Steven Perez v. State ( 2009 )

NUMBER 13-08-296-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
STEVEN PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Vela
Appellant, Steven Perez, was indicted for the offense of murder.1 See TEX . PENAL
CODE ANN . § 19.02(b)(1), (2) (Vernon 2003). Following a jury trial, appellant was convicted,
and the jury assessed punishment at sixty years’ imprisonment and a $10,000 fine. In five
issues, appellant argues that: (1) the trial court erred by denying his request to disqualify
a juror; (2) the trial court erred by permitting the State to impeach its own witness; (3) the
trial court improperly admitted into evidence appellant’s video taped statement; (4) the trial
court improperly denied appellant’s proposed jury charge instruction on independent
impulse; and (5) the evidence was legally and factually insufficient to support his
conviction. We affirm.
I. FACTUAL BACKGROUND
A. State’s Evidence
Iris Perez and appellant were married in 2001 and divorced in 2005. At some point
after their divorce, Iris began dating Riko Rodriguez. On one occasion, appellant had
called Iris on her cell phone while she and Riko were together. Iris testified that Riko
answered her cell phone and told appellant, “Something like quit calling, you’re a bitch, or
something like that, you’ve always been, you’ll always be.” The next day, Riko and Iris
were in apartment 1107 at the Windrush Apartments in Corpus Christi, where Riko was
staying with a friend, Roy De Los Santos, Jr. While Iris was visiting Riko in the apartment,
1
The indictm ent alleged the offense of m urder in two paragraphs as follows:
STEVEN PEREZ, defendant, on or about DECEMBER 2, 2006, in Nueces County, Texas,
did then and there intentionally and knowingly cause the death of an individual, RIKO
RODRIGUEZ, by shooting with a firearm [.]
STEVEN PEREZ, defendant, on or about DECEMBER 2, 2006, in Nueces County, Texas,
did then and there with the intent to cause serious bodily injury to an individual, RIKO
RODRIGUEZ, do the act of shooting him with a firearm ; that this act was clearly dangerous
to hum an life; and that this act caused the death of RIKO RODRIGUEZ.
2
Riko told her that he “was just fighting with Steve [appellant].” At that point, Iris’s friend,
Angela Lopez, came to the apartment to pick up Iris. As Iris was getting into Lopez’s car,
Iris saw that Riko and appellant were “fighting, hitting each other” in the parking lot. Two
days later, on the morning of December 2, 2006, while Riko and Iris were sleeping in Roy’s
apartment, they awoke to someone kicking the front door. Iris looked out the window and
saw Mike Lozano in front of the door and appellant running away. Iris testified that Lozano
had his arm outstretched, but she did not see him holding a gun. Iris got on the floor, and
Riko tried to cover her. At this point, four shots were fired through the front door. Riko was
shot twice–once in the mid-chest and then once in the right thigh. The medical examiner
described the chest wound as a “fatal type injury” and said that the bullet went through
Riko’s heart and liver.
Iris testified that after the shooting, appellant told her he did not do the shooting and
that he was trying to leave. On cross-examination, Iris testified that appellant told her that
he had fought Riko because Riko had called him a “bitch.” She also testified that she did
not think that appellant would try to kill Riko because of her, and she did not believe that
appellant went to Roy’s apartment in order to kill Riko. She said that before any shots
were fired, appellant was already running away.
Roy testified that in the early morning of December 2, 2006, he was asleep in his
bedroom when he woke up to the sound of “a kick” at the front door. After hearing three
shots, he went into the living room where Riko told him, “[T]hey shot me, bro, they shot
me.”
On cross-examination, Roy stated that Riko never said who had shot him. However,
Roy testified that prior to the shooting, Riko told him, “Steve said he was gonna come back
3
and get him.” Roy did not know whether Riko meant appellant.
Benny Asberry, who lived in apartment 1105 at the Windrush Apartments, testified
that on the Thursday before Riko’s murder, a man “kept pacing back and forth in front of
my window and he was yelling out” to a girl in apartment 1107. At some point, Riko came
outside of the apartment and had three fights with this man. After the first fight, Asberry
heard the man tell Riko, “‘I’ll fucking kill you.’” Early in the morning of December 2, 2006,
Asberry heard a “real loud” knock and heard someone next door say, “[W]ho is it.” After
hearing that, Asberry heard several shots. He testified that upon hearing the first shot, he
looked out his window and saw “a guy wearing a red—either red or maroon shirt and he
was running off” and that “[I]t was the same guy he got into the fight with.” He did not see
who fired the shots.
