Christopher Lozano v. State ( 2007 )

NUMBER 13-03-742-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CHRISTOPHER LOZANO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 275th District Court

of Hidalgo County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez

Christopher Lozano, Francisco Macias, and Megan Adams (the defendants) were convicted for the murder of Jan Barnum, Adams's maternal grandmother. ⁽¹⁾ The defendants were fifteen years old when the murder occurred and were tried together as adults. A jury convicted all three defendants, sentencing Macias and Adams to life in prison and Lozano to fifteen years' imprisonment. By four issues, Lozano contends that (1) the evidence was legally and factually insufficient to support his conviction, (2) the trial court erred by not charging the jury with the lesser-included offense of manslaughter, (3) the trial court erred in trying him with his co-defendants, and (4) the State improperly commented on his failure to testify. We affirm.

I. Background

A. Factual Background

The defendants, along with J.R., Macias's girlfriend, had been planning to run away to Louisiana by bus for several days. On March 5, 2003, Macias, Adams, and Lozano were reported as runaways. That afternoon, they were found trespassing in a vacant house near the apartment where Adams lived with Barnum. All three were detained at the police station until each was taken home by a responsible adult. The defendants made plans during their detention to return to the vacant house and to run away again.

Once the defendants were at their respective homes, they snuck out, proceeded to the vacant house, and ran into each other en route. According to the statements given by the defendants to the police after the murder, they decided to take Barnum's car shortly after joining up. Macias's statement and Lozano's statement simply state that they were going to take the car. Their statements do not specify whether the plan at that moment was to take Barnum's car to Louisiana instead of traveling there by bus, or whether the plan was, as Adams recounted, to take Barnum's car to Macias's girlfriend's house. In any event, a plan to take Barnum's car was devised before the defendants reached her apartment.

After the defendants met up, they walked to Barnum's apartment complex. Adams entered the apartment to find Barnum upset at her for leaving the apartment. Barnum instructed Adams not to leave again. Macias and Lozano waited by a storage shed near Barnum's apartment. At this point in the record, the defendants' statements deviate from each other regarding the events just before and during the strangulation. Moreover, Macias's in-court testimony varies in significant respects from his written statement. The statements reconcile after the defendants leave Barmun's apartment and attempt to flee the county.

1. Megan Adams's Written Statement

According to Adams's statement, she entered the apartment, walked into Barnum's bedroom, and took the car keys from her grandmother's purse. After taking the keys, Adams sat in the living room and watched a television show. Once the show was over, she returned to her bedroom. Macias came to her bedroom and told her to hurry up. Adams replied that she needed to wait until her grandmother fell asleep, to which Macias stated, "To hell with that[,] just kill her." Adams replied that she did not want to kill her grandmother and that they should just wait.

Barnum interrupted the conversation Adams was having with Macias. Adams told Barnum that she was just looking out the window and not talking to anyone. A little later, Barnum asked Adams if she had the car keys. Adams suggested they might be in the car and offered to check. Once outside, Lozano approached Adams and told her "what [Macias] was planning to do." Adams asked Lozano if he thought Macias was serious, and Lozano replied, "I think that [Macias] is." But then Lozano also stated that he "did not think that Frank had the guts to do it." When Barnum came out of her apartment, Adams quickly returned to the car and pretended to look for the keys. According to Adams, Barnum did not see Macias or Lozano. Adams walked into the apartment first, followed by Barnum. Macias was already inside the apartment waiting in the restroom.

As Adams passed the restroom, she saw Macias in it and signaled for him to do nothing. He just shook his head. When Barnum passed by the restroom, Macias jumped out with a red, white, and blue ribbon that had been hanging in the bathroom. Macias began strangling Barnum, and both fell to the floor. Adams ran outside to find Lozano. When Lozano entered the apartment, he told Macias to stop, but Macias did not. Adams gathered some stuff and sat on a chair and cried. Macias walked over to Adams and told her he was sorry. Adams asked Macias to resuscitate Barnum, but Macias replied it was too late. Adams ordered Lozano to get Barnum's purse, which he did. When Lozano brought Adams the purse, he told Adams that Barnum was still breathing. The defendants then left the apartment and went to J.R.'s house. They drove around, but did not make contact with J.R. Shortly thereafter, they were apprehended by police at a convenience store.

2. Christopher Lozano's Written Statement

Lozano's statement does not mention whose idea it was to kill Barnum. Lozano stated that while waiting by the storage shed, Macias visited with Adams three times over the course of the evening. After these encounters, Adams walked out of the apartment and pretended to look for the keys in the car. At this point, Macias walked back to Barnum's apartment. Shortly thereafter, Adams returned to the apartment and had a verbal argument with Barnum. After the argument, Adams again walked back outside the apartment and pretended to look for the keys.

