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Moreno v. State

Court of Appeals of Texas, Fifth District, Dallas

August 29, 2019


          On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-00878-T

          Before Chief Justice Burns, Justice Myers, and Justice Molberg



         A jury convicted appellant Ricky Moreno of aggravated kidnapping and assessed punishment at forty-five years' imprisonment and a $10, 000 fine. In ten issues, appellant contends the evidence was (1) legally and (2) factually insufficient to support the jury's rejection of his affirmative defense of duress; (3) the evidence was legally insufficient to support the jury's rejection of his justification defense of necessity; (4) the trial court improperly instructed the jury on the law of parties; (5) the trial court erred in admitting video evidence; the trial court erred in excluding from the guilt-innocence phase testimony from (6) Dr. Lisa Clayton, (7) Dr. Michael Pittman, and (8) Detective Michael Yeric; (9) the trial court erred in denying appellant's pretrial motion to suppress; and (10) the sentence was disproportionate to appellant's conduct during the offense and punishments received by other bystanders. The State also brings a cross-point seeking modification of the judgment.

         Based on the evidence the jury heard during the guilt-innocence phase of the trial, we conclude there is legally sufficient evidence supporting the jury's rejection of appellant's affirmative defense of duress and justification defense of necessity. However, we conclude the trial court erred in categorically excluding from the guilt-innocence phase appellant's proffered testimony from Detective Yeric and expert witnesses Dr. Pittman and Dr. Clayton, and we conclude appellant was harmed by this error. Accordingly, we reverse and remand.

         Background and Procedural History

         I. Guilt-Innocence

         On the evening of July 1, 2016, Dallas Police Officer Jacob Deloof and other officers responded to a 911 call regarding a possible dead body in the backyard of a home located at 755 Elwayne Avenue. At first the officers did not see anything, but then they heard noise coming from a "finished, garage-type . . . structure" that was located on the property. They received additional information about an armed suspect inside the structure, and officers surrounded it, set up a perimeter, and took cover. A man, Martin Armijo, exited the structure and fled on foot. While multiple officers chased Armijo, Officer Deloof entered the structure. He and other officers found an injured woman, Avigail Villanueva, holding a shirt to her head. There was a large laceration on her scalp and there appeared to be blood on her face and blood running down her arms. Deloof testified that she was "hysterical," "physically shaking," and "she was extremely scared." He added that "[s]he was just extremely worried about her own safety and getting away from the situation." Officers took her outside, and medical professionals from Dallas Fire and Rescue cared for her. She was taken to the hospital for medical treatment.

         Officer Kristen Greene was one of the officers who pursued Armijo. She jumped a fence to get to Jonelle Avenue, the street that was to the west of Elwayne, eventually seeing Armijo. He insisted he had done nothing wrong and claimed the real suspect, someone armed with a shotgun, had fled across the street. She held Armijo at gunpoint and waited for backup to arrive. He continued to insist the suspect had fled across the street and gone in a westbound direction.

         Officers handcuffed Armijo and put him in a squad car. Officer Greene and her partner then returned to the garage-type structure and went inside, finding the dead body of complainant Jonathan Gutierrez. Officers secured the scene and called the medical examiner's office, the homicide division, and the crime scene division.[1]

         Justin O'Donnell, a crime scene analyst with the Dallas Police Department, and his supervisor, Maurice Thomas, photographed the crime scene and collected evidence. O'Donnell photographed the exterior of the property and the inside of the structure, observing and photographing what appeared to be blood on a computer tower, the floor, and the wall. O'Donnell also photographed Gutierrez's body. He had injuries on his arms and head, and his hands were bound with duct tape. O'Donnell observed and photographed a bottle of bleach, which he did not collect but swabbed for possible DNA evidence. He photographed an assault rifle found inside the structure near Gutierrez's body. He also collected two handguns, an "Essex Arms .45 auto" and a "Kimber .45 caliber semiautomatic handgun," and gun magazines.

         Outside the structure, O'Donnell photographed two articles of clothing, a pair of shorts and a black shirt. He observed, photographed, and collected a baseball bat found at the crime scene. A folding knife was found under a bed and also collected as evidence. Thomas likewise processed trash bags found outside the structure.

