Jump directly to the content. Sign in. All Football. David Boroff. THE crazed fan who killed superstar Selena Quintanilla may only be behind bars a few more years. Tinker asked if those symptoms were typically found in a victim of sexual assault and the nurse agreed they were. Another nurse who attended to Yolanda stated that Yolanda had red welts on her neck and arms, but that they did not resemble the bruises that a person would receive from an assault by a baseball bat as Yolanda claimed.
She told the jury that when Selena arrived in the lobby after being shot, she had asked the singer who shot her.
Selena cried out " the girl in room ". The one in room Receptionist Shawna Vela, testified that she had heard the same statements, but added that Selena had screamed: " lock the door, she'll shoot me again " before collapsing. Vela told the jury that there was so much blood that she felt nauseous before calling The last person to be called to testify was paramedic Richard Fredrickson who described in detail Selena's condition and a mysterious ring she clutched in her hands.
The Quintanilla family were seen sobbing as Fredrickson detailed his attempts to save Selena's life while Yolanda " stared blankly ". The tape began with Yolanda stating how badly she wanted to die. Young told her that by committing suicide she would only harm her parents. Yolanda then asked to contact her mother to say goodbye and ask for forgiveness.
She continued to whine, " I just wanna die " as Young began talking about religion to determine if she believed in a faith that might cause her to reconsider suicide. Young told Yolanda that if she would give herself up, he would place a jacket over her so that the media would not have a picture of her face during her surrender. Isaac Valencia told Yolanda that if she were to surrender they promised to turn off all of the lights that were pointing towards her truck; she agreed.
As she left her truck, she was scared by the dozens of armed police and FBI agents who were pointing rifles and pistols at her. She ran back to her truck, pointed the gun at her head and screamed at Young: " They're carrying guns! They're carrying guns! They're going to kill me! The New York Times also commented that: " she alternately begged to be killed and expressed fear that she would be killed if she left the truck. As the taped conversation continued, the jury heard Yolanda's reaction to the news of Selena's death after her phone picked up a local radio station's signal.
In an angry voice, Yolanda asked Young why he had kept the singer's condition from her, since she wanted to visit Selena at the hospital, believing she was still alive. Young told Yolanda not to believe the radio announcement and that he did not know about Selena's current condition.
The conversation then switched to Yolanda blaming Quintanilla, Jr. Yolanda explained to Young that she bought the gun for protection after finding her car tires deliberately slashed. She also told him how Quintanilla, Jr. When asked about what happened in her motel room, Yolanda exclaimed: " I bought this gun to kill myself, not her, and she told me, 'Yolanda, I don't want you to kill yourself. I said 'Selena, close that door,' and when I did that gun went off.
The prosecution then told the jury that comments by some officers had planted the idea in Yolanda's head that the shooting was accidental. The defense countered stating that although she did not use the word " accident ", she did not mean to harm Selena. John Houston a police officer who was present during the standoff was asked during the nine and a half hours that Yolanda held the gun to her head, how many times it " went off "; he said " none ". Robert Garza a Texas Ranger told the jury that during the preliminary hearings in Corpus Christi, he witnessed Yolanda making gestures indicating that the shooting had been accidental, though she had not indicated this in her confession.
The defense called Rivera to the stand and explained to the jury that he had a conflict of interest after finding out that he had a poster of Selena hanging on his wall and was treated to a Selena T-shirt by Quintanilla, Jr. Tinker explained to the jury that the confession was signed by an exhausted, sleep deprived Yolanda after eleven hours of questioning and being denied water, food and use of a bathroom.
Tinker asked Rivera why he destroyed his notes and why he had not recorded his interrogation of Yolanda, why he had not provided her with a lawyer as the law requires and had not allowed her to see her relatives after signing her confession. A few days later, the Mexican mafia sent Tinker a signed postcard declaring their intention to harm him and his family for defending Yolanda.
