUMENT

          Appellant requests oral argument because this case presents a question

of law on issues having statewide impact and possible reoccurrence. Oral

argument may be helpful to the members of this Court in the resolution of

the issues presented.

                            STATEMENT OF THE CASE

          Appellant was charged by indictment with murder in violation of TEX.

PENAL CODE § 19.02. (CR1: 13). Appellant entered a plea of not guilty to

this indictment and was afforded a trial before a jury. (RR5: 40; RR6: 15).

At the close of the evidence, the jury found Appellant guilty of

manslaughter, a lesser included offense. (CR1: 539; RR9: 7). The jury

subsequently found an enhancement paragraph to be true and assessed

punishment at life imprisonment and a $10,000.00 fine.1 (CR1: 545; RR9:

86). Judgment was entered on September 4, 2015. (CR1: 546). Appellant

subsequently gave notice of appeal. (CR1: 550).


1
    Appellant entered a plea of true to the enhancement allegation. (RR9: 9).

                                              1
 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On August 9, 2017, in an unpublished opinion authored by Justice

McClure, the Court of Appeals for the Eighth District of Texas affirmed the

trial court’s judgment. Ojeda v. State, No. 08-15-00305-CR, 2017 WL

3405313, *7 (Tex. App.—Dallas August 9, 2017). This Court granted an

extension of time to file a Petition for Discretionary Review, which is timely

if filed on or before October 9, 2017.

                           STATEMENT OF FACTS

      The facts of this case, which are extensive, are adequately recited in

the Court of Appeals’ opinion, which is attached to this Petition as required

by TEX. R. APP. P. 68.4(i).

      Suffice it to say that Appellant was charged with and convicted of

manslaughter. (CR: 546).

                           GROUNDS FOR REVIEW

      Ground One: Whether the Court of Appeal’s misapplied
      the rule in Resendez v. State and Zillender v. State.

      Ground Two: Whether the Court of Appeals misapplied the
      harmless error analysis in Whitaker v. State.

                                 ARGUMENT

                GROUND FOR REVIEW 1, RESTATED

Whether the Court of Appeal’s misapplied the rule in Resendez v. State
                       and Zillender v. State.

                                         2
      In its opinion, the Courts of Appeals ruled that trial counsel’s

objection to the admission of State’s Exhibit 86, the video taped interview of

Appellant by police, did not preserve error. Ojeda, 2017 WL 3405313, at

*4–6. The Court of Appeals reasoned that the objection was not specific

enough to inform the trial court or counsel of what part of the tape was

objectionable. Id. at *5. However, the facts during the trial showed the trial

did in fact understand the objection and as a result, should have preserved

error. Therefore, the Court of Appeals’ ruling is contrary to the holdings of

this Court.

      The record reflects that defense counsel made objections to the

admission of State’s Exhibit 86, the taped interview of Appellant by police,

prior to trial and prior to the tape being offered into evidence. Over a lunch

hour break in the trial, defense counsel stated that she had received a

redacted copy of the video tape from the State. (RR7: 115). However, that

copy was not effective and so the defense was forced to view the State’s

original copy. (RR7: 115). The defense had tendered the tape back to the

State and explained that there were still redactions that needed to be made

because there “are still a great deal of prejudicial information in there that is

extraneous to this offense that needs to be redacted out.” (RR7: 115-116).




                                       3
      Defense counsel stated that “further redactions” were requested, but

that she had not yet been able to listen to the tape. (RR7: 164). It was

represented to the court that the original tape was 57 minutes, but had been

reduced to 35 minutes, presumably because of the redactions that the State

made to the tape. (RR7: 164).

      The record reflects that, while some agreement had been reached on

deletions to the tape, there were “more things that we said needed to be

deleted.” (RR7: 166-167). The defense also objected to “manually deleting

them as opposed to having previously deleted them.” (RR7: 167). Defense

counsel clarified her objection to the trial court as follows:

      MS. McCLUNG: Well, Judge, what’s not fair is I’m given
      times of what they are saying I – they believe our problems are.
      I can’t go and review all those times because I have to borrow
      the full set and find all those times. So, yes, I’m agreeing with
      the things they’ve marked that they want to delete. Yes, I want
      them deleted, and I don’t like doing it manually.

      Am I saying that encompasses everything that’s prejudicial?
      That’s hard in this case, because there’s too much back and
      forth with prejudicial and nonprejudicial.

(RR7: 167-168). Defense counsel informed the trial court that, prior to that

day, she had not had an opportunity to tell the State what she wanted

deleted. (RR7: 168). Indeed, defense counsel did not even know whether the

State planned to use the interview in evidence. (RR7: 168). Defense counsel

continued as follows:


                                        4
        MS. McCLUNG: Just that we believe that by manually
        changing the audio on it has too much human error and leaves
        too much room because this thing is so replete with prejudiced
        material that it’s – it’s too much human error, that something
        prejudicial will end up being put in front of the jury that
        shouldn’t.

(RR7: 169). The trial court overruled this objection. (RR7: 169).

        When the State actually offered the tape into evidence and received

permission to publish the tape for jury, defense counsel further objected:

“Judge, we’d just ask the Court to note our objections to this as well as

pretrial motions that are in place.” (RR7: 204). The trial court noted the

objection and gave the defense a “running objection” to the tape. (RR7: 204-

205).

