Salazar v. State

Full title: FLORENCIO GUERRA SALAZAR, Appellant v. STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 28, 2004

No. 05-03-01202-CR (Tex. App. Oct. 28, 2004)

Opinion

No. 05-03-01202-CR

Opinion issued October 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F02-54158-T. Affirm.

Before Justices MOSELEY, BRIDGES, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

A jury convicted appellant Florencio Guerra Salazar of murder and assessed his punishment at thirty years' imprisonment. In five issues, appellant complains of insufficiency of the evidence, improper jury argument, ineffective assistance of counsel, and charge error. We affirm the judgment of the trial court.

BACKGROUND

Appellant and Kenneth "Bubba" Condor, Jr. were at a party at appellant's mother's house. They got into a fistfight, arguing about missing music CDs. A friend intervened and pulled Condor away, urging him to leave. Appellant got up and entered his house, where he retrieved a gun from a locked box in his sister's closet. He went back outside, and shot Condor at least twice, killing him.

FACTUAL SUFFICIENCY

In his third issue, appellant complains that the evidence is factually insufficient to show that the appellant did not commit this offense in self-defense. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, ___ S.W.3d ___, 2004 WL 840786, *7 (Tex.Crim.App. April 21, 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Wesbrook, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Evidence Ramon Zamora, a friend of both appellant and the victim, testified that he was at the Salazar house on the night of the shooting. He heard an argument between the victim and appellant about the victim's CDs. The victim took off his shirt and "he pretty much whooped Florencio." Zamora pulled the victim away because appellant had already been knocked to the ground. The victim did not make any verbal threats against appellant. Zamora walked toward the cars with the victim to try to get him to calm down and then he heard someone yell, "gun." He turned around and saw appellant running back toward the house. Zamora told the victim that it was not worth it over some CDs and that they should leave. Zamora then jumped in his pickup and left. "Something bad was about to happen, and I felt it." As he was leaving, he saw the victim start walking toward the house. Mary Sanchez, appellant's sister, testified that while she was sitting outside by a tree, she heard an argument. When she walked around the yard to see what was happening, she saw her brother and the victim fighting. She told them she was calling the police and then ran into the house. She looked for the phone but could not find it. She then went back outside. The two men had been separated, but were still arguing. Everyone told the victim to leave, but he cursed them and refused to leave. Appellant and the victim kept arguing, going back and forth with insults. According to Mary, the victim threatened her brother. He said he was going to shoot and kill him. The victim said he had had plenty of chances to kill appellant, but just never did. Mary went inside, and when she came back outside, she saw her brother just ahead of her on the porch. She heard appellant say, "oh, so he is gone," so she thought the victim had left. She then heard the victim's voice. He said, "I ain't no ho ass nigger," and jumped on appellant's back. Mary heard three gunshots in quick succession and saw the victim fall to the ground. She ran in the house to call the police, but tripped over the phone wires and disconnected it. She went to a neighbor's house to call the police, and when the police got there, she told them her brother shot the victim. Mary remembered giving a statement to the police. Mary's statement said that when Mary ran into the house, screaming to