While Adams was looking for the keys, Lozano approached her to speak with her. Afterwards, he entered the apartment and witnessed Macias choking Barnum with some kind of ribbon. Lozano exclaimed, "Dude quit . . . [it] and let[']s go." Macias stopped, dragged Barnum by the ankles, put her in her bedroom, and closed the door. Adams walked into the apartment during the choking, sat down, and began to cry. Lozano hugged her, told her he was sorry, and then said that they should leave.

Lozano and the two co-defendants left the apartment. However, Lozano returned twice. On the first occasion Lozano retrieved Adams' hamster and on the second trip he retrieved a green blanket. During this time, Macias and Adams made three trips into the house to retrieve items. The defendants fled in Barnum's car and were detained shortly thereafter.

3. Francisco Macias's Written Statement

According to Macias's statement, it was Adams's idea to kill Barnum. Macias and Lozano waited at the storage shed for a long time. Macias went to Adams's window to see what the delay was in leaving. Adams told Macias that she was still waiting for Barnum to fall asleep but that it was better if they killed her. Adams explained to Macias that he could suffocate Barnum while she and Lozano held Barnum down.

When Macias returned to Lozano, he relayed Adams's plans. Lozano replied, "just go for it." Adams then exited the apartment and told Lozano and Macias about the plan to kill Barnum. At this point, the statement does not precisely convey whether all three defendants or whether just Macias and Adams walked around the apartment complex discussing how Macias was going to choke Barnum while the other two held her down. Adams entered the apartment and returned a short time later with a ribbon. Adams and Lozano then left. Macias entered Barnum's apartment and proceeded to the restroom. Barnum came out of her bedroom because Macias made a lot of noise. Adams then entered the apartment. Barnum and Adams discussed where the keys might be. Adams suggested that Barnum check her bedroom again. When Barnum passed by the restroom, Macias emerged and began strangling her.

In the process of choking Barnum, both Barnum and Macias fell to the floor. Barnum was face down and Macias was on top of her, still choking her. Adams walked in and started to cry in the living room. Lozano entered the apartment shortly thereafter and was smiling. Lozano walked near Macias and Barnum, then returned to Adams. Once Barnum's legs and arms stopped moving, Macias went to Adams, hugged her, and said he was sorry. Macias then dragged Barnum's body into her bedroom as Lozano held the door open. Adams asked Lozano to get Barnum's purse and some cigarettes. After the defendants gathered their belongings they left the apartment.

4. Francisco Macias's In-Court Testimony

Macias's in-court testimony comports with his statement regarding Adams initiating the murder plan that evening. While Macias and Lozano were waiting across the street, Macias visited with Adams three times. On the first occasion, Adams asked Macias to wait for Barnum to fall asleep. On the second occasion, Adams told Macias that she was going to give Barnum nighttime cold medicine so she would fall asleep. On the third occasion, Adams hatched the suffocation plan as described in Macias's statement.

Later in the evening, Adams came out of the apartment and called the two other co-defendants over. From the stand, Macias could not recall if Lozano was present during the conversation that ensued. In that conversation, Adams asked Macias if he would go ahead with the plan. Macias replied, "I don't know." Adams returned to the apartment. Macias relayed to Lozano Adams's murder plans and told him that he did not know whether he should do it.

Macias's statement and in-court testimony differ significantly with regard to Lozano's culpability. In his written statement, Macias claims that while relaying Adams's plans, Lozano told him to "go for it." However, in court, Macias recanted that portion of his statement. He testified that he included Lozano saying "go for it" to implicate Lozano so that he would not "go down by [him]self." Macias also recanted his statement's account of Lozano smiling upon entering the apartment and seeing the strangulation.

After conveying Adams's plan, Macias began walking with Lozano to a friend's house, but Lozano claimed it was too late to go. Macias and Lozano walked back to the apartment when Adams walked out of the apartment with a ribbon that had a medallion on it. During cross examination, Macias could not specify whether Lozano was near him when Adams handed him the ribbon. Macias took off the medallion, threw it on the ground, and entered the house with Adams.

5. After the Strangulation

The defendants' statements reconcile and the record continues with a clear story after the defendants leave Barnum's apartment. After the murder, the defendants went to a truck stop for a map of Louisiana. The truck stop they visited did not have a Louisiana map. They then went to a convenience store to purchase gas and a map. The convenience store clerk noticed the defendants looked nervous and suspicious because they were teens out after the city's curfew, wanted an atlas of Louisiana, and their car stalled at the gas pump. The clerk relayed this information to Officer John Vargas, an off-duty police officer. He recognized the teens from an encounter with them during their earlier runaway attempt. Officer Vargas called dispatch to report three possible runaways and requested back up.

