Opinion
No. 05-03-01718-CR
Opinion Filed October 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F-0251992-KH. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
OPINION
Veronica Alvarado appeals her murder conviction. The jury found appellant guilty of murder and sentenced her to 45 years of imprisonment. On appeal, appellant argues that the evidence is legally and factually insufficient. She also argues that the trial court erred by denying her hearsay objection. After reviewing appellant's claims, we conclude that the evidence is legally and factually sufficient. Also, we conclude that appellant's complaint that the trial court erred by overruling her hearsay objection is waived because she did not make a timely objection and assuming that the trial court did err by overruling her objection, there was no harm. The trial court's judgment is affirmed. Tex.R.App.P. 43.2(a).
I. FACTUAL AND PROCEDURAL BACKGROUND
Simon Bustos knew appellant since he was approximately 12 years old, they began dating when she was around 14 years old, and they dated for approximately four years. During a portion of that time, appellant lived with Bustos at his father's house. They stopped dating a few months before June of 2002. After their dating relationship ended, the pair continued to talk, but appellant called Bustos more often than he called her. In March of 2002, Bustos started dating America Bear Luster. On the night of June 15, 2002, Bustos and the victim argued. She wanted to "go out." He did not want her to "go out." The victim went to the house of her cousin, Kathy Bear, and then "went out." Simon Bustos was angry with the victim for "going out" when he did not want her to, so he went to a friend's house. While he was at his friend's house, appellant called him. Because Bustos wanted to get back at the victim for leaving that night, he asked appellant if she wanted to go to his home. Appellant indicated that she did, so in the early morning hours of June 16, 2002, Bustos drove to get appellant, stopped at a convenience store to buy condoms, and went with her to his father's house. While Bustos and appellant were having sex, the victim walked in on them. The victim asked Bustos if appellant was Liz and he answered that she was Veronica. Then the victim asked appellant if she could speak with Bustos outside. Bustos went out onto the front porch with the victim. When they were alone on the front porch, the victim asked Bustos if he was going to go with her or stay with appellant. Bustos told the victim that he was going to go with her and that he was going back inside the house to put on his shirt and shoes. Also, Bustos told the victim that he was going to leave appellant his car keys so she could get home. Appellant was still in Bustos' room when he returned from talking with the victim on the front porch. When she saw Bustos putting on his clothes, appellant told him "you're not finished here," which Bustos understood to mean that they were not finished having sex. They began to argue. Appellant was "grabbing" at Bustos and telling him, "you're not leaving," when the victim walked back into the room. Bustos started dressing at a faster pace, but something the victim said caught his attention. He turned around and saw appellant holding the revolver he keeps under his pillow. Bustos reached for the revolver, but it went off before he could put his hands on it and he heard the victim fall to the floor. Appellant tried to hand Bustos the revolver, but when he refused to take it, she let it drop to the floor. Bustos asked appellant why she did it and appellant responded that he was the one who did it. Bustos' father was awakened by a loud thundering noise. He got up from bed, checked the windows and the house, and ultimately went into Bustos' room. In his son's room, Bustos' father saw his son and appellant. He also saw the victim and the revolver, which was closer to appellant than to his son, on the floor. In addition, Bustos' father heard his son ask appellant "[f]or what [sic] did you kill her? For what [sic] did you kill her?" Appellant told Bustos' father to call the police, but she made the call because he does not speak English. Bustos heard appellant tell the 9-1-1 operator that her boyfriend shot his girlfriend. When the police arrived they saw Bustos and appellant in front of the house and observed that Bustos was crying, but that appellant did not appear too emotional. Appellant told the police that a girl had been shot and that she was inside the house. One of the officers went into the house, while the other remained outside with Bustos and appellant. Both of the officers heard Bustos and appellant start arguing. During that argument, the officers heard appellant say to Bustos "tell the cops you shot her," and Bustos reply, "bitch, I'm not taking the rap for this. You know you shot her." In the house, the officer found the victim lying on the floor with a gunshot wound to her head. The victim had a faint breath and was trying to move her hand He called the paramedics, who took her to the hospital. The victim died at the hospital. Bustos and appellant were taken to the police station. After the detective read her the Miranda warnings, appellant gave a statement that the shooting was an accident. Also, Bustos gave the police a statement that the shooting was an accident. A few days later, the detective received a call from Jaime Bear and Kathy Bear, relatives of the victim, advising that Bustos had lied. Bustos was interviewed again and provided the police with a second statement. In the second statement, he said that appellant shot the victim. Appellant was arrested and indicted for murder. At the conclusion of the trial, the jury found appellant guilty of murder. The jury sentenced appellant to 45 years of imprisonment. Appellant appeals her murder conviction.II. WAIVER
