Opinion
No. 05-08-00633-CR
Opinion issued December 8, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F06-62208-HI.
Before Justices BRIDGES, LANG, and LANG-MIERS.
OPINION
Johnny Fonseca appeals his murder conviction. A jury convicted appellant and sentenced him to twenty-eight years' confinement and a $10,000 fine. In five issues, appellant argues the trial court erred in failing to suppress his custodial interrogation, in admitting autopsy photographs of the victim, and in failing to instruct the jury on the lesser included offense of theft; the evidence was factually insufficient to support his conviction; and his oral statement was taken in violation of article 38.22 of the code of criminal procedure. We affirm the trial court's judgment. Guion Cravens lived in a house behind Danny Davila's house and paid Davila rent each month. Davila's parents and other family members, including Davila's brother Lewis Jimenez, lived nearby. The last time Davila saw Cravens alive, Cravens was "pretty drunk and was having DTs." Cravens did not have a car, and he asked Davila to take him to a liquor store. Davila did not want to take Craven to the liquor store, but Cravens started getting "anxious," and Davila took him to the store because he did not want Cravens to "go walking and get mugged." Davila knew Cravens' alcoholism was an ongoing problem and Cravens was "really depressed." Davila's family was the closest family Cravens had. When they returned from the liquor store, Davila and Cravens talked in Davila's truck, and Davila said he would check on Cravens later. The next day, Davila realized he forgot to check on Cravens, and he went to the house Cravens rented. Cravens did not answer Davila's knock, so Davila attempted to look in a window and found the back door open. A lawnmower was blocking the door, Cravens' house was "ransacked," and Davila was scared. Davila saw his brother-in-law, Gerardo, outside and called him over and sent him inside the house. Gerardo went inside, discovered Cravens' body, and told Davila to call the police. Police investigated the crime scene and, the next day, questioned Davila about the contents of Cravens' house. Davila knew Cravens had a television because Davila had helped him bolt it down to a table. Cravens said he caught appellant trying to steal his air conditioning unit one night, and he was "concerned" about appellant. Through the investigation, Davila learned the television was missing from Cravens' house. Davila's daughter relayed information to Davila that appellant and Davila's brother, Lewis Jimenez, had Cravens' television. Davila called his sister and Gerardo, told them about the television, and they confirmed the television was Cravens' by going and looking at it at the nearby home of Jose Moreno, appellant's girlfriend's son. Davila's mother found out about the television and confronted Jimenez about it. Jimenez said he had "nothing to do with it," and his mother told him he should talk to the police detectives if he had nothing to do with it and called the police. Detectives returned to the area and Jimenez was shocked and nervous and trying to explain himself to his mother. Moreno allowed police to enter his house and see Cravens' television. Before police entered Moreno's house, Delores Lopez saw appellant down the street. Appellant was "very upset," and Lopez could tell appellant was cursing because he was moving his hands. Detectives subsequently took Moreno, Jimenez, and appellant to police headquarters for questioning. Moreno told police that Jimenez said appellant killed Cravens. Jimenez described to Moreno how appellant tied up Cravens, "picked up a little night stand," and hit Cravens with it. Moreno said appellant said that "all he had done was beat him up." Dallas police officer Eduardo Ibarra interviewed appellant. Ibarra initially asked appellant general questions concerning his background and determined appellant spoke both English and Spanish in a way that would allow him to respond to questioning. Appellant was "overly cooperative" and offered to give Ibarra DNA, fingerprints, and blood samples. Before Ibarra began questioning appellant about the underlying offense, he told appellant he had to "afford him his statutory warning, which is his rights." Appellant acknowledged he knew about his rights. Ibarra read appellant his Miranda rights from a card, and appellant initialed beside each of his rights and signed the card. In the interview that followed, appellant said Jimenez asked him to help carry a television which appellant took to Moreno and sold for crack cocaine. During the interview, Ibarra noticed appellant's right hand was swollen, and appellant allowed police to photograph his hand. Appellant said he had hit his hand with a sledge hammer while working on an automobile. Appellant and Jimenez were subsequently charged with capital murder. At appellant's trial, Jimenez testified he was friends with Cravens and once lived with Cravens at Cravens' prior residence. Once Cravens moved to Jimenez' neighborhood, Jimenez saw Cravens "about every day" and looked after him. Cravens was an alcoholic and would sometimes smoke crack with Jimenez. Jimenez testified he saw Davila and Cravens return from the liquor store, and then he went to drink, smoke crack, and play cards with friends. Over the course of the night, Jimenez left his friends, went to see Cravens, and returned to his friends. About midnight, Jimenez went to another friend's house where he stayed until approximately 2:00 a.m. Jimenez went to Cravens house again