Opinion
Nos. 05-09-00496-CR, 05-09-00497-CR
Opinion issued January 18, 2011. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F07-34531-VP and F07-34532-VP.
Before Justices BRIDGES, O'NEILL, and LANG-MIERS.
MEMORANDUM OPINION
Appellant Jose Daniel Valadez appeals his convictions for the aggravated assault of Omar Laredo and murder of Alma Rico, along with his accompanying sentences. We affirm.
Background
At the time of her murder, Alma Rico had been separated from her husband, appellant. Alma's sister testified that, prior to their separation, there was violence between appellant and Alma. In February of 2007, Alma asked her boss, Susana, to help her find an apartment located near work and a school for her children. A couple of days after Alma moved into the apartment, appellant spoke with Susana "one-on-one" at the Burger King where Alma worked and asked her to help convince Alma to move back in with him. Susana testified that appellant told her "that he did things that [Susana] shouldn't even know" and warned her that "he didn't want anybody helping [Alma] because whoever helped her was going to end up like her." About three weeks before her murder, Alma began seeing Omar Laredo, a co-worker at Burger King. On September 8, 2007, Laredo picked Alma up from work when her shift ended around 2:00 a.m., and they returned to Alma's apartment. As they opened the door, a man, who Laredo later identified as appellant's brother, Oscar, stood up. Alma asked Oscar to leave, and he did. However, Laredo testified he felt uncomfortable and suggested they leave the apartment. When they left, they saw Oscar hiding in the nearby trees. Laredo took Alma to an apartment complex, where he worked his second job. They stayed there until around 10:00 a.m. and then went to the store for groceries, returned to Alma's apartment and cooked a meal. Around 3:00 p.m., they took a nap in the same room in separate beds. Laredo testified he was awakened by a man, whom he later identified as appellant, holding him down, displaying a box cutter and threatening to kill him. Laredo saw Oscar on top of Alma, choking her. Laredo heard Alma ask, "[W]hat are you doing, what are you doing[?]" Laredo and appellant struggled, eventually ending up in the living room. During their struggle, appellant dropped the box cutter and Laredo picked it up, acting as if he would cut appellant. When appellant reached toward his back, pretending to pull out a gun, Laredo dropped the box cutter and ran to the apartment complex laundry room, where he called 911. Officer Morisak met Laredo at the laundry room, and the two men went back to Alma's apartment. Laredo had a cut on his hand and appeared "quite scared." Officers Hammond and Zimmerman met Morisak outside Alma's apartment. They noticed a window screen on the ground next to an open window. The officers entered the apartment via the open window to search the apartment for suspects and victims. The officers found Alma in the second bedroom, dead from a knife wound to the chest. She was partially under the bed, between the bed and wall. Morisak reported the murder to the Irving Police Department's Criminal Investigation Division and then he and Zimmerman secured the crime scene, which extended into the parking lot to include Laredo's truck. All four tires on Laredo's truck had been slashed with a box cutter, and "Alma," along with another indecipherable word, had been scratched into the hood of the truck. Officer Hazard photographed Alma's body and the crime scene. He dusted for fingerprints, seized items found inside the apartment, and collected samples of biological material, some of which were subsequently submitted to SWIFS for DNA testing. Specifically, Hazard collected samples of blood smeared and splattered in the bedroom, hallway, doorway, on a wall outside the apartment, and blood drops found inside two kitchen drawers. Hazard seized and later submitted for DNA testing, a cigarette found on the floor between the bi-fold closet door and the wall in the bedroom where Alma was murdered. Hazard testified the cigarette was slightly bent and looked "like something somebody wears above their ear." Swab samples taken from different places on Laredo's truck were also submitted to SWIFS for DNA testing. During trial, Hazard confirmed he found blood in a kitchen drawer and that particular drawer contained a knife that matched the knife used to murder Alma. Hazard