Opinion
No. 05-02-01773-CR.
Opinion Filed March 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F98-01455-UI. Affirmed.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Theodore Lopez Zavala of the murder of Jorge Alberto Aguillar and assessed punishment at thirty-five years confinement. Zavala appeals. In eight issues, he argues the evidence is legally and factually insufficient to support his conviction, the trial court erred in not granting a mistrial and in admitting evidence of an extraneous offense, the State's closing argument was improper, and the cumulative effect of these errors warrants a new trial. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first two issues, Zavala asserts the evidence is legally and factually insufficient to support his conviction for murder because there was no in-court identification and no credible evidence to identify him as the shooter. We apply the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (legal sufficiency); see also Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). There is evidence in the record that about 4:00 a.m. on July 24, 1994, a fight broke out in the parking lot of a nightclub and a crowd gathered around the disturbance. At least one man carrying a gun entered the crowd from the street and shots were fired. Aguillar and another man were killed. Aguillar was shot once in the neck at short range and once with a shotgun blast to the back of his head as he lay face-down on the ground. Aguillar had a belt partially wrapped around one of his hands. Witness Tracy Cruz was using a pay-phone at one end of the parking lot when the fight broke out. She heard shots, looked up, and saw two men facing each other. One man was swinging a belt or chain with his hand and the other man had a gun. The man with the gun shot the man with the belt from about three feet away. The man with the belt fell to the ground and the shooter walked up to him and shot him again. About three weeks after the shooting, Cruz was shown a lineup of six photographs, including a 1989 picture of Zavala. Initially, Cruz selected two photographs, but then rejected one and identified Zavala's photograph as the man she saw doing the shooting. She was almost a hundred percent positive that was the man except he had long hair in the photograph and short hair when the shooting took place. Three weeks after the shooting, police took the statement of one of Zavala's neighbors, Daniel Ornelas, who stated that Zavala said he shot the men at the club. Ornelas initially could not recall making the statement, but later affirmed the statement was true and that Zavala, who he identified in court, had admitted to killing the two men. Zavala argues that an uncertain in-court identification will not support a conviction when it is the only evidence of identification adduced at trial. See United States v. Hawkins, 658 F.2d 279, 289 (5th Cir. 1981); Bickems v. State, 708 S.W.2d 541 (Tex. App.-Dallas 1986, no pet.). However, an uncertain in-court identification was not the only evidence identifying Zavala as the shooter. Although Cruz testified she could not identify the defendant at trial, some eight years after the incident, she testified that the man she identified from the photographic lineup three weeks after the shooting was the man she had seen shoot Aguillar. Further, Ornelas gave a statement and testified that Zavala confessed to committing the murders. Identity may be proved through direct or circumstantial evidence, and through inferences. See United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981); Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986); Roberson v. State, 16 S.W.3d 156, 157 (Tex. App.-Austin 2000, pet. ref'd); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.-Fort Worth 1999, pet. ref'd); Creech v. State, 718 S.W.2d 89, 90 (Tex. App.-El Paso 1986, no pet.). Proof of the accused's identity through circumstantial evidence is not subject to a more rigorous standard than is proof by direct evidence, as both are equally probative. McGee v. State, 774 S.W.2d 229, 238 (Tex.Crim.App. 1989). After considering the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Therefore, we conclude the evidence is legally sufficient to support the conviction. Zavala cites the following evidence as the most important and relevant to his assertion that the evidence is factually insufficient to support his conviction. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Specifically, he relies on testimony from alibi witnesses and himself that he was working on a car engine at a friend's house several blocks away at the time of the shootings. Zavala's mother-in-law and a friend testified they were at the club that night and did not see Zavala there. According to one of the detective's notes, the security guard at the door of the club recognized Zavala from the photographic lineup, but not as someone who was there that night. Zavala also argues that Ornelas was not credible. He testified that he had problems with Ornelas, who had been smoking marijuana around their apartment complex. Zavala described an incident where Ornelas's cousin allegedly raped or said he raped Zavala's sister. At the time of trial, Ornelas was serving a ten-year sentence for a 2001 aggravated robbery conviction. Zavala also points to evidence that there were two shooters that night. The evidence in this case presented the jury with several credibility choices, decisions on the weight to give the testimony, and how to resolve conflicting evidence. The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App. 1984); Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd). Thus, the fact finder is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim. App. 1991). We may not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim. App. 1996). An appellate court may disagree with the fact finder's determination only when the record clearly indicates such a step is necessary to avoid a manifest injustice. Johnson, 23 S.W.3d at 9. This record does not show that we must interfere with the jury's finding in order to avoid a manifest injustice. For example, Cruz's failure to identify Zavala at trial was merely a factor for the jury to consider in weighing the evidence. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (failure to identify defendant on one occasion goes only to weight, not admissibility); Earls, 707 S.W.2d at 85 (victim's misidentification of juror as perpetrator at trial not fatal where circumstantial evidence, including that defendant and store manager were only other persons in store with victim, pointed to defendant as perpetrator). Further, the jury was free to disbelieve Zavala and his alibi witnesses. See Gaynor v. State, 788 S.W.2d 95, 98 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd). Viewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or that the proof of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We need not further detail the rest of the evidence. See Sims, 99 S.W.3d at 603. We conclude the evidence is factually sufficient to support the conviction. We resolve Zavala's first two issues against him. In his third issue, Zavala argues the trial court erred in denying his motion for a mistrial following his objection to a leading question and the trial court's instruction to disregard. We will not disturb a trial court's ruling denying a motion for mistrial unless it amounts to an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim App. 1999). A trial court should only grant a mistrial in extreme cases when error is so prejudicial as to appear calculated to inflame the minds of the jury members. Id. Whether an error necessitates a mistrial depends on the particular facts of the case. Id. Seldom will an improper question require a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Id. The leading question related to whether a witness had been transported to the police department for an interview on the night of the shootings. The trial court sustained Zavala's objection, instructed the jury that what the attorneys said was not evidence, and denied Zavala's motion for mistrial. We conclude the trial court's instruction cured any possible harm caused by the leading question on a preliminary matter. The leading question was not calculated to inflame the minds of the jurors. The detective testified to the same information moments later, without objection, in response to a non-leading question. Zavala has not shown an abuse of discretion in denying the motion for mistrial. Zavala's brief refers to another incident where his leading objection was overruled. The detective seemed confused when she said six witnesses were taken to the police department, but only four names were mentioned in the report. The prosecutor named two other witnesses and asked if statements had been taken from them by the detectives. Zavala's leading objection was overruled. We conclude any error in overruling the objection did not affect Zavala's substantial rights and must be disregarded. See Tex.R.App.P. 44.2(b). Zavala's other complaints about leading questions were not preserved by a timely objection. See Tex.R.App.P. 33.1(a). We resolve Zavala's third issue against him. In his fourth issue, Zavala argues the trial court erred in admitting evidence of an extraneous offense during the guilt/innocence phase of the trial. One of Zavala's alibi witnesses, Andres Rojas, testified that in 1990 his probation was revoked and he was convicted for a 1989 burglary of a vehicle. The State sought to ask Rojas if Zavala and another alibi witness, Miguel Garza, were co-defendants on the 1989 burglary case. Zavala objected to this testimony, outside the presence of the jury, arguing he had completed his deferred adjudication probation for that offense and the evidence was too prejudicial. The trial court stated the evidence was relevant to the witness's possible bias and overruled the objections. Rojas testified that Zavala and Garza were co-defendants with him in the 1989 burglary case. Zavala did not object at trial that this evidence violated evidence rule 404. See Tex. R. Evid. 404. Therefore, he has not preserve this complaint for appeal. Tex.R.App.P. 33.1(a); Taylor v. State, 55 S.W.3d 584, 585 (Tex. Crim App. 2001) (because appellant's trial objection did not comport with issue raised on appeal, he did not preserve error). Further, both Garza and Zavala testified to the same evidence without objection. Because the same evidence was admitted without objection, Zavala's objection was waived and any error in admitting the evidence rendered harmless. See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998); Anderson v. State, 717 S.W.2d 622, 626-27 (Tex.Crim.App. 1986). We resolve Zavala's fourth issue against him. In his fifth and sixth issues, Zavala argues the trial court erred in denying his requests for a mistrial after two of his objections were sustained and the jury instructed to disregard. During a series of questions about when Rojas was first contacted about the alibi evidence, the prosecutor asked, "Why do you keep looking at the defendant?" During rebuttal, the State questioned one of the detectives about another detective who was not at trial and asked if the absent detective's wife had recently had brain surgery. In both instances, the trial court sustained Zavala's objections, instructed the jury to disregard, and overruled Zavala's request for a mistrial. After reviewing the record, we conclude the trial court's prompt instructions to the jury in each instance cured any error from the objectionable statements. See Ladd 3 S.W.3d at 567. "Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer." Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). Nothing in the record indicates these statements had the potential or were calculated to inflame the minds of the jury in such a way that any improper impression could not be cured by a prompt instruction. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim. App. 1999). We resolve Zavala's fifth and sixth issues against him. In his seventh issue, Zavala complains about statements made in the State's closing argument. As he admits in his brief, Zavala did not object to these statements at trial. Before an appellant will be permitted to complain on appeal about an erroneous jury argument, he must show that he timely and properly objected to the argument and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim. App. 1996). By failing to object at trial, Zavala forfeited his right to complain on appeal. Tex.R.App.P. 33.1(a). We resolve Zavala's seventh issue against him. In his eighth issue, Zavala argues the cumulative effect of his third through seventh issues warrants a new trial. The record does not indicate that Zavala presented this complaint to the trial court and obtained a ruling. Thus, he has not preserved it for appellate review. Tex.R.App.P. 33.1(a). Moreover, the alleged errors were either not preserved for appeal, waived, or cured by a timely instruction to disregard. While it is conceivable that a number of errors may be harmful in their cumulative effect, no such cumulative harm has been shown here. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999); but see Stoker v. State, 788 S.W.2d 1, 18 (Tex.Crim.App. 1989) (noting that cumulative effect argument was not a proper point of error and presented nothing for review). We resolve Zavala's eighth issue against him. We affirm the trial court's judgment.