On October 19, , the defense called the two surgeons who tried to revive Selena at the hospital. The defense questioned why Quintanilla, Jr. The autopsy pictures of Selena were displayed for everyone to see. The white American jury member was affected by the pictures and was seen " bursting into tears " as Lloyd White described his findings in detail. After confirming that Selena was not pregnant contradicting rumors in media reports White announced his conclusion: " this was a homicide, not an accident.
The prosecution called on a firearms expert who found the gun to be in working condition and stating that a person pulling the trigger must use a " great amount of pressure ". Valdez showed pictures of the motel room where Selena had been shot, indicating that " it was impossible for [her] not know her friend had been wounded.
Tinker asked if Selena had actually screamed out to them to lock the doors. Schultz replied that Selena had never asked for the doors to be locked and was only moaning on the floor. Schultz further stated that her former employee, Vela was not trustworthy. He also said that all the employees began formulating different opinions on what happened on March 31, when the prosecution called on them to testify. She told the jury that it was impossible for both employees to have seen Yolanda chasing Selena because their work was on the other side of the motel building.
Tinker called Marilyn Greer Selena's seventh grade teacher to the stand. She told the jury that Selena had had the ability to graduate with honors and could have easily obtained a college scholarship. Greer then spoke about how Quintanilla, Jr. On October 23, , the defense presented their closing arguments, claiming that the shooting was an accident and that Rivera was: " not interested in pursuing justice.
He wanted to make a case. They also argued that Rivera knew hours beforehand that the Yolanda Saldivar case was " a big case " and had " wanted to be the one to get [her]. The defense claimed that Selena still referred to Yolanda as her " dearest friend " pointing out that she took her to the hospital, despite having a recording session scheduled that day. They reminded the jury that an employee demonstrated that the gun can " fire off " with " just one's little finger.
The defense accused the prosecution of manipulating the jury's emotions by displaying photographs of Selena at the morgue, and the trail of blood from the motel room to the lobby. They concluded by telling the jury to not side with a " rabid father ". In the prosecution's closing statement, Skurka told the jury that Selena " had been reduced to a mere picture thanks to the March 31st actions of the defendant.
Skurka asked the jury why Yolanda who was a nurse did not administer first aid and why had she had not called after accidentally shooting the singer in the back. Skurka then provided details of the three different stories Yolanda used to explain the purchase of the gun, as well as the different stories about her alleged rape.
The prosecutor pointed out that if Yolanda had wanted to commit suicide she had ample time to do so. Valdez took out a calendar for the month of March of and chronologically pointed out the events proceeding the killing of Selena. According to Valdez, Yolanda hated Quintanilla, Jr. She was kept at Nueces County jail under a suicide watch before her trial. As people were waiting for the verdict, prosecutors and the defense team signed autographs for the media as did Yolanda.
Yolanda's family also signed autographs while Quintanilla, Jr. The jury found Yolanda Saldivar guilty of first-degree murder. She received the maximum sentence of life in prison with parole eligibility in 30 years. Before the verdict was read, some in the crowd and Quintanilla, Jr. Simpson's acquittal a week earlier. Article The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race.
If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges.
The burden of persuasion remains with the defendant to establish purposeful discrimination. Code Crim. The record reflects that appellant's trial counsel did not raise the Batson challenge until after the jury was seated and sworn. After both parties exercised their peremptory challenges but prior to seating the jury, appellant's trial counsel requested an opportunity to make a record regarding the trial court's denial of his request for additional peremptory challenges.
Appellant's trial counsel said, "I need to make a record with regard to that before they are seated with regard to the challenges that you denied me. We had to settle on this jury. I can make that record after you seat them as though I made it now? Both parties responded that they would like to inspect it. The jury was then sworn and seated. After the trial court released the jury, appellant's trial counsel objected to the State's use of its peremptory challenges as follows:.