        The State and the defense eventually agreed “to all times that should

be redacted.”2 (RR8: 5). The tape was published to the jury.3 (RR8: 6).

        The Court of Appeals’ decision is in conflict with the holding of this

Court. The Court of Appeals cited this Court’s reasoning in Resendez v.

State stating that ‘“The purpose of requiring a specific objection in the trial

2
 An unredacted original of the tape was offered for record purposes at the guilt/innocence
phase of the trial as State’s Exhibit 106. (RR8: 5-6). The unredacted tape was played for
the jury, over defense counsel’s objections, at the punishment phase of the trial. (RR9: 9).
3
  Technical issues were experienced when the State tried to play the tape for the jury.
(RR7: 205-206). The jury was excused for the evening and, apparently, the issues were
resolved overnight. (RR7: 205, RR8: 5-6). Had these issues not been resolved, it is clear
that the trial court would not have permitted the State to introduce the tape into evidence.
(RR7: 205-206).


                                             5
court is twofold: (1) to inform the trial judge of the basis of the objection and

give him the opportunity to rule on it; (2) to give opposing counsel the

opportunity to respond to the complaint.”’ Ojeda, 2017 WL 3405313, at *4,

quoting Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).

However, the Court of Appeals then ignored the fact that the trial court did

rule on the objection and appeared to understand the nature of it. In the case

at bar, defense counsel asked the trial court to “note our objections to this as

well as pretrial motions that are in place.” (RR7: 204). The record contains

an omnibus pre-trial motion seeking a hearing before any statements made

by Appellant were introduced as well as extraneous offenses, (CR1: 507),

but no specific pre-trial hearing was held on the admissibility of the tape.

However, there was a pre-trial hearing on the Defense’s motion in limine

regarding extraneous offenses. (RR4: 4-5; see also CR1: 525-526). There

were also multiple discussions on the record addressing counsel’s concerns

about the extraneous offense evidence on the tape and requesting

redactions.4 (RR7: 115-116, 164-167).

       The trial court clearly understood the defense objections because the

defense was granted a “running objection” when the tape was published to
4
  There were also discussions off the record in and around the time that Detective David
testified. (RR7: 97, 107, 110, 114, 163, 169, 170, 205). While the substance of these off
the record discussions is not apparent in the record, it is reasonable to assume that the
admissibility of the tape may have been discussed during one or more of these
discussions.

                                            6
the jury. (RR7: 204-205). If the substance and/or specific grounds for the

objection are apparent from the context, and as long as the correct ground

for the objection or request was obvious to the judge and opposing counsel,

error is considered preserved. See Zillender v. State, 557 S.W.2d 515, 517

(Tex. Crim. App. 1977); see also TEX. R. APP. P. 33.1(a)(1)(A); TEX. R.

EVID. 103(a)(2). All parties to this proceeding were fully aware of the nature

of defense counsel’s objections. Hence, the error was preserved for appellate

review and the Court of Appeals’ decision was contrary to the rulings in

both Resendez and Zillender. Resendez, 306 S.W.3d at 312; Zillender, 557

S.W.2d at 517.

                 GROUND FOR REVIEW 2, RESTATED

Whether the Court of Appeals misapplied the harmless error analysis in
                         Whitaker v. State

      The Court of Appeals also determined that even if the error by the

trial court admitting State’s Exhibit 86 was preserved, it was harmless error

to do so. The Court cited Whitaker v. State in reasoning that Appellant

would have been convicted whether the tape was admitted or not. Ojeda,

2017 WL 3405313, at *5, citing Whitaker v. State, 286 S.W.3d 355, 369

(Tex. Crim. App. 2009). This argument, however, would ignore the fact that

the State’s evidence against Appellant was thin and entirely circumstantial.




                                      7
      Indeed, after the tape of Appellant’s interview with Detective David

was played for the jury, David testified that he had enough evidence to

charge Appellant with murder prior to the interview. (RR8: 7). According to

David, he had the following evidence:

      A. We had -- physical evidence we had was the fingerprints on
      the bag. We had blood at the house where he was living. We
      had an eyewitness that confirmed the fact that he had a knife
      and that she saw him stab Manuel.

      Q. And that witness was who?

      A. Rachel Fairbanks.

(RR8: 7) (emphasis added). David, however, mis-spoke on one crucial point:

Rachel never testified that she saw Appellant stab Manny. To the contrary,

Rachel’s testimony in this regard is as follows:

      A. Christian turned around and grabbed a knife.

      Q. You saw Christian grab a knife.

      A. Yes.

      Q. Were you close enough to tell what type of knife it was?

      A. No.

      Q. So when the defendant grabbed the knife, what did he do
      with it?

      A. After that, I didn’t see what he did with it. Monica started
      screaming that he has a knife and everything happened so fast
      after that…



                                      8
Q. So you see the defendant holding a knife in his hand, right?

A. Uh-huh.

Q. And you hear another person yell out he had a knife.

A. Uh-huh.

Q. Now, after you saw the defendant with the knife, did you see
him continue to engage Manny?

A. Yes.

Q. And where was Brandon at the time?

A. Brandon was standing right there in the way of Manny, I
guess trying to stop him from stabbing Manny, and Brandon
ended up getting stabbed in his hand.

