Opinion
No. 05-08-00905-CR
Opinion issued August 27, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F05-24750-LIY.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
OPINION
Arthur Bautista appeals his murder conviction. A jury convicted appellant and sentenced him to forty years' confinement. In three issues, appellant argues the evidence is factually insufficient to disprove his claim of self defense and prove he was guilty of murder, and the trial court erred in overruling his objections to certain witness testimony. We affirm the trial court's judgment. On July 18, 2005, Miguel Murillo was at an apartment building in Dallas with his brothers. Jesus Rojas picked up Murillo and went to buy beer. Murillo asked Rojas if they "could get some weed," and Rojas drove to appellant's house. Murillo and Rojas had a "little bit" of marijuana, but they were "trying to get some more to keep on smoking." Appellant was not home, so Rojas drove to a payphone where they called appellant. Appellant said he was at home, so Rojas drove back to appellant's house, but appellant was still not there. Rojas went back to the pay phone, called appellant again, and returned to appellant's house. This time, appellant came out of his house and "was arguing with his mom back and forth." Appellant got in the car with Rojas and Murillo and sold them half an ounce of marijuana. The half-ounce was normally worth $30, but appellant sold it for $15 if Rojas took appellant "around delivering what he had to sell." Rojas, Murillo, and appellant smoked "about half of the half an ounce" while Rojas drove appellant to two separate houses. At each house, appellant returned to the car with "money on him." During the drive, appellant was "taking pills" as "if he was taking gum." Murillo noticed appellant was "hyped up." Rojas began singing along with a song on the radio and "jamming" to the song as he continued an intermittent conversation with appellant. At one point, appellant asked Rojas a question, and Rojas continued singing the song's chorus of "pussy, pussy, pussy." Appellant "got mad and he told [Rojas], 'Why you calling me a pussy?'" The conversation "went back and forth arguing" that Rojas "was just going along with the song." Appellant received a cell phone call and said "I'll holler back at you. I'm going to kill this punk-ass bitch real quick." Murillo understood appellant was referring to Rojas. Murillo saw appellant "hang up the phone, and then he took out his gun and he took out the revolver part, and that's when [Murillo] noted that he had three bullets in there." Appellant told Rojas to "make a complete stop," and Rojas stopped the car. Appellant "got out of the car with the gun in his hand and threatened" Rojas. Murillo told them to "chill," and appellant got back in the car and Rojas continued driving. Appellant and Rojas were "still arguing back and forth," and appellant was telling Rojas where to go. Appellant told Rojas to "take a left," and Rojas turned left and drove into a school building. Murillo "got mad" and asked Rojas if he was okay and if he wanted Murillo to drive. Rojas said he was all right and was laughing "like he felt it was a big joke or something." Rojas continued driving, and appellant directed him to an area of "warehouses[s] all around" and told Rojas to stop. Appellant got out of the car, "leaned inside with the gun in his hand, and he fired." Rojas "leaned back and [appellant] hit the window, and the window just cracked." Appellant pulled Rojas out of the car, and Murillo saw them struggle "like a wrestling move" and fall down. Murillo heard two gunshots and saw appellant stand up and run away. Rojas got up, got back inside the car, and "took off driving." Rojas took a bandana and a rosary from his rearview mirror, gave them to Murillo, and told Murillo to put them on his grave. Rojas fainted as the car hit a curve, and Murillo "hit the hand brake." The car "started spinning and hit a trailer and the airbag popped up." Rojas started "struggling to open the door, like he felt weak, and he couldn't open the door all the way." Murillo helped Rojas out of the car, and Murillo started running to get help with Rojas "running and limping" behind him. Rojas fell but told Murillo to "just go." Murillo ran and told people at a nearby business that Rojas had been shot. When police arrived, Murillo led them to Rojas. Murillo initially told police that "a dude jumped out from a warehouse and shot [his] friend," but he gave police a description of appellant. Later that night, police took Murillo to identify appellant. The officers found gun shot residue on the hands of both Murillo and appellant but not on the hands of Rojas. Appellant told the officers that Rojas and Murillo robbed him of his money, cell phone, and marijuana. However, when officers searched appellant, they found he still had his cell phone, marijuana and thirty dollars. Appellant said he shot Rojas in self defense as they struggled over the gun. Farmers Branch police officer Phillip Foxall testified he transported appellant to jail on the night of the charged offense, and a recording was made while appellant was in Foxall's police car. At one point, appellant said "please, God, just let me get away with this." Officers had been unable to locate the gun the night of the shooting, but they told appellant he was a witness and convinced him to disclose the location of the gun used to kill Rojas. Although appellant told police he struggled with Rojas for the gun, no gunpowder residue was found on Rojas' body. Appellant was charged with murder, a jury convicted him, and this appeal followed. In his first and second issues, appellant argues the evidence is factually insufficient to disprove appellant's claim of self-defense and to prove he is guilty of murder. Specifically, appellant argues Murillo's testimony was incredible and unbelievable. In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case based on factual insufficiency, we look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. As a reviewing court, we may substitute our judgment for the jury's determinations on the weight and credibility of the evidence only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (stating that the factual sufficiency review requires "due deference" to be afforded to jury's determinations). Absent a contradictory showing from the record, we should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Here, Murillo's testimony established that appellant intentionally shot Rojas, who later died of the gunshot wounds appellant inflicted. As appellant points out, Murillo initially lied to police about the circumstances of the shooting, and appellant maintained he acted in self defense. The jury also heard that Murillo was, at the time of trial, serving a six-year sentence in the Texas Youth Commission for aggravated robbery. The jury was presented with extensive evidence concerning the inconsistencies