Detective Ralph Lee testified that on January 18, 2007, he obtained a video-taped
statement from appellant. In this statement, appellant stated he wanted to go to the
apartment to see if Iris was there; however, the only way he could get Lozano to go with
him was to tell him they were going there for a robbery. Appellant, his cousin David, and
Lozano obtained a gun from someone and used appellant’s car to go to the apartment.
Lozano and appellant kicked the front door of the apartment, and appellant then said,
“Forget this. Let’s go.” As appellant was leaving, Lozano fired four shots through the front
door. While running from the scene, Lozano lost a shoe, which belonged to appellant.
Afterwards, they returned the gun to the person who provided it to them. Appellant denied
that he was the shooter. He also denied hearing someone say, “[W]ho is it” after he and
Lozano had kicked the front door.
4
Riko’s father, Ricardo Rodriguez, testified that before his son’s murder, Riko,
Lozano, and appellant had joined a local boxing club. Rodriguez testified that after Lozano
joined the club, Lozano “built up some anger, some animosity towards” Riko. This
animosity continued up to the time of Riko’s murder. Rodriguez was not personally aware
of any antagonism between appellant and Riko.
Crime-scene investigators testified that four shots came through the front door of
apartment 1107 and that a man’s size-ten shoe was found outside the apartment. A partial
DNA profile obtained from this shoe was consistent with a mixture from appellant and at
least two unknown individuals.
B. Appellant’s Evidence
Angela Lopez knew appellant through her friend, Iris. Lopez testified that she went
to the Windrush Apartments to pick up Iris, who was visiting Riko. As Lopez, Iris, and Riko
left the apartment, appellant “was walking up.” Lopez saw “a scuffle, like wrestling”
between Riko and appellant. Iris and David, tried to separate them. After the scuffle, Riko
and appellant “went [their] way.” Lopez did not hear appellant make any threats to kill
Riko.
Two days after Riko’s murder, attorney Kenneth Botary accompanied appellant to
the Corpus Christi Police Department where appellant told the police he was not the
shooter. Botary testified that appellant “knew that he was the target of the investigation
because he had a motive and he was the only one that had a motive for this thing.” When
defense counsel asked Botary if he recalled what that motive was, he replied:
An estranged relationship with his wife, but Steve [appellant] basically told
me it wasn’t really that. He went to see his wife. They had been separated
on and off. He knew that she was seeing Riko and others, and that didn’t
5
bother him too much, but I think he went to see his wife on this occasion and
Riko interfered with that relationship, and I think that’s what really started the
problem.
After Botary’s testimony, defense counsel played a videotape to the jury, showing
an interview between Detective Lee and Eric Flores. During this interview, Flores told
Detective Lee that he had been incarcerated with Lozano. During that time, Lozano told
Flores that he and “Steve” went to the apartment where Riko was staying “to rough that
dude Riko up.” Lozano and “Steve” went to the door of the apartment, and Lozano shot
through the door. Afterwards, Lozano and Steve ran from the apartment, and Lozano lost
his shoe, which belonged to Steve.
II. DISCUSSION
A. Request To Disqualify Juror
In issue one, appellant argues the trial court erred in denying his request to
disqualify a juror because she did not disclose during voir-dire examination that she was
a friend of the victim’s sister. During voir-dire examination, the prosecutor asked the venire
members if anybody either knew of or had heard about “the Riko Rodriguez family?
There’s Ricardo Rodriguez, Richard Rodriguez, the patriarch now, and his son, Riko
Rodriguez who was killed, and then there’s the grandson who is Ricky Rodriguez and they
are involved in the Golden Gloves Boxing Club. Is anybody familiar with that family?”
Venire member Christina Caldera did not respond affirmatively to this question. The
prosecutor did not ask whether anyone knew Riko’s sister, Ruby Carillo, and did not
mention Carillo’s name.
At a recess during the guilt-innocence phase, Caldera, outside the jury’s presence,
told the trial court she knew Carillo. The trial court asked Caldera whether she could
6
continue to serve as a juror.2 Afterwards, defense counsel asked3 Caldera about her
2
The trial court questioned juror Caldera as follows:
Q. All right. The fact that you know the sister of the victim , is that going to influence you
in any way in this case?