Q. So at some point you saw Brandon standing between Manny
and the defendant?

A. Yes.

Q. And at some point you know for a fact that Brandon was
stabbed.

A. Oh, yeah.

Q. After Brandon was stabbed, what happened?

A. Adam grabbed Brandon and we got -- they got in the car and
we took off…
*
Q. Okay. Now, from the time that you saw the defendant
holding that knife, how much -- how much longer after that was
it that Manny went to the ground?

A. I don’t remember.



                               9
      Q. Was it a matter of seconds or a matter of minutes?

      A. I mean, I’d say sec --

      Q. Seconds.

      A. Seconds, yeah.

      Q. And as far as you could see, did anybody else out there have
      a knife other than the defendant?

      A. No.

      Q. Did you see Manny with a knife?

      A. No.

      Q. Did you see Adam Waller with a knife?

      A. No.

      Q. Did you see Brandon Blair with a knife?

      A. No.

      Q. The only person you saw with a knife was this defendant.

      A. Yes.

(RR6: 116-119) (emphasis added).

      It is readily apparent that Rachel did not testify that she saw Appellant

stab Manny. Hence, David’s testimony that he had an eyewitness that saw

Appellant stab Manny is erroneous under this record. The only direct

evidence that Appellant stabbed Manny comes from his police interview.




                                      10
      Without this interview, the State had no direct evidence that Appellant

stabbed Manny. Rather, the State’s case would boil down to the following:

(1) Appellant’s fingerprints on the trash bags, (2) the presence of blood at

the house where he was living at the time, and (3) testimony that Appellant

was seen with a knife in his hand in Manny’s vicinity. The jury would have

had no evidence at guilt/innocence that Appellant had stabbed Manny at all,

other than David’s erroneous testimony regarding what Rachel saw.

Appellant’s entire defense at trial was that he was not guilty at all, a theory

certainly undermined by the contents of State’s Exhibit 86. Even though the

jury convicted Appellant of the lesser included offense of manslaughter,

Appellant was still convicted of a homicide. The harm from the admission of

this evidence is clearly established. Reversal is required. Since the Court of

Appeals failed to apply the standard in Whitaker v. State correctly, their

decision is contrary to the rulings of this Court. Id. at 369.

CONCLUSION

      The Court of Appeals’ decision to affirm the trial court’s ruling in

Appellant’s case is contradictory to the rulings of this Court. This Court

should grant discretionary review to resolve this discrepancy between the

Court of Appeals’ ruling and the ruling of this Court.

                             PRAYER FOR RELIEF



                                        11
      For the reasons herein alleged, Appellant prays this Court grant this

petition and, upon reviewing the judgment entered below, reverse

Appellant’s conviction and grant him a new trial.

                                      Respectfully submitted,
                                      Lynn Richardson
                                      Chief Public Defender

                                      /s/ Nanette Hendrickson
                                      Nanette Hendrickson
                                      Assistant Public Defender
                                      State Bar No. 24081423

                      CERTIFICATE OF SERVICE

       I hereby certify that on the 9th day of October, 2017, a true copy of
the foregoing petition for discretionary review was served on Lori Ordiway,
Assistant District Attorney, Dallas County Criminal District Attorney’s
Office, 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207,
by electronic delivery; and was also served on, Stacy M. Soule, State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas, 78711 by electronic
delivery at information@spa.texas.gov.

                                      /s/ Nanette Hendrickson
                                      Nanette Hendrickson

                   CERTIFICATE OF COMPLIANCE

      I certify that the foregoing Petition for Discretionary Review contains
2,765 words.

                                      /s/ Nanette Hendrickson
                                      Nanette Hendrickson




                                     12
APPENDIX
Ojeda v. State, Not Reported in S.W.3d (2017)


                                                             statement. We reform the judgment and affirm it as
                                                             reformed.
                 2017 WL 3405313
   Only the Westlaw citation is currently available.

         SEE TX R RAP RULE 47.2 FOR                                          FACTUAL SUMMARY
   DESIGNATION AND SIGNING OF OPINIONS.
                                                             Appellant was indicted for the murder of Manuel Rios
                 (Do Not Publish)                            by stabbing him with a knife. Rios's body was found
               Court of Appeals of Texas,                    dumped under a freeway overpass. An autopsy revealed
                        El Paso.                             that he died from a single stab wound to the chest. The
                                                             investigation quickly led back to Appellant. The State tied
         Christian Andres OJEDA, Appellant,
                                                             the murder to Appellant through the testimony of several
                          v.
                                                             witnesses to the crime together with forensic evidence
           The STATE of Texas, Appellee.
                                                             found near the body and at the murder scene. The State
                                                             also relied on Appellant's videotaped interview.
                           No.
                            08
                            –                                On the morning of August 18, 2014, Rios 1 was with a
                            15                               group of people at a Dallas area apartment. 2 Rachel
                            –                                Fairbanks and her fiancé, Adam Waller, were among
                          00305                              the group. Rios apparently approached Rachel, making
                            –                                her feel uncomfortable. Adam told Rios to leave, and he
                            CR                               did. Adam and Rachel, along with Monica Martinez and
                            |                                Brandon Blair, later left in Rachel's car to run errands.
                      August 9, 2017                         Rachel testified that while en route, Adam received a text
                                                             message from Appellant. Adam then changed directions,
Appeal from Criminal District Court No. 3 of Dallas
                                                             and headed to a house at 11302 Castolon. Rios and
County, Texas (TC # F–1476216–J)
                                                             Appellant were standing outside the residence. Adam
Attorneys and Law Firms                                      exited the car to “have words” with Rios for disrespecting
                                                             Rachel. Rachel testified that Adam approached Rios
Susan Hawk, for The State of Texas.                          and immediately struck him one time. Adam, who is
                                                             considerably larger than Rios, then had words with
Nanette Hendrickson, for Christian Andres Ojeda.             Rios but they ended the conversation by shaking hands.
                                                             Brandon, who had also emerged from the car, then began
Before McClure, C.J., Rodriguez, and Hughes, JJ.
                                                             arguing and fighting with Rios. Appellant joined in to help
                                                             Brandon.

