No. 05-07-01241-CR
Opinion Filed August 20, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-70543-JM.
Before Chief Justice THOMAS and Justices LANG-MIERS and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Appellant Marco Antonio Garcia pleaded not guilty to the murder of Francisco Maya. After hearing the evidence presented, a jury found appellant guilty of murder. That same jury assessed appellant's punishment at ninety-nine years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant now appeals, contending in a single issue that the evidence is factually insufficient to support a guilty verdict because such a verdict is manifestly unjust and against the great weight and preponderance of the evidence when the conflicting evidence is considered. After reviewing the record, we affirm appellant's conviction.
Standard of Review
In conducting a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's guilty verdict was rational. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). An appellate court reverses for factual insufficiency only when the evidence in support of the guilty verdict is so weak the verdict seems clearly wrong and manifestly unjust or when there is some objective basis in the record that shows the great weight and preponderance of the evidence contradicts the jury's verdict. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Watson, 204 S.W.3d at 414-15. Although an appellate court may second guess the jury to a limited degree, our review must still be deferential, with a high level of skepticism about the jury's verdict being required before we reverse. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, may choose which testimony to believe. Lancon, 253 S.W.3d at 707. Indictment
Appellant was charged by indictment, in relevant part, as follows: that one GARCIA, MARCO ANTONIO, Defendant, [o]n or about the 16th day of September A.D., 2006 in the County of Dallas and said State, did unlawfully then and there intentionally and knowingly cause the death of FRANCISCO MAYA, an individual, by SHOOTING FRANCISCO MAYA WITH A FIREARM, a deadly weapon,
And further did unlawfully then and there intend to cause serious bodily injury to FRANCISCO MAYA and did then and there commit an act clearly dangerous to human life, to-wit: BY SHOOTING FRANCISCO MAYA WITH A FIREARM, a deadly weapon, and did thereby cause the death of FRANCISCO MAYA, an individual. Evidence
The State called ten witnesses during the guilt-innocence phase of trial and four witnesses at the punishment stage. Appellant called six witnesses during the guilt-innocence stage of trial; appellant and six other defense witnesses testified in the punishment phase. In summary, the defense theorized that Adrian Franco, whose nickname was "Puppet," shot the decedent. The defense alleged that Puppet fired the gun that killed the decedent, later told someone that he had "killed someone," and he had fled to Mexico after the shooting. The jury heard and saw the witnesses and, by their verdict, credited the State's witnesses. After reviewing the evidence, we conclude the evidence is factually sufficient to support the jury's guilty verdict. Police Testimony
Shortly after midnight on September 16, 2006, Dallas police officer Tara Smith and her partner were dispatched to J. P. Billiards Bar in Dallas after a shooting at that location. Within five minutes of being dispatched, the two-person squad arrived at the scene. Five or six witnesses to the shooting, friends and relatives of the decedent, were still inside the bar when the police arrived. The police officers separated those witnesses to preserve the integrity of their testimony. At trial, those witnesses testified for the State. Mary Brady, a Dallas police detective, testified she was called to the scene of the murder. Upon Brady's arrival, she found the witnesses had already been placed in separate squad cars. The witnesses were later taken to the police station and put in separate interview rooms. Brady remained at the scene for one-and-a-half to two hours. Lighting at the scene was good, with lights over the pool tables, the bar, and the booths. Some physical evidence was retrieved. No gun was recovered. The decedent tested negative for gunshot residue. When Brady left the scene, she went to the hospital where she learned the shooting victim had died. Based on the witnesses' statements, Brady learned this murder began as a "mean mugging." After the "mean mugging," two females got into a fight, appellant pulled out a gun, and "it escalated from there." The witnesses who were interviewed immediately after the shooting said appellant shot the victim. The witnesses referred to most of the people involved by their nicknames. The police had to do additional research to determine legal names. Brady learned appellant's full name from a schoolmate. All of the witnesses initially interviewed at the police station gave consistent accounts of the shooting. Those witnesses described the shooter as "tall and skinny" and described his clothing as being a "white T-shirt with blue letters." The witnesses described "Puppet" as short and fat and wearing a blue-striped shirt." After the witnesses identified appellant as the shooter, appellant's photograph was put in a photographic lineup. Through Brady, the jury heard that after taking some time to study the lineup, Guadalup "Lupe" Maya positively identified appellant's photograph as the person who shot her brother. The jury also heard Brady's testimony that Gilbirto Guerra positively identified appellant's photograph as the shooter. One witness, Clancy Silva, who did not see the lineup on the night of the shooting but viewed it later, was