Officer Javier Gallegos was dispatched to the scene. He detained the teens, put them in the back of his squad car, asked for their parents' contact information, and attempted to phone their parents. No one answered at the telephone numbers the defendants provided. While the teens were in the back of the squad car they whispered to each other. He proceeded to drop them off at their respective homes. He first dropped off Macias. Then Lozano was dropped of at his aunt's house. Adams attempted to stay at Lozano's aunt's house, but Lozano's aunt refused to accept her, stating that she was not staying with them.

Throughout her detention, Adams insisted that Barnum was staying with a friend and not at her house. After she attempted to stay with Lozano, she asked Officer Gallegos to take her to Andres Narvaez's house. Narvaez was one of Barnum's close friends and had known Adams for years. Adams called Narvaez "Uncle Andy" even though no family relationship existed. She also asked Officer Gallegos if she could speak to Narvaez alone. When Officer Gallegos arrived at Narvaez's house, he left Adams in the car, knocked on the front door, and spoke to Narvaez. Narvaez suggested going to Barnum's apartment. Officer Gallegos returned to the squad car and waited for Narvaez to leave his house. Adams insisted on talking to Narvaez, but a few minutes later Narvaez pulled suddenly out of his driveway and drove to Barnum's apartment. Officer Gallegos testified Adams was frustrated about not speaking to Narvaez.

Upon arriving at Barnum's apartment, Adams and Narvaez spoke privately. Adams told Narvaez someone had broken into their apartment, strangled Barnum, and attempted to strangle her. Narvaez relayed this information to Officer Gallegos, who requested an ambulance, a supervisor, and backup. Officer Michael Mata was the first to respond to Officer Gallegos's backup call. The two went through the apartment in an attempt to find an intruder, but did not find one. Instead, they noticed the lights were on, no sign of forced entry, there was blood in the hallway, and Barnum's body was laying on a bedroom floor. They secured the scene and waited for more backup.

6. The Investigation

Adams was immediately detained at the scene. Lozano and Macias were retrieved shortly after the police discovered Barnum's body. All three were isolated from each other at the police station, given their constitutional and statutory warnings by police officers and a magistrate judge, and individually questioned.

Lozano was questioned by Juvenile Investigator Miguel Hernandez, who prepared Lozano's written statement. According to Investigator Hernandez, Lozano appeared calm and showed no remorse or emotion while giving his statement. After the statement was printed, Lozano told Investigator Hernandez that Macias gave him the ribbon while the teens were being detained in Officer Gallegos's squad car at the convenience store. Macias testified that he tried handing the ribbon to Adams, but that she refused. Lozano told Investigator Hernandez that he put the ribbon in one of his cousin's rooms at her aunt's house. The police went to Lozano's aunt's house and found the ribbon had been taken by the family dog.

At trial, a neighbor testified that she saw the defendants walking around Barnum's apartment around 10:30 p.m., the evening the murder occurred. Another neighbor testified that Adams told her that she, Macias, and Lozano were going to run away on the evening of the murder.

7. J.R.'s Testimony

The State called J.R., Macias's girlfriend, to testify about a prior plot to kill Barnum. According to J.R., several days before the murder J.R., Adams, Macias, and Lozano were "hanging out." Adams was complaining about Barnum, and J.R. suggested that Adams kill her. J.R. testified that everyone agreed to it, but on cross-examination she could not specify who exactly agreed to the plan. The teens asked Narvaez, Barnum's friend, to take them to the store. The boys and girls parted ways in the store. The girls purchased roach poison spray, and the boys bought cookies. After shopping, the teens rented a video and were returned to Barnum's apartment.

While watching the movie, J.R. and Adams went into the apartment's open kitchen and sprayed the roach poison into a soda. They then threw the beverage in the sink. Barnum told the boys to leave, but Adams insisted they stay. Barnum fell asleep. And for reasons unknown to J.R., Adams snuck into Barnum's room, took her car keys, and drove everyone to the store to steal nighttime cold medicine. When Adams returned, she poked holes in the pills and put the liquid in water. Adams woke Barnum and gave her the mixture. All this was apparently done so that Macias and Lozano could spend the night without Barnum waking up and kicking them out.

8. Forensic Evidence

Crime scene investigators testified regarding evidence found at Barnum's apartment. They found blood in the apartment's hallway that was analyzed and determined to be Barnum's. The investigators also found roach poison spray and empty nighttime cold medicine capsules in the apartment. Hair fibers removed from Barnum's hand belonged to Adams. A medallion was recovered in the parking lot of the apartment complex.