Texas Rule of Appellate Procedure 38.1(h) requires appellate briefs to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h). With the exception of her statement of facts, appellant fails to provide any record citations. However, because appellant does provide appropriate citations to authorities, we will address her issues on appeal.III. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
In her first and second issues on appeal, appellant argues that the evidence is legally and factually insufficient to support her murder conviction. The State responds that appellant's arguments are without merit.A. Standards of Review
Differences exist between a factual sufficiency and legal sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Further, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id.1. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42, 109 S.Ct. 285, 291, 102 L.Ed.2d 265 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).2. Factual Sufficiency of the Evidence
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation since the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 2004 WL 840786, at *4.; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based upon the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 2004 WL 840786, at *7; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. A proper factual sufficiency review by an appellate court must include a discussion of the most important and relevant evidence that supports appellant's complaint on appeal. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). However, appellate courts are not required to discuss all of the evidence admitted at trial. See id.B. Applicable Law
A person commits murder if he intentionally or knowingly causes the death of an individual or seriously intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). The State must prove that a defendant intended to kill beyond a reasonable doubt. A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. See Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A person acts knowingly when he is aware of the nature of his conduct or that the circumstances surrounding his conduct exist. See Tex. Pen. Code Ann. § 6.03(b). Proof of intent is almost always proved by circumstantial evidence. Sadler v. State, 728 S.W.2d 829, 831 (Tex.App.-Dallas 1987, no pet.). The intent to kill may be inferred from the use of a deadly weapon in a deadly manner. Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App. 1993); see also Johnson v. State, 959 S.W.2d 284, 288 (Tex.App.-Dallas 1997, pet. ref'd). If a deadly weapon is used in a deadly manner, the inference of intent to kill is almost conclusive. Adanandus, 866 S.W.2d at 215. A revolver is a deadly weapon, and when used by a defendant, an intent to kill is presumed. See Williams v. State, 567 S.W.2d 507, 509 (Tex.Crim.App. 1978) (discussing a pistol). Where a deadly weapon is fired at close range and death results, the law presumes an intent to kill. Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App. [Panel Op.] 1981). A person commits an offense only if he voluntarily engages in the conduct. See Tex. Pen. Code Ann. § 6.01(a). The voluntariness of one's conduct, or bodily movements, is separate from one's mental state. Brown v. State, 955 S.W.2d 276, 280 (Tex.Crim.App. 1997); Adanandus, 866 S.W.2d at 230. Voluntariness, within the meaning of § 6.01(a) of the Texas Penal Code, refers only to one's physical bodily movements. Brown, 955 S.W.2d at 280. Voluntary conduct that also includes an involuntary act does not necessarily render engaging in that conduct involuntary. Joiner v. State, 727 S.W.2d 534, 536 (Tex.Crim.App. 1987). A defendant's conduct is not rendered involuntary merely because he did not intend the result of his conduct. Id. Evidence of a struggle does not necessarily negate deliberate or voluntary conduct. See Adanandus, 866 S.W.2d at 216, 230.C. Application of the Law to the Facts
Appellant asserts that we should focus on at least five pieces of evidence. First, her statement and Bustos' first statement, both given to the police a few hours after the shooting, state that the shooting was an accident. Second, appellant suggests that there is conflicting testimony concerning the lighting in Bustos' room. Third, she claims the record shows that Bustos was the only person who saw the victim return to his room right before the shooting. Fourth, according to appellant, there is no physical evidence that she was the only person holding the revolver when it discharged. Fifth, appellant argues that the only evidence that she deliberately caused the death of the victim was Bustos' self-serving testimony. The State responds that Bustos' testimony supports a conclusion of legally sufficiency because it shows that appellant deliberately caused the victim's death. Also, the State responds that the contrary evidence that appellant points to does not outweigh the evidence supporting the jury's verdict. Finally, the State responds that the jury's determination in this case required an evaluation of Bustos' credibility.1. Evidence Tending to Disprove Appellant's Guilt