not able to identify anyone in the lineup. About four days after the shooting, when "Puppet" had become a "person of interest," a lineup containing his photograph was shown to the witnesses. Guerra identified Puppet's photograph as a person who was fighting with Gonzalez during the altercation. Guerra did not identify Puppet as the shooter. Maya, Calles, and Silva also identified Puppet's photograph. At about 5:00 p.m. on September 16, 2006, appellant was arrested at his mother's house pursuant to an arrest warrant. Appellant's girlfriend, Ashli Howse, was with him at the time and she was also taken to the police station. Appellant was put into an interview room and read his Miranda warnings. Appellant gave a written statement which was both videotaped and audio taped. Appellant's statement was self-serving, inconsistent, and pointed to Puppet as the shooter. Brady did not believe appellant's statements about Puppet although she did admit appellant's "story changed drastically from beginning to end" of the interview. Appellant's version of events was substantially different from the statements taken from the witnesses who remained at the scene, were immediately separated by the police upon their arrival, and who were interviewed at the police station that same morning. Statements were also taken from people who left the scene with appellant the night of the shooting. Their statements were not consistent with each other. Brady did not believe their version of events. In essence, the decedent's family and friends stayed at the bar after the shooting and identified appellant as the shooter during interviews later the next morning. Appellant's friends, who ran out of the bar after the shooting and before the police arrived, identified Puppet as the shooter days later after a trip to Austin. According to appellant's witnesses, appellant and his friends went to and from Austin by automobile in the early morning hours following the shooting. The suggestion was that Puppet bought a bus ticket from Austin to Mexico. Notwithstanding many attempts to do so, the police could not locate Puppet. Detective Steven David met Brady at the scene and was the secondary detective on the case. David conducted some of the witness interviews and assisted in the interview of appellant, during which appellant changed his version of events several times. Despite David's efforts to verify some of the information he was given, David was not able to get answers. However, from the information he gained, David did not believe Puppet was the shooter. Appellant was the only person who said he and Puppet struggled over the gun. Appellant first said he had not brought the gun to the bar, but later he admitted he had brought the gun with him into the bar. Appellant admitted he was wearing a white shirt with a blue design on the front. Other witnesses corroborated appellant's admission about his clothing. The witnesses described the shooter as "tall and thin;" Puppet was described as "shorter and heavier." The State's Eyewitnesses
Maya, Gonzalez, Guerra, Calles, and Silva accompanied the decedent to the billiards bar and were all present at the time of the murder. Collectively, the eyewitnesses agreed in their testimony that appellant and his group of friends were staring and giving dirty looks to the decedent and his group. When the decedent and Silva, his girlfriend, approached the bar for a drink, appellant followed him and tried to provoke a fight. Appellant and his group then left briefly. When appellant's group returned, there were verbal exchanges between the two groups. Gonzalez struck Howse with a pool cue and the two women began to fight. According to Silva, as Gonzalez and Howse fought, she and the decedent armed themselves with billiard balls and a cue, but did not intervene in the fight. Gonzalez testified that she heard the shots but her attention was directed toward fighting Howse. She did not see who held or fired the gun. The other four eyewitnesses all testified appellant pulled out a gun and began pointing it at people. After appellant pulled the gun, at least two shots were fired. Around the time the first shot was fired, Puppet rushed in and kicked Gonzalez while she was on the ground. No one saw Puppet or anyone else with a gun that night. Although the four witnesses were able to pick Puppet's photograph from a lineup as a person who was present, none thought he was the shooter. Except for Calles, none of the witnesses knew appellant or Puppet, and all testified they had no agenda to place the blame on anyone other than the actual killer. In the confusion after appellant pulled the gun, the eyewitnesses had different perspectives on the actual killing. Maya testified she saw appellant holding the gun while she heard the shots, but she did not initially realize that appellant had shot her brother. Guera testified he saw appellant fire the first shot before he turned to run. Guera admitted that he did not initially tell police that he saw the shooting, but he explained his statement was incomplete because a lot was going through his mind, he was confused, and he was worried about the decedent. Calles ran and hid in a booth after he saw appellant pull the gun, so Calles did not see the shooting. Calles did not tell police initially that he knew appellant, because Calles was high on marijuana at the time and a lot was going through his head. Silva was standing next to the decedent at the time he was shot. Silva saw appellant aim at the decedent and herself, but her attention was momentarily distracted when Puppet ran toward them after kicking Gonzalez. After hearing the shot that killed the decedent, Silva looked back and saw appellant standing in front of her holding the gun in his extended hand. Forensic Testimony