There's only one African-American there. They have struck eight African-Americans from the panel. They struck 13, 21, 26, 34, 38, 39, 48, and We demand that the panel be quashed because of the way they did their striking, and they did it in a prejudicial way by striking racially. The prosecutor objected that the motion was untimely. The trial Judge, however, questioned whether the prosecutor was present when appellant's trial attorney made the objection.
After a brief Discussion as to whether the objection was preserved, the trial court postponed argument on the motion until the next morning. The following day, appellant's trial counsel reminded the trial court that he asked to make objections to the impaneling of the jury and that the court permitted him to do so after the jury was seated.
Once again, a Discussion ensued regarding when appellant's trial counsel made the Batson challenge and whether the trial court permitted him to make objections to the impaneling of the jury after the jury was seated. Appellant's trial counsel finally admitted, "Your Honor, let me say this: I had no inclination as to pass the challenge because I hadn't seen the color of the faces; and then, as they were seated, at the time that they did, I knew that I should do that, and I made it.
The prosecutor once again objected, stating the challenge was untimely. When asked, the prosecutor declined the opportunity to state the reasons for striking the African-American venire members and objected that appellant had not met her burden to establish a prima facie case. After hearing argument, the trial court denied appellant's motion to quash the panel.
The record shows that appellant's trial attorney did not make a Batson challenge until after the jury was seated and sworn. Still, appellant contends the challenge was timely. She implies the parties discussed the Batson challenge during an unrecorded bench conference, thus explaining the trial court's response that the prosecutor who objected to the challenge was not present when the objection was made.
Because the record reflects that appellant's trial attorney did not timely object, appellant's Batson challenge was not preserved for appellate review. Even if the Batson challenge was untimely, appellant contends her request to strike the panel based on a Batson violation was timely and preserved for review in light of Moss v. Moss is distinguishable from the facts of this case. The defendant in Moss filed a written Batson objection before the trial court called the jurors' names, but failed to obtain a ruling before the jury was seated and sworn.
The question before the Waco Court of Appeals was whether the objection was preserved for appellate review. See id. That appellate court noted the purpose of requiring a timely specific objection under former rule 52 a of the Texas Rules of Appellate Procedure is to allow the trial court the opportunity to rule on the complaint and then to proceed with trial in a proper procedural and substantive manner.
Consequently, the Waco Court of Appeals found the defendant obtained a timely ruling because the trial court could have granted a mistrial after empaneling the jury if it had found a Batson violation. Here, appellant did not make a timely Batson objection. Therefore, she did not preserve error for appellate review.
We overrule appellant's first point of error. In her second point of error, appellant contends the trial court abused its discretion in sustaining the State's challenge for cause levied against prospective juror Gwendolyn J. Harris and in denying appellant's requests for additional peremptory challenges. Appellant contends Harris was a qualified venire person; thus, the trial court had no discretion to excuse her under article Harris indicated on a juror questionnaire that she had been a witness in a criminal case involving her girlfriend's son.
While offering her girlfriend support in dealing with the boy, Harris observed police officers make promises to the boy, which were later broken. She also indicated that her sister-in-law had been killed in a drug house several years ago. When asked if she would have a problem with officers testifying in court that would affect her rendering a verdict or interfere with her deliberations in this case, she said she had a problem with officers, but it would not affect her service as a juror in this case.
Harris also expressed concern about her children and financial problems that would prevent her from concentrating during trial. Nevertheless, the trial court asked her to return for additional questioning the following day. Later, Harris expressed concern that her son needed her assistance because he had been suspended from school and she had to take him to see a psychiatrist the next day.
She said, "I know I couldn't honestly sit up here and be a juror when I know I have a year-old child that's having problems and I'm the only one that can help them. The trial Judge corrected the prosecutor stating that her problem wasn't with testimony, to which the prosecutor replied, "It was officers themselves, she said.
