No. 10-01-121-CR.
Opinion Delivered and Filed January 15, 2003. DO NOT PUBLISH.
From the 338th District Court, Harris County, Texas, Trial Court # 841947.
Before Chief Justice DAVIS, Justices VANCE and GRAY (Justice Gray concurring in the result).
REX D. DAVIS, Chief Justice
A jury convicted Joseph Michael Fernandez of murder and assessed his punishment at 40 years' imprisonment and a $10,000 fine. Fernandez's appellate counsel has filed an Anders brief. Though counsel and this Court informed Fernandez of his right to file a pro se brief or response, he has not done so. We now address the potential sources of error identified by counsel and conduct an independent review of the record to determine whether there are "any issues `which might arguably support an appeal.'" See Sowels v. State, 45 S.W.3d 690, 691-92 (Tex.App.-Waco 2001, no pet.) (quoting Wilson v. State, 955 S.W.2d 693, 698 (Tex.App.-Waco 1997, order), disp. on merits, 3 S.W.3d 223 (Tex.App.-Waco 1999, pet. ref'd)).
BACKGROUND
The indictment alleges in two paragraphs that Fernandez: I. intentionally and knowingly caused Mario Rodriguez's death by shooting him with a firearm; and
II. while intending to cause Rodriguez serious bodily injury, caused Rodriguez's death by intentionally and knowingly committing an act clearly dangerous to human life, namely shooting Rodriguez with a firearm.
Fernandez filed a number of standard pretrial motions, including a motion to suppress a tape-recorded statement he gave to the police. The record does not reflect that he ever had a hearing on the suppression motion. Edward Chapa testified that Fernandez accompanied him on the day of the shooting to Chapa's apartment to remove Chapa's personal belongings after Chapa had an argument with his wife and decided he would move out. Fernandez took Chapa's gun in case Chapa and his wife got into an altercation and the police came. Fernandez put the gun under the front seat of Rodriguez's sister Angela's car. Fernandez, Chapa and others had decided to go to a party in Galveston. Rodriguez was going as well. When they arrived at Rodriguez's apartment to get him, Fernandez went to Angela's car and retrieved the gun before going inside. The State offered the testimony of three eyewitnesses to the shooting. The eyewitnesses agreed that Fernandez and Rodriguez were arguing about the fact that Rodriguez was dating Fernandez's ex-girlfriend and the mother of his child. Two of them testified that Fernandez demanded that Rodriguez give him his "stuff," which one testified to be his jewelry. This one eyewitness Elijah Medrano testified that Rodriguez promptly "grabbed" a bracelet and necklace from a table and nightstand when Fernandez made this demand. According to Medrano, Fernandez then pointed a semi-automatic weapon at Rodriguez. They began to struggle, then the weapon discharged. The eyewitnesses agreed that Fernandez seemed "hysterical," "scared," and "distraught" after he shot Rodriguez. They all agreed that he was crying and claiming that the shooting was an accident. Fernandez fled the scene on foot with the gun. The police later apprehended him at his cousin's home. Fernandez gave a tape-recorded statement to the police. In this statement, he says that he went to Rodriguez's apartment to confront him about Fernandez's belief that Rodriguez was "disrespecting" him by dating the mother of his child. He admits that he retrieved the gun from Angela's car before entering the apartment. He states that the gun accidentally discharged while he was holding it and that Rodriguez was fatally injured as a result. The charge submitted to the jury included murder and the lesser-included offenses of manslaughter, deadly conduct, and criminally negligent homicide. The charge also included a deadly weapon special issue which the jury was instructed to answer if it convicted Fernandez of one of the lesser-included offenses. Fernandez's counsel argued that, because of inconsistencies among the eyewitnesses regarding the details of the occurrence and because of Fernandez's apparent remorse immediately after the shooting, the jury should convict Fernandez of one of the lesser-included offenses or acquit him because the shooting was accidental. PROPRIETY OF ANDERS BRIEF FOLLOWING JURY TRIAL
At first blush, it would seem that an appeal of a guilty verdict rendered in a contested jury trial would not be one in which "there are no arguable grounds to be advanced." In re J.A.H., 986 S.W.2d 39, 40 (Tex.App.-Waco 1998, order), disp. on merits, 996 S.W.2d 993 (Tex.App.-Waco 1999, no pet.) (quoting Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, order, no pet.)). Nevertheless, this Court has found on at least one prior occasion that an appeal following a contested trial on the merits presented no issues of arguable merit. See Taulung v. State, 979 S.W.2d 854, 858 (Tex.App.-Waco 1998, no pet.). This appears to be an appropriate application of Anders in a case such as Taulung or Fernandez's in which the defendant did not contest his commission of the act for which he was prosecuted but only the culpability with which he acted. Id. at 857-58. Taulung alleged that he committed the sexual assault for which he was convicted under the mistaken belief that he was at home having intercourse "with [his] own woman." Id. at 855. Fernandez contends that his shooting of Rodriguez was accidental. Accordingly, we conclude that Fernandez's appeal has at least the potential to be one which presents no issues of arguable merit. POTENTIAL SOURCES OF ERROR