testified he could not tell how long the blood had been in the drawer and that he did not see any additional blood on the countertop or floor near the drawer. He also found a "pretty good sample" of blood inside a second kitchen drawer, but did not find any additional blood in the area surrounding the drawer. Hazard further testified that the sheets on the bed had been cut in a line, as if with a razor or sharp knife. While Hazard processed the crime scene, Detective Wyatt asked Laredo to go to the police station to answer questions, and Laredo agreed. Laredo informed Wyatt that Alma's ex-husband was one of the people involved in the attack. Wyatt learned Laredo and appellant fought over the box cutter and that a second person was also in the apartment. Wyatt later determined appellant was the person identified as "Alma's ex-husband" and learned: (1) Alma had filed two domestic violence complaints against appellant and (2) Alma was "basically trying to run away and stay away from [appellant]." After Laredo identified appellant in a photographic line-up assembled by Wyatt, Wyatt secured an arrest warrant for appellant and posted the warrant information to all police departments in the region. Grapevine police officers arrested appellant in his home and delivered him to the Irving Police Department, where Officer Chavez read appellant his Miranda warnings in Spanish and translated Wyatt's initial questions. After Chavez confirmed appellant's understanding of the Miranda warnings, appellant signed the Miranda warning card. Appellant gave two videotaped statements. Detective Gutierrez assisted Wyatt in translating during both interviews. Prior to the first interview on September 10, 2007, Gutierrez read appellant his Miranda warnings after Chavez had already done so and after appellant had already signed the Miranda warning card. During the interviews, appellant claimed Oscar planned and committed the offenses. Appellant indicated that Oscar said if Alma's door was locked, it was okay because he (Oscar) had left the window unlocked. Appellant stated that Oscar entered the apartment through the window and then opened the door for appellant two or three minutes later. Appellant stated that Oscar handed him the box cutter before entering the apartment. Appellant claimed he did not see what happened to Alma and could only see Alma's legs after Oscar had done what he had done. Appellant also claimed Oscar first attacked Laredo and confirmed his struggle for the box cutter with Laredo. During the interviews, Wyatt talked to appellant about blood found in the bedroom and kitchen, but did not tell appellant that blood was found inside two kitchen drawers. Approximately forty minutes into the first interview, Wyatt had Gutierrez ask appellant if he would consent to provide a buccal swab. Wyatt told appellant that the buccal swab could help prove up his claims of innocence. Appellant agreed and provided a sample, which was subsequently submitted to SWIFS for forensic DNA testing. At trial, appellant testified that the Thursday prior to Alma's murder, he prepared a meal with her in her apartment and cut his finger, while cutting the meat, so he washed his hands. He explained that, after they finished, he went to place the knife in the drawer, realized it was not the knife drawer, and then opened a second drawer. Appellant testified he knew he left blood in the drawer, but explained he did not clean it up because he was lazy. Subsequent analysis of biological samples submitted to SWIFS established that appellant's DNA matched the DNA on the cigarette found in Alma's bedroom and the drops of blood found in the two kitchen drawers. Oscar's DNA matched the DNA found on the driver's door latch and middle seat console of Laredo's truck. Appellant explained his testimony at trial differed from his videotaped interviews because the officers taking his statements were pressuring him and making him nervous. Appellant said that when he agreed to submit to the DNA testing, Wyatt had falsely informed him that he had already talked with Oscar and that Oscar had said appellant committed the murder. Appellant explained he gave the sample because he thought it would show he did not have sex with Alma. He further testified that no one ever told him he could refuse to provide a sample, and that if he knew he had the right to refuse, he would have done so. At trial, appellant denied: (1) taking the cigarette into the bedroom where Alma was murdered, (2) grabbing a knife out of the kitchen drawer or leaving blood in the drawer the night Alma died, and (3) handing Oscar a knife so that Oscar could kill Alma. Following a trial by jury, appellant was convicted of the aggravated assault of Omar Laredo and the murder of Alma Rico. This appeal ensued.Analysis