and found Cravens "really really, intoxicated." Jimenez told Cravens to stop drinking, and he took a bottle of vodka away from Cravens and told Cravens he would come back and check on him later. Jimenez took the vodka to his friends and shared it with them. On his way back to Cravens' house, Jimenez met appellant at a house along the way. Appellant asked if Jimenez had any crack, and Jimenez said he did not. Appellant asked what Jimenez had, and Jimenez gave appellant some vodka and a cigarette. Appellant asked about working for Jimenez' brother, and Jimenez said he had to leave when he realized appellant was going to ask him for money. Jimenez left and walked back to Cravens' house. Jimenez walked in the back door of Cravens' house and sat down in the living room with Cravens. Cravens told Jimenez not to let anybody in the house. About ten minutes later, Jimenez heard appellant knocking on the door and cursing and calling Jimenez a liar. Jimenez did not know why appellant was upset. Jimenez and Cravens stood up, and Cravens was scared. Jimenez told Cravens not to worry and assured him he would not let anyone in the house. Jimenez told Cravens to go back in his room and lie down. Appellant burst through the back door, went in Cravens' bedroom, and started beating Cravens with his hand. Cravens was on his bed, and appellant beat him until Cravens fell to his knees. Jimenez told appellant to stop, but appellant was "like a mad man, and he didn't listen." Appellant was "saying racial names" to Cravens, and appellant said something about Cravens calling the police on appellant for trying to break into Cravens' house before. Appellant asked, "Where's the money?" and continued hitting Cravens and covered Cravens' head with a blanket. Appellant kept hitting Cravens and checked Cravens' pockets for money. Jimenez told appellant to stop and leave Cravens alone, but appellant did not listen. Appellant picked up a night stand and hit Cravens in the head with it. Jimenez left the house because he "couldn't control this," and he walked around outside and smoked a cigarette as he tried to calm down. Jimenez considered going back to his friends but decided he should return to Cravens' house and see what was happening. Jimenez saw appellant coming out of Cravens' house with a television. As appellant approached, Jimenez saw he was having trouble carrying the television, so Jimenez helped appellant carry the television to Moreno's house where Moreno took the television in exchange for some crack. Jimenez went with appellant to an empty house where they smoked the crack and appellant fell asleep. Jimenez returned home without checking on Cravens because he saw all the lights on in Cravens' house and "figured he was okay." Jimenez testified he had pled guilty to burglary of a habitation and was testifying pursuant to an agreement that the State would recommend a sentence of twenty years if he testified truthfully. A jury convicted appellant of murder, and this appeal followed. In his first issue, appellant argues the trial court erred in denying his motion to suppress evidence obtained during his custodial interrogation because he did not knowingly, intelligently, and voluntarily waive his rights. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim. 1997). Under this standard, we give "almost total deference to the trial court's determination of historical facts[,]" especially when the trial court's fact findings are based on an evaluation of the witnesses' demeanor and credibility. Id. We also "afford the same amount of deference to the trial court's rulings on `application of law to fact questions,' also known as `mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Id. However, we apply a de novo review to all other mixed questions of law and fact. Id. Article 38.22 of the Texas Code of Criminal Procedure addresses the admissibility of oral and written statements and codifies the procedural safeguards outlined in Miranda v. Arizona, 384 U.S. 436, 467, 478-79 (1966). See Tex. Code Crim. Proc. Ann. Art. 38.22 (Vernon 2005); see also Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995) (Texas statutory warnings codified in article 38.22 comply with Miranda). Under article 38.22, section 3, an oral statement resulting from a custodial interrogation is admissible only if an officer warns the defendant of his Miranda rights and the accused executes a knowing, intelligent, and voluntary waiver of those rights. See Tex. Code Crim. Proc. Ann. Art. 38.22 § 3 (Vernon 2005) To determine whether an accused effectively executed a valid waiver of rights, we must decide whether the waiver was a "product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421, (1986); Ripkowski v. State, 61 S.W.3d 378, 384 (Tex.Crim.App. 2001). We must also determine whether the waiver was given "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran, 475 U.S. at 421; Ripkowski, 61 S.W.3d at 384. An express waiver is not necessary, and the trial court may find facts and evidence sufficient to support an inference of waiver. Rocha v. State, 16 S.W.3d 1, 12 (Tex.Crim.App. 2000); State v. Oliver, 29 S.W.3d 190, 191-92 (Tex. App.