I asked her if it would effect [sic] her as a juror, and she said it would. The trial Judge replied, "Sure, I'll carry that. When conducting voir dire, the trial Judge has the discretion to excuse a venire person under articles See Butler, S. Under article Under Excusing an unqualified venire person under article The reasons for challenges for causes enumerated in article Hardship and family responsibilities are excusable grounds under article See Kemp v. Although the trial Judge did not state his reason for excusing Harris, the record clearly reflects the trial Judge relied on his authority under article Harris prompted the trial Judge for a personal excuse before the prosecutor exerted his challenge.
After the prosecutor challenged Harris, the trial Judge corrected the prosecutor's misstatement regarding Harris's aversion to police testimony. Following some Discussion, in which appellant expressed her objection to the State's challenge, the trial Judge excused Harris.
Because the trial Judge's decision to excuse venire person Harris for personal hardship was an appropriate exercise of his discretionary authority under article Accordingly, we overrule appellant's second point of error.
In her third point of error, appellant contends she was denied the right to confront and cross-examine witnesses, the right to due process, and the right to effective assistance of counsel because the prosecution did not disclose impeachment evidence regarding the criminal history of a State's witness. Appellant filed a pretrial motion requesting the State to provide the criminal records of witnesses, and specifically, the criminal history of Norma Marie Martinez.
After hearing argument on the motion, the trial court ordered the State to tender for in camera inspection, its record search on the State's witnesses and particularly on Norma Martinez. A computer search conducted the week before trial revealed no criminal history for Norma Marie Martinez. After the trial court rendered judgment, one of appellant's trial attorneys received information that led him to conduct a separate investigation of Martinez's criminal history.
Using the name Maria Norma Martinez, appellant's trial attorney discovered Martinez had been convicted of theft in and, at the time of trial, had an outstanding warrant for her arrest on a second theft charge.
Consequently, appellant filed a motion for new trial claiming newly discovered evidence showed the State failed to disclose exculpatory and impeachment evidence as required by Brady v. Maryland, U. The trial court denied the motion for new trial. The granting or denying of a motion for new trial lies within the discretion of the trial court. See Lewis v. Gonzalez, S. An appellate court does not substitute its judgment for that of the trial court, but rather decides whether the trial court's decision was arbitrary or unreasonable.
To be entitled to a new trial based on newly discovered evidence, appellant must show there is, in fact, new evidence, both competent and material to the case, the existence of which was unknown to appellant at the time of trial. See Jones v.
Second, appellant must show her failure to discover such evidence before trial, or to utilize the evidence, once discovered, at the time of trial, was not a result of any lack of diligence on her part.
Generally, new evidence that is merely cumulative, corroborative, collateral, or impeaching is rarely of such weight as likely to bring about a different result. Appellant contends the newly discovered evidence of Martinez's criminal history is material to the outcome of the case, and the State's failure to disclose it deprived her of due process. See Lagrone v. A prosecutor violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution when he or she fails to disclose material evidence that is favorable to the accused.
See Thomas v. Favorable evidence is any evidence, including exculpatory and impeachment evidence, that, if disclosed and used effectively, may make the difference between conviction and acquittal. Evidence is material if it creates a probability sufficient to undermine the confidence in the outcome of the proceeding.
A reviewing court determines materiality by examining the alleged error in the context of the entire record and in the context of the overall strength of the State's case. The reviewing court may consider any adverse effect the nondisclosure might have had on the preparation or presentation of the defendant's case in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing the course of the defense and the trial in a post-trial proceeding.
At the hearing on the motion, the State's investigator testified that he searched for the criminal history of Norma Marie Martinez, the name Martinez signed on her statements to the State.
Upon receiving the motion for new trial, the investigator ran a second search under the name Maria Norma Martinez and discovered the theft conviction and a second theft conviction, which occurred subsequent to appellant's trial.
The State claimed it had no knowledge of Martinez's conviction until it received the motion for new trial. Appellant does not dispute the prosecution's unawareness of Martinez's prior conviction or pending charges at trial, but questions the State's diligence in searching its records. The State's investigator testified that he did not search for Martinez's criminal history under any other name except Norma Marie Martinez because she was only a witness and he had no reason to believe she gave an alias.