         Growing up in the Pleasant Grove area of Dallas, Texas, Villanueva met Jonathan Gutierrez when she was thirteen years old. They dated for a couple of years and broke up, but they got back together when Villanueva turned eighteen years of age. They had five children together. They lost custody of their children in 2014 because of their drug addictions, and the four oldest were placed in the custody of Villanueva's mother while Gutierrez's mother took custody of the youngest child. Villanueva and Gutierrez ended their relationship in 2015.

         Villanueva, like Gutierrez, was a methamphetamine and heroin user, and Villanueva regularly bought and used drugs at the garage-type structure of Thomas Johnson (also known as "T"), which was located behind his parents' home at 755 Elwayne Avenue in Dallas, Texas. Villanueva met Martin Armijo there, and they dated for five or six months. When they broke up, Armijo told Villanueva he did not want to have anything to do with her and to stop texting and calling him. Villanueva testified that Armijo had a reputation in the community for being violent, and he encouraged that reputation.

         On July 1, 2016, Villanueva wanted to get some heroin and methamphetamine. She planned to go to Johnson's neighborhood to look for it because that was the only place where she knew she could find it. But before going, she contacted Armijo because he had previously told her that if he ever saw her in the neighborhood without him, he would beat her. Fearing she would "bump into" Armijo, she texted him "to see where he was." He responded, "I got your BD [baby daddy] with me." Armijo then called her and the first thing Villanueva said to him was, "[W]hat are you talking about?" He answered, "I got Jonathan with me." Villanueva recalled that "nothing bad at all" "popped into my head" at first; she merely thought the two men had become friends. But then Armijo said, "I been having him for the past couple hours." Not sure what that meant, Villanueva asked: "[W]hat do you mean for the past couple hours? What do you mean you been having him?" And Armijo said, "Yeah, I got him right here." Villanueva told Armijo she still did not know what he was talking about, and he explained that he had been torturing Gutierrez, also known as "Spook," "for the past couple hours." Villanueva testified that she was so shocked she could not say anything. Armijo then asked her where she was, and Villanueva lied. She said she was at her mother's house because she "was scared of what he was going to think or do if he found out where I was--where I really was."

         Villanueva immediately called her mother, who was at the bank, to find out where she was, and Armijo called on the other line and told her to "come outside." This led Villanueva to believe Armijo was at her mother's house in Mesquite, Texas, so she lied again, telling him she was with her mother. Armijo answered, "Well, I'm outside," and he said that he could "do federal time for what I'm doing." Armijo again asked her where she was, and Villanueva said she was with her mother, that she would call him when they were finished, and that her mother would take her to him.

         Villanueva recalled that, probably thirty to forty-five minutes later, she called Armijo and told him her mother would not take her to Johnson's apartment, but she would drive her to a nearby gas station. At that point, Villanueva was about two blocks from that gas station, and she could hear Armijo on the phone telling appellant Ricky Moreno to grab the keys and go pick her up at the gas station. Appellant arrived alone at the gas station a few minutes later.

         Villanueva testified that she had known appellant for "[a] few years," and she frequently saw him at Johnson's house or in the neighborhood. After appellant picked her up at the gas station, she asked him what was going on, and he said Armijo "had been having Jonathan since that night before." Villanueva told him that Armijo had said he "only had him for a few hours," and it looked like appellant "kind of got scared that I told him that." She said that appellant "told me not to tell Martin what he told me." She went inside the gas station to get something to drink, and after she got back in the car, she asked appellant, "How bad was it? Was it something serious?" He "kind of told me, he was like, 'Yeah, yeah.'" They drove to another gas station where appellant cashed some lottery tickets because he wanted to buy cigarettes, after which they drove to 755 Elwayne Avenue. Asked to describe appellant's demeanor, Villanueva thought "[h]e looked kind of nervous." She also recalled that he "kept smoking cigarettes on the way over" and "really didn't say much."

         When they pulled up in front of the house, appellant told Villanueva to go and knock on the door of the "back shack" where Johnson lived. Villanueva knocked, and she could hear Armijo saying, "She's here. She's finally here," before he opened the door. Villanueva went inside and saw Gutierrez sitting on the floor in a corner of the room, leaning against a wall. He was not talking. "He was just laying there, like he was in pain." The "whole room was a wreck," and Armijo was holding a baseball bat. In addition to Armijo and Gutierrez, three other individuals, appellant, Johnson, and David Rodriguez, also known as "GG," were present. When Villanueva first arrived, she saw Johnson standing on the other side of the room. Rodriguez was putting stuff into trash bags. Asked if she saw any drugs being used, Villanueva testified that when she got there she saw Johnson making "cheese," which was "heroin mixed with pills." Villanueva said that "[a]ll of us," including herself, were using the "cheese."