                       OPINION                               According to Rachel, who viewed the fight from the
                                                             car, Appellant grabbed a knife about a minute into the
ANN CRAWFORD McCLURE, Chief Justice
                                                             fight. Brandon moved between Appellant and Rios, and
 *1 A jury convicted Christian Andres Ojeda of               was stabbed in the hand. Brandon then returned to the
manslaughter. After pleading true to an enhancement          car. Rachel did not see Appellant stab Rios, but as they
paragraph, the jury assessed a life sentence and the         left, she saw Rios sitting on the ground and no one else
maximum possible fine of $10,000.00. On appeal,              had a knife. She described the expression on Appellant's
Appellant raises four challenges to evidentiary rulings in   face as if he had the “devil in him that day.” Rachel
the guilt-innocence phase of the trial. One focuses on a     further noted that while driving Brandon to the hospital,
recorded interview of Appellant that alludes to other bad    Adam received a telephone call from Appellant. Adam's
acts. Three issues relate to the exclusion of a hearsay      demeanor instantly changed, “[l]ike, his—like, his heart
                                                             just dropped to his stomach. I mean, it was just sad.”



              © 2017 Thomson Reuters. No claim to original U.S. Government Works.                                    1
Ojeda v. State, Not Reported in S.W.3d (2017)


The State also proffered the testimony of Kevin Martinez       Appellant then claimed that he was present when some
who resided at the Castolon address. He was in a back          “white cats” came to the Castolon address, beat Rios,
bedroom with his girlfriend, Kimberly Streetman, at the        and then took him away. He added that both he and
time of the stabbing. He heard a bang on the front door,       Rios got into trouble with the Texas Syndicate. 4 The
and when he opened it, Rios fell in front of him. He was       detective then confronted Appellant with the fact that
struggling to breathe. Kevin saw another person outside        his fingerprints were on the trash bags found with Rios's
but he quickly left. There was a “butterfly” knife in          body. Appellant first claimed the fingerprints were not his,
Appellant's hand. Appellant gave the knife to Kevin and        but then claimed that unidentified members of the Aryan
told him to get rid of it, but Kevin gave it back. He and      Brotherhood (identified by their distinct tattoos) came to
Appellant carried Rios, whom Kevin believed had died,          the Castolon address and asked him for trash bags. When
through the house to the backyard and covered the body         next confronted with the blood in the back of the car,
with a blanket. Sometime later, they put the body in two       Appellant asked to stop the interview so he could talk with
trash sacks, one covering the torso, and the other covering    his girlfriend and mother. When the detective pressed him
the feet. Kevin then proceeded to drink half a bottle of       to tell the truth, he then claimed members of another gang
whiskey. After sunset, Kevin went with Appellant and           who had no identifying tattoos beat Rios, and threatened
his girlfriend to dump the body, which had already been        everyone with guns. Appellant finally broke down, saying
loaded into trunk of a car. Kevin recalled only that the car   “I did not mean to” and that “it was an accident.” He
stopped on a freeway, the trunk was opened, and the body       picked up the knife that Rios had dropped and somehow
removed. 3                                                     stabbed him. Even with this last version of events, he
                                                               claimed no one else was home at the time, and he disposed
 *2 The police obtained fingerprints on the trash bags         of the body himself.
used to cover the body. Several of the lifted prints matched
Appellant and Kevin. The police found bloodstains on           Appellant called Kimberly Streetman to testify in his
the front porch and inside the Castolon house. Blood was       case-in-chief. She and Kevin were at the house that day.
also on the railing of the overpass where the body had         Around noon, she heard a “ruckus” outside and peered
been dumped. The police found additional blood inside          through a window to see Adam screaming at Rios. Adam's
the trunk of the car. Using DNA from these samples, the        face was bright red and Rios appeared scared. Brandon
State compared it to samples from the decedent, Adam,          was standing behind Adam. She went back to her room.
and Brandon. The State did not have a DNA sample               As she did so, she heard Adam slamming the front door,
from Appellant. The decedent's DNA matched all of the          and saying, “No, you are not going inside.” Kevin went to
sources, and Brandon's DNA matched two stains on the           the front of the house to see what was happening.
fabric from the trunk, and seven from the front door area.
Adam's DNA matched one stain from the trunk liner.             The jury was charged on murder, but found Appellant
An unknown male's DNA matched samples found on the             guilty of the lesser-included offense of manslaughter.
spare tire, the trunk fabric, the trunk liner, and one from    The indictment contained one enhancement paragraph
the front door area.                                           alleging that Appellant was previously convicted of
                                                               possession of a controlled substance in 2013. He pled
The State concluded its case by playing a police interview     true to the enhancement paragraph. In the punishment
of Appellant, identified as State's Exhibit 86. As we          phase, the State introduced the unedited version of Exhibit
describe in more detail below, this videotaped interview       86 that also included an additional discussion of a
was edited to exclude certain questions and answers. A         related aggravated kidnapping. The evening before Rios
homicide detective conducted the interview eight days          was stabbed, another person named Derek Abbott was
after the stabbing. Appellant waived his right to counsel      abducted, driven to the Castolon address, and beaten.
and right to remain silent. He first claimed that he           In the unedited interview, Appellant admitted that he
had last seen Rios about two weeks earlier when they           “whooped [Derek's] ass” and “beat the f* *k out” of him.
got high with another person at a trailer park. His            Derek testified that several men, including Appellant, zip-
mother told him of Rios's murder, as he knew nothing           tied his hands and feet, and threw him into the cab of
about it. As the detective began to confront Appellant         a truck. He was taken to the backyard of the Castolon
with facts already developed through the investigation,        address, pistol whipped, and then beaten. He could not