Moreover, Martinez testified that the State never questioned her about her criminal history and State investigators wrote her name incorrectly on police documents. The record reflects the prosecutor did not deliberately withhold impeachment evidence from appellant. Yet, the record also reflects the State made little effort to discover the information, which it possessed in its own records. Therefore, we find the State breached its affirmative duty to disclose impeachment evidence to which appellant was entitled.
Nevertheless, we do not find the conviction evidence to be material for impeachment purposes. While appellant's trial counsel could have offered Martinez's theft conviction, if disclosed, to impeach her credibility with jurors, Martinez's inconsistent statements permitted appellant's trial counsel to accomplish the same goal on cross-examination. In a sworn statement to police on the day of the murder, Martinez claimed she saw appellant shoot complainant and run to her vehicle.
On cross-examination at trial, however, she admitted that she saw appellant chasing complainant but did not see appellant shoot complainant. Instead, Martinez said she heard a shot and then saw appellant come out of the room, pointing a gun at complainant.
She claimed she did not see appellant run to her vehicle although she admitted she might have told police that she did on the day of the murder. Martinez also testified she heard appellant yell "bitch" at complainant, but admitted she did not tell police about appellant's epithet in her statement on the day of the incident. Moreover, Martinez described appellant's gun as really big, like a cowboy gun with a long barrel, while the evidence at trial showed the gun to be a snub-nose revolver.
Furthermore, the State's case against appellant was strong. In total, the State offered the testimony of thirty-three witnesses and more than exhibits. Of the eighteen volumes of testimony in the guilt-innocence phase of trial, Martinez's testimony encompasses only fifty-two pages. For the most part, Martinez's testimony was cumulative of the testimony of other witnesses.
Although she was the only witness to hear appellant yell "bitch" at complainant, Martinez was one of several who observed appellant chasing complainant while pointing the gun at her. For these reasons, we conclude Martinez's criminal history is not evidence that creates a probability sufficient to undermine the confidence in the outcome of the proceeding. Appellant also argues that the State's failure to disclose Martinez's criminal record deprived her of the right to cross-examine Martinez and to the effective assistance of counsel.
The trial court did not err in overruling appellant's motion for new trial. Appellant's third point of error is overruled. In her fourth and fifth points of error, appellant contends the trial court erred in denying her motion to suppress her written statement in violation of her right to counsel under the Fifth Amendment of the United States Constitution, Article I, Section 10 of the Texas Constitution, and article At a hearing on a motion to suppress, the trial court is the sole and exclusive trier of fact and Judge of the credibility of the witnesses as well as the weight to be given their testimony.
See Green v. The trial Judge may choose to believe or disbelieve any or all of a witness' testimony. See Allridge v. This Court, thus, is not at liberty to disturb any finding that is supported by the record. See Johnson v.
In her fourth point of error, appellant contends her written statement was inadmissible under the Fifth Amendment to the United States Constitution because she unambiguously requested an attorney to assist her in questioning before she surrendered to authorities and the State did not honor her request before obtaining her statement.
To effectuate the right against self-incrimination under the Fifth Amendment, police must cease all interrogation once a suspect invokes her right to counsel or until the suspect re-initiates conversation. See Minnick v. Mississippi, U. Consequently, when a suspect has invoked her right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that she responded to further police-initiated custodial interrogation even if she has been advised of her rights.
Arizona, U. A person invokes the right to counsel when she indicates that she desires to speak to an attorney or have an attorney present during questioning. See Dinkins, S. The right to counsel is not inherent within the Fifth Amendment, but a prophylactic measure provided under Miranda v.