Dr. Fulgencio Salinas, a pathologist, performed an autopsy. It revealed that Barnum had lacerations around her neck and died of asphyxiation. However, Dr. Salinas could not precisely determine how long it would take to kill an individual by strangulation. He testified that the time it would take to die by strangulation would vary by individual. Before death, a strangulation victim will pass-out within fifteen-to-thirty seconds from being strangled. Death could occur anytime between one-to-four minutes thereafter.

Forensic evidence tying Lozano to the strangulation includes the ribbon and Lozano's shoes and shoelace. The ribbon recovered at Lozano's aunt's house contained Barnum's blood and Macias's DNA. In addition to the ribbon found at Lozano's aunt's house, Barnum's blood was found on Lozano's shoe and a shoelace.

B. Procedural Background

A juvenile court waived exclusive jurisdiction and transferred the case to district court. An indictment for Barnum's murder was filed against each of the defendants. The State also filed a motion for joinder of defendants for trial, which was opposed by Adams and Lozano. The trial court granted the State's joinder motion, and a jury trial commenced.

The jury was charged to find Lozano guilty of murder if it found beyond a reasonable doubt (1) that Lozano intentionally or knowingly caused Barnum's death; (2) that Macias or Adams, intentionally or knowingly caused Barnum's death and that Lozano knew of their intent and acted with the intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid them by planning to kill Barnum, stating "go for it," smiling during the commission of the offense, opening the victim's bedroom door, or taking the victim's purse; or (3) that the three defendants entered into a conspiracy to commit felony theft of Barnum's car and that Macias or Adams murdered Barnum in furtherance of the conspiracy and such murder should have been anticipated as a result of carrying out the conspiracy. See Tex. Penal Code Ann. §§ 7.01(a), 7.02(b), 19.02(b)(1) (Vernon 2003).

Lozano did not object to the charge. No instruction was requested regarding the accomplice-witness rule, and none was given. The jury convicted Lozano of murder and sentenced him to fifteen years in prison. This appeal ensued.

II. Legal and Factual Sufficiency of the Evidence

By his first issue, Lozano challenges the legal and factual sufficiency of the evidence to support his conviction and contends that the State (1) failed to prove that he had the specific intent to kill Barnum and (2) did not corroborate accomplice testimony.

A. Standard of Review

In conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In doing so, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 7.

When reviewing the factual sufficiency of the evidence, we view the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We will set aside a verdict only if: (1) the evidence supporting the verdict, although legally sufficient, is nevertheless so weak as to be clearly wrong and manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Id. at 414-15.

B. The Accomplice-Witness Rule

Pursuant to article 38.14 of the Texas Code of Criminal Procedure, "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).

Although no precise rule has been formulated as to the amount of evidence required to corroborate the testimony of an accomplice witness, we have held that the tends-to-connect standard found in article 38.14 presents a low hurdle for the State. Patterson v. State, 204 S.W.3d 852, 859 (Tex. App.-Corpus Christi 2006, pet. denied) (en banc) (op. on reh'g) (citing Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993)). There simply needs to be "other" evidence tending to connect the defendant to the offense. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001) (citing Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999)).

The evidence used to corroborate accomplice testimony need not be sufficient in itself to establish guilt beyond a reasonable doubt. Dowthitt, 931 S.W.2d at 249 (citing Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994); Munoz, 853 S.W.2d at 559; Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992)); Patterson, 204 S.W.3d at 859. In addition, the corroborating evidence need not directly link the defendant to the crime. Dowthitt, 931 S.W.2d at 249 (citing Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; Cox, 830 S.W.2d at 611); Patterson, 204 S.W.3d at 859. Furthermore, the corroborating evidence need not prove all the elements of the alleged offense. Hatley v. State, 206 S.W.3d 710, 714 (Tex. App.-Texarkana 2006, no pet.) (citing Gill, 873 S.W.2d at 48; Munoz, 853 S.W.2d at 559; Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988); Jeffery v. State, 169 S.W.3d 439, 448 (Tex. App.-Texarkana 2005, pet. ref'd)). While the accused's mere presence in the company of an accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances may tend to connect the accused to the offense. Patterson, 204 S.W.3d at 860-61 (citing Dowthitt, 931 S.W.2d at 249; Gill, 873 S.W.2d at 49; Cox, 830 S.W.2d at 611). Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Id. (citing Dowthitt, 931 S.W.2d at 249; Munoz, 853 S.W.2d at 559).

In addressing Lozano's accomplice-witness argument we must (1) determine whether the defendants' statements constitute testimony under the rule, and (2) determine whether Macias and Adams are accomplices.