A. No.
Q. Do you know her well?
A. I see her when—I’ve seen her— we work together and we’ve had leadership program
and I see her once a m onth.
Q. She’s in the leadership Corpus Christi program with you.
A. She’s em ployed in the sam e job I am .
Q. So you are in leadership Corpus Christi. Okay. Did you know anything about this
event the death of her [sic]?
A. I didn’t know anything. I just know her brother passed away.
Q. You did not know any of the facts of [sic] before you cam e into this case?
A. No.
Q. I’m going to allow— all we’re looking for is fair and im partial, no preconceived ideas
so if you have any bias or [sic] one side or the other I need to know that.
A. No, I don’t.
3
Defense counsel questioned juror Caldera as follows:
Q. W hen we did the jury selection yesterday and we asked all the people if they knew
the victim or the victim ’s fam ily, did you understand that question?
****
A. Yes, I did but I didn’t know that was her brother.
Q. Okay. So when the nam e of Riko Rodriguez was discussed, you didn’t know that
your co-worker was the sister of the—
A. No, I did not.
Q. Okay. You didn’t put that connection together?
A. No.
Q. So now you’ve seen his sister in the courtroom today, have you?
A. Yes.
7
Q. And not only are you a friend of hers but you’re her co-worker?
A. Correct.
Q. Is she a boss?
A. No.
Q. Does she supervise you?
A. No. Just working.
Q. Co-workers?
A. W e work in totally different offices.
Q. You have a friendly relationship with her?
A. Uh-huh, yes, m a’am .
Q. Okay. I don’t know if she heard.
A. She’s m y friend, yes.
Q. Now, do you think that the fact that one of the jurors is a friend of the victim ’s sister
m ight be som ething that a person accused of killing that individual m ight have an
issue with you being on the jury that decides his guilt or innocence?
A. Maybe so.
****
The Court: The question is now that everybody you’ve m ade the connection,
okay? Can you be a fair [sic].
Juror Caldera: Yes, I can be a fair juror.
The Court: You can listen to the evidence and arrive at a verdict regardless of
that friendship?
Juror Caldera: Right and I believe that because I don’t know what took place. I just
know that she’s m y friend and I heard her brother had passed
away. That’s the bottom line. I didn’t know any facts. I didn’t see
it on TV other than hearsay.
The Court: All right. And one final question, when you say she’s your friend,
have you socialized with her?
Juror Caldera: W e socialize once a m onth and that’s last 12 m onths because we
are in a leadership program and that’s the only way that we would—
The Court: In other words, you socialize at the leadership program ?
8
relationship with Carillo. When defense counsel finished, he asked the trial court to excuse
Caldera as a juror and to proceed with the alternate juror. The trial court denied the
request, stating, “I’m going to find that she is suitable. She has stated on the record she
can be fair and impartial. . . .”
Appellant argues that the trial court’s denial of his request to excuse Caldera from
the jury and to proceed with an alternate juror violated his rights under the United States
and Texas Constitutions.
Juror Caldera: Yes.
****
Defense Counsel: W hat is the nam e?
Juror Caldera: Her nam e is Ruby Carillo.
Q. Ruby Carillo?
A. Rudy Carillo.
The Court: That’s the nam e of the sister.
Defense Counsel: You could see where she would have not have m ade a connection?
Q. Do you think there would be any kind of an im pact on her friendship with you if you
were to find Mr. Perez not guilty in this case?
A. I don’t believe so.
Q. And are you aware that there’s an alternate juror—
A. Yes.
Q. W ho was also selected in case som ething cam e up?
A. Yes.
Q. In your opinion, do you think it m ight be better to proceed with the alternate?
At this point, the trial court sustained the prosecutor’s objection to the question, and defense counsel
announced that he had no further questions.
9
1. Applicable Law
An accused in a criminal prosecution has the right to a fair trial by an impartial jury.