Accordingly, a court must focus on whether a suspect actually invokes her rights. The inquiry is purely objective: whether a reasonable officer in light of the circumstances would understand the statement to be a request for an attorney. Consequently, when reviewing allegations of the right to counsel, an appellate court examines the totality of the circumstances surrounding the interrogation and the alleged invocation. At the pretrial hearing on appellant's motion to suppress her confession, Sergeant Paul Rivera testified that he instructed "the personnel with the negotiating team to bring appellant to the police station so that we could talk to her.
Rivera further stated that appellant voluntarily initialed the warnings read to her from a police form and indicated she understood the rights. Thereafter, appellant gave her written statement. After hearing other testimony and argument, the trial court denied appellant's pretrial motion to suppress her written statement. In its findings of fact and Conclusions of law, the trial court found appellant knowingly, intelligently and voluntarily waived her rights and gave a statement to police.
During trial, the trial court reconsidered appellant's motion to suppress after admitting audiotapes made during the parking lot standoff and after hearing the testimony of two members of the special negotiation team who facilitated appellant's surrender.
Appellant contends the officers' testimony and the following excerpt of the audiotape of the negotiations reflects her clear and unequivocal invocation of her right to counsel:. I don't wanna live. Richard Garza? Officer Larry Young, a member of the negotiation team, acknowledged that he offered to call an attorney for appellant, but testified that he did not promise appellant an attorney as soon as she surrendered to police. Officer Isaac Valencia, another member of the negotiation team, testified that the team offered to call an attorney because appellant "needed to have a hope to talk to somebody else.
Valencia said Garza was apprehensive about talking to him, but assisted him after Valencia stressed that he was not conducting a criminal investigation but gathering personal information to build a rapport with appellant. Both officers testified they did not attempt to procure an attorney for appellant after her surrender. After hearing argument outside the jury's presence, the trial court denied appellant's motion to suppress her written statement.
In its findings of fact and Conclusions of law, the trial held the negotiations with police during the standoff did not constitute custodial interrogation and appellant never clearly and unambiguously invoked her right to counsel during the standoff.
Reviewing the record in light of the totality of the circumstances surrounding the parking lot standoff, we find the record supports the trial court's findings of fact and Conclusions of law. The record reflects that appellant did not clearly and unambiguously invoke her Fifth Amendment right to counsel as provided in Miranda. At most, the negotiation team offered her an opportunity to talk with an attorney. Moreover, appellant did not invoke the right to counsel during custodial interrogation as required by Miranda.
Although appellant was clearly surrounded by police and could not escape the parking lot during the standoff, she was armed and not restrained. The communications between the negotiation team were clearly not intended to elicit an incriminating response.
See Cooks v. The negotiations regarding her surrender, therefore, cannot be characterized as custodial interrogation. See Hernandez v. Because she did not invoke her right to counsel, police officers acted properly by providing her with the Miranda warnings and obtaining a waiver of her rights before initiating custodial interrogation at the police station.
Accordingly, we overrule appellant's fourth point of error. In her fifth point of error, appellant asserts her confession is involuntary and therefore, inadmissible under article Appellant claims Officers Young and Valencia violated these provisions when they repeatedly told her during negotiations that they wanted to help her, that it was in her best interest to publicly tell her story, and that the Lord, Himself, wanted her to publicly tell her story.
In spite of the inappropriateness of these warnings, appellant asserts, the trial court admitted her written statement over objection. Appellant, however, did not urge an article Appellant urged an article The trial court heard no evidence regarding the standoff negotiations at the pretrial hearing.
Appellant voiced another objection to the admissibility of her statement after the trial court admitted the audiotapes and the testimony of Officers Young and Valencia. At the hearing outside the jury's presence, appellant objected to the admissibility of the statement on the ground that she invoked her right to counsel during the standoff and the State dishonored her request.
The trial court entertained no objection and heard no argument regarding the officers' allegedly inappropriate warnings at this hearing. Finally, appellant reurged all of her previous objections when the trial court admitted her written statement.