1. Testimony Under the Accomplice-Witness Rule

Statements taken by police officers in the course of interrogations are testimonial under even a narrow standard. Crawford v. Washington, 541 U.S. 36, 50-52 (2004). In the instant case, the testimonial nature of the defendants' statements is self-evident. After the murder, the defendants were detained, given statutory and constitutional warnings, made statements to investigators, presented to a municipal court judge, had their statements recited back to them by the judge, and signed the statements in the judge's presence. Before the signature line the statements read, "I certify that the facts contained herein are true and correct." In short, the defendants' statements were obtained from law enforcement officials and admitted into evidence by the State pursuant to the family code. Tex. Fam. Code Ann. §§ 51.09 (Vernon 2002), 51.095 (Vernon Supp. 2006) (relating to the statements of minors). The State introduced the statements as evidence at trial, had the statements read aloud into the reporter's record, and adduced testimony regarding each defendant's demeanor while giving his or her statement from the interrogating investigator who took the statement.

Any argument that the accomplice-witness rule is inapplicable because the State presented only out-of-court statements made by the defendants and did not present in-court accomplice testimony fails. See Bingham v. State, 913 S.W.2d 208, 213 (Tex. Crim. App. 1995) (op. on reh'g) (holding that out-of-court statements made by accomplices need not be corroborated under the accomplice-witness rule). Even under the Bingham definition of testimony, which predates Crawford, the defendants' statements constitute testimony adduced at trial. See Bingham, 913 S.W.2d at 210 (providing that testimony for the purposes of article 38.14 is that which is "adduced in open court by live witnesses under oath"); see also Badillo v. State, 963 S.W.2d 854, 860 (Tex. App.-San Antonio, 1998 pet. ref'd) (holding that an accomplice's in-court testimony given during a habeas corpus proceeding and presented as a statement in another's trial satisfied Bingham's definition of testimony and triggered the accomplice-witness rule).

2. Macias and Adams were Accomplices

Macias and Adams are accomplices as a matter of law in Barnum's murder. One who is (1) indicted for the same offense with which the defendant is charged, or (2) indicted for a lesser-included offense based upon alleged participation in commission of the greater offense, is an accomplice as a matter law. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991). A review of the records in Adams v. State, 180 S.W.3d 386 (Tex. App.--Corpus Christi 2005, no pet.), and Macias v. State, No. 13-04-027-CR, 2007 Tex. App. LEXIS 6307 (Tex. App.--Corpus Christi Aug. 9, 2007, no pet. h.) (not designated for publication), reveals all three defendants were separately indicted for the murder of Barnum, but tried together at the State's request. We have previously held that the sufficiency of corroboration evidence is an absolute requirement and not subject to the rules of procedural default. Patterson, 204 S.W.3d at 857. Therefore, we will consider Lozano's challenges to the sufficiency of the evidence as though Macias and Adams were accomplices.

C. Analysis

Having determined that Adams and Macias are accomplices as a matter of law, we must next determine whether the testimony of Adams and Macias was corroborated by other evidence tending to connect Lozano to the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). If Adams's and Macias's testimony as accomplices was corroborated by other evidence tending to connect Lozano to the offense, then Lozano's conviction can stand on their testimony. See id. If, however, their testimony was not corroborated by other evidence tending to connect Lozano to the offense, then Adams's and Macias's testimony cannot be relied on to support Lozano's conviction. See id.

Here, the jury was charged under three theories of the offense of murder: (1) intentional murder, (2) the law of parties, and (3) murder in furtherance of a conspiracy to commit another felony. See Tex. Penal Code Ann. §§ 7.01(a), 7.02(b), 19.02(b)(1) (Vernon 2003). We will begin our analysis with the third-charged theory of murder--that Lozano was responsible for Barnum's murder because she was murdered in furtherance of Lozano, Adams, and Macias's conspiracy to steal or to use, without authorization, Barnum's car. To prove that Lozano was guilty of murder under this theory, the State had to prove that (1) Lozano, Adams, and Macias conspired to commit theft or to engage in the unauthorized use of Barnum's car, (2) Adams or Macias murdered Barnum, (3) Barnum's murder was committed in furtherance of the conspiracy to steal or to use Barnum's car without authorization, and (4) Barnum's murder should have been anticipated as a result of carrying out the conspiracy. See id. §§ 7.02(b), 19.02(b), 31.07 (Vernon 2003).

