Villasana, Jose Luis v. State ( 2000 )

NUMBER 13-99-526-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JOSE LUIS VILLASANA

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 206th District Court of Hidalgo County, Texas.

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O P I N I O N Before Justices Chavez, Rodriguez and Kennedy⁽¹⁾ Opinion by Justice Kennedy

Appellant was indicted for murder. He was convicted by a jury and the jury set punishment at confinement for sixty years and a fine of ten thousand dollars.

The state's evidence was as follows: A witness, Hernandez, testified that he drove the victim, Zamora, to appellant's house at Zamora's request. Zamora got out of the car and went to appellant's door. Hernandez saw a person come out of the house and start talking to Zamora. Hernandez, who had been drinking, went to sleep in his car and was awakened by a gunshot. He then saw Zamora's bloody body on the ground. Appellant told Hernandez to get Zamora's body out of there, but Hernandez was physically unable to do this.

Another witness, Maria Martinez, who lived next door to the shooting, was awakened by the shot. She saw the failed attempt of Hernandez to move Zamora's body and saw appellant with a rifle in his hand. She then saw appellant drive a car up to the body, attach a chain to the feet, and drag the body away. The sheriff's office was notified and, after a search, they found the body.

Appellant's brief submits four points of error which will be addressed in the order presented. His first point complains of the trial court's denial of appellant's requests for charges on the lesser-included offenses of aggravated assault, manslaughter, and negligent homicide in it's charge to the jury.

A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Id. at 367. The evidence in this case (the autopsy report) shows that appellant fired a rifle through the window of his house which struck his victim in the chest. There is no evidence to the contrary. In order for appellant to be entitled to a jury charge on involuntary manslaughter or criminally negligent homicide, the record must contain some evidence that appellant did not intend the resulting death or know that it was reasonably certain to occur. Jones v. State, 963 S.W.2d 177, 180 (Tex. App. ­ Fort Worth 1998, pet. ref'd.).

In his brief, appellant quotes, verbatim, his argument to the trial court in favor of a charge on lesser-included offenses. Included in the argument is this statement:

But the autopsy report which is in evidence and the testimony of the ballistics report in evidence indicate that for whatever reason, a round was fired, it hit part of the home structure, however significant or insignificant, and it caused the round to shatter, and that's why it had different fragments.

If appellant is attempting to claim that there is evidence that appellant shot at "part of the home structure" and the bullet ricocheted and hit the victim, his theory has absolutely no support in the record. The only home structure involved was a thin wire screen on the outside of the window which appears to be a substitute for a window screen. We overrule point of error number one.

Appellant's second point of error is, "the trial court erred in allowing the State to argue improperly over objection." In support of this point, appellant quotes from the record a portion of the argument of the prosecution, as follows:

Now, what other things do we look at? Well, let me talk about this now, and talk about why Mr. Villasana shot and killed him. The defense is going to say, wait a minute. Where is the evidence that Mr. Villasana intentionally or knowingly caused the death? Granted, there is no one who can come here to tell you that he was there present when Mr. Villasana pulled the trigger. But we know he pulled the trigger because he had control of the weapon.

And when you look at the jury charge, the court has defined to you what intentionally and knowingly means. Intentionally means, it says, a person acts intentionally or with intent with respect to a result of his conduct being wanting to kill another human being, when it is his conscious objective or desire to cause the result. Common sense tells you, you have a weapon that's loaded, you point it at another human being, you pull the trigger, what are you intending to do?

Appellant then argues that "the State was not authorized to change the law and his theory of the case as set out in the court's charge. It is error to convict a person on a theory not alleged in the indictment."

A specific intent to kill may be inferred from appellant's use of a deadly weapon per se. A firearm, i.e., a rifle, is a deadly weapon per se. Jones, supra at 180.

It is obvious that this point of error has no merit and we overrule it.

Points of error three and four allege error in not suppressing the fruits of illegal searches of appellant's residence and his car. At a hearing on a motion to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence, and the trial court's finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). The facts alleged in the affidavits to obtain search warrants for appellant's home and car are replete with facts concerning appellant's observed movements in and out of his home, carrying a rifle, giving orders to another person to remove the body, and dragging the body from the premises. The affidavits also allege facts concerning the sheriff's employee locating the car and ascertaining who the owner was. The trial court did not err in overruling the motion to suppress the fruits of either or both searches.

We overrule points of error three and four and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Retired Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this the 16th day of November, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).