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                                 MEMORANDUM OPINION

                                        No. 04-07-00746-CR

                                       Jose Angel RAMIREZ,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2005-CR-5073
                            Honorable Bert Richardson, Judge Presiding

Opinion by:       Catherine Stone, Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Sandee Bryan Marion, Justice

Delivered and Filed: October 15, 2008

AFFIRMED

           Jose Angel Ramirez was found guilty of murder by a jury. The jury assessed punishment of

life in prison and a $10,000 fine. On appeal, Ramirez contends that the trial court (1) committed

reversible error in failing to quash the indictment against him, based upon the destruction of

evidence that was potentially exculpatory to him; (2) abused its discretion in refusing his requested

jury instruction on the missing evidence, leading to an inappropriate remedy and denial of his rights

under the Due Course of Law provision of the Texas Constitution; (3) abused its discretion in failing
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to grant his motion for mistrial when a State’s witness testified in violation of a limine order; and

(4) erroneously commented on the weight of the evidence through an oral instruction to the jury. We

affirm.

                             FACTUAL AND PROCEDURAL BACKGROUND

          During the early hours of April 16, 1980, firefighters responded to a call reporting a fire at

the home of Gladys Jean Ramirez (“Gladys”). After extinguishing the fire, officers discovered

Gladys’s body on the floor of the room in which the fire was contained. Medical examiners

concluded that Gladys, who was found with a knife blade protruding from her neck and a cord

wrapped around her neck, was murdered. San Antonio Police Department Detective Anton Michalec

investigated the murder, and later that year closed the case as unsolved.

          In 2004, Detective George Saidler reopened the investigation of Gladys’s murder after

receiving a telephone call from Rebecca Tuttle. Tuttle was married to Jose for a brief period

subsequent to Gladys’s murder. She told the detective that while they were married, she overheard

Ramirez talking to his brother about the murder, and that he later told Tuttle he murdered his late

wife. In 2005, Ramirez was indicted for Gladys’s murder. The case proceeded to trial in 2007, and

a jury found Ramirez guilty of murder, sentenced him to life in prison and assessed a $10,000 fine.

                    DESTRUCTION OF EVIDENCE AND BAD FAITH REQUIREMENT

          Ramirez argues that the trial court committed reversible error in failing to quash the

indictment against him, based upon the State’s destruction of evidence that was potentially

exculpatory to him. In addition, Ramirez argues that the trial court violated his rights under the Due

Course of Law provision of the Texas Constitution when it required him to show bad faith on the




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part of the police department in the destruction of evidence. We will address each of these

arguments in turn.

           Ramirez argues that the State failed to properly preserve evidence, that such evidence might

have helped him, and that potentially exculpatory evidence was never tested. When a defendant

desires to prove the State failed to preserve potentially useful evidence, he has to establish that the

evidence was (1) material, (2) favorable to the defense, and (3) destroyed in bad faith by the State.

Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.–San Antonio 2005, no pet.). Furthermore, “[t]o meet

this standard of constitutional materiality, the missing evidence must possess an exculpatory value

that was apparent before the evidence was destroyed, and be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonable available means.” California

v. Trombetta, 467 U.S. 479, 489 (1984) (internal citations omitted). It is not enough to show that

the missing or destroyed evidence might have been favorable for the defendant; in order to meet the

materiality standard, its exculpatory value must be apparent. See Lee v. State, 893 S.W.2d 80, 87

(Tex. App.–El Paso 1994, no pet.); Hebert v. State, 836 S.W.2d 252, 254 (Tex. App.–Houston [1st

Dist.] 1992, pet. ref'd); Gamboa v. State, 774 S.W.2d 111, 112 (Tex. App.–Fort Worth 1989, pet.

ref'd.).

           Ramirez argues that evidence destroyed by the San Antonio Police Department might have

had exculpatory value for him. During the course of investigating Gladys’s murder in 1980, police

officers collected several pieces of physical evidence. In 1987, several items of evidence were

apparently destroyed, including a doorknob with a bloody print, a pack of cigarettes containing a

latent fingerprint, a telephone cord containing hair fibers, fingernail clippings, carpet samples, and

pieces of Gladys’s clothing. Prior to trial in 2007, the trial court heard a pre-trial motion to dismiss



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the indictment due to the destruction of evidence. The detective assigned to the case testified that

it was not uncommon for the San Antonio Police Department to destroy evidence after a certain

amount of time, and although evidence of an unsolved murder is typically not destroyed, there was

a chance the evidence in this case might have been recorded under arson instead of homicide, leading

to the routine order of destruction.