         Villanueva recalled that she saw Armijo swing the bat at Gutierrez with both hands, hitting him "[a] few times." Gutierrez screamed at Armijo several times, "Stop." Armijo also poured bleach on Gutierrez, who did not say anything, just moving his head from side to side so the bleach would not hit him in the face. Armijo then threw an open pocket knife at Gutierrez, and threw it again and again, stabbing him "a few times." Gutierrez was still moving at this point but not saying anything. Armijo briefly turned his attention back to Villanueva, who insisted she had been with her mother. Armijo said she was lying. He then turned back towards Gutierrez, who was no longer moving. Armijo tried, unsuccessfully, to wake him up. Asked why Gutierrez had stopped screaming and was no longer moving, Villanueva replied, "Because he was dead."

         Villanueva testified that she "couldn't believe it" when she realized Gutierrez was dead. Appellant, meanwhile, went in and out of the garage while Armijo was attacking Gutierrez. Villanueva did not see Armijo hit appellant or David Rodriguez. After Gutierrez died, Armijo told appellant to look for something to wrap up Gutierrez's body, and he told Rodriguez to "start cleaning." Rodriguez started "putting stuff" into garbage bags and taking them outside. Armijo told appellant to stay outside, adding that he should "watch out" and "make sure nobody . . . went back there." With appellant out of the garage, Armijo turned his attention to Villanueva, and she believed Armijo wanted to "[k]ill me too." Armijo struck Villanueva repeatedly with a .45-caliber handgun, leaving bruising and other injuries on her head, arms, hands, and legs.

         After appellant left the garage, he picked up his mother and a man named "Eric," who was Johnson's brother, and drove them to the nearby house of appellant's brother, Alex Moreno. Appellant lived with his mother in their family home on Ezekial Avenue, about two blocks from the offense location. Moreno lived on Gillette, which he testified was about a five-minute drive from the Ezekial address. Moreno testified that he got home from work at "a little bit after 4:00 o'clock" on July 1, 2016, and watched the news. His wife left to get something to eat for the family, and Moreno took a shower. When he got out of the shower, he saw his mother and brother "just standing in my hallway." Moreno was not expecting them, and he recalled that "it was kind of odd to see both of them at my house."

         Moreno testified that appellant "looked frightened," and he was "standing there with some big eyes. He look[ed] scared." Moreno asked his mother what they were doing, and she "snapped" at appellant, prodding him with her elbow and saying, "Tell him. Tell him." As Moreno recalled, this appeared to have the effect of "snap[ping] [appellant] out of it." Appellant said a murder had occurred, and that "Martin just killed Spook." Moreno asked if appellant had seen it, and appellant replied, "Man, Martin is there." This led Moreno to think the police "had already got there and everything." He asked, "[W]hat did the cops do? Did they take him to jail?" Appellant said the body was "still there," as was Armijo, and that "I just got away from them." Appellant also said the police had not yet been called, to which Moreno replied, "We need to call the police," and he called 911. He gave the phone to appellant during the 911 call (admitted into evidence) to answer the dispatcher's questions. Moreno told the dispatcher appellant had been held at gunpoint, and appellant provided details regarding the location and the suspect's name. On cross-examination, Moreno acknowledged that appellant did not tell him or the 911 operator that anyone else was in danger at the offense location. Police officers soon arrived at Moreno's house and asked appellant to accompany them to the crime scene.

         Detective Casey Shelton of the Dallas Police Department was the lead detective on the case. He arrived at the crime scene and talked to the patrol officers, getting a brief summary of what happened. Shelton explained that 755 Elwayne was a small house that included a driveway to the right of the property and what was originally a garage in the rear of the property. This structure appeared to have been converted into two rooms for living purposes, and it was there that Gutierrez's body was found. He said the interior of this garage-type structure was "in disarray" and that "[i]t was a mess," with "just stuff everywhere." He recalled that there were garbage bags found outside this two-room structure that contained pillow cases, sheets, and towels, some of which appeared to have blood stains. He also saw towels and other linens inside the structure, and some of these likewise appeared to have blood stains.