               © 2017 Thomson Reuters. No claim to original U.S. Government Works.                                      2
Ojeda v. State, Not Reported in S.W.3d (2017)


leave until a friend paid money in exchange for his release.    she could not answer that question “yes” or “no”,
The State also charged Adam and Brandon with that               restating her earlier position that additional deletions need
aggravated kidnapping. Derek identified Appellant as            to be made. The trial court, attempting to clarify the
member of the Juggalos, an organized street gang. 5             nature of the dispute, then stated:

                                                                  THE COURT: Okay. I understand that. I understand
                                                                  that you're saying that there's some additional deletions
                  ISSUES ON APPEAL                                now that you want.

 *3 Appellant brings four issues for review. He first             [APPELLANT'S COUNSEL]: That's correct, Judge.
contends that the trial court erred in admitting the
redacted version of the interview. While several segments         THE COURT: And I got that. So there are—you-all
of the interview were deleted by agreement of the parties,        are in agreement to all these deletions, including the new
he complains that it still included other inadmissible            ones that the Defense want; is that correct?
“bad acts.” In three additional issues, he challenges the
                                                                  [STATE'S ATTORNEY]: Yes, Judge.
exclusion of Adam's statements as overheard by Kimberly
Streetman. He contends three exceptions to the hearsay            THE COURT: So then the only issue is that the Defense
rule permit the statements. The State responds that any           is objecting to you manually deleting them as opposed
error was waived, and in any event, was not harmful.              to having previously deleted them.

                                                                  [STATE'S ATTORNEY]: Yes, Judge.

  ADMISSION OF THE REDACTED INTERVIEW                             THE COURT: Is that fair?

During trial, the State tendered to defense counsel               [APPELLANT'S COUNSEL]: I—yes, Judge.
a DVD containing a redacted version of Appellant's
recorded interview. The State deleted seven segments from         THE COURT: Well, if it's not, then say it's not.
the original interview that referenced either Appellant's
past criminal record, or his involvement with a gang.             [APPELLANT'S COUNSEL]: Well, Judge, what's not
After defense counsel reviewed the edited interview, she          fair is I'm given times of what they are saying I—they
informed the trial court that additional deletions were           believe our problems are. I can't go and review all those
required. The trial court was not informed of any specific        times because I have to borrow the full set and find
objections, but only that “a great deal of prejudicial            all those times. So, yes, I'm agreeing with the things
information” extraneous to the charged offense “needs to          they've marked that they want to delete. Yes, I want
be redacted out.”                                                 them deleted, and I don't like doing it manually. Am I
                                                                  saying that encompasses everything that's prejudicial?
The trial court allotted some time for counsel to resolve the     That's hard in this case, because there's too much back
additional redactions. The State then identified thirteen         and forth with prejudicial and nonprejudicial.
additional redactions wherein Appellant discussed the
                                                                The trial court then gave counsel an additional
aggravated kidnapping, taking drugs, committing food
                                                                opportunity to state her objection, to which she
stamp fraud, and possessing firearms. Rather than
                                                                responded:
actually delete these segments from the exhibit, the State
intended to manually mute the DVD as each came up.                [APPELLANT'S COUNSEL]: Just that we believe that
The State prepared a list of the segments, describing their       by manually changing the audio on it has too much
content, and including the beginning and ending time              human error and leaves too much room because this
stamps on the DVD.                                                thing is so replete with prejudiced material that it's—it's
                                                                  too much human error, that something prejudicial will
The trial court took a break for Appellant's counsel to           end up being put in front of the jury that shouldn't.
view the DVD along with the list of redacted segments.
Following that, the trial court asked if both sides had            *4 THE COURT: Okay. Your objection is overruled.
agreed to the deletions. Defense counsel responded that


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Ojeda v. State, Not Reported in S.W.3d (2017)