We will first review "other" evidence, that is, non-accomplice evidence related to the third charge, to determine whether it tends to connect Lozano to the offense. See Tex. Code Crim. Proc. Ann. § 38.14 (Vernon 2005); see also Solomon, 49 S.W.3d at 361 (citing Cathey, 992 S.W.2d at 462-63). Lozano admitted in his written statement that when he and Macias met Adams, Macias asked Adams if they could take Barnum's car, and that Adams said, "we could, but we had to wait for [Barnum] to fall asleep." Lozano further admitted that he "got frustrated" waiting for over an hour outside Barnum's apartment for Barnum to fall asleep. He then acknowledged walking into Barnum's apartment and observing Macias choking Barnum with a ribbon. At trial, the State introduced into evidence Lozano's left tennis shoe which contained Barnum's DNA. The State also introduced into evidence a ribbon containing both Barnum's and Macias's DNA, which police found at Lozano's aunt's house. We conclude that this evidence tends to connect Lozano to the offense, and, therefore, satisfies the corroboration requirement of article 38.14. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). As a result, we further conclude that the jury could consider Adams's and Macias's accomplice testimony in finding Lozano guilty of the offense of murder. Accordingly, we will now review the legal and factual sufficiency of the evidence, including the accomplice testimony, relating to the third charge.

As to the first element, that is, the conspiracy element, of the charge, the record establishes that Lozano, Adams, and Macias were planning to run away and had planned to meet each other the evening of March 5, 2003. Lozano's statement shows that after the three met each other on March 5th, Macias asked Adams if they could take Barnum's car, and that Adams said, "we could, but we had to wait for [Barnum] to fall asleep." Macias's statement demonstrates that both he and Lozano asked Adams if they could take Barnum's car, to which Adams replied, "Yes." The record then shows that the three defendants walked to Barnum's apartment and that Adams went into Barnum's apartment while Lozano and Macias waited outside the apartment for Barnum to fall asleep. The record establishes that while inside the apartment, Adams took Barnum's car keys from Barnum's purse. The record also reveals that after Barnum's murder, the three defendants fled the scene in Barnum's car.

With respect to the second and third elements, that is that the commission of murder be in furtherance of the conspiracy to take Barnum's car, the record establishes that Lozano "got frustrated" waiting for Barnum to fall asleep so that they could take her car as they had planned. Adams's statement shows that while Lozano and Macias were waiting outside of Barnum's apartment for Adams, Macias told Adams to hurry, that Adams told Macias she "needed to wait for [Barnum] to fall asleep," and that Macias replied, "to hell with that[,] just kill her." Macias's statement demonstrates that he and Lozano had "waited for a long while," that Adams told him she was waiting for Barnum to go to sleep, "but that it was better if we killed her." In his statement, Macias admitted to choking Barnum with a ribbon. Lozano's statement shows that he waited by the shed and that he later observed Macias choking Barnum with a ribbon. At trial, Macias admitted to choking Barnum. The record reveals that Barnum died of asphyxiation.

As to the final element, namely that Lozano should have anticipated Barnum's murder, the record establishes that on February 28, 2003, Lozano, Adams, Macias, and J.R., Macias's girlfriend, were at Barnum's apartment. J.R. testified that Barnum and Adams had gotten into an argument after Barnum asked Lozano and Macias to leave and that Adams had told Barnum they would not leave. J.R. also testified that Barnum then went to her room. J.R. stated that Adams said, "she hated [Barnum] and [Adams] wanted her to die or she wanted - she wishes [Barnum] was dead, hated her." J.R. testified that, "we said why not kill her," but she could not recall who had suggested that Barnum be killed; however, she did state that all four of them were present when the suggestion was made.

J.R. further testified that a plan to kill Barnum with cockroach poison was devised while she, Lozano, Adams, and Macias were in the living room of Barnum's apartment. However, J.R. testified that she could not remember who came up with the plan. J.R. stated that Adams then called "Uncle Andy," Barnum's friend, so that he could take them to the store to buy cockroach poison. J.R., Lozano, Adams, and Macias went with Uncle Andy to the store. According to J.R.'s testimony, J.R. and Adams located the cockroach poison while Lozano and Macias looked for cookies; Uncle Andy paid for the cockroach poison. J.R. testified that when the four returned to Barnum's apartment, Adams sprayed cockroach poison into a soda can but then threw away the can.

Thus, viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found the essential elements of the third-charged offense beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 7. Therefore, we conclude that the evidence is legally sufficient to support Lozano's conviction for murder.

Furthermore, viewing the evidence in a neutral light, we conclude that the jury's verdict is not so weak as to be clearly wrong and manifestly unjust and that the verdict is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15. Therefore, we conclude that the evidence is factually sufficient to support Lozano's conviction for murder.

