Jesse Caballero v. State ( 2008 )

Affirmed and Memorandum Opinion filed June 26, 2008

Affirmed and Memorandum Opinion filed June 26, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-01032-CR

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JESSE SAM CABALLERO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1038786

M E M O R A N D U M   O P I N I O N

Appellant Jesse Caballero appeals his conviction for murder, asserting factual insufficiency of the evidence and trial court error in admitting evidence of appellant=s and the deceased=s conduct.  We affirm.

I.  Factual and Procedural Background

Several neighbors in appellant=s neighborhood heard the sound of multiple gunshots early one morning.  Some neighbors believed the gunshots came from the direction of appellant=s home.  One neighbor, Clemmie Terry, an off-duty state trooper, went outside to investigate but did not see anyone fleeing the scene.  He called the sheriff=s office to investigate.  Appellant=s sister, Sarah DeLeon, lived next door to appellant and appellant=s wife Sylvia, and she also heard gunshots.  DeLeon called appellant to ask about the gunshot sounds.  She later called 9-1-1 when she learned from appellant that Sylvia had been shot.

Law enforcement officers responded to several 9-1-1 calls regarding the gunshots and found Sylvia dead from gunshot wounds.  Her body was lying in the driveway in front of two cars.  Autopsy reports indicate she was shot at close-range three times in the head and chest.  Officers discovered that appellant=s car, near Sylvia=s body, had a broken window.  Several officers on the scene characterized appellant=s demeanor as phony or suspicious because appellant attempted to vomit, but he also appeared to listen intently to the officers= conversations.

Appellant consented to a police search of his home and cars, and police tested appellant=s hands for gunshot residue.  In a written statement made to police, appellant explained that when DeLeon called him, he realized his wife was not in bed with him.  He indicated, both in his written statement and to officers at the scene, that his wife often goes outside when she cannot sleep or to let the family dog outside.  In searching for his wife, he found the front door was unlocked, and the burglar bars were open with Sylvia=s keys remaining in the lock.  Appellant went outside and discovered Sylvia on the ground, bloodied, and he called 9-1-1 shortly thereafter.  In his statement, appellant denied involvement in his wife=s murder, but he admitted that he had engaged in an extramarital affair with another woman.  Appellant suspected that Sylvia knew of the affair.  Appellant refused to sign the statement because he feared it would make his girlfriend, Shannon McCall, Alook bad.@

Officers tested appellant=s clothing for gun-powder residue and found four particles of residue on the shirt he wore on the night of Sylvia=s murder.  The one bullet recovered from Sylvia=s body was likely fired from a .357 revolver or a .38 caliber revolver, which are two types of weapons that appellant, as a police officer, used and previously owned.  Cell phone records indicated that hours before Sylvia was shot, appellant=s voice-mail system was accessed.  At this time, a message was transferred from appellant=s cell-phone voice-mail system to Sylvia=s cell-phone voice-mail system.  The message was from McCall to appellant, professing her love for him.

Appellant was charged with his wife=s murder, to which he pleaded Anot guilty.@  A jury found him guilty and sentenced him to forty-five years= confinement. 

II.  Issues and Analysis

A.      Is the evidence factually sufficient to support appellant=s conviction?

In his first issue, appellant complains the evidence is factually insufficient to support his conviction.^[1] Appellant points to the following facts as evidence contrary to his conviction:  (1) others, including McCall and Terry, had motive to kill Sylvia; (2) witnesses differed in opinion as to whether Sylvia would go outside alone at night; (3) no evidence suggests appellant owned a .357 or .38 revolver at the time of Sylvia=s death; (4) a possible car-thief could have murdered Sylvia; (5) the gunshot particles found on appellant=s shirt do not indicate he fired a gun; and (6) witnesses presented conflicting testimony as to appellant=s demeanor at the murder scene.

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006).  It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict.  Id. at 417.  If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against the conviction.  Id. at 414B17.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  In conducting a factual‑sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

For the State to prove appellant committed the offense of murder, it was required to establish appellant intentionally or knowingly caused Sylvia=s death.  See Tex. Penal Code Ann. ' 19.02(b)(1) (Vernon 2003 & Supp. 2005).  Proof of a culpable mental state invariably depends on circumstantial evidence.  Montgomery v. State, 198 S.W.3d 67, 87 (Tex. App.CFort Worth 2006, pet. ref=d); Morales v. State, 828 S.W.2d 261, 263 (Tex. App.CAmarillo 1992), aff=d, 853 S.W.2d 583 (Tex. Crim. App. 1993).  Mental state can be inferred from acts, words, or conduct of the accused.  Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). 

