Trejo v. State

683 S.W.3d 815

Rueben Justin TREJO, Appellant

v.The STATE of Texas, Appellee

No. 04-21-00570-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: December 6, 2023

From the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2019-CR-9333, Honorable Michael E. Mery, Judge Presiding

Joe D. Gonzales, San Antonio, Andrew Warthen, Assistant Criminal District Attorney, San Antonio, for Appellee.

Matthew T. Allen, Attorney at Law, San Antonio, for Appellant.

Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice, Lori I. Valenzuela, Justice

OPINION

Opinion by: Patricia O. Alvarez, Justice

A jury convicted Appellant Ruben Justin Trejo of criminally negligent homicide and assault after he caused, a fatal collision with another driver. It sentenced him to two years’ jail. In three issues, Trejo complains that the trial court erred in overruling his objections to the admission of (1) a certified copy of his driving record during the punishment phase of trial, (2) expert testimony about data retrieved from his vehicle’s data recorder, and (3) expert testimony that failed to satisfy his Sixth Amendment right to confront adverse witnesses. We affirm.

Background

Appellant Trejo caused a high-speed head-on collision by driving through an intersection against a red light. The crash occurred at night, and, though Trejo’s car was equipped with daytime running lights, his headlights were off. His blood-alcohol level was .04. He killed the driver of the car he struck and was charged with manslaughter and aggravated assault.

At trial, the State used data from Trejo’s car’s airbag control module in conjunction with road evidence at the scene to establish his speed at the time of the crash. State’s expert witness Sergeant Windsor testified that he was trained in retrieving the module’s data through a software interface to read the results of the car’s sensor inputs. Trejo objected to the admission of Sergeant Windsor’s testimony as inadequate under the Sixth Amendment, but the trial court overruled the objection. Sergeant Windsor testified that Trejo was driving approximately seventy miles per hour in a forty-five mile-per-hour zone upon impact. The jury convicted Trejo of criminally negligent homicide and simple assault.

At sentencing the State introduced Trejo’s driving record, which showed that he had received three previous speeding citations. Trejo objected to the admission of the driving record because it was not accompanied by certified judgments of guilt for the citations. But the State argued that Trejo’s driving record was admissible as evidence of bad acts and character. The trial court overruled Trejo’s objection. The jury sentenced Trejo to two years’ state jail and one year in the county jail. Trejo appealed.

Admissibility of Defendant’s Driving Record During the Punishment Phase

A. Parties’ Arguments

In Trejo’s first issue, he argues that the trial court should not have admitted his driving record during his punishment-phase trial because it was insufficient to prove his speeding convictions beyond a reasonable doubt. The State argues that it was not required to "re-prove" Trejo’s past speeding convictions. It argues that the law only requires the State to prove that the driving record admitted during the punishment phase trial belonged to Trejo and that it did.

B. Standard of Review

[1, 2] "A trial court has broad discretion in determining the, admissibility of evidence presented at the punishment phase of trial." Schultze v. State, 177 S.W.3d 26, 40 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (citing Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston. [1st Dist.] 2000, pet. ref'd)). "We will not disturb a trial court’s determination regarding the admissibility of relevant evidence unless an abuse of discretion has been shown." Id. (citing Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996)).

C. Law

At a punishment-phase trial, "evidence may be offered by the state … as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, … his character, … and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act." Tex. Code Crim. Proc. Ann. art. 37.07; Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).

[3, 4] The .process of proffering evidence to prove an extraneous offense, even when not explicit, is referred to as a threshold inquiry. See Flores v. State, 440 S.W.3d 180, 199-200 (Tex. App.—Houston [14th Dist.] 2013), judgment vacated on other grounds, 427 S.W.3d 399 (Tex. Crim. App. 2014) (citing Palomo v. State, 352 S.W.3d 87, 94 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd)). This threshold standard requires the State to be able to prove the commission of bad acts and extraneous crimes beyond a reasonable doubt and proffer its evidence before the trial court may admit it for. the jury’s consideration. See id. (citing Arzaga v. State, 86 S.W.3d 767, 781-82 (Tex. App.—El Paso 2002, no pet.)).