Because the third-charged offense does not require intent on the part of Lozano to murder Barnum, we need not address Lozano's sub-issue related to whether he had the specific intent to murder Barnum. See Tex. R. App. P. 47.1. Furthermore, having concluded that the evidence is legally and factually sufficient to support Lozano's conviction under the third-charged offense, we need not address the sufficiency of the evidence to support his conviction under the first- or second-charged offenses. See id.; see also Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007) (providing that where the indictment and the charge authorize the jury to convict on more than one legal theory the verdict will be upheld if the evidence is sufficient on any of the theories possible).

III. Lesser-Included Offense

By his second issue, Lozano asserts that the trial court erred in failing to include "Appellants [sic] requested instructions in the Courts [sic] charge for the lesser offense of Manslaughter." See Tex. Code Crim. Proc. Ann. arts. 37.08, 37.09 (Vernon 2006). Specifically, Lozano contends that "[a]t the charge conference the Defense requested that the Court include a lesser included charge in the Courts [sic] Charge," and the trial court denied the request. We conclude, however, that Lozano failed to preserve this issue for our review.

It is well settled that an appellant may not complain for the first time on appeal about the omission of an unrequested instruction on a lesser-included offense. See Thomas v. State, 701 S.W.2d 653, 656 (Tex. Crim. App. 1985); see also Paz v. State, 44 S.W.3d 98, 100-101 (Tex. App.--Houston [14th Dist.] 2001, pet. dism'd); Morales v. State, 767 S.W.2d 207, 209-210 (Tex. App.--San Antonio 1989, writ ref'd). To preserve this issue for appeal, an appellant must either request such an instruction or object to its omission at trial. See Kinnamon v. State, 791 S.W.2d 84, 96 (Tex. Crim. App. 1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); see also Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).

Here, Lozano refers this Court to a portion of the record wherein he asserts that he requested a charge on the lesser-included offense of manslaughter. However, in the portion of the record referenced by Lozano, Lozano moved for a directed verdict after the State rested; he did not seek a charge on the lesser-included offense of manslaughter in that portion of the record. Furthermore, although Adams and Macias requested a charge on the lesser-included offense of manslaughter at the charge conference, Lozano made no such request. Moreover, when asked by the trial court at the conclusion of the charge conference if he had any objection to the charge, counsel for Lozano responded, "[w]e have no objections at this time, Your Honor."

Because Lozano failed to request an instruction on the lesser-included offense of manslaughter or to object to its omission from the charge at trial, Lozano failed to preserve this issue for our review. See Kinnamon, 791 S.W.2d at 96; see also Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Accordingly, we overrule Lozano's second issue.

IV. Severance

By his third issue, Lozano asserts that "the Trial Court erred in trying the Appellant with his Co-Defendants, over objection." Lozano bases his assertion on the premise that a severance was mandatory because it was shown that a joint trial would be prejudicial to him. However, because Lozano did not move for a severance, we conclude that Lozano failed to preserve this issue for our review.

Article 36.09 of the Texas Code of Criminal Procedure states the following:

Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 2007). In order to preserve a complaint that the trial court abused its discretion in failing to order a severance, a defendant must make a timely motion to sever and introduce evidence thereon. Gibbons v. State, 794 S.W.2d 887, 891 (Tex. App.--Tyler 1990, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 36.09).

Here, the State filed a motion for joinder, requesting that the trial court join the cases of the three defendants. Adams moved for a severance on July 8, 2003 at a pretrial hearing on the following bases: that there were inconsistent defenses, that there were varying degrees of guilt, that the co-defendants were in a position adverse to Adams, that a joint trial would not provide Adams with "affective [sic] assistance of due process of law as guaranteed by the United States Constitution Amendment Number 5 and Number 14," and that a joint trial would be in violation of article I, section 10 of the Texas Constitution. At the same hearing, counsel for Lozano stated the following:

Judge, at this particular time our concern with the joinder of these cases is based somewhat on speculation at this point, being that we're not really sure where we're going to end up. I don't know if there is any actual prejudicial effects that might - that I can think of at this time - I'm citing a case . . . where it states that there are certain conditions that must be met in order where a severance would be ordered or would be appropriate. And it's also the situation where we may need one or both of the co-Defendants in this case who could possibly at some point testify on behalf of my client, and some of that testimony could possibly be exculpatory in nature. . . . So my concern, you know, I echo some of Mr. Reyes's [counsel for Adams] concerns. But again, at this point it is based more on speculation than actual facts because I don't know what the other two Defendants intend to do during the course of trial. So, to that extent we would oppose [joinder].