in Murillo's testimony. Appellant received a self-defense instruction in the jury charge. Although conflicting and inconsistent testimony was presented, the resolution of conflicts in the evidence and credibility of witnesses lies within the province of the jury, not the appellate court. We cannot conclude that a conviction is clearly wrong or manifestly unjust merely because we would have decided differently or because we disagree with the jury's resolution of the conflicts in the evidence. Watson, 204 S.W.3d at 417. Accordingly, the jury's verdict was rationally justified and was in no way "clearly wrong or manifestly unjust" or "against the great weight and preponderance of the evidence." See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We overrule appellant's first and second issues. In his third issue, appellant argues the trial court erred in overruling his objections to testimony at the punishment phase of trial. At punishment, the State offered evidence appellant had previously been charged with three counts of burglary of a vehicle. Officer Willie Washington testified as a fingerprint expert that appellant was convicted and sent to the Waco Center for Youth on March 24, 2004. Maria Wright, a licensed professional counselor at Waco Center for Youth, testified appellant was expelled after one month for aggression. Appellant was then sent to Brookhaven Youth Ranch. Yolanda McCutcheon, the counselor assigned to appellant at Brookhaven Youth Ranch, testified without objection appellant got into fights with other juveniles and had to be restrained by staff. Additionally, McCutcheon testified appellant threatened to kill some of the staff at Brookhaven. Appellant raised a hearsay objection when McCutcheon testified as to a specific number of incidents. Officer Jeff Caldwell testified he responded to a burglary of a vehicle in progress on November 12, 2004. When Caldwell arrived, a vehicle matching the description of the suspect vehicle was leaving the scene. Caldwell attempted to stop the vehicle, driven by appellant, but appellant refused to stop. Caldwell made the stop and recovered the stolen property. Officer Lacondia Ellis testified that, in January 2005, she was assigned to watch a drug house. Ellis observed appellant leaving, and when she attempted to speak to appellant, he threw down a bag of marijuana. Ellis then arrested appellant for possession of marijuana. Nancy Albertson testified that she and appellant were involved in a traffic accident on February 9, 2005. Appellant's car struck Albertson's car from the rear, locking the bumpers together. Appellant rocked the vehicles until they came apart and fled the scene. Ms. Albertson notified police and was called to another location to identify appellant where she saw appellant fighting with police. Appellant assaulted a police officer and, upon a subsequent search of appellant's vehicle, police found eight bags of marijuana. Dallas police officer James Weisinger testified he assisted in an arrest involving appellant in February 2005. Appellant was arrested in a laundromat for possession of marijuana. After appellant was placed in a police car, he undid his seatbelt and fled while still in handcuffs. Weisinger recaptured appellant a short distance away. The trial court took judicial notice that appellant failed to appear for court while on bail September 1, 2005. A warrant for bond jumping was issued. Officer David Woods testified he was assigned to serve the warrant and, on November 2, 2006, he was given a location for appellant. Woods attempted to stop appellant, but appellant jumped from a moving car and ran to a house and kicked in the door. The house was later determined to belong to appellant's aunt. A SWAT team was called and, after making entry into the house, eventually found appellant in a crawl space in the attic. The State also offered testimony concerning incidents involving appellant at the Dallas jail. Officer Barbara Johnson testified appellant masturbated in front of her. When Johnson told him to stop, appellant told Johnson to "suck his dick." Evidence was introduced of two other incidents including appellant's possession of contraband and lunging at detention officers. Appellant complains McCutcheon's testimony regarding appellant's behavior records at a Texas Youth Commission facility was "pure hearsay: statements made regarding quasi-criminal behavior made for the truth of the matter asserted — that [appellant] behaved poorly in TYC." We review a trial court's decision regarding the admissibility of evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)). Because trial courts are in the best position to decide questions of admissibility, appellate courts uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Cameron, 241 S.W.3d at 19; Montgomery, 810 S.W.2d at 391. An appellate court may not reverse a trial court's decision regarding the admissibility of evidence solely because the appellate court disagrees with the decision. Cameron, 241 S.W.3d at 19; Montgomery, 810 S.W.2d at 391. The public records exception to the hearsay rule applies to "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies setting forth: (A) the activities of the office or agency[.]" Tex. R. Evid. 803(8)(A). The Court of Criminal Appeals has held that a defendant's jail records, introduced at the punishment phase of trial, chronicling the defendant's violation of jail rules, cell transfers, and fighting, is not inadmissible hearsay; rather, the jail records qualify as records made in the regular course of business. Jackson v. State, 822 S.W.2d 18, 30-31 (Tex. Crim. App. 1990); Ford v. State, 179 S.W.3d 203, 209 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (inmate disciplinary grievance records from jail contained no testimonial evidence and therefore fell within firmly rooted hearsay exception). Here, the State introduced the testimony of Yolanda McCutcheon, appellant's counselor at Brookhaven Youth Ranch, a TYC residential treatment program. McCutcheon testified based on notes and incident reports generated during appellant's seven-month stay at Brookhaven. McCutcheon testified over appellant's hearsay objections that appellant had a "total of 16 what we call physical violent acts of physical violence and 3 restraints," two instances of doing "something to represent his gang," and five incidents involving intimidation. The trial court sustained appellant's hearsay objection when McCutcheon was asked how many incidents involved appellant stealing. The objected-to portions of McCutcheon's testimony are "sterile recitations of appellant's offenses" of the type held admissible at the punishment phase of trial in Ford. See Ford, 179 S.W.3d at 209. Accordingly, we conclude the trial court did not err in admitting McCutcheon's testimony. See Cameron, 241 S.W.3d at 19; Montgomery, 810 S.W.2d at 391. We overrule appellant's third issue. We affirm the trial court's judgment.