         After visiting the crime scene Shelton went to the hospital to speak to Villanueva while his partner interviewed appellant. Shelton testified that Villanueva appeared to have been beaten. She provided an account of the actions of Armijo (who she identified by name), Rodriguez (who she referred to by his nickname, "GG"), and appellant. Shelton testified that his investigation revealed, initially, that appellant was present for the majority of the offense against Gutierrez, and that, at one point, he picked up Villaneuva from one location and brought her to the offense location on Elwayne. It further showed, according to Shelton, that appellant assisted in abducting and restraining Gutierrez, and that he assisted in cleaning up the crime scene by purchasing bleach and towels.

         As part of his investigation, Detective Shelton interviewed Johnson and Rodriguez, and he obtained Armijo's cell phone records. The cell phone records included text messages sent on the afternoon of July 1, 2016, from Armijo's phone to a phone number officers believed was associated with Villanueva. Among the text messages was one sent at 1:50 p.m., in which Armijo texted, "Call me asap." At 1:51 p.m. he texted, "I need to talk important." At 1:54 p.m. he texted, "U have ur nd I got him here with." Shelton noted that "nd" was a reference to Gutierrez, and that Armijo was holding him. Thirty-nine seconds later Armijo texted, "Call me." At 2:04 p.m. he texted, "R u coming?" At 2:12 p.m. he texted, "I've been flicking ur bd for like 2 hours," and Shelton testified that "bd" again referred to Gutierrez, who Armijo had apparently been holding for at least two hours. At 2:14 p.m. he texted, "I fucked hm up d homies holding for me," which led Detective Shelton to conclude Armijo's friends had been holding Gutierrez. At 2:28 p.m. Armijo texted, "I'm gonna hold him for 2," and thirteen seconds later he texted, "Get over here."

         Armijo also recorded a two-minute and thirty-three second cell phone video that briefly shows appellant in the background. In this video, which was admitted into evidence and played for the jury, Armijo and Gutierrez are in the garage at 755 Elwayne. Armijo is holding a pistol and pointing it at Gutierrez, repeatedly taunting and threatening him. Gutierrez--bound, bleeding and apparently severely beaten--begs for his life and expresses his desire to leave the residence. Toward the end of the video, appellant can be seen entering the room while Armijo is talking into the camera. Appellant is walking around the bed and holding what appears to be a bottle of bleach in a plastic grocery store sack. He places the bleach and what look like towels on the bed. Shelton testified that appellant got the bleach and towels to clean up the blood inside the garage, and that, based on the detective's review of the video, appellant did not appear to be afraid.

         Homicide Detective Pedro Trujillano interviewed appellant at Dallas Police Headquarters on July 1, 2016. When Trujillano first entered the interview room appellant asked, "Where is my buddy, Mr. Yerik?" Yerik had been a homicide detective with the Dallas Police Department, and appellant explained that he had become acquainted with him when "[m]y dad was killed in 2012." During the recorded interview, which was admitted into evidence, Detective Trujillano observed stains on the upper part of appellant's white t-shirt--towards the neckline--that he thought might have been blood, but he did not see any cuts on appellant's body near that area. Appellant did not make any statements about injuries he suffered or pain. Trujillano testified that at times during the interview appellant "seemed scared," but that "[s]ometimes he talked and smiled and laughed a little bit." Trujillano added, "It's not uncommon."

         Appellant told the detective that he arrived at the garage-type structure on 755 Elwayne at between 12:30 and 1:00 o'clock, and that Gutierrez, or "Spook" as he sometimes called him, arrived at around 2 o'clock. Appellant said that he and Gutierrez were friends and that he had no "beef" with him. Appellant explained that he knew Armijo was dating Villanueva, Gutierrez's "baby mama," and that Armijo had always been known to carry a pistol. Appellant said they were "chilling out" when Armijo pulled out his gun, took out the clip, and walked over to Gutierrez. Armijo struck Gutierrez with the gun, saying, "Bitch, this is for Avi," and he continued to hit him. Appellant told the detective that Armijo started "beating the shit" out of Gutierrez. Appellant and Johnson (who was also present) said, "Chill out Dude," and Armijo pointed the gun at them, telling them not to get involved.

         Appellant told Armijo that he was going outside. He helped Johnson's little brother, Eric, with his car, and then appellant drove Eric to the train station because Eric had to go to work. Appellant drove Eric's car to an auto repair shop, where he stayed for about forty-five minutes to an hour. Appellant went to a "smoke shop" next door to buy a pack of cigarettes, and he bought some fireworks. When he returned to the garage, Johnson was in his room inside the "main house."