Because appellant did not object at trial on the ground she now asserts on appeal, she waives review of this point of error. See Serrano v. Accordingly, we overrule appellant's fifth point of error. In her sixth through eleventh points of error, appellant complains of trial error in admitting evidence of extraneous misconduct and in failing to give the jury a limiting instruction regarding extraneous misconduct.
In her seventeenth point of error, appellant contends she is entitled to a new trial because the documents related to the extraneous offense were lost or destroyed without her fault. An appellate court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard.
See Green, S. Therefore, as long as the trial court's ruling is within the zone of reasonable disagreement, the appellate court will not intercede. See Montgomery, S. In point of error six, appellant contends the trial court abused its discretion in admitting evidence of extraneous misconduct because the State did not give adequate, timely notice as required by rule b of the Texas Rules of Criminal Evidence.
Former rule b prohibits the admission of evidence of extraneous offenses committed by the defendant for the purpose of proving her character by showing she acted in conformity with that character on the occasion in question. Evidence of extraneous misconduct is admissible, however, to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident provided that upon timely request the State provides reasonable notice in advance of trial of its intent to introduce evidence of the extraneous misconduct in its case-in-chief.
At a pretrial hearing on discovery motions held two months before trial, appellant asked the trial court to rule on her rule b motion requesting notification of the State's intent to introduce evidence of an extraneous offense in its case-in-chief. At that time, the State indicated its intent to introduce evidence that Quintanilla thought appellant was embezzling funds and confronted her about it. Appellant's sixth point of error is overruled.
In her eighth point of error, appellant contends the trial court abused its discretion in admitting evidence of extraneous misconduct during the guilt-innocence phase of the trial because the evidence was irrelevant and prejudicial, and the State did not prove embezzlement beyond a reasonable doubt. To preserve error in the admission of extraneous offenses under the rules of evidence, the opponent of extraneous offense evidence must first object under rule b.
See Santellan, S. The State must then "show the proffered evidence is relevant apart from its tendency to show that the defendant is a criminal. At the defendant's request, the trial court should then require the State to articulate the limited purpose for which the evidence is offered.
In making a determination as to the relevancy of the evidence, the trial court must, under rule b of the rules of criminal evidence, determine, "at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. If the trial court determines the evidence is relevant, the defendant must further object under rule and obtain a ruling as to whether the probative value of the evidence is substantially outweighed by its prejudicial effect.
Appellant did not raise a rule b or a rule objection when Quintanilla testified at trial that he thought appellant was embezzling funds from the Selena fan club.
Moreover, appellant did not object on the basis of rules b and to the testimony of complainant's sister, Suzette Arriaga.
Arriaga testified, over a hearsay objection, that complainant intended to fire appellant because she thought appellant was embezzling funds from complainant's company. Appellant's eighth point of error is overruled. In points ten and eleven, appellant contends the trial court erred by not giving the jury a limiting instruction regarding extraneous misconduct as required by rule a of the Texas Rules of Criminal Evidence and by refusing her request to instruct the jury in the court's charge as to the limited use of the extraneous offense evidence and the standard of proof it must apply in considering the evidence.
Former rule a requires the trial court, upon request, to restrict evidence to its proper scope and to instruct the jury accordingly, when evidence is admitted for a limited purpose. A party opposing evidence, nevertheless, has the burden of objecting and requesting a limiting instruction at the introduction of the evidence. See Garcia v. Once admitted, evidence that might have been inadmissible for certain purposes if the proper objection had been made is not limited in its use.
In this case, appellant did not make a proper objection to the admission of unadjudicated extraneous offense evidence and did not request a limiting instruction when the State proffered the evidence at the guilt-innocence phase of trial. Therefore, appellant forfeited any error and the trial court admitted the evidence as probative of any question to which it was relevant.
Thus, the trial court did not err by not charging the jury with a limiting instruction regarding extraneous offense evidence. We overrule appellant's tenth and eleventh points of error. In point of error nine, appellant maintains the trial court erred in admitting harmful hearsay regarding extraneous misconduct in violation of her right to confront and cross-examine witnesses as guaranteed by the United States and Texas Constitutions.