Lynn Salzberger, a medical examiner at the Southwestern Institute of Forensic Sciences (SWIFS), testified she performed the autopsy on the decedent. The autopsy report was admitted into evidence. The decedent was 64 inches tall and weighed 140 pounds. No alcohol was found in the decedent's system; however, he had a breakdown product of marijuana, indicating he had used marijuana in the past but not immediately prior to the shooting. The decedent had also used cocaine within a couple of hours of his death. The autopsy report showed the decedent had a single gunshot wound to his head. The bullet entered the center of the decedent's forehead and exited the right side of his head toward the back, going front to back and left to right. His skull and brain were perforated; some bullet fragments were found in decedent's head. No gunshot residue was found around the wound, indicating the range of fire was at least three feet or more. The cause of decedent's death was a gunshot to the head; the manner of his death was homicide. Defense Testimony
Appellant's cousin, sixteen-year-old Homero "Junior" Leos, testified he worked with appellant until about 9:00 or 9:30 p.m. on September 15, 2006. After work, they picked up Howse and were going to eat. However, appellant got a telephone call so, instead, they went to a billiards place. There they met Puppet, Puppet's nephew Mark Anthony "Tony" Rangel, and Heriberto "Big Boy" Torres. Leos did not know Big Boy's name but he knew "Puppet" was Adrian Franco. As they were sitting around, Leos noticed appellant and the decedent exchange words. Leos's group went outside, but Puppet soon went back inside; everyone followed him. Once they were inside the bar, a girl threw a bottle at them and started swearing at them. The girl hit Howse with a pool cue and the girl and Howse began fighting. Another girl then came up and hit Howse with a pool cue. Leos saw appellant go up and kick one of the girls in the leg. Leos pushed appellant and tried to break up the fight. About forty seconds later, Leos heard two gunshots. When he turned around, he saw Puppet, Rangel, and Torres running. Appellant told Leos and Howse to "come on." Leos, appellant, and Howse got into appellant's car and drove to a park on Northwest Highway. Torres, Rangel, and Puppet later showed up at the park. According to Leos, Puppet got out of the truck, went over to appellant's car, and began talking. Puppet was shaking and grabbing the door; he sounded scared when he was talking. Puppet said, "Damn fool, I killed that nigger." He also said he needed to get out of Texas. Puppet got into appellant's car. Appellant drove Puppet, Leos, and Howse to Austin. Before Puppet fell asleep, he said "he needed to call his dad to get his grandmother's number from Durango." Leos fell asleep on the drive and when he woke up he was in someone's driveway in Austin. They got to Austin at 5:04 a.m. Torres and Rangel had followed appellant's car to Austin. Torres's truck was parked in the street. Torres, appellant, Puppet, and another person left the house in Austin for about thirty minutes. Once they returned to that house, all of them except Puppet came back to Dallas; Puppet stayed in Austin. Leos never saw Puppet with a gun. He denied knowing appellant brought a gun into the bar on the night of the murder. Leos did not see anyone with a gun. He saw neither a gun nor the shooter. Leos said appellant was wearing a white shirt with blue lettering; Puppet was wearing a striped shirt. Leos described Puppet as "short and kind of fat" and appellant as "tall." After Leos got back to Dallas, appellant's mother took him to his house. Leos's uncle Gasber, appellant's father, was driving. On the way, the police stopped them and asked about appellant. Appellant's parents told them he was at home. The police did not talk to Leos at that time, but about four days later, Detective Brady came to his school and took his affidavit about the incident. Leos believed Puppet was in Mexico at the time of trial. Rangel testified that on the night of September 15, 2006, he went with his uncle, Puppet, and Torres to a pool hall where they met up with appellant, Howse, and Leos. Another group of people came in and "the whole argument started just because of looks." Rangel's group invited the other group to go outside and fight. Rangel's group went outside but the other group did not come outside so Rangel's group went back into the bar. The girls from the other group began throwing bottles and glasses at Rangel's group and Howse and another girl started fighting. After a third girl got involved, appellant and Puppet started separating the girls. Puppet kicked one of the girls. Appellant pulled out a gun and waved it around, but he was not pointing it at anything. Rangel heard a shot and looked over to see Puppet with the gun in his hand. Rangel did not see Puppet take the gun. Then Rangel saw Puppet fire "another" shot, everyone started yelling, and Rangel's group ran out of the bar. Rangel went to a park with Big Boy and Puppet and met appellant, Howse, and Leos. Puppet was not sure if his shot hit anyone, but Big Boy found out what had happened by calling a girl inside the bar. Puppet repeatedly asked, "did I hit him?" Puppet said he had to leave. Puppet was worried at first but then "he just got over it." Puppet did not have the gun at this point. Puppet got out of the truck and went to appellant's car to talk to him. The group left in two cars and drove to Austin. Rangel did not know where Puppet went; the rest of the group drove back to