Appellant raises six issues on appeal. First, appellant contends the trial court erred in admitting State's Exhibits 94, 95, and 96 and Courtney Ferreira's testimony regarding those exhibits in violation of the Sixth Amendment, Crawford v. Washington, and Melendez-Diaz v. Massachusetts. In his second issue, appellant argues the trial court erred in finding that appellant freely and voluntarily consented to the taking of a sample of DNA in violation of the Fourth Amendment and Article I, § 9 of the Texas Constitution. In his third and fourth issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated assault. Finally, in his fifth and sixth issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for murder. We turn to appellant's first issue, in which he contends the trial court erred in admitting State's Exhibits 94, 95 and 96, plus Courtney Ferreira's testimony regarding those exhibits. The record reveals Tara Johnson conducted the DNA analysis of the evidence in this case. However, Johnson was not present to testify at trial because she was attending veterinary school in the Caribbean. In her place, the technical reviewer, Courtney Ferreira, testified to the methods used for testing DNA and the results of the tests in this case. Johnson's reports of her testing, State's Exhibits 94, 95 and 96, were admitted into evidence. Appellant contends the admission of the exhibits and testimony of Ferreira was a violation of his Sixth Amendment right of confrontation and cites us to Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) and this court's opinion in Cuadros-Fernandez v. State, 316 S.W.3d 645 (Tex. App.-Dallas 2009, no pet.) to support his proposition. With regard to Exhibits 94, 95 and 96, however, appellant failed to object that their admission would violate his Sixth Amendment right of confrontation. Instead, when the State simultaneously offered Exhibits 94, 95 and 96, defense counsel made the following objection:[DEFENSE COUNSEL]: No objections. Well, for the record, Your Honor, subject to my earlier objections regarding the buccal swab, I don't want to look-if I can just have a running objection on that issue as to my-how the-my client's-the known sample was taken. I don't want to look like I'm waiving that.
THE COURT: The Court recalls your previous objection; your objection's overruled.We conclude defense counsel's objection as to the manner in which appellant's buccal swab was taken failed to preserve error on the Confrontation Clause grounds raised in his first issue. See Tex. R. App. P. 33.1; Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); Dewberry v. State, 4 S.W.3d 735, 752 n. 16 (Tex. 1999) (hearsay objection failed to preserve Confrontation Clause grounds). See also Briggs v. State, 789 S.W.2d 918, 923 (Tex. Crim. App. 1990) (stating that even constitutional error may be waived). Appellant further contends the fact that "Tara Johnson was unavailable to testify at trial to the results of the DNA testing she conducted on the evidence in this case," violated his Sixth Amendment right to confrontation and again relies upon the Melendez-Diaz and Cuadros-Fernandez cases. However, unlike the Melendez-Diaz and Cuadros-Fernandez cases cited by appellant, the State offered the testimony of a person involved in the review of the DNA evidence. Still, appellant argues he properly objected to Ferreira's testimony on Confrontation Clause grounds. During trial, the following pertinent exchange took place between the prosecutor and Ferreira:
Q: Okay. So that control is like a-some way of recording what [Johnson] did?
A: It is, basically. That's why we have-we have them set up every step that we have. We have some sort of positive or negative control for every step.
[DEFENSE COUNSEL]: Your Honor, I'm just going to go ahead-I'll just object on the basis that [Johnson] is not here to establish conclusively that she followed the method. I know the controls are one thing. The witness did testify that there was noise on the machine, and for that reason, I'll just go ahead and lodge my objection.