         Appellant knocked on the door to the garage, went inside, and saw "blood everywhere." Gutierrez appeared to be dead. Armijo kicked Gutierrez, saying, "The fucker made me kill him." Armijo pointed an "AR" rifle (which appellant described as, "Like an M16") at appellant, which made him think Armijo was "going to shoot me." Appellant told Armijo, "Hey bro, chill out, man." Armijo said to appellant, "You ain't gonna say nothin, right?" Appellant said he was "just scared" when he saw the "red dot" from the rifle's sight pointed at him, adding that he had been shot before "and it was no fun." Appellant became emotional and started crying as he talked about what happened to Gutierrez and how badly he had been beaten, saying he "didn't deserve that."

         Appellant told the detective that he got out of the garage by telling Armijo he was going outside to "keep a lookout," and that he grabbed a rake and briefly pretended to work because he suspected Armijo could see him through a video surveillance camera.[2] Several minutes later, Eric pulled up to the house with his girlfriend. Appellant said that Eric could tell from the way appellant was looking at him that something was wrong. Eric grabbed his bag and started walking toward the garage, and appellant told him they should "just go" because appellant had "killed Spook." Eric drove appellant to his house, which was two blocks away. Appellant got his mother and went to his brother's house, where the police were called.

         Regarding Villanueva, appellant said that she was already at the garage when he returned after driving Eric's car to the auto repair shop, and she did not say anything. He told the detective she "just showed up." Appellant said he had known Armijo for about ten years, and they had all grown up in the same neighborhood. He described Armijo as the type of individual "I would try to avoid." Toward the end of the interview, at around 10:00 p.m., appellant identified Armijo in a photographic lineup as the person he had seen beating Gutierrez, and appellant cried when the police showed him Armijo's picture in the lineup.[3] Trujillano testified that appellant was a witness to the offense at this point and not under arrest, and he freely left the police headquarters after the interview.

         Detective Shelton conducted a second interview of appellant at appellant's home on July 6, 2016, but this second interview, also recorded and admitted into evidence, differed in some ways from the first. Appellant admitted leaving the garage and returning twice, first to buy cleaning supplies and then to retrieve Villanueva--both times at Armijo's direction. He admitted holding down Gutierrez's legs--again, at Armijo's direction--while Armijo taped his hands together, and appellant admitted leaving the garage to buy bleach and towels to clean up the crime scene. Appellant also admitted picking up Villanueva and bringing her to the garage after initially denying he had done so. As before, appellant said that he feared Armijo. Shelton interviewed Villanueva again after appellant's second interview, and Shelton testified that her second interview was consistent with the first.

         Detective Shelton obtained arrest warrants relating to Gutierrez's death for Armijo, appellant, Rodriguez, and Johnson. He did not seek an arrest warrant for Villanueva because he had no information indicating she took an active part in the offense. He concluded that appellant assisted Armijo in the aggravated kidnapping of Gutierrez "[b]ased on--on his statements that he assisted in the restraining, the abduction of--of Mr. Jonathan Gutierrez by holding him down while his hands were bound, preventing him from--from fleeing." Shelton testified that it did not appear appellant acted under duress. He explained that, because appellant was able to leave the offense location several times, he did not appear to have been under the immediate threat of bodily harm or death. Once the arrest warrant was issued, appellant turned himself in to the police.

         The State also offered evidence regarding forensic DNA testing. Courtney Ferreira, a DNA analyst at the Southwestern Institute of Forensic Sciences (SWIFS), testified that she performed DNA testing on several items of evidence. She testified that no DNA profile was obtained from a stain on a pair of scissors or from one stain on a pink towel. Stains on pieces of duct tape and a stain from a coaxial cable contained single-source contributions that matched Gutierrez's DNA profile and excluded appellant and Armijo. Another stain from a coaxial cable contained a mixture of DNA, which included Gutierrez and appellant as possible contributors but excluded Armijo. One stain from the same coaxial cable contained a mixture of DNA from four contributors and included Gutierrez, appellant, and Armijo as possible contributors. A sample from a pair of scissors consisted of a profile from a single contributor that matched Gutierrez's DNA profile and excluded appellant and Armijo. A low-level sample from a pink towel contained DNA from a single contributor and included appellant and Gutierrez as possible contributors. A stain from a green towel contained DNA from a single individual; Gutierrez was included as a possible contributor while appellant and Armijo were excluded. Another stain from a ...

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