Appellant specifically complains about the admissibility of Perez's statement that complainant did not trust appellant and Arriaga's testimony that complainant was going to fire appellant because complainant thought appellant was embezzling funds from her company. The State contends appellant did not preserve error in both instances. In the alternative, the State contends Arriaga's testimony was admissible as an exception to the hearsay rule.
On direct examination, Perez testified that he and complainant removed appellant as a signatory to complainant's business checking accounts. When asked why they removed appellant as a signatory, Perez testified, over a hearsay objection, that "Selena and I didn't trust her. I remember there was a phone conversation where Selena said that she couldn't trust her anymore.
It was after that meeting that took place at the shop. Generally, a party waives error regarding improperly admitted evidence if the same evidence is later admitted without objection. See Rogers v. In this case, Perez repeated his previous statement that complainant did not trust appellant without objection. On the other hand, appellant preserved error as to her claims that Arriaga's testimony constituted inadmissible hearsay.
Arriaga testified she spoke with complainant in her home a week or so after the meeting. When the prosecutor asked Arriaga about her conversation with complainant, appellant objected to the testimony as hearsay and requested a limiting instruction.
The prosecutor argued Arriaga's testimony was an exception to the hearsay rule as a statement of complainant's emotional intent or state of mind. Outside the jury's presence, the trial court heard argument from counsel regarding the testimony. Appellant's trial attorney argued the testimony was clearly hearsay as follows:. Selena's not here for us to cross-examine. It is not a present sense about the offense itself, which is when that rule can come into play.
Going to fire doesn't have anything to do with the shooting and I object. We can't cross-examine Selena, she's not here, she's not available as a witness. Both sides agreed the statement, "I'm going to fire Yolanda," was a statement of what complainant was going to do, although they disagreed whether the statement went to complainant's state of mind. The trial court overruled the objection. Arriaga then testified that complainant "said that she was going to fire Yolanda because she thought she was embezzling from her company.
Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is inadmissible at trial except as provided by statute or by the rules of criminal evidence.
Former rule 3 of the rules of criminal evidence provides for the admissibility of a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain, or bodily health "; it does not permit a statement of memory or belief to prove the fact remembered or believed.
In this case, Arriaga's statement consists of two distinct clauses. In the first, Arriaga states complainant told her she was going to fire appellant. Although appellant specifically objected to this clause at trial on the ground that the statement did not go to complainant's state of mind, she conceded the clause was a statement of what complainant was going to do. Bordens, Inc. Moreover, complainant's intent to terminate appellant's employment was relevant to show the state of the relationship between complainant and appellant at the time of the shooting and to establish a motive for the shooting.
Therefore, the statement was admissible as a state-of-mind exception to the hearsay rule. The second clause of Arriaga's statement, that complainant thought appellant was embezzling from her company, does not fall within the rule 3 exception. Instead, the clause denotes complainant's belief about appellant's past actions, which rule 3 specifically prohibits. Therefore, the trial court abused its discretion in admitting the second clause of Arriaga's statement. Nevertheless, our review of the record in its entirety leads us to conclude that the error did not affect a substantial right of the appellant.
A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. See King, S. United States, U. There are several reasons the admission of Arriaga's statement is harmless.
First, her testimony regarding complainant's belief that appellant was embezzling funds was brief. The State did not offer any documentary evidence to support Arriaga's embezzlement allegation and did not pose any additional questions to Arriaga regarding the allegation.
Second, any potential harm was defused by other evidence, which the trial court admitted without proper objection. For instance, Quintanilla testified that he confronted appellant in complainant's presence about discrepancies in fan club records and his intent to pursue the matter legally.
Perez also testified that he and complainant did not trust appellant because appellant could not give an adequate explanation to their questions regarding business matters. He further testified that complainant fired appellant. Third, the State did not emphasize Arriaga's statement in closing argument at the guilt-innocence phase of trial.
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