If the Court was to rule in favor of joining these cases, Your Honor, for the record, we are reserving our right to file a motion to sever in the future pursuant to Section - Article 36.09 of the Code of Criminal Procedure that says that a motion to sever is . . . considered timely at any point when we discover some evidence or any additional information that comes to light that might actually put the whole prejudicial effect back in - you know, bring it back into the picture. So, again, if the Court does rule in that favor, I am advising the Court that we perhaps might even be pursuing that somewhere down the road if the need ever arose.

Thus, although counsel for Lozano "echo[ed] some of Mr. Reyes's [counsel for Adams] concerns," and counsel for Lozano indicated to the trial court that he was "reserving [Lozano's] right to file a motion to sever in the future," Lozano did not file a motion to sever. The trial court subsequently granted the State's motion for joinder.

On August 19, 2003, the trial court held another pretrial hearing, and Adams re-urged her motion for severance on two additional grounds: that joinder would result in a reduction of peremptory strikes for Adams, and that the introduction by the State of statements or confessions of co-defendants would "deny [Adams the] right to cross examine witnesses, to confront them as guaranteed by the Sixth Amendment of the United States Constitution and Article 1, section 10 of the Texas Constitution." After counsel for Adams re-urged the motion for severance, the trial court stated the following:

Yes, sir. And this case that you presented to the court through my staff, Mr. Reyes, Bass versus State, I gave a copy to Mr. Garza, Honorable Roy Garza [counsel for Macias], Honorable Luis Singleterry [counsel for Lozano], and Honorable Murray Moore [prosecutor]. And I believe you all have had an opportunity to read the case. Do you join in this motion?

Counsel for Macias responded as follows: "Your Honor, from the outset of this trial I have never - we never requested a severance. We have no problem with a joinder, Judge." Counsel for Lozano then stated the following: "Your Honor, at this time we follow in his argument, Your Honor, make the same argument." ⁽²⁾ However, it is unclear from this statement whether Lozano merely intended to agree with the arguments made by Adams or whether Lozano intended to join in Adams's motion to sever; furthermore, Lozano does not urge this Court to construe his counsel's statement as an indication that he intended to join in Adams's motion to sever. Moreover, Lozano does not dispute on appeal that he did not file a motion to sever. Because the record does not establish that Lozano filed a motion to sever, we conclude that Lozano did not preserve this issue for our review. See Gibbons, 794 S.W.2d at 891 (citing Tex. Code Crim. Proc. Ann. art. 36.09). Lozano's third issue is overruled.

V. Comment on Appellant's Failure to Testify

By his fourth issue, Lozano contends that the trial court erred in permitting the State to comment on his failure to testify on two occasions during the punishment phase of trial. We conclude, however, that appellant also failed to preserve this issue for our review.

"The rule against commenting on a defendant's invocation of [his] right to remain silent is well known." Griffin v. State, 181 S.W.3d 818, 823 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd) (citing Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001)); see U.S. Const. amend. V; see also Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 2005). "Neither the court nor the prosecutor may comment on that invocation." Griffin, 181 S.W.3d at 823 (citing Bustamante, 48 S.W.3d at 764). Nevertheless, a defendant forfeits his right to complain on appeal about a prosecutor's comment regarding his failure to testify if the defendant fails to make a timely, specific objection to the prosecutor's comment at trial. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc); Berrett v. State, 152 S.W.3d 600, 603 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd) (citing Johnson v. State, 629 S.W.2d 953, 954 (Tex. Crim. App. 1982)); see also Tex. R. App. P. 33.1.

Because Lozano failed to object to the prosecutor's purported comments regarding his failure to testify at trial, he failed to preserve this issue for our review. See Cockrell, 933 S.W.2d at 89; Berrett, 152 S.W.3d at 603 (citing Johnson, 629 S.W.2d at 954); see also Tex. R. App. P. 33.1. Therefore, we overrule Lozano's fourth issue.

VI. Conclusion

Accordingly, we affirm the judgment of the trial court.  

NELDA V. RODRIGUEZ  

Justice  

Dissenting Memorandum Opinion

by Chief Justice Valdez.

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 30th day of August, 2007.

1. Adams's conviction was affirmed by this Court on December 8, 2005. See Adams v. State, 180 S.W.3d 386, 418 (Tex. App.--Corpus Christi 2005, no pet.). Macias's conviction was also affirmed by this Court on August 9, 2007. See Macias v. State, No. 13-04-027-CR, 2007 Tex. App. LEXIS 6307, at *12 (Tex. App.--Corpus Christi Aug. 9, 2007, no pet. h.) (not designated for publication).

2. After hearing additional arguments by counsel for Adams and the State, the trial court denied Adams's motion for severance. In Adams, we concluded that the trial court acted within its discretion in denying Adams's motion to sever. See Adams, 180 S.W.3d at 403.