-San Antonio 2000, pet. ref'd) (waiver can be inferred "where an oral confession contains a recitation of the art[icle] 38.22 warnings and the defendant indicates he understands his rights and proceeds without hesitation to participate in the interview."). We consider the totality of the circumstances when determining whether an accused effectively waived his rights and thereby made a statement voluntarily. Moran, 475 U.S. at 421. Appellant complains specifically he answered "No" when Ibarra asked if he wanted to waive his rights. The context of this statement, made immediately after Ibarra read appellant his Miranda warnings, is as follows: Ibarra: Do you understand the rights that I have read to you? Appellant: I sure do. Ibarra: One through five Appellant: Uh-huh Ibarra: You understand all five of them? You do? Appellant: (Translator Note: Nodding his head yes) Ibarra: Knowing your rights, Appellant: Yes Ibarra: Do you want to waive your rights Appellant: No Ibarra: And talk to me about it? Appellant: I ain't got nothing to hide Ibarra: Okay, fantastic. Let me get you to ah, and this is just so I can keep in my files that I did give them to you, get you to sign (unintelligible) Appellant: It's okay Ibarra: It's okay? Ah, if I can get you to initial on each one through five saying that I did read you those and then you sign it we'll date it and then we move on Appellant: (Translator note: He signs paper) Ibarra proceeded to sign and date the warnings, and appellant volunteered to give Ibarra his fingerprints. The interview continued for approximately four hours, and appellant continued to cooperate, allowed police to take a DNA sample from him, and asked if police "want[ed] blood too." Appellant stated he "heard that man got killed," and he knew the man but did not know his name. Ibarra asked appellant why somebody would say Ibarra needed to talk to appellant about the murder, and appellant said he did not know. Appellant said he had "no blame" about what happened to "that gentleman" and did not know what happened to him. Appellant eventually said a "comrade" told him, "I have this television please carry it because I can't carry it." Appellant clarified he got the television "from his porch." Appellant finally identified Jimenez as the man who put the television by the porch and asked appellant to carry it. Appellant said he took the television to Moreno, asked if Moreno wanted to buy it, and sold it to Moreno for $25 appellant used to buy crack. Appellant said Jimenez "took [the television] out" and had it on the porch. Appellant said he was a "salesman" in the neighborhood and had nothing to do with Cravens' murder. The interview ended when appellant said, "Don't ask me no more questions. You wanna lock me up, take me, for the television, but the rest? Don't ask me because I'm not going to answer you. That's it case closed." Thus, the record shows that, despite appellant's one response of "No" when asked whether he wanted to waive his rights, he immediately said, "I ain't got nothing to hide." Other than his one negative response, appellant stated he understood his rights and confirmed his understanding by initialing next to each of his rights. Appellant talked to Ibarra for approximately four hours, provided a DNA sample, and offered a blood sample. Moreover, during the interview, appellant stated he was not going to answer any more questions, and the interview was over. Appellant's request to stop the interview after being questioned for hours demonstrates appellant was not under the influence of deception or coercion when he waived his rights and made his statement. See Oliver, 29 S.W.3d at 193. Given the totality of the circumstances, we conclude appellant was fully aware of both the nature of his rights and the consequences of abandoning them, and he knowingly, intelligently, and voluntarily waived those rights. See Ripkowski, 61 S.W.3d at 384. Accordingly, the trial court did not abuse its discretion in overruling appellant's motion to suppress. We overrule appellant's first issue. In his second issue, appellant argues the trial court abused its discretion in admitting over objection certain autopsy photographs, State's Exhibits 124, 125, 126, and 127. Dallas County medical examiner Jill Urban testified Exhibit 125 fairly and accurately depicted Cravens' head and the injuries to his face. Urban testified the photograph was the standard size photograph used by the medical examiner's office. Exhibit 125 shows Cravens' face with his eyes closed, and Urban testified the photograph showed the bruising around Cravens' eyelids, "and that involves both the upper and lower eyelids on both sides." Urban pointed out that Exhibit 125 showed the bruising she described on Cravens' forehead, the scrapes around his face and forehead, and scrapes, abrasions, and bruising on his chin. Exhibit 124 is a close-up photograph of the inside of Cravens' lip. Urban explained Exhibit 124 showed a tear in the lining of Cravens' lip and contusions or bruising on his tongue that could be associated with biting the tongue during a struggle. Urban testified the injuries are also sometimes present in people who have been asphyxiated as well if there is some kind of struggle involving the mouth and neck. Because of the way Cravens' body appeared when it arrived, Urban already thought strangulation was a potential cause of death. Exhibit 126 is a close-up photograph showing Cravens' eyes propped open. Urban testified she always looks at the surfaces of the eyes and the lining of the eyelids searching for petechiae, which are "little bitty spots where blood vessels have broken and hemorrhaged into the surrounding tissue. Urban testified Cravens' eyes were propped open to "allow exposure of the involved area," and the photograph showed petechiae within Cravens' eyelids and lining the surface of his eyeballs. Petechiae occur when pressure is applied to the neck, Urban explained. The pressure not