U.S. CONST . amend. VI; TEX . CONST . art. 1, § 10; Franklin v. State, 138 S.W.3d 351, 354
(Tex. Crim. App. 2004). Hence, “[w]hen a juror withholds material information in the voir
dire process, the parties are denied the opportunity to exercise their challenges, thus
hampering their selection of a disinterested and impartial jury.” Armstrong v. State, 897
S.W.2d 361, 363 (Tex. Crim. App. 1995) (citing Salazar v. State, 562 S.W.2d 480, 482
(Tex. Crim. App. 1978)). However, defense counsel has an obligation to ask questions that
are calculated to elicit information which might be said to indicate a juror’s inability to be
impartial and truthful. Id. at 363-64 (citing Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim.
App. 1980), overruled on other grounds by Sneed v. State, 670 S.W.2d 262, 267 n.7 (Tex.
Crim. App. 1984)). “Unless defense counsel asks such questions, the material information
which a juror fails to disclose is not really ‘withheld.’” Id. at 364. Counsel’s questions must
be specific, not broad. Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999);
Armstrong, 897 S.W.2d at 363-64 (holding no error when counsel did not ask questions
that would reveal juror’s close friendship with prosecutor). The court of criminal appeals
has “consistently held there is no error where counsel has not met that obligation.”
Gonzales, 3 S.W.3d at 917; Armstrong, 897 S.W.2d at 363-64; Brandon v. State, 599
S.W.2d 567, 577 (Tex. Crim. App. 1979) (holding no error when counsel failed to ask
follow-up questions after potential juror stated he was acquainted with victim).
2. Analysis
In this case, Caldera testified outside the jury’s presence that during voir-dire
examination, she did not know that Carillo was Riko’s sister. She did not realize that Carillo
10
was Riko’s sister until she saw Carillo in the courtroom. During general voir dire, defense
counsel did not ask the venire members whether any of them knew Riko’s sister, Ruby
Carillo. Thus, defense counsel did not ask the questions needed to elicit the desired
information.4 Appellant has not demonstrated that Caldera “withheld” information as
contemplated by Texas case law because defense counsel did not ask questions during
voir dire that were calculated to reveal impartiality regarding whether the venire members
knew Riko’s sister. See Gonzales, 3 S.W.3d at 917-18. Because defense counsel did not
ask specific questions to bring out information that may indicate a juror’s impartiality,
Caldera did not withhold information that would constitute misconduct warranting a
reversal. See id. Therefore, the trial court did not err in refusing to disqualify Caldera.
Issue one is overruled.
B. State’s Impeachment of Iris Perez
In his second issue, appellant argues the trial court erred in allowing the State to
improperly impeach its own witness, Iris Perez. During the guilt-innocence phase, Iris
testified on direct-examination that she remembered what she had told Detective Lee
during her telephone conversation with him.5 However, when the prosecutor asked her if,
4
W e recognize that defense counsel is entitled to rely on the questions asked by the trial court and
the prosecutor. Armstrong v. State, 897 S.W .2d 361, 364 n.1 (Tex. Crim . App. 1995). However, neither the
trial court nor the prosecutor asked the venire m em bers the necessary question, i.e., whether anyone knew
the victim ’s sister. See id.
5
This testim ony appeared in the following colloquy between Iris and the prosecutor:
Q. Okay. W hen you started talking to Steven [appellant] again, how was that?
A. I was m ad at him . And he was telling m e he didn’t do it. I was like blam ing him .
Q. So you did blam e him ?
A. I m ean, I— yeah.
11
during this telephone conversation, she had told Detective Lee “that the whole thing was
[appellant’s] fault?”, she replied, “I don’t think I said that.” When the prosecutor asked the
Q. Okay. Did you think he should go to prison?
A. I don’t really— m aybe at that tim e I did. I don’t know.
Q. W hen you talked to the detective again and told him what you saw, did you think
Steve should go to prison at that tim e?
A. I didn’t feel that Steve m urdered Riko and I felt that Steve, from m y understanding,
he didn’t m ean for none of that to happen.
Q. So it’s your testim ony today that you did not blam e Steve, that it wasn’t Steve’s fault
that the whole thing happened?
A. Not really.
Q. Okay. W ould it help you refresh your recollection if you heard the telephone call
between you and Detective Lee?
A. No. I rem em ber what I told him . I rem em ber our conversation.
****
Q. Okay. So did you or did you not tell him that the whole thing was Steve’s fault?
A. I don’t think I said that.
****
Q. W ould it help or would it not help refresh your recollection to hear the audio
recording of that phone call?