                                                                  complaint that the State's attorney did not dutifully turn
When State's Exhibit 86 was formally offered before
                                                                  down the volume at the appropriate points in the DVD. 6
the jury, the defense asked the trial court to “note our
objections to this as well as pretrial motions that are in
                                                                   *5 Beyond that objection, the trial court was at
place.”
                                                                  most told that there might be additional objectionable
                                                                  segments “because there's too much back and forth with
State's Exhibit 86 was played to the jury. Appellant
                                                                  prejudicial and nonprejudicial.” Appellant never directed
never claimed that the audio was not appropriately
                                                                  the trial court to any specific question or answer that
muted. Now, on appeal, he contends that the trial court
                                                                  should have been deleted. That omission is important.
abused its discretion in admitting the exhibit because it
                                                                  While Rule 404(b) generally excludes references to
contained references to prejudicial extraneous offenses.
                                                                  other crimes, the rule has exceptions. TEX.R.EVID.
See TEX.R.EVID. 404(b)(1)( “Evidence of a crime,
                                                                  404(b)(2)(“This evidence may be admissible for another
wrong, or other act is not admissible to prove a person's
                                                                  purpose, such as proving motive, opportunity, intent,
character in order to show that on a particular occasion
                                                                  preparation, plan, knowledge, identity, absence of
the person acted in accordance with the character.”).
                                                                  mistake, or lack of accident.”). Without pointing to any
                                                                  particular objectionable segment, the State never had
The State's first response is that this claim is not preserved.
                                                                  the opportunity to explore any exception, nor did the
We agree. In general, to preserve a complaint for appellate
                                                                  trial court have a chance to consider if the segment
review, a defendant must make a timely and specific
                                                                  even fell under the rule. “When an exhibit contains both
objection to the trial court. TEX.R.APP.P. 33.1(a); Lovill
                                                                  admissible and inadmissible evidence, the objection must
v. State, 319 S.W.3d 687, 691–92 (Tex.Crim.App. 2009).
                                                                  specifically refer to the challenged material to apprise
In making the objection, terms of legal art are not
                                                                  the trial court of the exact objection.” Sonnier v. State,
required, but a litigant should at least “let the trial judge
                                                                  913 S.W.2d 511, 518 (Tex.Crim.App. 1995)(so holding
know what he wants, why he thinks himself entitled
                                                                  for videotape, of which only some of portions were
to it, and to do so clearly enough for the judge to
                                                                  objectionable); see also Whitaker v. State, 286 S.W.3d
understand him at a time when the trial court is in a proper
                                                                  355, 369 (Tex.Crim.App. 2009)(defendant failed to point
position to do something about it.” Lankston v. State,
                                                                  which portions of audio tape were objectionable); Brown
827 S.W.2d 907, 909 (Tex.Crim.App. 1992). An objection
                                                                  v. State, 692 S.W.2d 497, 501 (Tex.Crim.App. 1985)(same
stating one legal basis cannot support a different legal
                                                                  for pen packet); Williams v. State, 927 S.W.2d 752, 760
theory on appeal. See Heidelberg v. State, 144 S.W.3d
                                                                  (Tex.App.–El Paso 1996, pet ref'd)(same for various court
535, 537 (Tex.Crim.App. 2004)(objection based on Fifth
                                                                  filings, and orders); Thompson v. State, 08–99–00144–CR,
Amendment did not preserve state constitutional ground);
                                                                  2000 WL 1476629, at *2 (Tex.App.–El Paso Oct. 5, 2000,
Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App.
                                                                  no pet.)(not designated for publication)(same for nursing
1996)(variance in charge objection with contention on
                                                                  notes).
appeal waived error); Bell v. State, 938 S.W.2d 35,
54 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 827,
                                                                  Appellant counters that there were off the record
118 S.Ct. 90, 139 L.Ed.2d 46 (1997)(objection at trial
                                                                  discussions about problematic portions of the DVD.
regarding illegal arrest did not preserve claim of illegal
                                                                  Appellant also relies on a motion in limine and
search and seizure on appeal). “The purpose of requiring a
                                                                  omnibus pretrial motion, both of which sought a hearing
specific objection in the trial court is twofold: (1) to inform
                                                                  before extraneous offense evidence was offered. Finally,
the trial judge of the basis of the objection and give him
                                                                  Appellant contends the trial court understood the nature
the opportunity to rule on it; (2) to give opposing counsel
                                                                  of the objection, as evidenced by the court allowing
the opportunity to respond to the complaint.” Resendez v.
                                                                  a running objection to the exhibit. These contentions
State, 306 S.W.3d 308, 312 (Tex.Crim.App. 2009).
                                                                  are all non-starters. None of the pretrial motions
                                                                  specifically mentioned the interview or articulated any
The specific objection articulated below was that making
                                                                  specific objection to any part of the interview. Nor
the thirteen redactions by simply muting the sound created
                                                                  can we discern from the on-record discussion that any
the possibility of human error. While we agree the
                                                                  off the record discussion advanced a specific objection
process was fraught with some risk, Appellant makes no
                                                                  to a specific portion of the interview. Cf. Thomas v.