Though no one saw appellant shoot Sylvia, evidence supports a finding of factual sufficiency.  Several neighbors heard multiple gunshots from the vicinity of appellant=s home and yard.  Appellant=s neighbor, Terry, did not see anyone flee the scene after he heard the gunshots. Circumstantial evidence, such as the evidence in this case, may be used to prove an essential element of the offense charged.  See Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998).  Furthermore, appellant=s acts, words, and conduct before and after Sylvia=s death contribute to a showing of appellant=s culpable mental state.  See Patrick, 906 S.W.2d at 487.  The parties do not dispute that appellant was having an extramarital affair with McCall.  Appellant indicated to McCall that he anticipated them being Alegitimately@ together Asooner than later@ when he began to suspect that Sylvia knew of the affair.  However, appellant=s written statement to police, that he had no intention of leaving his wife for McCall, offered contradictory evidence.  Additionally, circumstantial evidence of intent is supported by the officers= characterization of appellant=s suspicious demeanor the night Sylvia was killed.  See id.  The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence@ and may choose to believe or disbelieve any portion of the witnesses= testimony.  Fuentes, 991 S.W.2d at 271; Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  Our evaluation of the evidence should not intrude upon the jury=s role as the sole judge of the weight and credibility given the witnesses= testimony.  See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Appellant argues that Terry, appellant=s neighbor, had a motive to kill Sylvia because appellant=s friendship with Terry had soured when appellant, as Terry=s landlord, failed to make repairs on Terry=s rental home.  Similarly, appellant argues that McCall had motive to kill Sylvia because of McCall=s extramarital affair with appellant.  Appellant also suggests that a would-be car burglar is the perpetrator as evidenced by the broken car window and unidentified DNA beneath Sylvia=s fingernails.  The existence of an alternative reasonable hypothesis may be relevant to, but is not determinative in, a factual-sufficiency review.  Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999).  Evidence is not factually insufficient simply because some facts point to other theories or perpetrators.  See Herrero v. State, 124 S.W.3d 827, 835 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  The facts upon which appellant bases his hypotheses for Terry, McCall, and other possible alternatives, including Sylvia=s murder at the hands of a car burglar, are tenuous at best and do not support factual insufficiency.  See id.

Even though appellant presented evidence that Sylvia often went outside alone at night, the State presented four other witnesses who offered contrary evidence.^[2] Additionally, appellant argues no evidence supports that he currently owned the type of gun, a .357 or .38 revolver, allegedly used in shooting Sylvia, and no such guns were ever recovered in the ensuing investigation.  However, the record reflects that appellant was experienced in using such firearms, and owned such firearms, within three years prior to Sylvia=s murder. Finally, though the State presented evidence that four gunshot particles were found on appellant=s shirt, appellant argues that the presence of the particles is not enough to support a finding that he fired a gun.  Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury.  See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

In viewing the evidence in a neutral light, we conclude the supporting evidence is not so weak, nor is the contrary evidence so overwhelmingly strong, as to render the verdict clearly wrong or manifestly unjust.  See Watson, 204 S.W.3d at 414B17; Pieringer v. State, 139 S.W.3d 713, 723 (Tex. App.CFort Worth 2004, no pet.).  The jury was free to believe the State=s theory that appellant shot Sylvia, especially in light of appellant=s admitted extramarital affair with McCall and evidence suggesting that appellant planned to be with McCall Asooner than later.@  The jury, as trier of fact, was entitled to resolve conflicts in the evidence, to evaluate the credibility of witnesses, and to determine the weight to be given to any particular evidence.  See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  The evidence is factually sufficient to support the jury=s verdict. Therefore, appellant=s first issue is overruled.

B.      Did the trial court abuse its discretion in making evidentiary rulings?

In two issues, appellant claims reversible error in the trial court=s decision to admit evidence that (1) Sylvia never went outside alone at night; and (2) appellant did not attend Sylvia=s funeral.  In his second issue, appellant contends that testimony from witnesses, that Sylvia never went outside alone at night, was character evidence, improperly admitted in violation of Texas Rule of Evidence 404(a) and improperly admitted as lay-witness opinion testimony.  In his third issue, appellant complains that evidence that he did not attend Sylvia=s funeral was unduly prejudicial and affected his substantial rights, warranting reversal.

We review a trial court=s decision to admit or exclude evidence under an abuse-of-discretion standard.  Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999).  Under this standard, we reverse only if the ruling is outside the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g).  If the trial judge=s decision is correct on any theory of law applicable to the case, the ruling will be sustained.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Evidence that the Complainant Did Not Go Outside Alone at Night

At trial the State offered testimony from four witnesses that Sylvia was afraid to go outside alone at night, to which appellant objected on Rule of Evidence 404(a) grounds.  The trial court overruled appellant=s objection. Texas Rule of Evidence 406 provides that