A. No. I don’t really want to hear anything.
Q. [D]o you think the recording would be a better exam ple of the phone call or would
your recollection today be a better exam ple of the phone call?
A. I— I don’t think I said that at all. I m ean, I think I was telling him m ore of that it was
Mike. I rem em ber that.
Q. And Steve should go to prison, right?
A. I don’t know.
Q. You don’t know?
A. I think m aybe I said if he should go, I don’t think he should go for as long as Mike or
som ething, like along those lines. I don’t know. I don’t rem em ber.
12
trial court to allow her to publish the audiotape of this telephone conversation, defense
counsel objected as follows:
I believe that what the prosecutor wants to do is covered by Rule 613 and
what needs to happen is the witness needs to have an opportunity to review
the previous statement and then ask whether or not now the witness recalls
making that statement or not, so if the prosecutor—.
At this point, the trial court overruled the objection and admitted the audiotape into
evidence. The prosecutor played the tape to the jury. We interpret appellant’s issue as
a challenge that the prosecutor did not lay the proper predicate to impeach Iris with a prior
inconsistent statement.
1. Standard of Review
We review the trial court’s ruling regarding the admissibility of evidence under an
abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.
2007). “In other words, as long as the trial court’s decision was within the zone of
reasonable disagreement and was correct under any theory of law applicable to the case,
it must be upheld.” Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
2. Applicable Law
“Impeachment of a witness means adducing proof that such witness is unworthy of
belief or credit.” Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995). Rule
607 states that “[t]he credibility of a witness may be attacked by any party, including the
party calling the witness.” TEX . R. EVID . 607. A prior inconsistent statement may be
admitted under rule 613. See TEX . R. EVID . 613(a); In re A.B., 133 S.W.3d 869, 874 (Tex.
App.–Dallas 2004, no pet.). However, under the Texas Rules of Evidence, the use of
extrinsic evidence of a prior inconsistent statement “is contingent upon the witness’s
13
response when confronted with the alleged inconsistent statement.” Clark v. State, 881
S.W.2d 682, 695 n.11 (Tex. Crim. App. 1994); TEX . R. EVID . 613(a) (stating that extrinsic
evidence of an inconsistent statement is not admissible if the witness unequivocally admits
having made the statement). Under former rule of criminal evidence 612(a), which was
identical to the present rule 613(a),6 the court of criminal appeals stated the predicate to
the admission of the inconsistent statement:
The proper predicate for impeachment by prior inconsistent statement
requires that the witness first be asked if he made the contradictory
statement at a certain place and time, and to a certain person. If the witness
denies making the contradictory statement, it can then be proved by the prior
inconsistent statement. If the witness admits the prior inconsistent
statement, however, the prior statement is not admissible.
McGary v. State, 750 S.W.2d 782, 786 (Tex. Crim. App. 1988) (internal citations omitted)
(internal quotation marks omitted).
Here, even though the prosecutor did not specifically ask Iris if she had made the
contradictory statement at a certain place and time, when asked if she would like to hear
the telephone call between her and Detective Lee, she testified that she remembered what
she had told him during her telephone conversation with him.7 And, crucially, she denied
6
Current rule of evidence 613(a) states, in pertinent part, that:
In exam ining a witness concerning a prior inconsistent statem ent m ade by the witness,
whether oral or written, and before further cross-exam ination concerning, or extrinsic
evidence of, such statem ent m ay be allowed, the witness m ust be told the contents of such
statem ent and the tim e and place and the person to whom it was m ade, and m ust be
afforded an opportunity to explain or deny such statem ent. If written, the writing need not be
shown to the witness at that tim e, but on request the sam e shall be shown to opposing
counsel. If the witness unequivocally adm its having m ade such statem ent, extrinsic evidence
of sam e shall not be adm itted. . . .
T EX . R. E VID . 613(a).
7
Specifically, the prosecutor asked Iris Perez the following:
Q. Okay. W ould it help you refresh your recollection if you heard the telephone call
14
having made the statement. Moreover, a review of the record reveals that Iris equivocated
about making the prior inconsistent statement to Detective Lee. Thus, the State laid the
proper predicate in accordance with rule 613(a), for impeachment by extrinsic evidence.
