Ramon Chavez-Calderon v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00742-CR
Ramon Chavez-Calderon, Appellant
v.
The State of Texas, Appellee
FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 16-2046-K368, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING
MEMORANDUM O PINI ON
Ramon Chavez-Calderon was charged with the aggravated assault of Alexis
Sanchez-Escalera. See Tex. Penal Code §§ 22.01(a)(2), .02(a)(2). The jury charge included an
instruction on the lesser-included offense of deadly conduct. See id. § 22.05(b). The jury returned
a verdict of guilty only for the lesser offense and determined that Chavez-Calderon should be
sentenced to ten years’ imprisonment. See id. §§ 12.34, 22.05(e). The district court rendered its
judgment of conviction for the lesser offense in accordance with the jury’s verdicts. On appeal,
Chavez-Calderon contends that the evidence is insufficient to support his conviction. We will
affirm the district court’s judgment of conviction.
BACKGROUND
As set out above, Chavez-Calderon was charged with aggravated assault, and
the jury charge included an instruction on the lesser-included offense of deadly conduct. During
the trial, the State called Sanchez-Escalera, Officer David Hancock, and Officer Carlos Cardona
as witnesses.
Sanchez-Escalera testified that on the night in question, she was having a party
with friends at her house. Further, Sanchez-Escalera explained that her cousin Patricia Guzman
brought Chavez-Calderon and her friend Jen1 as guests to the party, that the three of them arrived
in Chavez-Calderon’s SUV, that he was “passed out” when he arrived, that Guzman and Jen
placed him on a couch, and that he was still unconscious when Guzman and Jen decided to
leave a few hours later and helped him back to his vehicle. During her cross-examination,
Sanchez-Escalera admitted that she and several other people from the party went inside Chavez-
Calderon’s SUV multiple times throughout the evening while he was asleep.
Regarding later events, Sanchez-Escalera related that she went outside to smoke a
cigarette on her front porch, that Chavez-Calderon returned to the house in his SUV, that he
walked towards her, that he started yelling that someone stole his money while he was at her
house, and that he pulled out a gun. In addition, Sanchez-Escalera explained that Chavez-Calderon
was initially waiving the gun around and pointing it “to the sky” but that Chavez-Calderon later
pointed the gun “up like he was going to shoot” and then fired the gun. Next, Sanchez-Escalera
testified that while she tried to go back in her house, Chavez-Calderon pointed the gun at her
before shooting the gun again and that Chavez-Calderon eventually returned to his SUV and
drove away.
After Sanchez-Escalera finished testifying, Officer Cardona was called to the
stand and testified that the police found two shell casings outside Sanchez-Escalera’s home and
found a weapon and ammunition inside Chavez-Calderon’s SUV shortly after the incident
1 The record does not specify what Jen’s last name is.
2
occurred. In addition, Officer Hancock testified that Chavez-Calderon admitted that he had a
gun in his SUV, that he asserted that someone stole his money while he was asleep at Sanchez-
Escalera’s home, and that the police did not discover any bullet holes in Sanchez-Escalera’s house.
During the testimony of the law-enforcement officers, photographs of the scene
were admitted into evidence. Some of the photographs show the exterior of Sanchez-Escalera’s
home, including the front porch where she testified that she was sitting when Chavez-Calderon
returned. Those photos reveal that the front porch is on the left side of the house, that the portion
of her home to the right of the porch extends forward toward the road, and that there is a security
camera installed above the front porch.
In addition to the photos discussed above, security footage from the camera above
Sanchez-Escalera’s porch was admitted into evidence and played for the jury. The black and
white footage, which does not include sound, shows an individual identified as Chavez-Calderon
walking to the front porch of Sanchez-Escalera’s home, pulling out a gun, and pointing the gun
to the right of the porch. In addition, the footage depicts Chavez-Calderon firing the weapon
twice and moving the gun from above his head to a position parallel to the ground both times that
he fired the weapon, but the footage does not clearly capture the moments that he fired the gun.
Finally, the footage shows Chavez-Calderon attempting to charge forward toward the front porch
while being held back by another person and pointing the gun in front of him toward the porch.
After considering the evidence presented at trial, the jury found Chavez-Calderon
guilty of the lesser-included offense of deadly conduct.
DISCUSSION
In his issue on appeal, Chavez-Calderon contends that the evidence is legally
insufficient to support his conviction for deadly conduct.
3
Under a legal-sufficiency standard of review, appellate courts view the evidence
in the light most favorable to the verdict and 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). When performing this review, an appellate court must bear in mind
that it is the factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to
make “reasonable inferences from basic facts to ultimate facts.” Id.; see also Tex. Code Crim.
