Summary
applying same analysis as to jury unanimity in context of knowledge component of tampering with evidence
Summary of this case from Pizzo v. StateOpinion
Nos. 05-04-01190-CR, 05-04-01191-CR
Opinion Issued November 7, 2005. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F04-00171-Ji F04-00241-JI. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Raul Anthony Gonzales appeals his convictions for tampering with physical evidence and murder. After finding appellant guilty of both offenses and that he used or exhibited a deadly weapon during the commission of the murder, the jury assessed punishment at ten years' and twelve years' confinement, respectively. In seven issues, appellant contends the evidence is legally and factually insufficient to support his convictions and that the judgment is "not valid" because there is no written verdict from the jury. In five additional issues, appellant claims the trial judge erred in (i) submitting a jury charge that violated appellant's due process rights, (ii) allowing the jury to return a non-unanimous guilty verdict, (iii) denying appellant's requested instruction, (iv) overruling certain objections, and (v) not signing the punishment charge. We affirm the trial court's judgments.
Background
On February 10, 2003, the body of John Eric Ivory was recovered from a river in Dallas County. Ivory had been shot fourteen times. Appellant and Pete Carlos Ortiz Jr. were subsequently arrested and charged with Ivory's murder and tampering with physical evidence.Sufficiency of the Evidence
In his first, second, third, and fourth issues, appellant contends the evidence is legally and factually insufficient to support his conviction for murder. Under his first two issues, appellant claims (i) a rational trier of fact could not have found the essential elements of murder beyond a reasonable doubt and could not have found beyond a reasonable doubt that appellant was not acting in self-defense and (ii) the evidence supporting appellant's right to defend himself is so overwhelming as to render the verdict clearly wrong and unjust. Under his third and fourth issues, appellant claims (i) a rational trier of fact could not have found the essential elements of murder beyond a reasonable doubt and could not have found beyond a reasonable doubt appellant was not acting in defense of a third person and (ii) the evidence supporting appellant's right to defend another is so overwhelming as to render the verdict clearly wrong and unjust. In his seventh and eighth issues, appellant claims the evidence is legally and factually insufficient to support his conviction for tampering with the evidence because the record does not show appellant knew an offense had been committed or that an investigation was under way at the time he disposed of the evidence.Standards of Review
We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 1697 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. When a factfinder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914. When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of self-defense, "we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton, 804 S.W.2d at 914. When an appellant challenges the factual sufficiency of the rejection of self-defense, we review all of the evidence in a neutral light and ask "whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani, 97 S.W.3d at 595 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)).Law
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (2) (Vernon 2003). A person is "justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). Additionally, a person is justified in using deadly force against another:(1) if he would be justified in using force against the other under Section 9.31;
(2) if a reasonable person in the actor's situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.Tex. Pen. Code Ann. § 9.32 (Vernon 2003). A person commits the offense of tampering with evidence if, knowing that (i) an investigation or official proceeding is pending or in progress, he alters, destroys, or conceals any thing with intent to impair its availability as evidence in the investigation or official proceeding or (ii) an offense has been committed, he alters, destroys, or conceals any thing with intent to impair its availability as evidence in any subsequent investigation of or official proceeding related to the offense. Tex. Pen. Code Ann. § 37.09(a)(1) (d)(1) (Vernon 2003). Although appellant claims the evidence is legally and factually insufficient to support his convictions, we cannot agree. During trial, Debra Cortez testified she met Ivory-whom she knew as "Big E"-in September 2002 when she was living at a Howard Johnson Motel. In December 2002, Ivory asked Cortez if she knew anyone who could sell him crack cocaine. Cortez, who had previously purchased drugs from appellant, called appellant and arranged the deal. On the night of December 28, 2002, Cortez took Ivory to appellant's house in Pleasant Grove. Appellant answered the door and let Ivory and Cortez in. They walked through part of the house to the kitchen. According to Cortez, Ortiz was in the living room, watching television. Ivory indicated to appellant that he wanted a "biggie." Appellant put a rock of crack cocaine on the table about the size of a quarter. Suddenly, Ivory pulled a handgun out of his pocket and said, "Okay, I think this is how this is going to go down." Appellant yelled, "He's got a gun." Cortez put her head down and heard "a lot of shots." She testified she did not see appellant with a gun but saw Ortiz enter the kitchen with one. The next thing she remembered was seeing Ivory on the ground by the front door. He had been shot. Ortiz then shot him again with a shotgun. Cortez went over to Ivory who was still alive and took his hand. He then died. Appellant called a friend named Andy. While they were waiting for Andy to arrive, Cortez asked appellant if they were going to kill her because of what she had seen. Appellant told her he did not know if they wanted to kill her. Andy arrived, and the men put Cortez in a bedroom. Later, Andy and another man named Mario got Cortez and accompanied her to Andy's truck outside. Ivory's body was in the back of the truck. Andy drove the three of them, followed by appellant and Ortiz in a second vehicle, to