only stops the blood that is going to the brain but also stops the blood coming back from the brain to the heart. When this occurs, the small veins in the eyes cannot drain, and they become engorged or completely filled up with blood to the point where they will pop. In Craven's case, there was so much hemorrhaging that the little petechiae ran together to form bigger areas of hemorrhage. Exhibit 127 is a photograph of Cravens' skull showing the scalp pulled back and the brain exposed. Urban described the blunt-force injuries to Cravens' brain, including bleeding within the surface of the brain, bruising within the brain, and "a great deal of hemorrhage occurring within the scalp and overlying the skull." Urban's examination and the injuries depicted in Exhibit 127 indicated Cravens suffered a "serious blow to the head." In order to be admissible, photographs must be relevant to the solution of a disputed fact issue. Lanham v. State, 474 S.W.2d 197, 199 (Tex.Crim.App. 1972). Autopsy photographs provide powerful visual evidence of an offense, and a trial court does not abuse its discretion in admitting photographs of a complainant into evidence merely because they may be gruesome. Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). Relevant photographs may, however, be excluded if their probative value is substantially outweighed by the danger of unfair prejudice. Tex.R. Evid. 403. In determining the prejudicial effect of photographs, we consider (1) the number of photographs, (2) the size of photographs, (3) whether the photographs are in color or black and white, (4) the detail shown in the photographs, (5) whether the photographs are gruesome, (6) whether a body shown in the photographs is naked or clothed, and (7) whether the photographed body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to an appellant's detriment. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). Appellant objected to the autopsy photographs on the basis that they were in color, "almost high-definition, and that the blood looks wet." Appellant complains the photographs are gruesome, nearly lifelike, and they were unnecessary because there was sufficient testimony to describe the injuries they depict. As to exhibits 126 and 127, appellant complains they are close-up color photographs, and Exhibit 126 looks as though Cravens is "actually watching, or looking at the person viewing the picture." Appellant complains Exhibit 127, which depicts Cravens' brain, was unnecessary in light of Urban's testimony and was inflammatory "in that it went beyond injuries sustained externally, and into [Cravens'] body." The court of criminal appeals has rejected the premise that visual evidence accompanying oral testimony is cumulative of the testimony or that it is of insignificant probative value. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). Visual evidence accompanying testimony is most persuasive and often gives the fact finder a point of comparison against which to test the credibility of a witness and the validity of his conclusions. Id. Photographs may be gruesome in that they depict disagreeable realities, but they depict nothing more than the reality of the brutal crime committed. Id. It is precisely because they depict the reality of an offense that they are powerful visual evidence, probative of various aspects of the State's case. Id. Similarly, autopsy photographs showing "alterations of the victim's body or organs due to the autopsy procedures" depict the realities of the crime committed. Rayford v. State, 125 S.W.3d 521, 530 (Tex. Crim. App. 2003). In Rayford, the court of criminal appeals addressed the admission into evidence of photographs of the victim's internal structures of the neck, including the larynx, photographed after these structures were removed from the body during the autopsy. Id. at 529. The photographs were "fully explained to the jury as necessary to a thorough examination of the injuries." Id. at 530. The photos were not notably duplicative or cumulative and served as an aid to the medical examiner's explanation of theories relevant to the State's case. Id. Thus, the probative value of the photos was not substantially outweighed by any prejudicial effect. Id. Here, the photographs were also fully explained as necessary to a thorough examination of Cravens' injuries. See id. The explanation of Cravens' injuries further established the elements of the offense charged in the indictment: striking Cravens with appellant's hands and a piece of furniture, strangling Cravens with a cord, and suffocating Cravens with a comforter. Considering the other relevant factors, the State introduced only four photographs of Cravens' autopsy, the photographs are of a standard size used by the medical examiner's office, and only Cravens face and head are shown in the photographs, not his naked body. Reese, 33 S.W.3d at 241. The photographs are in color, highly detailed, and gruesome in that they "depict disagreeable realities." See Chamberlain, 998 S.W.2d at 237. However, they depict nothing more than the reality of the brutal crime committed. Id. Finally, the photographed body has not been altered since the crime in some way that might enhance the gruesomeness of the photograph to appellant's detriment. See Rayford, 125 S.W.3d at 530; Reese, 33 S.W.3d at 241. Accordingly, we conclude that the probative value of the photographs was not substantially outweighed by any prejudicial effect, and the trial court did not err in admitting the autopsy photographs into evidence. See Tex. R. Evid. 