Counsel identifies four potential sources of error: (1) the admission of seven crime scene photographs; (2) the relevance of a firearms examiner's testimony that in her experience no semi-automatic firearm has discharged "just from waving it in the air"; (3) the admission of the autopsy report; and (4) the submission of a deadly weapon special issue in connection with the lesser-included offense of criminally negligent homicide. PHOTOGRAPHS
The State offered two photographs (State's Exhibits 16 and 17) depicting Rodriguez's body and the bloody bed on which it lay without objection. The State then offered eleven additional photographs (State's Exhibits 19 through 29) depicting the body, closeups of the gunshot wound to the neck, and blood on the ground. Fernandez objected that the probative value of these exhibits is substantially outweighed by the danger of unfair prejudice they pose. In a hearing outside the jury's presence, the court reviewed each of the tendered photographs. The State withdrew its proffer of four photographs. The court overruled Fernandez's objection as to the remaining seven photographs. Rule of Evidence 403 governs the admissibility of photographs which are allegedly unfairly prejudicial. Emery v. State, 881 S.W.2d 702, 710 (Tex.Crim.App. 1994); Horton v. State, 986 S.W.2d 297, 305 (Tex.App.-Waco 1999, no pet.); Sendejo v. State, 953 S.W.2d 443, 446 (Tex.App.-Waco 1997, pet. ref'd). A photograph is generally admissible when testimony regarding the matters depicted therein is admissible. Emery, 881 S.W.2d at 710; Horton, 986 S.W.2d at 305; Sendejo, 953 S.W.2d at 447. The primary issue at Fernandez's trial was whether he intentionally or knowingly shot Rodriguez or did so with a lesser degree of culpability. The photographs "are relevant to the manner of [Rodriguez's] death as well as [Fernandez's] state of mind." See Emery, 881 S.W.2d at 710. The court carefully reviewed each photograph before ruling on Fernandez's objection. Accordingly, we cannot say that the court abused its discretion by admitting the photographs. Thus, this does not constitute an issue "which might arguably support an appeal." See Sowels, 45 S.W.3d at 692. FIREARMS EXPERT
The firearms expert testified that, in her five years' experience with semi-automatic weapons, she had never known of one which discharged "just from waving it in the air." Fernandez objected that this testimony is irrelevant. Fernandez contended that the shooting was accidental. The expert's testimony goes to the issue of whether the physical evidence would support a conclusion that the shooting was accidental. Thus, it is relevant. See Jordan v. State, 928 S.W.2d 550, 556 (Tex.Crim.App. 1996) (expert testimony relevant if "helpful" to jury on contested issue); McGann v. State, 30 S.W.3d 540, 545 (Tex.App.-Fort Worth 2000, pet. ref'd) (same); see also TEX. R. EVID. 702 (expert testimony must "assist the trier of fact to understand the evidence or to determine a fact in issue"). Accordingly, this does not constitute an issue "which might arguably support an appeal." See Sowels, 45 S.W.3d at 692. AUTOPSY REPORT
Fernandez raised a hearsay objection when the State offered a copy of the autopsy report in evidence. However, settled law establishes that an autopsy report is admissible under the public records exception to the hearsay rule. Butler v. State, 872 S.W.2d 227, 237-38 (Tex.Crim.App. 1994) (citing TEX. R. CRIM. EVID. 803(8)(B)). Accordingly, the court did not abuse its discretion by admitting the report over Fernandez's hearsay objection. Thus, this does not constitute an issue "which might arguably support an appeal." See Sowels, 45 S.W.3d at 692. DEADLY WEAPON CHARGE
The court instructed the jury to answer the deadly weapon special issue if it found Fernandez guilty of any of the three lesser-included offenses. Fernandez objected that this was erroneous insofar as it authorized the jury to make a deadly weapon finding in connection with a conviction for the offense of criminally negligent homicide. The charge instructed the jury that it had to find that Fernandez "unlawfully, with criminal negligence, . . . cause[d] the death of Mario Rodriguez, by shooting Mario Rodriguez with a deadly weapon, namely a firearm" to convict him of criminally negligent homicide. Under this charge, a separate deadly weapon issue was unnecessary to enhance the punishment for criminally negligent homicide from a state jail felony to a third degree felony. Stewart v. State, 70 S.W.3d 309, 316 (Tex.App.-Waco 2002, pet. ref'd). However, a conviction for this lesser-included offense would not obviate the need for a separate deadly weapon issue to obtain a deadly weapon finding under article 42.12, section 3g(2) of the Code of Criminal Procedure. Davis v. State, 897 S.W.2d 791, 793-94 (Tex.Crim. App. 1995); Ex parte Flannery, 736 S.W.2d 652, 652-53 (Tex.Crim. App. 1987); Stewart, 70 S.W.3d at 316. Accordingly, the court properly submitted the deadly weapon special issue in connection with the lesser-included criminally negligent homicide charge. Thus, this does not constitute an issue "which might arguably support an appeal." See Sowels, 45 S.W.3d at 692. OTHER POTENTIAL SOURCES OF ERROR TAPE-RECORDED STATEMENT