See TEX . R. EVID . 613(a); McGary, 750 S.W.2d at 786. Accordingly, we conclude the trial
court did not abuse its discretion by admitting the audiotape into evidence.
3. Inadmissible Testimony
By this same issue, appellant argues the prosecutor elicited inadmissible testimony
from Iris. During Iris’s direct-examination at the guilt-innocence phase, the prosecutor
asked Iris on three occasions whether she thought appellant should go to prison. Defense
counsel neither objected to these questions nor to Iris’s responses to them. Appellant
argues that whether Iris thought he should go to prison “was an inadmissible area” and that
the purpose for the questioning “was to put before the jury an out of court statement that
Iris believed [appellant] should go to prison.”
“To preserve error, a complaining party must make a timely and specific request,
objection, or motion and obtain an express or implied ruling on that request, objection, or
motion.” Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008) (citing Gauder v.
State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003)). Further, “an objection must be made
each time inadmissible evidence is offered unless the complaining party obtains a running
objection or obtains a ruling on his complaint in a hearing outside the presence of the jury.”
between you and Detective Lee?
A. No. I rem em ber what I told him . I rem em ber our conversation.
Q. Do you rem em ber it?
A. Uh-huh.
15
Id. Here, an objection was not made to the complained-of questions, and counsel did not
request a running objection nor did he obtain a ruling on his complaint in a hearing outside
the jury’s presence. Consequently, appellant has failed to preserve this argument for
review. See id.
4. Whether the Audio Tape Contained Inadmissible Evidence
By this same issue, appellant argues the audio tape contained inadmissible
evidence. Although counsel initially objected to the audio tape on the basis the State did
not lay a proper predicate, he did not object that the tape contained inadmissible evidence.
Counsel did not request a running objection and did not obtain a ruling on his complaint
in a hearing outside the jury’s presence. Further, counsel did not object, either before the
audio tape was played to the jury or during the playing of the audio tape, that it contained
inadmissible evidence. We conclude that appellant did not preserve this argument for our
review. See Lopez, 253 S.W.3d at 684. Issue two is overruled.
C. Admission of Appellant’s Statement
In his third issue, appellant argues the trial court erred by admitting into evidence
the statement which he gave after his arrest. On January 18, 2007, appellant gave the
police a video taped statement. Defense counsel filed a pre-trial motion to suppress the
statement, and after a pre-trial hearing, the trial court denied the motion. These actions
alone would have preserved the suppression issue for review without further objection by
appellant during the trial. At trial, however, when the State offered the video taped
statement into evidence, defense counsel stated, “I don’t think I have an objection, Your
Honor.” The trial court admitted the video taped statement into evidence, and it was played
before the jury.
16
The court of criminal appeals has held in similar situations that the suppression
issue was not preserved for review. See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim.
App. 2005) (stating that when State offered exhibits into evidence during trial, and
appellant affirmatively stated he had no objection, the affirmative acceptance of this
previously challenged evidence waived any error in its admission); see also Moody v.
State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Dean v. State, 749 S.W.2d 80, 82-83
(Tex. Crim. App. 1988); Harris v. State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983);
McGrew v. State, 523 S.W.2d 679, 680-81 (Tex. Crim. App. 1975). When evidence is
offered during trial and defense counsel affirmatively represents that he has “no objection”
to the evidence, any error in the admission of the evidence is waived even if the error had
been previously preserved by a suppression motion and adverse ruling. Moody, 827
S.W.2d at 889; Dean, 749 S.W.2d at 82-83; Harris, 656 S.W.2d at 484; McGrew, 523
S.W.2d at 680-81. Because counsel affirmatively stated that he had no objection to the
introduction of the statement, we hold that the complaint is not preserved with respect to
the admission of that evidence. Issue three is overruled.
D. Omitted Jury Instruction
In his fourth issue, appellant argues the trial court erred in refusing to charge the jury
on the defensive theory of independent impulse. At the conclusion of the trial, defense
counsel asked the trial court to instruct the jury on the defensive theory of independent
impulse. The trial court denied the requested instruction.
In addressing this issue, we first determine whether there was error in the charge.
Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g). If so, “the
next step is to make an evidentiary review . . . as well as a review of any other part of the
17
record as a whole which may illuminate the actual, not just theoretical, harm to the
accused.” Id.