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Ojeda v. State, Not Reported in S.W.3d (2017)


State, 505 S.W.3d 916, 924 (Tex.Crim.App. 2016)(on-              *6 Appellant further complains about references to drug
record discussion showed that additional objection had          usage that are included on the redacted exhibit. The
been discussed off-the-record). If anything, the off-the-       State's lead detective, however, testified without objection
record discussions appear to have been between counsel          that he “found out that [Rios] had also been purchasing
and directed towards reaching an agreement on what              drugs or selling drugs for [Appellant].” That un-objected
should be redacted from the DVD. The record does not            to testimony negates the possible prejudice of any drug
suggest the trial court participated in those discussions. In   references on Exhibit 86. See Reyes v. State, 84 S.W.3d
addition, the mere granting of a running objection begs         633, 638 (Tex.Crim.App. 2002)(“However, a defendant
the question of what objection was actually lodged. The         who allows evidence to be introduced from one source
only specific objection here focused on how the edits were      without objection forfeits any subsequent complaints
to be presented to the jury, and not what edits needed to       about the introduction of the same evidence from another
be made.                                                        source.”). Moreover, the State did not address the drug
                                                                usage in either its closing, or through any of the other
Even were the error preserved, Appellant has not                witnesses. And compared to the charged offense and the
convinced us it affected his substantial rights. See            disposal of the body, any drug use would be a minor
TEX.R.APP.P. 44.2(b); King v. State, 953 S.W.2d 266,            consideration to the jury.
271 (Tex.Crim.App. 1997)(“A substantial right is affected
when the error had a substantial and injurious effect           Appellant's primary focus is that without any of the
or influence in determining the jury's verdict.”). In           interview on Exhibit 86 being played, the State's case was
assessing harm, we consider “everything in the record,          thin: there were no eyewitness to the actual stabbing,
including any testimony or physical evidence admitted           and only inconclusive physical evidence. But this claim
for the jury's consideration, the nature of the evidence        assumes that the entire interview would be excluded based
supporting the verdict, the character of the alleged error      on any remaining extraneous offenses that Appellant
and how it might be considered in connection with other         might have urged. We think it more likely that had
evidence in the case.” Morales v. State, 32 S.W.3d 862,         Appellant specifically complained of any additional
867 (Tex.Crim.App. 2000). We also consider the jury             extraneous offense on the DVD, the trial court would
instructions given by the trial court, the State's theory and   have ruled on that specific reference, or the State would
any defensive theories, closing arguments, and even voir        have simply added it to the mute list. Cf. Whitaker, 286
dire, if material to the Appellant's claim. Id.                 S.W.3d at 369 (defendant would have been convicted
                                                                with or without the portions of the audiotapes urged as
Appellant's brief references eight specific prejudicial         objectionable on appeal). We overrule Issue One.
portions of Exhibit 86. Several of those specific portions
are on the list of the segments that were muted when the
DVD was played to the jury. For instance, Appellant's
                                                                               HEARSAY OBJECTIONS
brief refers to a portion of the interview where he admitted
that he beat Derek, but that segment is specifically listed     Appellant's second, third, and forth issues all focus on a
as one that was muted. Several other specific references        hearsay objection that the State lodged during Appellant's
to Derek's kidnapping are also on the muted list. The           direct examination of witness Kimberly Streetman. She
other specific segments of which Appellant now complains        was in the house that day and heard the argument outside.
were not clearly extraneous offenses, or are otherwise not      She looked through a window and saw Adam arguing
harmful. For instance, in one segment that was played,          with Rios. As Appellant's counsel worked through the
Appellant denied picking up a knife, claiming that if he        sequence of what she specifically heard and saw, this
wanted to hurt someone, he had a shotgun in the house.          exchange occurred:
Unless the jury knew that Appellant had a prior felony
conviction (which they did not in the guilt-innocence             Q. Okay. And what does [Adam] say to [Rios]?
phase), there is nothing illegal in having a gun inside one's
                                                                  A. He's—I couldn't really hear all of it, but when I
house.
                                                                  walked out, I heard, ‘This isn't funny. Do you think this
                                                                  was funny?’ And I was like—



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Ojeda v. State, Not Reported in S.W.3d (2017)