403; Sonnier, 913 S.W.2d at 519. We overrule appellant's second issue. In his third issue, appellant argues the evidence is factually insufficient to support his conviction. Specifically, appellant argues that he denied entering Cravens' house, and only Jimenez admitted being inside Cravens' house. Therefore, appellant argues, Jimenez is "in all likelihood the real murderer." In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case based on factual insufficiency, we look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. As a reviewing court, we may substitute our judgment for the jury's determinations on the weight and credibility of the evidence only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (stating that the factual sufficiency review requires "due deference" to be afforded to jury's determinations). Absent a contradictory showing from the record, we should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). Here, Jimenez' testimony established that appellant intentionally beat Cravens with his hand, hit Cravens over the head with a night stand, and pulled a comforter over Cravens' head. Cravens died from his injuries. The physical evidence and autopsy corroborated the fact that Cravens received blunt-force trauma to his head and suffered strangulation. Cravens' body was found with a comforter over his head and a cord wrapped around his neck, and a night stand was recovered from Cravens' room. Appellant told Moreno that all he did "was beat him up." Jimenez testified he had pled guilty to burglary of a habitation and was testifying pursuant to an agreement that the State would recommend a sentence of twenty years if he testified truthfully. Although Jimenez' version of events conflicted with appellant's statement that he only helped carry a television, the resolution of conflicts in the evidence and credibility of witnesses lies within the province of the jury, not the appellate court. We cannot conclude that a conviction is clearly wrong or manifestly unjust merely because we would have decided differently or because we disagree with the jury's resolution of the conflicts in the evidence. Watson, 204 S.W.3d at 417. Accordingly, the jury's verdict was rationally justified and was in no way "clearly wrong or manifestly unjust" or "against the great weight and preponderance of the evidence." See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We overrule appellant's third issue. In his fourth issue, appellant argues his conviction must be reversed because his oral statement was taken in violation of article 38.22 of the code of criminal procedure. Specifically, appellant complains that all of the voices on the recording were not identified. In support of his argument, appellant cites the index of the transcription of his interview which refers to a "Man = unidentified interviewer." No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless, among other things, an electronic recording is made of the statement and all voices on the recording are identified. Tex. Code Crim. Proc. Ann. Art. 38.22 § 3(a) (Vernon 2005). At the hearing on appellant's motion to suppress his statement, the State developed Ibarra's testimony that the "unidentified interviewer" on the recording was Detective Garza, who also testified at the hearing. Before the recording was introduced into evidence, Ibarra again identified Detective Garza as appearing on the recording. Appellant did not attempt to contradict Ibarra's testimony or challenge the identification of Detective Garza as the "unidentified interviewer." Under these circumstances, we conclude Detective Garza's voice was identified as required by article 38.22. See id. We overrule appellant's fourth issue. In his fifth issue, appellant argues the trial court erred in failing to instruct the jury on the lesser included offense of theft. A two-prong test must be met before a jury instruction on a lesser-included offense must be given: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged and (2) some evidence must exist that, if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). Both prongs of the test must be met, regardless of whether such an instruction is requested by the defendant or by the State. Hampton, 109 S.W.3d at 440 (citing Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). To be entitled to a jury instruction on the lesser-included offense of theft, the record must contain evidence that appellant committed a theft of the victim's property but did not injure or threaten him and did not make him fearful of imminent physical injury. See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2009). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. Id. Here, Jimenez testified appellant entered Cravens' house, beat him to death, and took his television. Appellant's statement indicated only that he helped Jimenez carry a television from one house to another. Appellant denied entering Craven's house, and appellant expressed no knowledge that the television was stolen. Thus, the record only contains evidence that, if appellant did not murder Cravens and take his television, appellant helped Jimenez carry a television he did not know was stolen. Under these circumstances, we conclude there is no evidence that, if appellant is guilty, he is guilty only of the lesser included offense of theft. See Hampton, 109 S.W.3d at 440. Accordingly, the trial court did not err in refusing to instruct the jury on the lesser included offense of theft. See id. We overrule appellant's fifth issue. We affirm the trial court's judgment.