Fernandez's counsel filed a pretrial motion to suppress Fernandez's tape-recorded statement. However, counsel never obtained a hearing on the motion and did not object to the admission of the statement at trial. Article 38.22, section 3(a) of the Code of Criminal Procedure provides that an accused's oral statement is not admissible unless: (1) it is electronically recorded; (2) it reflects that the accused was advised of his statutory rights before making the statement and waived them; (3) "the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered"; (4) all voices on the recording are identified; (5) and the State gives defense counsel a copy of the recording not less than twenty days before trial. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (Vernon Supp. 2003). We have reviewed the recording and the testimony given in connection with its admission. The requirements of article 38.22, section 3(a) were met. Accordingly, the court did not abuse its discretion by admitting the tape-recorded statement in evidence. Thus, its admission does not constitute an issue "which might arguably support an appeal." See Sowels, 45 S.W.3d at 692. CULPABLE MENTAL STATE
The only contested issues at trial were the level of culpability with which Fernandez acted when he shot Rodriguez and whether the shooting was a "voluntary" act. Accordingly, a challenge to the sufficiency of the evidence to support the jury's findings on these issues would seem appropriate. As we noted in Taulung, a challenge to the sufficiency of the evidence "would not seem to fit within the category of `arguments that cannot conceivably persuade the court' because an advocate can always present an argument, regardless of how convincing it may be, that the evidence is lacking." Taulung, 979 S.W.2d at 857. Nonetheless, we also observed "that Texas courts have addressed (and rejected) sufficiency challenges in the Anders context on many occasions." Id. (citing Spencer v. State, 465 S.W.2d 370, 370-71 (Tex.Crim.App. 1971); Bruns v. State, 924 S.W.2d 176, 178-79 (Tex.App.-San Antonio 1996, no pet.); Crittendon v. State, 923 S.W.2d 632, 635 (Tex.App.-Houston [1st Dist.] 1995, no pet.); Mays v. State, 904 S.W.2d 920, 925 (Tex.App.-Fort Worth 1995, no pet.)). We concluded that the issue of whether a sufficiency challenge presents an issue of arguable merit must be decided on a case-by-case basis. Id. In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). We must also remain cognizant of the factfinder's role and unique position — one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). The record contains evidence that Fernandez entered Rodriguez's apartment intending to harm him. He retrieved the firearm before entering. He began to argue with Rodriguez almost as soon as he entered the apartment, apparently with the firearm at his side. He fled the scene after shooting Rodriguez. Conversely, the fact that Fernandez shot Rodriguez while struggling with him would support a finding that the shooting was not intentional. Fernandez said in his tape-recorded statement that the shooting was accidental. Fernandez's apparent remorse immediately after the shooting tends to support his contention that he did not intend to harm Rodriguez. Fernandez's flight from the scene accords with the eyewitnesses' testimony that he was "hysterical," "scared," and "distraught" after he shot Rodriguez. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Johnson, 23 S.W.3d at 9; Chambers, 805 S.W.2d at 461. The jury heard the evidence and rejected Fernandez's assertion that he did not intentionally or knowingly shoot Rodriguez. We must give due deference to this verdict. Johnson, 23 S.W.3d at 9; Clewis, 922 S.W.2d at 135. We cannot say from the record "that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. Accordingly, we conclude that the evidence is legally and factually sufficient to support the jury's verdict that Fernandez acted intentionally or knowingly when he shot Rodriguez. Thus, this does not constitute an issue "which might arguably support an appeal." See Sowels, 45 S.W.3d at 692. VOLUNTARINESS
The court instructed the jury that it should acquit Fernandez if it found "that the shooting was the result of an involuntary accidental discharge of the firearm and not the voluntary act or conduct of the defendant." "A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." TEX. PENAL. CODE ANN. § 6.01(a) (Vernon 1994). The voluntariness required by section 6.01(a) "means the absence of an accidental act" and "refers only to one's physical bodily movements." Brown v. State, 89 S.W.3d 630, 633 (Tex.Crim.App. 2002) (quoting Alford v. State, 866 S.W.2d 619, 624 (Tex.Crim.App. 1993)). The same evidence which supports the jury's finding that Fernandez acted intentionally or knowingly supports its finding that he acted voluntarily. Accordingly, we conclude that the evidence is legally and factually sufficient to support the jury's verdict that Fernandez acted voluntarily when he shot Rodriguez. Thus, this does not constitute an issue "which might arguably support an appeal." See Sowels, 45 S.W.3d at 692. CONCLUSION
We have reviewed the potential sources of error and have conducted an independent review of the record. We agree with counsel that Fernandez's appeal presents no issues of arguable merit. Accordingly, we affirm the judgment. Affirmed.