  [STATE'S ATTORNEY]: Objection to hearsay.                    to disregard the answer. Even if it had, this singular
                                                               statement adds little to what the jury already knew. The
  THE COURT: Objection sustained.                              jury had already heard testimony that Adam was mad
                                                               at Rios for disrespecting Rachel. The jury heard that
  [APPELLANT'S COUNSEL]: Judge, based on the                   Adam approached and first struck Manual, knocking
  demeanor of the individual and the direction of what         him to the ground. Kimberly later testified without
  she appears that anger is goes towards [sic] and what        objection that Adam slammed the front door closed and
  those words were meant for, we believe it is an exception    told Rios that he could not go inside. She described
  to the hearsay rule.                                         Adam as the aggressor, his face was “bright red,” and
                                                               a vein on the side of his head was popping out. We
  THE COURT: Objection overruled [sic]. 7                      are not convinced that the additional hearsay comment
                                                               affected Appellant's substantial rights. See Wilford v.
In his brief, Appellant argues that three hearsay              State, 739 S.W.2d 854, 865 (Tex.Crim.App. 1987)(noting
exceptions (exited utterance, present sense impression,        that subsequently elicited testimony rendered error
and then-existing mental, emotional or physical                “harmless”). We overrule Issues Two, Three, and Four.
condition) apply. Without addressing those specific
hearsay exceptions, there are two foundational problems
with the argument. To preserve error regarding the
exclusion of evidence, the substance of the evidence                           STATE'S CROSS POINT
must be made known to the court through an offer
                                                               By cross point, the State complains of an inaccuracy in
of proof or otherwise be apparent from the context
                                                               the judgment. The indictment included an enhancement
of the questioning. TEX.R.EVID. 103(a)(2); Williams
                                                               paragraph that alleged a prior conviction for possession
v. State, 937 S.W.2d 479, 489 (Tex.Crim.App. 1996).
                                                               of a controlled substance. Appellant pled true to that
An offer of proof might include a question-and-answer
                                                               paragraph. In the punishment phase, the State introduced
exchange outside the hearing of the jury, or a concise
                                                               a pen packet that included two prior felony convictions
statement by counsel. Mays v. State, 285 S.W.3d 884,
                                                               for possession. The judgment incorrectly states that
889–90 (Tex.Crim.App. 2009). If made in the form of a
                                                               Appellant pled true to two enhancement paragraphs and
statement, the proffer “must include a reasonably specific
                                                               the jury found them both to be true.
summary of the evidence offered and must state the
relevance of the evidence unless the relevance is apparent,
                                                               We sustain the State's cross point and reform the
so that the court can determine whether the evidence is
                                                               judgment to reflect that Appellant pled true to the single
relevant and admissible.” Warner v. State, 969 S.W.2d 1, 2
                                                               enhancement count, which the jury found to be true.
(Tex.Crim.App. 1998). The offer of proof allows the trial
                                                               See TEX.R.APP.P. 43.2(b); Asberry v. State, 813 S.W.2d
court to reconsider its ruling in light of actual evidence
                                                               526, 529–30 (Tex.App.–Dallas 1991, pet. ref'd)(reforming
and to enable an appellate court to determine whether
                                                               judgment); Lewis v. State, 08–09–00052–CR, 2010 WL
the exclusion of evidence was erroneous and harmful. See
                                                               2396823, at *5 (Tex.App.–El Paso June 16, 2010, pet
Mays, 285 S.W.3d at 890.
                                                               ref'd)(not designated for publication)(same). We reform
                                                               the judgment to reflect that Appellant pled true to a
 *7 Appellant made no offer of proof as to anything
                                                               single enhancement paragraph, and affirm the judgment
the witness would say beyond that already in her answer
                                                               as reformed.
(“This isn't funny. Do you think this was funny?”).
If there were some additional hearsay statement she
intended to offer, that claim is not preserved. See Martinez
v. State, 08–12–00058–CR, 2014 WL 1396705, at *3               Hughes, J., not participating
(Tex.App.–El Paso Apr. 9, 2014, no pet.)(not designated
                                                               All Citations
for publication)(excluded testimony was neither in proffer
or apparent from the context of the questioning). As for       Not Reported in S.W.3d, 2017 WL 3405313
what she did say, the State never asked for an instruction




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Ojeda v. State, Not Reported in S.W.3d (2017)




Footnotes
1     To distinguish between the victim and the witnesses, we refer to Manuel Rios by his surname. The witnesses are referred
      to by their given names.
2     This case was transferred to us by the Fifth Court of Appeals, and we apply its precedents to the extent they might conflict
      with our own. See TEX.R.APP.P. 41.3.
3     Kevin was indicted for tampering with physical evidence (the corpse). The jury charge also identified him as an accomplice
      witness.
4     The Texas Syndicate is a gang that operates in and out of the prison system, and trades in drugs, prostitution, extortion,
      and murder. See Holguin v. State, No. B14–87–00602–CR, 1989 WL 501, at *1 (Tex.App.–Houston [14th Dist.] Jan. 5,
      1989, no pet.)(not designated for publication).
5     In Appellant's unedited interview, he also admitted to being a member of the “Insane Clown Posse.”
6     We would be remiss in not noting the risk of redacting a DVD in this fashion. The court reporter did not transcribe what
      audio was actually played to the jury, and while there was no disagreement here about what actually was played, there
      well could have been. See Basinger v. State, No. 05–10–00786–CR, 2012 WL 1704322, at *1 (Tex.App.–Dallas May
      16, 2012, no pet.)(mem. op.)(not designated for publication)(noting claim that audio was not muted when video was
      played); Rimes v. State, 05–08–01543–CR, 2009 WL 3298181, at *1 (Tex.App.–Dallas Oct. 15, 2009, no pet.)(same).
      Additionally, the jury asked that this DVD be re-played again during their deliberations. Because of the manual audio
      editing, the attorneys needed to be present for that replay, and again, the parties ran the risk of human error in turning
      the volume up or down.
7     The [sic] reference was added by the court reporter. We are unclear, however, if the trial court sustained the objection
      and overruled the implied request to reconsider the ruling, or if the trial court reversed itself upon hearing Appellant's
      proffered exception to the hearsay objection. The briefing assumes the situation to be the former.


End of Document                                               © 2017 Thomson Reuters. No claim to original U.S. Government Works.




              © 2017 Thomson Reuters. No claim to original U.S. Government Works.                                              7