         Ramirez’s argument that the doorknob “may have contained blood and a print” or the

carpeting “may have had” exculpatory value fails to meet the standards set forth above. See Lee, 893

S.W.2d at 87 (“A showing that the evidence might have been favorable does not meet the materiality

standard.”); Hebert, 836 S.W.2d at 254 (same); Gamboa, 774 S.W.2d at 112 (same). Ramirez had

to prove that the evidence had apparent exculpatory value. Though he speculates that there is a

possibility the missing items could have helped him, Ramirez fails to prove access to the doorknob

and/or carpeting would have favored him.

         Ramirez further argues that the trial court should have interpreted the Due Course of Law

provision of the Texas Constitution in light of Pena v. State, 226 S.W.3d 634 (Tex. App.–Waco

2007, pet. granted). In Pena, the court held that “under the Due Course of Law provision of article

I, section 19 [of the Texas Constitution], the State has a duty to preserve material evidence which

has apparent exculpatory value, encompassing both exculpatory evidence and evidence that is

potentially useful to the defense,” regardless of whether bad faith was involved in the loss or

destruction. Pena, 226 S.W.3d at 651. However, this court and eight of our sister courts1 have


         1
             …
             See, e.g., Martinez v. State, No. 13-06-665-CR, 2008 W L 2515876, at *9 (Tex. App.–Corpus Christi Jan.
24, 2008, no pet.) (mem. op.) (not designated for publication); State v. Vasquez, 230 S.W .3d 744, 750 (Tex.
App.–Houston [14th Dist.] 2007, no pet.); Alvarado v. State, No. 07-06-0086-CR, 2006 W L 2860973, at *3 (Tex.
App.–Amarillo Oct.9, 2006, no pet.) (mem. op.) (not designated for publication); McGee v. State, 210 S.W .3d 702, 705
(Tex. App.–Eastland 2006, no pet.); Salazar, 185 S.W .3d at 92, Jackson v. State, 50 S.W .3d 579, 588-89 (Tex.
App.–Fort W orth 2001, pet. ref’d); Mahaffey v. State, 937 S.W .2d 51, 53 (Tex. App.–Houston [1st Dist.] 1996, no pet.);

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declined to follow the ruling in Pena, holding the due course of law provision of the Texas

Constitution and the Due Process Clause of the United States Constitution afford defendants the

same protections. Salazar, 185 S.W.3d at 92-93.

        Under both the Texas and United States constitutions, defendants must prove bad faith on

the part of the State when there is a claim of erroneous destruction of material, potentially

exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding that under Due

Process Clause of the Fourteenth Amendment, unless a criminal defendant can show bad faith on

the part of the police, failure to preserve potentially useful evidence does not constitute a denial of

due process of law); Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.–Houston [1st Dist.] 1996, no

pet.) (noting that “the accused must show that the State acted in bad faith when it failed to preserve

the evidence in order to show a violation of due process or due course of law [under the Texas

Constitution].”). Here, Ramirez has failed to prove the State destroyed the evidence in bad faith.

There is no evidence that the San Antonio Police Department specifically targeted the evidence in

this case for destruction. Detective Saidler testified that the evidence was destroyed in accordance

with routine police department procedure. The detective further stated that the records were not

singled out to be destroyed and the destruction was through no bad faith of the police department.

Even if the destruction of the homicide evidence in this case was negligent, a showing of negligence

on the part of the officers is not equivalent to bad faith. Saldana v. State, 783 S.W.2d 22, 23 (Tex.

App.–Austin 1990, no pet.). Because Ramirez did not prove bad faith on the part of the State, the




State v. Rudd, 871 S.W .2d 530, 532-33 (Tex. App.–Dallas 1994, no pet.); Saldana v. State, 783 S.W .2d 22, 23 (Tex.
App.–Austin 1990, no pet.).

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trial court did not abuse its discretion in denying the motion to quash the indictment. Ramirez’s first

issue is overruled.