[5–7] When the State offers a certified judgment, it satisfies the requirement of proving that the extraneous crime was committed. See Cain v. State, 468 S.W.2d 856, 858 (Tex. Crim. App. 1971), overruled on other grounds by Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1984); Gentile v. State, 848 S.W.2d 359, 360 (Tex. App.—Austin 1993, no pet.). Without a certified judgment, "[t]he trial court may not admit extraneous offense evidence unless the evidence is such that a jury could rationally find the defendant criminally responsible for the extraneous offense [beyond a reasonable doubt]." Flores, 440 S.W.3d at 197 (quoting Palomo v. State, 352 S.W.3d 87, 92 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd)); accord Davis v. State, 315 S.W.3d 908, 914 (Tex. App.—Houston [14th Dist.] 2010), rev’d on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011). "Whether an extraneous offense was established beyond a reasonable doubt, however, is a question of fact for the jury rather than a preliminary question of admissibility for the trial court." Davis, 315 S.W.3d at 914 (citing Mitchell v. State, 931 S.W.2d 950, 955 (Tex. Crim. App. 1996) (plurality opinion)).

[8–10] With specific regard to the admissibility of a driving record to show evidence of past bad acts, the State must proffer more than the driving record alone. See Gentile, 848 SW.2d at 360; accord Tex. Dep’t of Pub. Safety v. Gentry, 386 S.W.2d 758, 760 (Tex. 1965). This is not because the State must prove a conviction of an act listed in the driving record, but rather because the evidentiary value of the driving record is limited. See Gentile, 848 S.W.2d at 360. Therefore, for acts listed in a defendant’s driving record to be admissible in the State’s case at punishment, the State must be able establish their full relevance to the defendant and his punishment, i.e., that the subject matter is relevant to the jury’s assessment, that the act or offense is linked to the defendant, and that the offense transpired, to the degree that "a jury could rationally find the defendant criminally responsible." See Palomo, 352 S.W.3d 87, 91-92 (citing Davis, 315 S.W.3d at 914); accord Smith v. State, 227 S.W.3d 753, 760 (Tex. Crim. App. 2007). Alone, the driving record is only conditionally relevant, depending on what the State can (and does) present. See Huddleston v. United States, 485. U.S. 681, 690 n.7, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (quoting 21 C. Wright & K. Graham, Federal Practice and Procedure § 5054, pp. 269-270 (1977)); Gentile, 848 S.W.2d at 360.

[11–14] If the State does not proffer or present more than the driving record alone to prove a bad act or extraneous offense, it is incumbent upon the defendant to object. See Tex. R. App. P. 33.1; Palomo, 352 S.W.3d at 92; Flores, 440 S.W.3d at 197 (citing Mitchell, 931 S.W.2d at 953-54; Davis, 315 S.W.3d at 914). "It is, of course, not the responsibility of the judge sua sponte to insure that the foundation evidence is offered; the objector must move to strike the evidence if at the close of the trial the offeror has failed to satisfy the condition." Huddleston, 485 U.S. at 690 n.7, 108 S.Ct. 1496. In the absence of a trial objection that comports with a defendant’s argument on appeal, the issue on appeal is waived. See Tex. R. App. P. 33.1; Palomo, 352 S.W.3d at 92 (citing Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003)).

D. Analysis

[15, 16] Here, Trejo objected at his punishment-phase trial to the admission of his driving record because it was insufficient to prove his prior convictions for speeding. See Gentile, 848 S.W.2d at 360. He stated:

Your Honor, they do not have any judgments, certified copies of judgments, any type of judgment evidence. All they have is a copy of the driving record. And that case¹ states that that is insufficient to present testimony of convictions.

If there was an incomplete judgment, like if it was missing a thumbprint, if it was missing identifiers that were legally sufficient by itself, you could couple the two documents together to prove the sufficiency of that, but just the driving record by itself is legally insufficient to prove a conviction for a prior offense. And so we are asking that the—any evidence of his convictions for speeding not be allowed in front of the jury.

And so I guess we are objecting to—prior to their request for admission that that be introduced into evidence.

The State responded that it was not attempting to prove Trejo’s prior convictions for speeding, but rather that it was offering Trejo’s driving record merely as evidence of bad acts and character. See Tex. Code Crim. Proc. Ann. art. 37.07; Haley, 173 S.W.3d at 515.

So on the

...