THE COURT: Your objection is overruled.But, as previously discussed, that objection to the offer of exhibits failed to preserve error on Confrontation Clause grounds. See Tex. R. App. P. 33.1; Wright, 28 S.W.3d at 536. To preserve error, an objection must be timely. Tex. R. App. P. 33.1(a)(1). To be considered timely, the objection must be made when the grounds for the objection becomes apparent. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008). Because appellant failed to preserve his Confrontation Clause complaint with regard to Ferreira's testimony and State's Exhibits 94, 95 and 96, we overrule appellant's first issue. See Tex. R. App. P. 33.1. In his second issue, appellant argues the trial court erred in finding that appellant freely and voluntarily consented to the taking of a sample of DNA in violation of the Fourth Amendment and Article I, § 9 of the Texas Constitution. Specifically, appellant complains his consent to provide a buccal swab sample was not voluntarily given. When reviewing a trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review de novo the legal determinations of detention, reasonable suspicion, and probable cause under the Fourth Amendment, while granting great deference to the trial court's factual findings. State v. Sheppard, 271 S.W.3d 281, 286-87 (Tex. Crim. App. 2008). The trial court's evidentiary ruling "will be upheld on appeal if it is correct on any theory of law that finds support in the record." Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006). A search conducted without a warrant issued upon probable cause is per se unreasonable, subject to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). One exception is a search conducted pursuant to consent. See id.; Garcia v. State, 887 S.W.2d 846, 851 (Tex. Crim. App. 1994). To prove valid consent, the State must show, from the totality of the circumstances, that consent was freely and voluntarily given, that it was positive and unequivocal, that it was not the product of duress or coercion, and that it was not merely submission to a claim of lawful authority. Paulus v. State, 633 S.W.2d 827, 850 (Tex. Crim. App. 1981). While the federal constitution requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that consent was freely given. State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997). Consent need not be knowingly made, only voluntarily made. Schneckloth, 412 U.S. at 246. Thus, the suspect does not have to be told that he has a right to refuse consent to search. Id. at 234. Appellant claims he did not freely and voluntarily consent to provide Detective Wyatt with a buccal swab. In part, he bases his argument on the fact that he is not fluent in English. The record reflects that appellant's native language is Spanish and that he achieved a formal education three years beyond a high school education. The record further demonstrates appellant was Mirandized in Spanish prior to giving a voluntary statement and consent for the buccal swab. The September 10, 2007 interview video shows it was low-key and non-threatening. While Wyatt asked appellant questions in English, Gutierrez translated (although not always verbatim) his questions to appellant. Gutierrez also asked her own questions of appellant in Spanish. For approximately forty minutes, appellant answered their questions. Then, after a request by Wyatt, Gutierrez asked appellant, in Spanish, for his consent to provide the buccal swab. Appellant asked Gutierrez whether that involved a draw of blood, and Gutierrez clarified, again in Spanish, the procedure for taking a buccal swab. The video shows appellant then consented and swabbed his own cheeks. At trial, appellant admitted he wanted to provide a sample to prove his version of the events. The fact that Wyatt and Gutierrez did not tell appellant he could refuse the buccal swab or that the test results could hurt him do not negate the voluntariness of his consent. Schneckloth, 412 U.S. at 246. Thus, since the video recording and the trial testimony support the trial court's finding that appellant freely and voluntarily consented to provide a buccal swab, we conclude the trial court did not abuse its discretion in overruling appellant's motion to suppress. We overrule appellant's second issue. In his third and fourth issues, appellant contends the evidence is both legally and factually insufficient to support the conviction for aggravated assault. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issues under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 894-95. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened Omar Laredo with imminent bodily injury and that appellant used or exhibited a deadly weapon, to wit: a knife or box cutter, during the commission of the assault. Tex. Penal Code Ann. §§ 22.01 (a) (2); 22.02 (a)(2) (West Supp. 2009). A threat of imminent bodily injury may be conveyed by conduct or words. See De Leon v. State, 865 S.W.2d 139, 142 (Tex. App.-Corpus Christi 1993, no pet.). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (citing Lafoon v. State, 543 S.W.2d 617, 620 (Tex. Crim. App. 1976)). As the fact-finder, the jury was free to disregard any of the witness testimony, and we must not re-weigh the credibility of conflicting statements. Stine v. State, 300 S.W.3d 52, 58 (Tex. App.-Texarkana 2009, pet. dism'd). At trial, Laredo testified that when he woke up, appellant was holding a box cutter on his face and saying, "I'm going to kill, you're going to die; I'm going to kill you." Officer Hazard testified that the sheets on the bed, upon which Omar had been sleeping, were cut in a straight line with a sharp knife or razor. Laredo stated he fought appellant for control of the box cutter and ultimately fled the apartment after appellant pretended to pull out a gun or a knife. Appellant further testified that he brought a box cutter into Alma's apartment, that he fought with Laredo over control of the box cutter, and that after dropping the box cutter, he pretended to pull out a gun. We conclude the evidence is sufficient to prove appellant used or exhibited a deadly weapon when he placed the box cutter against Laredo's face and threatened to kill him. Jackson, 443 U.S. at 319 (1979); Brooks, 323 S.W.3d at 894-95. We overrule appellant's third and fourth issues. In his fifth and sixth issues, appellant contends the evidence is both legally and factually insufficient to support the conviction for murder. Again, as noted above, we use the standard set forth in Jackson v. Virginia to determine whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks, 323 S.W.3d at 894-95. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02 (b)(1) (West 1994). "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Tex. Penal Code Ann. § 7.01(a) (West 1994). Section 7.02(a) provides, in pertinent part, as follows:
(a) A person is criminally responsible for an offense committed by the conduct of another if:
. . .
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense;Tex. Penal Code Ann. § 7.02(a) (West 1994). The evidence will be sufficient to support a conviction pursuant to the law of the parties when a defendant was physically present at the commission of the offense and encouraged the commission of the offense either by words or agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994); Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986). The evidence must show the parties were acting together, each contributing some part toward execution of the common purpose at the time of the offense. Burdine, 719 S.W.2d 315. The factfinder may view events before, during, and after the offense to determine whether appellant was acting as a party. Ransom, 920 S.W.2d 302. Participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977). Thus, circumstantial evidence may be sufficient to show that one is a party to an offense. Id.; Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). The evidence, viewed in the light most favorable to the verdict, establishes that appellant and Alma had a violent relationship. Alma, afraid for her safety, took her children and left appellant's house without notice. Appellant later showed up at Alma's place of work, threatened Alma's boss, and tried to grab their son in front of their children's new school. On the day of Alma's murder, appellant and Oscar drove to Alma's apartment together. Once they arrived there, one or both of them slashed the tires on Laredo's truck and scratched Alma's name in the hood. After vandalizing the truck, Oscar and appellant entered Alma's apartment via a window that had been intentionally left unlocked by Oscar, so as to facilitate their entry. Appellant and Oscar then entered the bedroom, where Laredo and Alma were sleeping. Appellant carried a box cutter into the bedroom. According to Laredo, appellant attacked and threatened to kill him, while Oscar choked and tried to suffocate Alma. Laredo's testimony establishes that appellant and Oscar were acting in concert. Beyond the testimony of Laredo, the jury could have looked to the DNA evidence to determine appellant was a criminally responsible party for Alma's murder. A cigarette, matching the DNA of appellant was found in the bedroom where Alma was found. Further, the jury could have reasonably determined that, after Laredo fled the apartment, appellant, bleeding from a cut sustained during his fight with Laredo, left blood in the first drawer he opened in the kitchen and in the second drawer from which he pulled the knife. The jury could have also reasonably determined that appellant then either stabbed Alma with the knife or that he handed the knife to Oscar for Oscar to stab and kill Alma. Thus, we conclude the evidence is sufficient to support appellant's murder conviction. Jackson, 443 U.S. at 319 (1979); Brooks, 323 S.W.3d at 894-95. We overrule appellant's fifth and sixth issues. Having overruled all of appellant's issues, we affirm the judgment of the trial court.