                                        JURY INSTRUCTION

       In his second issue, Ramirez continues to argue that because material and potentially

exculpatory evidence was missing or destroyed, the trial court abused its discretion in refusing his

requested jury instruction on the missing evidence, leading to an inappropriate remedy and denial

of Ramirez’s rights under the Due Course of Law provision of the Texas Constitution. However,

as noted above, Ramirez has failed to prove that the missing or destroyed evidence has material,

exculpatory value, or that the police department acted in bad faith in the destruction of the evidence.

Salazar, 185 S.W.3d at 92. Because we do not follow the standard set forth in Pena, but require a

showing of bad faith in the State’s destruction of evidence, the trial court could not have abused its

discretion in refusing Ramirez’s requested instruction under the circumstances. Ramirez’s second

issue is overruled.

                                  VIOLATION OF LIMINE ORDER

       Ramirez’s third issue contends the trial court abused its discretion in failing to grant his

motion for mistrial when a State’s witness, Rebecca Tuttle, testified in violation of a limine order.

We review a trial court’s ruling on a motion for mistrial for abuse of discretion. Archie v. State, 221

S.W.3d 695, 699 (Tex. Crim. App. 2007). Thus, we must uphold the trial court’s ruling if it was

within the zone of reasonable disagreement. Id. “Only in extreme circumstances, where the

prejudice is incurable, will a mistrial be required.” Id. (quoting Hawkins v. State, 135 S.W.3d 72,

77 (Tex. Crim. App. 2004)).




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       In analyzing whether an event is so prejudicial that a mistrial must be declared, we apply the

factors established in Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). Mosley requires us

to consider: (1) the prejudicial effect; (2) the curative measures taken; and (3) the certainty of

conviction absent the prejudicial event. Id. at 259.

       At trial, Tuttle testified that she married Ramirez in 1981. She testified that two weeks after

they were married, she woke up in the middle of the night and overheard a conversation between

Ramirez and his brother, Roberto. Tuttle heard Roberto tell Ramirez that Ramirez needed to put “it”

behind him and move on with his life; Ramirez responded, “How do you forget beating someone to

death when they are saying the act of contrition?” Approximately two weeks later, Tuttle left the

defendant, but about a month later began seeing him again after discovering she was pregnant.

Tuttle testified that Ramirez later admitted he had killed Gladys, that he pretended he could not

speak English when he was in police custody, and that “you could start a fire that would burn a house

down using two matches if you knew what you were doing.” Ramirez and Tuttle continued to talk

until November 1982. This testimony was presented without objection by Ramirez.

       Prior to Tuttle’s testimony, a bench conference was held in which the trial court issued a

limine order instructing the witness not to offer any additional information regarding the incidents

that surrounded her relationship with Ramirez, specifically any bad acts or threats. During Tuttle’s

testimony, the State initiated a bench conference in order to address the prior court ruling, in which

it informed the trial court that Tuttle would be testifying that Ramirez told her he would hunt her

down and kill her. The trial court again ordered the witness to stay away from commenting on

Ramirez’s bad acts or threats to Tuttle, and the State agreed to quietly warn Tuttle against it so that

the jury would not have to be excused for further instruction. However, when asked, “At some point



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during that time, did you learn any information from the defendant about his former wife?”, the

witness stated, “Yes. I confronted him with what I had heard, and he said to me that he had killed

her. He got away with it, and if I ever left again, he would hunt me down.” Ramirez immediately

objected and moved for mistrial. He argued that the testimony was a direct violation of the limine

order, and that the evidence was inadmissible under rules of evidence. The trial court overruled the

motion for mistrial, commenting that the question itself did not violate the limine order though the

answer did. The court issued a curative instruction to the jury, ordering them to disregard the answer

given by Tuttle.

       Here, the prejudicial effect of Tuttle’s statement was minimal, as a previous witness had

already testified that Ramirez had also threatened her life. A curative measure was taken when the

trial court gave the instruction to disregard, and Ramirez’s conviction did not rest on Tuttle’s

statement that he threatened her life. In addition, we have previously held that testimony about a prior

threat made by a defendant was not of such a character as to suggest the impossibility of withdrawing

the impression produced on the minds of the jury. See, e.g., Garcia v. State, 246 S.W.3d 121, 134

(Tex. App.–San Antonio 2007, pet. ref’d) (holding there was no abuse of discretion when the trial

court denied a motion for mistrial and issued an instruction to disregard after the victim’s attorney

said she was concerned the appellant might harm her); Martinez v. State, 844 S.W.2d 279, 284 (Tex.