[e]vidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

See Tex. R. Evid. 406.  In order to offer evidence of habit, the proponent must demonstrate a regular practice of meeting a certain situation with a specific kind of conduct.  See Dietz v. State, 123 S.W.3d 528, 532 (Tex. App.CSan Antonio 2003, pet. ref=d); Bishop v. State, 837 S.W.2d 431, 435 (Tex. App.CBeaumont 1992), aff=d, 869 S.W.2d 342 (Tex. Crim. App. 1993).  Through the testimony of Sylvia=s best friend, Laverne Ford, the State demonstrated that Sylvia was often frightened at night and refused to go outside alone at night.  Ford testified that Sylvia insisted on installing burglar bars to her home=s front entrance. Sylvia=s sister also testified that Sylvia was afraid of going outside alone at night and refused to do so.  Both Sylvia=s sister and Ford testified that Sylvia=s fear was a running joke with them and that Sylvia often made the family=s small dog squeeze through the burglar bars rather than risk opening the bars for the dog to go outside at night.  Sylvia=s neighbors, Jennifer and Tom Shephard, similarly testified to Sylvia=s conduct and added that Sylvia often called on Shephard=s husband to check her home=s perimeter when Sylvia heard strange sounds at night and appellant was not home.  Tom testified that in such instances, Sylvia refused to even open the door for him and insisted that he return to his home to call her by telephone to allay her fears.  Jennifer explained that Sylvia never would go outside alone at night and that all the neighbors knew this to be Sylvia=s conduct.  When asked if Jennifer would believe someone who said Sylvia had a regular practice of going outside alone at night, Jennifer replied that she would be surprised to learn such information because all the neighbors knew of Sylvia=s conduct.

The State characterized the evidence as Ahabit evidence@ relevant to prove that Sylvia=s conduct on the night of her murder was in conformity with her habit of not venturing outside alone at night.  See Tex. R. Evid. 406.  The fact that Sylvia was found outside in her night gown was relevant to proving she was not alone when she went outside and that her conduct was not in conformity with her habit.  See id.  Such evidence was relevant especially in light of previous testimony from a law enforcement officer that on the night of Sylvia=s murder, appellant told responding officers that Sylvia often ventured outside alone at night when she could not sleep or needed to let the dog out.  The State established that Sylvia=s regular habit and routine practice was to not go outside alone at night, which is admissible habit evidence under Rule 406.  See Anderson v. State, 15 S.W.3d 177, 182B83 (Tex. App.CTexarkana 2000, no pet.).  The trial court did not abuse its discretion in admitting such evidence.  See id.  Accordingly, we overrule appellant=s second issue.

Evidence that Appellant Did Not Attend the Complainant=s Funeral

Appellant complains in his third issue that the testimony of Sylvia=s best friend, Laverne Ford, that appellant did not attend Sylvia=s funeral, was unduly prejudicial, warranting reversal.  Appellant relies on Fowler v. State, 118 Tex. Crim. 419, 421, 38 S.W.2d 97, 98 (Tex. Crim. App. 1931), for the proposition that little probative value inured from admitting evidence that the defendant in that murder case did not attend the child-victim=s funeral. 

In Fowler, the Court of Criminal Appeals held that such evidence should have been excluded because it held little probative value given that the defendant=s presence at the funeral would draw as much criticism from the child=s family as his absence from the funeral would draw from the prosecutors at trial.  Id.  The Fowler court reasoned that such evidence may be relevant and may be admissible if relations between the deceased and the accused are such that the accused naturally would attend the deceased=s funeral.  Id.  The Fowler court examined the only two other Texas cases that involved tangentially similar evidence.  Id.  In doing so, the Fowler court explicitly distinguished similar evidence, that a husband who stood accused of murdering his wife but did not participate in her funeral, as being admissible.  Id. (AWe . . . do not desire to be understood as approving the holding [in Washington v. State] that similar evidence there was inadmissible.  Deceased in that case was the wife of the accused and the relation was such that in our opinion the evidence there complained of was admissible.@) (citing Washington v. State, 46 Tex. Crim. 184, 186B87, 79 S.W. 811, 812 (Tex. Crim. App. 1904) (involving evidence of accused husband=s failure to pay murdered wife=s burial fees)).

Given the relationship between appellant and Sylvia, his wife of sixteen years, appellant naturally would have attended her funeral.  See id.  Indeed, appellant conceded as much in his brief:  AA husband ordinarily would be expected to attend his wife=s funeral.@  In light of the rationale in Fowler, in which the Court of Criminal Appeals specifically explained that evidence of a husband=s failure to participate in his deceased wife=s funeral, even when he stood accused of murdering her, was admissible, we hold the trial court did not abuse its discretion in admitting such evidence in the present case.  See id.  Accordingly, we overrule appellant=s third issue.

Having overruled each of appellant=s issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 26, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Because a factual-sufficiency review begins with the presumption that the evidence supporting the jury=s verdict is legally sufficient, and because appellant challenges only the factual sufficiency of the evidence, appellant effectively concedes the evidence is legally sufficient to sustain the conviction.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

^[2]  In his second issue, which we address below, appellant argues that the trial court erred in admitting evidence that Sylvia did not go outside alone at night.  However, in a sufficiency review, a reviewing court must consider all evidence both properly or improperly admitted at trial that the jury was permitted to consider.  Moff v. State, 131 S.W.3d 485, 488, 489 (Tex. Crim. App. 2004).