1. Applicable Law
The concept of “independent impulse” embraces the theory that an accused, though
he or she was admittedly intent on some wrongful conduct, nevertheless did not
contemplate the extent of criminal conduct actually engaged in by his or her “fellows, and
thus cannot be held vicariously responsible for their conduct.” Mayfield v. State, 716
S.W.2d 509, 513 (Tex. Crim. App. 1986), overruled by Solomon v. State, 49 S.W.3d 356
(Tex. Crim. App. 2001). However, the court of criminal appeals has held that defendants
are not entitled to instructions on defensive theories not enumerated in the Texas Penal
Code, such as a defensive charge on independent impulse. Walters v. State, 247 S.W.3d
204, 210 (Tex. Crim. App. 2007); Solomon, 49 S.W.3d at 368. An instruction on
independent impulse is merely a negation of elements in the State's case; therefore, its
inclusion would be superfluous and, in fact, would be an impermissible comment on the
weight of the evidence. See Solomon, 49 S.W.3d at 368.
2. Analysis
In Solomon, the court of criminal appeals held that a defendant charged with
conspiracy liability under section 7.02(b) of the Texas Penal Code was not entitled to an
independent-impulse instruction if the charge tracked the language of section 7.02(b).
Solomon, 49 S.W.3d at 368. Here, appellant was not charged with conspiracy liability
under section 7.02(b), but the trial court gave instructions tracking the statutory language
of Texas Penal Code sections 7.01(a) and 7.02(a)(2). Both of these sections relate to the
law of parties. Appellant's proposed defensive issue would simply negate the law of parties
18
element of the State's case and is inconsistent with current Texas law. See Solomon, 49
S.W.3d at 368. Because the jury charge tracked the language of sections 7.01(a) and
7.02(a)(2) and because the defense of independent impulse is not found in the penal code,
we hold that the trial court did not err by refusing to include the instruction. See Walters,
247 S.W.3d at 210; Solomon, 49 S.W.3d at 368.8 The fourth issue is overruled.
E. Sufficiency of the Evidence
In his fifth issue, appellant challenges the legal and factual sufficiency of the
evidence to support his conviction. In reviewing the legal sufficiency of the evidence to
support a conviction, we view all the evidence in the light most favorable to the verdict in
order to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Hampton v. State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005). This standard
gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts. Jackson, 443 U.S. at 319. The trier of fact is the sole judge of the weight and
credibility of the evidence. TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979);
Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing
a legal-sufficiency review, we may not re-evaluate the weight and credibility of the evidence
and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor
8
See also Zaragoza v. State, No. 04-01-00499-CR, 2002 W L 1840927 at *5 (Tex. App.–San Antonio
Aug. 14, 2002, no pet.) (not designated for publication) (appellate court held trial court did not err in denying
defendant’s request for independent-im pulse instruction when defendant charged as a party under sections
7.01(a) and 7.02(a)(2)).
19
of the judgment. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In reviewing a factual sufficiency claim, we review the evidence in a neutral light
rather than the light most favorable to the verdict. Neal v. State, 256 S.W.3d 264, 275
(Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007)
(citing Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000)). Evidence is factually
insufficient if the evidence supporting the verdict is so weak that the verdict seems clearly
wrong and manifestly unjust, or if the supporting evidence is outweighed by the great
weight and preponderance of the contrary evidence so as to render the verdict clearly
wrong and manifestly unjust. Neal, 256 S.W.3d at 275; Roberts, 220 S.W.3d at 524 (citing
Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). We do not reverse for
factual insufficiency if the greater weight and preponderance of the evidence actually
favors conviction. Neal, 256 S.W.3d at 275; Roberts, 220 S.W.3d at 524 (citing Watson,
204 S.W.3d at 417).
1. Murder and the Law of Parties
A person commits murder if he or she “intentionally or knowingly causes the death
of an individual” or “intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual[.]” TEX . PENAL CODE ANN .