Appellant points to her police statement and Bustos' first police statement as evidence that disproves her guilt and proves her claim that the shooting was an accident. Appellant's statement was read into the record and states, in part, the following:We kept arguing about who was going to leave, me or [the victim] or [Bustos] with [the victim]. This went on for about ten minutes. We started struggling with each other and fell off the bed. When we got back on the bed, I saw his gun that he always keeps under the pillow. I grabbed his gun and [Bustos] grabbed my wrist. The gun went off. I dropped the gun and stepped back. I turned on the light, and then I saw [the victim] on the floor. [Bustos] started yelling at me that I had shot [the victim]. I kept saying that I did not do it. Then his dad came in. I called the police and so did his dad. I am left-handed and the gun was in my left hand when it went off.Bustos' first statement to the police also states that he grabbed appellant's arm when the gun went off. Appellant asserts there is conflicting testimony regarding the lighting in Bustos' room. She says this evidence proves that she did not know that the victim was in the room when the gun went off. Appellant's statement recites that after the gun went off, she dropped the gun and turned on the light, which is when she saw the victim on the floor. The record shows that Bustos testified that his room was lit by a few candles when he was having sex with appellant. He said that the lights were turned on when the victim was in the room the first time, but he does not remember who turned the lights on. Also, Bustos said that when he returned to the room after speaking with the victim on the front porch, the lights were on. In addition, the record shows that the police officer who found the victim in Bustos' room testified that he could not recall if the lights were on in Bustos' room when he found the victim and that he used his flashlight when he entered the house because there were no lights on in the hallway. Further, appellant points to the fact that the record only shows that Bustos saw the victim in his room right before the shooting, the record does not contain any physical evidence showing that appellant fired the weapon alone. Appellant argues that there is no evidence that she deliberately caused the victim's death, except for Bustos' self-serving testimony.
2. Evidence Tending to Prove Appellant's Guilt
The record shows that Bustos testified he always keeps the revolver loaded, he keeps the gun under his pillow or under his mattress, he believed appellant knew that he keeps the loaded revolver under his pillow because she lived with him for a time, and on the night of the shooting the revolver was under his pillow. Also, Bustos testified that the victim said something that caught his attention, causing him to turn toward appellant, and he saw appellant with his revolver pointed up a little bit at a slight angle. He said appellant shot the victim before he was able to touch the revolver. In addition, he testified that appellant tried to hand him the revolver and that she told the 9-1-1 operator that he shot the victim. Further, Bustos said that his room is a small room and that his bed takes up the majority of the room. Moreover, he explained that he told the police in his first statement that the shooting was an accident because he was scared, so when the police kept coming in and out of the interview room he just kept answering "yes" to their questions. In addition to the foregoing, the record shows that Bustos' father testified he heard the gun shot, saw his son and appellant in the room with the victim lying on the floor, saw the gun on the floor, that the gun was closer to appellant than to his son, and heard his son ask appellant why she shot the victim. Also, he testified that appellant lived at his house for a period of time while she was dating Bustos. As to Kathy Bear's testimony, the record shows that she said Bustos told her that the shooting was not an accident, so she called the investigating detective. Also, she testified that Bustos told her that the victim asked appellant what she was going to do with the gun right before she was killed. Additionally, the record shows that the two police officers who responded to the 9-1-1 telephone call testified that when they arrived at the Bustoses' house, Bustos was crying, but appellant did not appear too emotional. They testified that they heard Bustos and appellant arguing and appellant told Bustos to "tell the cops [he] shot her." Bustos replied, "bitch, I'm not taking the rap for this. You know you shot her." Finally, the record reflects that three forensic examiners testified at trial for the State. The trace evidence examiner testified that she tested the handwipings taken from Bustos and appellant and found elevated levels of antimony on both hands. She did not find high levels of barium or lead. She testified that the conclusions that can be drawn from those results are that the individuals did not fire a weapon or that the weapon used does not leave high amounts of residue. Also, she said that any time a person's hands come into contact with another object, some of the residues are removed. The firearm and tool mark examiner testified that there were sufficient individual characteristics to show that the fired cartridge case and the bullet fragments taken from the victim's body came from Bustos' revolver. The medical examiner testified that the trajectory of the bullet was front to back with a very slight left-to-right and upward deviation, and that the gun was fired at least three feet away from the victim.3. Discussion