Proc. art. 36.13 (explaining that “jury is the exclusive judge of the facts”). Moreover, appellate
courts must “determine whether the necessary inferences are reasonable based upon the combined
and cumulative force of all the evidence when viewed in the light most favorable to the verdict.”
Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts
presume that conflicting inferences were resolved in favor of the conviction and “defer to that
determination.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition,
courts must bear in mind that “direct and circumstantial evidence are treated equally” and that
“[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor”
and “can be sufficient” on its own “to establish guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d). The evidence is legally insufficient if “the record
contains no evidence, or merely a ‘modicum’ of evidence, probative of an element of the offense”
or if “the evidence conclusively establishes a reasonable doubt.” Id. at 107 (quoting Jackson,
443 U.S. at 320).
As set out above, the jury convicted Chavez-Calderon of the lesser offense of
deadly conduct. See Tex. Penal Code § 22.05. A person commits that “offense if he knowingly
discharges a firearm at or in the direction of . . . (1) one or more individuals . . . or (2) a
habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is
4
occupied.” Id. § 22.05(b). “The Penal Code supplies no definitions to aid in the application of
section 22.05(b)’s prohibition of discharging a firearm ‘at or in the direction of’” of people or
structures. See Gilbert v. State, 429 S.W.3d 19, 22 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d) (quoting Tex. Penal Code § 22.05(b) and citing Tex. Penal Code § 1.07). Although the
statute uses both phrases “at” and “in the direction of,” courts have determined that there is no
“meaningful difference” between those phrases because they both mean, in this context, to
discharge a weapon “toward” a particular location. See id.; see also Drayton v. State, No. 12-14-
00144-CR, 2015 WL 859084, at *2 (Tex. App.—Tyler Feb. 27, 2015, no pet.) (mem. op., not
designated for publication) (noting that discharging weapon at object means “to shoot the
weapon toward that object’s location” and that discharging weapon in direction of object has
same meaning). The jury charge in this case included an instruction tracking the alternative
language from subsection 22.05(b) and allowed for a conviction if the jury determined that
Chavez-Calderon discharged a weapon in the direction of one or more individuals or a
habitation. See Tex. Penal Code § 22.05(b). “[W]hen multiple theories are submitted to the jury,
the evidence is sufficient to support a conviction so long as the evidence is sufficient to support
conviction for one of the theories submitted to the jury.” Guevara v. State, 152 S.W.3d 45, 52
(Tex. Crim. App. 2004).
On appeal, Chavez-Calderon does not dispute that he knowingly discharged a
weapon on the night in question. Cf. Wheaton v. State, 129 S.W.3d 267, 273 (Tex. App.—
Corpus Christi 2004, no pet.) (determining that evidence was sufficient to show that defendant
knowingly discharged weapon, in part, because evidence showed that defendant and victim were
arguing before shot was fired and that defendant later threatened victim and pointed weapon at
her). Similarly, Chavez-Calderon does not argue that the evidence is insufficient to establish that
5
he acted recklessly as to whether Sanchez-Escalera’s home was occupied. Cf. Hernandez v. State,
No. 07-05-00345-CR, 2006 WL 684466, at *2 (Tex. App.—Amarillo Mar. 15, 2006, no pet.)
(mem. op., not designated for publication) (concluding that evidence was sufficient to show that
defendant acted recklessly with regard to whether building was occupied because evidence
showed, in part, that “there were homes located within the range of [where] the shotgun . . .
[was] used by appellant” and “that a nearby home was occupied by children and another home
was occupied by a sick, disabled woman”). Instead, Chavez-Calderon argues that the evidence is
insufficient to show that he discharged a firearm at or in the direction of one or more individuals
or a habitation.
When presenting his argument on appeal, Chavez-Calderon refers to portions of
Sanchez-Escalera’s testimony in which she stated that he was waiving the gun and pointing it to
the sky and urges that she did not testify that he “fired the gun at or in her direction or in the
direction of her home.” Moreover, Chavez-Calderon notes that there was no testimony at trial
that any bullet holes were discovered in Sanchez-Escalera’s home. Further, Chavez-Calderon
argues that the security footage shows that he “fired the gun toward the sky” and away from
Sanchez-Escalera and her home. In fact, Chavez-Calderon included in his appellant’s brief
“screen shots” purportedly taken from the security footage from Sanchez-Escalera’s home
that he insists show that he was pointing his gun up “toward the sky” when he fired the gun
both times.2
2 As support for his evidentiary challenge, Chavez-Calderon also notes that during their
deliberations, the jury asked the district court to clarify whether the word “at” as included in the
jury charge referred to the location where the defendant was when he shot the weapon or to “the
direction of the discharge.” Further, Chavez-Calderon points out that the district court’s response
did not answer the question and instead instructed the jury to “consider only the instructions that
have been given you, and continue with your deliberations.” In light of the preceding, Chavez-
Calderon contends that the jury “wrongly decided that the word ‘at’ . . . referred to location, not
6
As an initial matter, we note that the State was not required to prove that the
police discovered any bullet holes in Sanchez-Escalera’s home during their investigation. Cf.