§ 19.02(b)(1), (2) (Vernon 2003). Intent can be inferred from the defendant’s acts, words,
and conduct. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); Lee v. State,
964 S.W.2d 3, 8 (Tex. App.–Houston [1st Dist.] 1997, pet. ref'd).
Appellant argues the evidence is both legally and factually insufficient to support the
verdict “because there was no proof [appellant] knew of Lozano’s intent to murder [Riko]
or helped him in that regard.” However, under the law of parties, as stated in the jury
20
charge, “[a] person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both.” TEX . PENAL CODE ANN . § 7.01(a) (Vernon 2003); Frank v. State,
183 S.W.3d 63, 72 (Tex. App.–Fort Worth 2005, pet ref’d). “A person is criminally
responsible for an offense committed by the conduct of another if, acting with intent to
promote or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2); Frank, 183
S.W.3d at 72. “Each party to an offense may be charged with commission of the offense.”
TEX . PENAL CODE ANN . § 7.01(b) (Vernon 2003). “Evidence is sufficient to convict under
the law of parties where the defendant is physically present at the commission of the
offense and encourages its commission by words or other agreement.” Ransom v. State,
920 S.W.2d 288, 302 (Tex. Crim. App. 1995). In determining whether a defendant
participated in an offense as a party, the fact finder may examine the events occurring
before, during, and after the offense’s commission and may rely on the defendant’s actions
that show an understanding and common design to commit the offense. Id.
While the presence of the defendant at the scene of an offense is not alone
sufficient to support a conviction, it is a circumstance tending to prove guilt, which,
combined with other facts, may suffice to show that the defendant was a participant.
Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987). Further, participation in
an enterprise may be inferred from circumstances and need not be shown by direct
evidence. Id. at 684.
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2. Analysis
A rational jury could have determined the following from the evidence: Riko was
seeing appellant’s ex-wife, Iris, and when appellant called Iris’s cell phone, Riko called him
a “bitch.” Shortly after Riko called appellant “a bitch,” they fought each other. Two days
later, Riko and Iris were at Roy’s apartment. That morning, Roy’s neighbor, Asberry, heard
a “real loud” knock followed by someone saying, “[W]ho is it.” Asberry then heard several
shots. Moments before Riko was shot, Iris saw Lozano in front of the apartment door and
appellant running away. After the shooting, Detective Lee obtained a video-taped
statement from appellant in which appellant stated he wanted to go to the apartment to see
if Iris was there; however, the only way he could get Lozano to go with him was to tell him
they were going there for a robbery. Appellant, his cousin David, and Lozano got a gun
from someone and then used appellant’s car to go to the apartment. Lozano and appellant
kicked the front door to Roy’s apartment, and then appellant said, “Forget this. Let’s go.”
As appellant was leaving, Lozano fired four shots through the front door. They fled the
scene, and Lozano lost a shoe, which belonged to appellant. Afterwards, they returned
the gun to the person who provided it to them. A partial DNA profile obtained from the
shoe that came off of Lozano’s foot was consistent with a mixture from appellant and at
least two unknown individuals. While Lozano was in the county jail, he told Flores that he
and “Steve” went to the apartment where Riko was staying “to rough that dude Riko up.”
The controverting evidence showed that: (1) no one saw who fired the shots
through the front door; (2) Iris did not hear Riko say “[W]ho is it” in response to the knock
at the front door; (3) after the shooting, appellant told Iris he did not do the shooting and
that he was trying to leave; (4) Riko never told Roy who had shot him; (5) in his statement
22
to Defective Lee, appellant denied having anything to do with the shooting; (6) appellant
did not hear anyone say “[W]ho is it” after he and Lozano kicked the front door: (7) Riko’s
father was not personally aware of any antagonism between appellant and Riko; (8) Angela
Lopez did not hear appellant make any threats to kill Riko; (9) appellant told the police he
was not the shooter; and (10) Lozano told Flores that Lozano, not appellant, shot through
the door.
Viewing all the evidence in the light most favorable to the verdict, we conclude the
evidence is legally sufficient for a rational jury to find appellant guilty of Riko’s murder as
a party to the crime beyond a reasonable doubt. Furthermore, viewing the evidence
neutrally, we conclude the evidence is not so obviously weak that the verdict seems
“clearly wrong and manifestly unjust” or that proof of guilt is against the great weight and
preponderance of the evidence. See Watson, 204 S.W.3d at 414-15, 417; Johnson, 23
S.W.3d at 11. Accordingly, we hold the evidence is legally and factually sufficient to
support appellant’s conviction. Issue five is overruled.
III. CONCLUSION
We affirm the trial court’s judgment.
ROSE VELA
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this 26th day of February, 2009.
23