her brother that she was going to call the cops, he followed her into the house and pulled the phone line out of the wall. The statement also said that Mary heard her brother screaming, "where is he, where is he?" when he walked back outside. On the stand, Mary denied making either assertion. She testified that she did not write the statement herself and that she signed it because she was told to. Mary admitted that she did not tell the police that the victim had threatened to kill her brother. Matthew Salazar, appellant's brother and the victim's friend, was at the Salazar house on the night of the shooting. Appellant was there the whole evening. Matthew did not see appellant and the victim get into an argument or a fistfight. He heard gunfire, turned around, and saw the victim on the ground. He ran to his brother, grabbed him and asked him "what happened, what did you do," and told him to leave before he "beat his ass." Appellant did not respond. Matthew turned the victim over (he had fallen face first) and he and his sister held the victim. The victim did not say anything. Matthew never saw a weapon on the victim that day. Nor did he see anyone remove anything from the victim. When Matthew went to the police station to give his statement, he told police he told appellant "You fucked up. You're gone, man, you're gone." Matthew agreed that both the victim and appellant had been drinking and using cocaine that night. He had previously seen the victim with a gun, both on him and in his truck. But Matthew was surprised that night to learn appellant had a gun. Angela Dodd testified that she went to the party with appellant, who was her sister's boyfriend. She stated that appellant and the victim got into an argument and a fistfight over CDs. Dodd heard the victim say, "you little motherfucker, I'm going to kill you," and "I'm going to go get my gun." He then started walking towards his truck. Appellant got up and ran to the house. Angela followed him into the living room. Appellant told his sister Mary not to call the police. Dodd did not know where in the house he went after that. Eventually, appellant "casually" walked back through the living room and left the house through the front door. When Dodd followed him out onto the porch, she saw that he had a handgun. She also saw the victim, who was about six-and-a-half to seven feet away. Appellant stepped off the porch and fired the first shot when he was seven feet away from the victim. After the first shot, the victim was still standing. After the second shot, the victim started falling slowly. The next thing Dodd remembered was seeing the victim on the ground. She grabbed appellant and said, "let's go." She, her sister, and appellant started running. Appellant yelled back to the people at his house to tell "them" it was a drive-by. They climbed a neighbor's fence and then crossed the road and went into the woods. Dodd testified that they talked about explaining the shooting as a "drive-by." However, they never talked about self-defense. They stayed in the woods until morning, then went to a friend's apartment. The police came to the apartment a few hours later. Appellant tried to climb out a window, but the police caught him Detective Reidler with the Dallas Police Department testified that he located appellant at the apartment of a friend. When Reidler entered the bedroom, he saw appellant trying to crawl out the window. Reidler pulled appellant back in and appellant blurted out, "I didn't mean to do it." At the Crimes Against Person's Office, he read appellant his Miranda warnings. When Reidler asked appellant if he wanted to give a statement, appellant started crying. He then said that he wanted to tell his side of the story. Appellant dictated his statement to Reidler, who committed it to writing. Appellant stated the following:

Bubba¹ and I were at a party at my mom's house. Bubba had lost a CD book and began saying that someone stole it. We had been drinking and taking cocaine and we began arguing. Bubba said he was going to kick somebody's ass if the CD book wasn't returned. We looked around and didn't find his CD book, so Bubba said he was going to go get a gun if the CD book wasn't returned. I told Bubba that he couldn't do that at my mother's house. Bubba then hit me on my chin and right cheek. Then he grabbed my left shoulder and shirt. I told my friend Ramon to get Bubba off of me, and Ramon pulled Bubba away. I pulled my shirt off because Bubba was still holding on to it. Then I ran into the garage. I stood in the garage for a minute and finished my beer. And I got madder. I then ran inside the house and got my Smith and Wesson .32 revolver out of my bedroom. I had bought the gun off the street about six months ago. I ran back outside with the gun and asked if Bubba had gone. No one said anything. I kept walking out into the yard. And I saw Bubba running toward me out of the corner of my eye. Bubba then attacked me with his fist. I panicked and shot him one time, then a second time as he kept coming toward me. Bubba fell to the ground and I shot him one more time. I ran around in circles not knowing what to do. Everyone started yelling at me. The beer was wearing off. I panicked and ran. I threw the gun into the woods.

Jesus Trevino, a detective with the Dallas Police Department, testified that he was the lead detective assigned to the case. When he was on the scene, he never heard any suggestion that appellant shot the victim in self-defense. Mary Longoria, appellant's mother, testified that appellant killed the victim in self-defense, although she admitted she was not home that night. She stated that appellant had given her a key to a lock box and told her he had a gun. The lock box was in his sister Mary's bedroom closet. Dr. David Dolanik, a deputy chief medical examiner with the Southwest Institute of Forensic Sciences, testified that a medical examiner with his organization performed an autopsy on the victim. Reviewing the autopsy report, Dolanik stated that the victim suffered from two gunshot wounds to the left side of his neck-one was in the upper part of the neck and one was in the lower part of the neck. The upper bullet went in just behind the victim's left ear. There was no visible gunpowder or soot on the wound, so the victim, more than likely, was more than three feet away when the bullet was fired. The lower bullet caused stippling, which meant that the victim was shot from less than a foot away, and maybe as close as six inches. Either wound would have been fatal. It could not be determined which wound occurred first. He stated that forensic scientists are rarely able to determine the position of a shooter and the person shot, and this case was no exception. However, it could be determined that neither of the wounds were inflicted from back to front. Dolanik testified that the victim had alcohol, marijuana, cocaine, and Xanex in his system when he died. Vicki Hall, a trace evidence examiner at the Southwestern Institute of Forensic Sciences, testified that she conducted tests on handwipings to determine if a person had fired a weapon or was close to a weapon when it was fired. She stated that she looked for three elements-antimony, barium, and lead-that make up the primer mixture which disperses from a discharging weapon. Hall tested the handwipings from the victim in this case and found that there were high levels of lead and barium, but not of antimony. Hall conceded, though, that the negative result did not disprove the victim fired a gun or was close to a gun when it was fired. Appellant's attorney posed the following hypothetical to Hall: "[I]f a shooter were standing and an attacker came up from behind [him] with [his] hands forward and a shooter shot over [his] shoulder, could these elements show up on [his] hands if [he] were coming at [him] with [his] hands?" Hall stated that it was possible, but only if the person coming from behind the shooter had his hands within three to four feet of the end of the barrel or within 18 inches to the side of the barrel. She also agreed that a victim could have residue on his hands from having his hands up in a defensive posture. Hall could not say that the victim in this case either fired a weapon or was close to a weapon because of all the variables raised from a negative test result. Self Defense A person is justified in using deadly force against another when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32 (Vernon 2003). When the issue of self-defense is raised by the evidence, the State bears the burden of persuasion to disprove the raised defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim. App 2003). The burden of persuasion is not one that requires the production of evidence, rather it requires only that the State prove its case beyond a reasonable doubt. Id. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Id. In this case, it was undisputed that appellant killed the victim. There was testimony from one family member, Mary, and one friend, Dodd, that the victim intended to get a gun and shoot appellant. Another friend, Zamora, testified that the victim did not make any threats. Also, appellant did not mention the alleged threats in his statement. Only one witness, Mary, testified that the victim jumped on appellant. Dodd, on the other hand, testified that the victim was seven feet away when appellant shot him. No one testified that the victim had a gun. Even appellant said that the victim attacked him with his fist. Dodd testified that as she, appellant and her sister were running away, appellant yelled back to his friends and family to say the shooting was a "drive-by." The forensic evidence neither proved nor disproved self-defense, although appellant's hypothetical regarding the handwashing evidence did suggest a possible self-defense scenario. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Ortiz v. State, 93 S.W.3d 79, 88 (Tex.Crim.App. 2002). In this case, the jury found appellant guilty of murder. Either it believed some, but not all, of the testimony, or it determined that no matter whose story was to be believed, appellant's actions did not constitute self-defense. Either way, we hold that the evidence supporting the verdict, considered by itself, is not too weak to support the finding of guilt beyond a reasonable doubt. Neither is the contrary evidence so strong that the beyond-a-reasonable doubt standard could not have been met. Accordingly, we overrule issue three.

IMPROPER JURY ARGUMENT

In his first issue, appellant complains that the State impermissibly commented on appellant's failure to testify. The prosecutor stated the following in closing argument:

Defense counsel mentioned something like in the statement defendant only says he sees out of the corner of the eye a fist, not multiple fists. So what was Kenneth going to do with the other hand? Are you going to throw a punch if you have a gun? Let's ask the defendant. No.

Appellant objected and the trial court instructed the jury to disregard, but appellant failed to request a mistrial, so waived any error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) (holding that failure to pursue objection to adverse ruling waives error).