App.–San Antonio 2007, pet. ref’d) (holding the trial court’s instruction cured error when a police

officer testified that the appellant had threatened the intended victim). Therefore, Ramirez’s third

issue is overruled.




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                   TRIAL COURT’S COMMENT ON WEIGHT OF THE EVIDENCE

       In his final issue, Ramirez contends the trial court erroneously commented on the weight of

the evidence when it withdrew a previous ruling and gave a subsequent instruction to the jury.

Ramirez challenges an instruction given by the trial court following the testimony of Paula Hale, a

friend of Gladys. Prior to Hale’s testimony, a hearing was held outside the presence of the jury, in

which both sides argued about the admissibility of a statement by Hale that Gladys was afraid of

Ramirez. The State argued the statement was admissible as to the victim’s “state of mind,” and

Ramirez objected. The trial court ruled that under Dorsey v. State, 117 S.W.3d 332 (Tex.

App.–Beaumont 2003, pet. ref’d), “the statement was admissible since a statement that the declarant

is afraid or testimony demonstrating that the declarant was afraid when the statement is made is

admissible under Texas Rules of Evidence Rule 803(3).” When Hale was asked during trial about

what Gladys said to her about Ramirez, Hale replied, “Well, she kept telling me that she was scared

and . . . that she was afraid that Jose was going to kill her.” Ramirez objected to the portion of the

statement “Jose was going to kill her” as inadmissible, and the trial court sustained the objection;

again, Ramirez moved for a mistrial.

       The trial court excused the jury and heard arguments from both sides regarding the

admissibility of the statement under Dorsey. The trial court then reversed its original ruling, held the

statement was admissible, and allowed the State to re-ask the question in front of the jury. After the

jury was brought back into the courtroom, the trial court stated to the jury:

       You can be seated. All right. Ladies and gentlemen, I had previously instructed you
       to disregard the witness’s last answer. There may be some confusion over that. I am
       just going to withdraw that ruling. I am going to allow the State to ask the same
       question that was asked. The witness is permitted to give that answer, so it can be
       considered as evidence and testimony before you.



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The State then began questioning Hale, and once the question was asked again, Ramirez renewed his

objection to the question presented to the witness on the basis that the question violated rules of

evidence.

        Ramirez argues that the instruction given by the trial court to the jury was an improper

comment on the evidence. The State contends Ramirez waived this issue by failing to object during

trial to the instruction given by the trial court to the jury. See Rabago v. State, 75 S.W.3d 561, 562

(Tex. App.–San Antonio 2002, pet. ref’d) (noting that as a general rule, trial counsel must object to

preserve error, even if it is “incurable” or “constitutional”); see generally TEX . R. APP . P. 33.1.

However, even if Ramirez had objected we cannot say this instruction was an improper comment on

the weight of the evidence.

        The Texas Code of Criminal Procedure provides:

        In ruling upon the admissibility of evidence, the judge shall not discuss or comment
        upon the weight of the same or its bearing in the case, but shall simply decide
        whether or not it is admissible; nor shall he, 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.


A trial court’s improper comment on the weight of the evidence results in reversible error only when

it is either reasonably calculated to benefit the State or to prejudice the defendant’s right to a fair and

impartial trial. Aschbacher v. State, 61 S.W.3d 532, 538-39 (Tex. App.–San Antonio 2001, pet. ref’d)

(citing Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983)). Here, the instruction given

by the trial court was not a comment on the weight of the evidence; rather, it was an explanation of

the trial court’s change in its ruling. Therefore, Ramirez’s fourth issue is overruled.




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                                            CONCLUSION

       Ramirez failed to establish that the destroyed evidence had exculpatory value, or that it was

destroyed by the State in bad faith. In addition, the trial court did not make an improper comment on

the weight of the evidence when it instructed the jury to ignore an earlier ruling and consider evidence

put before it. Accordingly, we affirm the judgment of the trial court.



                                                         Catherine Stone, Justice

Do Not Publish




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