Viewing the evidence in the light most favorable to the verdict, there was evidence that appellant murdered the victim. There was testimony that appellant intentionally killed the victim because she discharged the revolver. See Adanandus, 866 S.W.2d at 215. Also, there was testimony that appellant discharged the revolver in a small room and that the victim was shot from a distance of at least three feet. See Womble, 618 S.W.2d at 64 (law presumes intent to kill when deadly weapon fired at close range). In addition, the evidence of a struggle, which appellant focuses on, does not negate her intentional and voluntary conduct because she knew where the revolver was kept, took it out from under the pillow, pointed in the direction of others, and there is no evidence in the record that the revolver fired on its own volition. See Adanandus, 866 S.W.2d at 216, 230 (evidence of struggle does not necessarily negate deliberate or voluntary conduct); Joiner, 727 S.W.2d at 536 (voluntary conduct that also includes an involuntary act does not necessarily render engaging in that conduct involuntary). Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that appellant was guilty of murder. It is clear that the appellant's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that appellant's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond a reasonable doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude that the evidence is legally and factually sufficient to support appellant's conviction for murder. Appellant's first and second issues on appeal are decided against her.IV. HEARSAY OBJECTION
In her third issue on appeal, appellant argues that the trial court erred by overruling her hearsay objection to a portion of Kathy Bear's testimony. The State responds that the trial court did not abuse its discretion because the statement falls under the excited utterance exception to the hearsay rule.A. Hearsay Objection Not Preserved for Appeal
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an error for appellate review. Tex.R.App.P. 33.1. To preserve an error for appeal, a party must make a timely, specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the context, obtain a ruling on the complaint, and comply with the rules of evidence or procedure. Id. An objection at trial must be timely. Largone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997); Jones v. State, 111 S.W.3d 600, 604 (Tex.App.-Dallas 2003, pet. ref'd). A timely objection is made at the first opportunity or as soon as the basis for the objection becomes apparent. Largone, 942 S.W.2d at 618; Jones, 111 S.W.3d at 614. When it is reasonably obvious that a question calls for inadmissible evidence, an objection must be made before the witness answers that question. See Beall v. Ditmore, 867 S.W.2d 791, 794 (Tex.App.-El Paso 1993, writ denied). If an objection was made after the improper testimony was elicited, the error is not preserved for appeal unless the appealing party can show a legitimate reason for not timely objecting. Largone, 942 S.W.2d at 618; Jones, 111 S.W.3d at 614. During the trial, the State called the victim's cousin and close friend, Kathy Bear, to testify. During the State's direct examination of Kathy Bear, and after a predicate was laid that she and Bustos were emotional at the time of their conversation, the following occurred:STATE: And what did [Bustos] tell you had happened?
DEFENSE COUNSEL: Objection to hearsay, Your Honor.
COURT: Sustained.
STATE: Let me ask you this. Do you remember specifically about one statement in general [Bustos] made to you?
KATHY BEAR: Yes.
STATE: Do you remember [Bustos] saying to you — to you that [the victim] had asked, what are you going to do with that, right before the shot was fired?
KATHY BEAR: Yes.
DEFENSE COUNSEL: Objection, hearsay, Your Honor; just trying to get around my prior objection, phrasing it different.
COURT: Overruled. Go ahead.
STATE: Do you remember [Bustos] asking — do you remember [Bustos] telling you that?
KATHY BEAR: Yes.
STATE: Well, what did [Bustos] say [the victim] had said right before she got shot?
KATHY BEAR: [The victim] asked [appellant], what are you going to do with that. [Bustos] looked back and started to go towards the gun, and that's when [appellant] did it. And I asked [Bustos] what did she do.The record shows that the State asked Kathy Bear three times about her conversation with Bustos regarding the victim's statement before she was shot. The first time the State asked the question, appellant objected and the trial court sustained the objection. The second time the State asked the question, appellant did not object until after the witness answered the question and the trial court overruled the objection. The third time the State asked the question, appellant did not object at all. The record also shows that appellant did not ask the trial court for a running objection. Further, appellant offers no reason for her failure to timely object when the State asked the question a second time, or her failure to object at all when the State asked the question a third time. We conclude that appellant did not timely object to the State's question because she objected after Kathy Bear answered the question when it was asked a second time, failed to object when the State asked the question a third time, and has shown no legitimate reason for not timely objecting to the State's question. Appellant's third issue on appeal is waived. Tex.R.App.P. 33.1.