INEFFECTIVE ASSISTANCE OF COUNSEL

Standard of Review In his second issue, appellant contends that he did not receive a fair trial due to the ineffective assistance of his trial counsel. The standard for reviewing claims of ineffective assistance of counsel is articulated in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court held that the appellant must prove that counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on having produced a just result." Id. at 686; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Strickland established a two part test. First, appellant must prove that counsel's performance was deficient. Strickland, 466 U.S. at 687. In order to do so, appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel's conduct. Id. at 688-90. In evaluating this standard, counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant has the burden to overcome this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). An appellate court may not reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based on tactical decisions, but the record contains no specific explanations for counsel's decisions. See Bone v. State, 77 S.W.3d 828, 833-37 (Tex.Crim.App. 2002). Second, Strickland requires appellant to show that counsel's performance prejudiced his defense at trial. Strickland, 466 U.S. at 692. "It is not enough for the Appellant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, he must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id. at 694. "The question is whether there is a reasonable probability that absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. As a result, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500. Failure to Request Mistrial Appellant maintains that his trial counsel's failure to move for a mistrial after the State impermissibly commented on appellant's failure to testify constitutes ineffective assistance of counsel. To violate a defendant's right against self-incrimination the contested argument, when viewed from the jury's standpoint, must be "manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). The approved general areas of argument are (1) summation of the evidence, (2) any reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, and (4) plea for law enforcement. Wesbrook, 29 S.W.3d at 115. Even if the complained-of argument does constitute a comment on appellant's failure to testify, the record does not affirmatively demonstrate ineffectiveness. We may not reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based on tactical decisions, but the record contains no specific explanations for counsel's decisions. See Bone, 77 S.W.3d at 833-37. Thus, appellant fails to satisfy the first part of the Strickland test. Further, provided the failure to request a mistrial demonstrates that trial counsel's performance was deficient, appellant does not explain why the instruction to disregard was insufficient to cure the harm. He does not show that there is a reasonable probability that the result of the proceeding would have been different but for counsel's failure to request a mistrial. In light of the trial court's prompt instruction to the jury to disregard the comment and appellant's failure to rebut the general presumption that the instruction cured the harm, we hold the trial court would not have erred by denying appellant's motion for mistrial. Thus, appellant also fails to satisfy the second part of the Strickland test. We overrule issue two.

PAROLE INSTRUCTION

In his fourth issue, appellant argues that the parole instruction as applied to appellant was a denial of due process of law. There is no dispute that the parole instruction did not apply to appellant because the jury made a deadly weapon finding. However, in Luquis v. State, 72 S.W.3d 355, 366-67 (Tex.Crim.App. 2002), the court addressed a similar issue and held that in that case, there was no violation of the appellant's due process rights when the charge included an instruction on good conduct time. The court held that an inapplicable instruction would violate due process rights only if "a reasonable jury probably was actually confused by this charge." In his brief appellant argues, "In this case the parole law instruction was calculated to mislead the jury and there is a reasonable probability that it did mislead the jury. It is a reasonable probability that the jury was confused by this charge. Consequently, this case should be reversed and remanded for a new punishment hearing." This is a conclusory statement without any support in the record. It would be pure speculation to declare that the jury was confused by the parole instruction. We overrule appellant's fourth issue.

SUDDEN PASSION

In his fifth issue, appellant argues that the evidence is factually insufficient to support the jury's finding during the punishment phase that appellant failed to prove by a preponderance of the evidence that he acted under the influence of sudden passion. The existence of sudden passion is a mitigating factor relevant to punishment, and the burden of proving sudden passion by a preponderance of the evidence rests with the defendant. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). Sudden passion requires that the record contain objective evidence that direct provocation by the victim or someone acting with the victim incited the killer at the time of the killing. Naasz v. State, 974 S.W.2d 418, 423 (Tex.App.-Dallas 1998, pet. ref'd). Evidence of prior provocation alone is not enough. Id. at 424. The record must also contain evidence from which the jury could subjectively decide that the defendant killed the victim while in an excited and agitated state of mind arising out of the direct provocation. Id. The cause of sudden passion must be such as to produce anger, rage, resentment or terror in a person of ordinary temper as to render the mind incapable of cool reflection. Tex. Pen. Code Ann. § 19.02(a)(1) (Vernon 2003). Objectively, the evidence shows that appellant was in a fistfight with the victim. By appellant's own words, appellant entered his house, drank some beer, and "got madder." He went to the closet in his sister's room, and unlocked a box in order to get his gun. He walked out into his yard and looked around for the victim. In other words, the provocation and the killing did not occur at the same time. Also, being knocked down in a fistfight in front of family and friends is not an occurrence that would have caused much more than normal anger, frustration, or embarrassment in a person of normal temper. Further, there is no subjective support for a finding of sudden passion. Dodd testified that appellant walked "casually" to the front porch. Appellant asked if the victim was still around. No witness testified that appellant was out of control, or that he was even excited or agitated. Appellant's actions reflect that he became angry that the victim beat him up and then made a conscious decision to shoot him in retaliation. Very simply, there is evidence to support the jury's refusal to find in favor of appellant's claim of sudden passion. We overrule appellant's fifth issue We affirm the judgment of the trial court.