Dallas. Rangel denied that Puppet, appellant, and Torres went anywhere before the group drove back to Dallas. Rangel had since tried to find Puppet but has not heard from him. Rangel never saw appellant fire a shot. Rangel said he was hit by a bottle; however, when shown the pictures, he did not see any broken glass so he "thought" the bottles did not break. Rangel admitted his group of five guys started arguing with the decedent who was standing with girls but no guys at the time. The other boys in the decedent's group were "hiding." In his police statement, Rangel said appellant aimed the gun in the direction where the decedent was standing. Rangel believed Puppet fired both shots because Puppet had the gun when Rangel turned around and the gun could not have been passed between Puppet and appellant in the time it took him to turn around after he heard the gunshot. Rangel never saw the gun after they left the bar. He did not see Puppet leave the gun anywhere, although he saw the gun in Puppet's hand inside the bar right before they ran outside, and Puppet was running in front of Rangel the whole time until he got into the car. Twenty-one-year-old Torres testified he was at the billiards bar on September 16th with appellant, Puppet, Howse, Rangel, and Leos. After words were exchanged between two groups, Torres's group went outside. When the other group did not go outside, Torres's group went back inside. Two girls got into a fight. A third girl joined in. Torres did not see anyone kick one of the girls. Appellant pulled out a gun and pointed it around. Torres did not see appellant give the gun to Puppet but when he heard gunshots, Puppet had the gun. Torres later testified he did not see who fired the first shot, but he saw Puppet with the gun in his hand and he saw Puppet fire the second shot. Torres was sure Puppet fired the gun because he ran over and grabbed Puppet's hand and they went outside. Twenty-four-year-old Francisco Hernandez Ramos testified he lives in Austin. He is appellant's uncle. On September 16, 2006, appellant and some of his friends came to his house in Austin. Appellant wanted to borrow money to buy a friend a bus ticket. Appellant and some of his friends left Austin later that morning. Appellant's friend with the bus ticket stayed in Austin. Ramos took that friend to the bus station later that day. On the way to the bus station, appellant's friend told Ramos he had killed someone. Ramos knew, through his sister, that appellant had been charged with murder. But even though appellant's friend told him he had killed someone, Ramos never called the police. He testified "nobody told [him] to call the police." Twenty-one-year-old Howse testified she considers appellant her husband even though they are not married. He is the father of her son. She testified to many of the same facts about the two groups, the girls fighting, and appellant and Leos trying to break up the fight. Howse testified she asked appellant to make the other girl let go of her hair. Then she heard a gunshot but she did not see a gun. The gunshot stopped the fight. The bar was well-lit and when Howse turned and looked, she saw Puppet pointing the gun. Puppet then fired another shot. Howse and her group went to their vehicles and then to a park. Puppet later came to the park and up to appellant's car. Puppet said he had to leave town-that he was not going back to jail. Puppet did not have a gun at that time. The group then drove to Austin to the home of appellant's uncle, Puncho. Ashli said Puncho, appellant, Puppet and Torres went to the bus station. She did not talk to appellant about what happened on the way to Austin. Howse admitted she lied to the police when she told them she went home after the shooting and did not tell them she went to Austin. She later told the police about going to Austin. Howse did not know appellant went to the car and got a gun. The jury was not given a charge on parties. During its deliberations, the jury sent out a note asking whether the law of parties applied. The trial court responded that they had all the law and the jury should continue its deliberations. Appellant argues the jury's note supports his position that the evidence is factually insufficient. We disagree. The jury was told they had been given all the law, which did not include a parties charge, yet it reached a unanimous verdict of guilty-a verdict that turned on credibility. That verdict should be given deference. Appellant also contends that Puppet's flight to Mexico implies it was he, not appellant, who was the shooter. The State, however, argued Puppet could have fled because of his criminal record and some of the witnesses testified that Puppet said he was not going back to jail. This is a case where the jury heard two different versions of the facts. It chose to credit the version testified to by the State's witnesses, which it was entitled to do. The jury could well have viewed the witnesses who stayed at the scene, and were separated immediately upon the arrival of the police, as more credible witnesses than the defense witnesses who fled the scene and then regrouped later in the park. The inconsistencies in the testimony of the defense witnesses, and appellant's statement itself, may have led the jury to view the defense evidence as not worthy of belief. Having reviewed all the evidence in a neutral light, we conclude the evidence is factually sufficient to support the jury's guilty verdict. The evidence is not so obviously weak that a conviction is clearly wrong and unjust, nor is the evidence supporting the guilty verdict outweighed by the great weight and preponderance of the contrary evidence. We affirm.