Wallace v. State, No. 05-97-00878-CR, 1999 WL 504542, at *1, *2 (Tex. App.—Dallas July 19,
1999, no pet.) (not designated for publication) (overruling sufficiency challenge where police
officer testified that he saw defendant shooting in direction of and toward apartment building
even though officer admitted that he did not know if apartment “building had been hit by the
bullets” and even though police report stated that “the investigating officers did not find any
evidence of fresh bullet holes”). Moreover, the “screen shots” that Chavez-Calderon included in
his brief were not admitted as exhibits at trial and, accordingly, were not shown to the jury.
Cf. Brown v. State, 866 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d)
(explaining that appellate courts should not consider material outside record that was improperly
included in or attached to party’s appellate brief). Additionally, although Chavez-Calderon urges
in his brief that the screen shots capture the moments when he fired the gun and that the photos
show that the gun was pointed to the sky, it is not readily apparent that the screen shots
correspond to the times that he actually fired the gun.
In any event, although it is not clear from the security-camera footage precisely
when Chavez-Calderon fired the gun, the footage shown to the jury chronicles him firing the
weapon at least twice and further documents him moving the gun from above his head to a
position parallel to the ground both times that he fired the weapon. The jury could have
reasonably inferred from the footage that Chavez-Calderon fired the gun at least once when the
direction,” and found him guilty because he was present at Sanchez-Escalera’s home. However,
Chavez-Calderon does not argue on appeal that there was any error in the jury charge. Moreover,
as will be set out more thoroughly in the body of the opinion, we ultimately conclude that the
evidence is legally sufficient to support a determination that Chavez-Calderon fired the gun
toward Sanchez-Escalera’s home and, thus, that he fired the gun “at or in the direction of . . . a
habitation.” See Tex. Penal Code § 22.05(b).
7
gun was not aimed at the sky and was instead fired when the gun was moving toward the ground
and was pointing more to the right than up. Cf. Gilbert, 429 S.W.3d at 22 (explaining that
“[w]hile the evidence at trial about Gilbert’s location relative to the house was rather sparse,
viewing the evidence in the light most favorable to the verdict requires that we assume the jury
drew the opposite conclusion—that Gilbert was positioned slightly down the street, aiming his
shotgun such that he was aiming toward the house, including its windows and adjacent porch
where James was standing,” noting that witnesses testified “that Gilbert fired in the direction
of James,” and concluding that there was sufficient evidence to support conviction). When
assessing the direction in which Chavez-Calderon fired, the jury was aided by Sanchez-
Escalera’s testimony that she was on her front porch when Chavez-Calderon fired, the
photographs showing that her home extends forward to the right of her porch, and the security
footage depicting him approaching the home and shooting to his right.
In light of all of the evidence summarized above as well as the reasonable
inferences that the factfinder could have made from that evidence and given our standard of
review for legal-sufficiency challenges, we conclude that the evidence is legally sufficient to
support a determination that Chavez-Calderon fired a gun at or in the direction of Sanchez-
Escalera’s home. Cf. Meyers v. State, No. 09-02-00315-CR, 2003 WL 1837710, at *1, *3 (Tex.
App.—Beaumont Apr. 9, 2003, pet. ref’d) (not designated for publication) (determining that
evidence was sufficient to support conviction for “the offense of deadly conduct by discharging a
firearm in the direction of a habitation,” in part, where evidence showed that defendant had
been involved in fight outside victim’s home “shortly before the shooting,” that defendant was
angry at victim for breaking up fight, and that defendant “said that he would return”). Having
determined that the evidence is sufficient to support a determination that Chavez-Calderon shot
8
at or in the direction of Sanchez-Escalera’s home, we need not address the sufficiency of the
evidence pertaining to whether he shot at or in the direction of one or more individuals. See Tex.
R. App. P. 47.1; Guevara, 152 S.W.3d at 52.
For these reasons, we overrule Chavez-Calderon’s issue on appeal.
CONCLUSION
Having overruled Chavez-Calderon’s issue on appeal, we affirm the district
court’s judgment of conviction.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Kelly
Affirmed
Filed: October 18, 2019
Do Not Publish
9