a bridge on Bruton Road where they stopped. Ivory's body was taken out of the truck. Cortez heard a splash, and the men got in the truck. The group returned to appellant's house and cleaned it up. Cortez was taken to Andy's house, where she remained for several weeks. On cross-examination, Cortez described Ivory as a big man, probably 6'4" and 275 pounds. She responded, "yes" when asked if there was a "perceived threat of deadly force being used by [Ivory] when he pulled out that gun." On redirect, Cortez said she walked over to the front door where Ivory was lying on the ground and tried to get him up because appellant had told her to "get him out of the house." Cortez testified she was in fear of her life even after Ivory was dead; she feared appellant and Ortiz. She testified they told her she would be killed if she talked to the police. Appellant told her she would die if she talked. Andrew (Andy) Warren testified appellant called him the night of December 28, 2002. According to appellant, some guy had tried to rob him, and appellant needed help. Andy and his friend, Mario, drove to appellant's house in Andy's brother's truck. At the house were appellant, Ortiz, a friend of appellant's named Fernando, and Cortez. Ivory's body was by the front door. Andy testified the house was "tore up" and ransacked with glass and blood on the floor. He noticed bullet holes in the kitchen wall and in Ivory's body. He saw no injuries or blood on either appellant or Ortiz. When asked what happened, appellant told Andy that Ivory tried to rob him, and "he shot him." According to Andy, appellant seemed scared, real nervous, and quiet. He was pacing about the house. Andy did not know who did the shooting-all appellant said was "he shot him." After refreshing his memory with his previous written statement, Andy testified that appellant said Ivory pulled a gun on him, and appellant "shot the guy 16 times." Andy, Mario, and appellant wrapped Ivory's body in a blanket and put him in the truck. The four men and Cortez drove to Bruton Road near a golf course where they dumped the body in a creek Andy stated Cortez was scared because she had witnessed a murder but denied that she had any reason to fear for her life. He denied saying he would "put in a good word for her" with appellant and denied that she was restrained in any way. According to Andy, Cortez was in the bedroom when he arrived at appellant's house because she was scared, but she willingly walked to the truck and accompanied them to the creek. She also chose to stay with Andy following the murder. Andy denied telling prosecutor Sangermano and Investigator Penrom that he was "scared for his life" and that Cortez "had a right to be scared for hers" as well. David Spence, a scientist and supervisor of the Trace Evidence Unit at the Southwest Institute of Forensic Sciences (SWIFS), testified he examined Ivory's blue jacket submitted by the police. It contained twenty bullet "defects" or holes made by a small caliber handgun and two that were made by a shotgun. Of the twenty-two defects, ten indicated the victim was shot from behind. Spence testified that if the fabric of the jacket was folded or wrinkled at the point of entry, there would be more than one bullet defect from a single bullet. Dr. Sheila Spotswood, a medical examiner for Dallas County, testified Ivory's body was found February 10, 2003, and an autopsy was performed the following day. The autopsy revealed twelve gunshot entrance wounds and two shotgun entrance wounds. Of the twelve gunshot wounds, six had a downward path consistent with Ivory being prone or the shooter standing over him. Four of the gunshot wounds entered and exited the same side of Ivory's body. Spotswood testified these wounds were consistent with the deceased being "stooped over or in a prone position" or the shooter "standing up on some object" over the deceased. Three of the gunshot wounds were potentially fatal wounds, hitting major organs including the heart, lungs, liver, and diaphragm. The two shotgun wounds were both potentially lethal, one hitting Ivory in the front abdomen and the other hitting him in the lower back. The trajectory of the shotgun wounds was straight, and the shooter could have been six feet away. Dr. Spotswood testified that, as a result of the combination of the twelve gunshot wounds-without the shotgun wounds, Ivory would have been dead or "be agonal where he's in the process of dying, and he would not be mobile or very active at all anymore." She also testified she could not tell in what order the shots were fired. Raymond Cooper, a firearms tool mark examiner at SWIFS, testified he examined the bullets, bullet jacket fragments, lead fragments, plastic wad, and lead shot submitted by the medical examiner. His analysis revealed the weapons used in Ivory's death were likely a 9mm or a .45 caliber semiautomatic handgun and a 12 gauge shotgun. Terry Wayne Bagby testified he was appellant's cellmate in Dallas County Jail for approximately two months. During that time, he overheard appellant tell another individual about Ivory's death. According to Bagby, appellant said a girl he had been "doing business with" asked him to sell drugs to Ivory. Appellant initially told her he would not but later changed his mind. He told the girl to come to his house. Appellant had a friend come by and "be there with him." When the girl and Ivory arrived, they went in the kitchen, discussed the drugs, and agreed on a price of $3500. Ivory took possession of the drugs. When he reached in his pocket to get money, he brought out a gun instead. Ivory turned and ran out of the kitchen. Appellant's friend came around the corner and shot Ivory in the back. Ivory fell to the ground. Appellant's friend then said, "[O]h my God, what have I done." Appellant replied, "I'll tell you what you've done, you've messed my life up." Appellant got his gun and emptied it in Ivory. Appellant said Ivory got up off the floor-something they were not expecting — and tried to run out of the house. According to appellant, Ivory was struggling at the front door and "they took the small shotgun they had in the front room, and they shot him." Appellant's friend took the guns to a shop somewhere where they "took a torch around to the barrels," put them in concrete, and disposed of them. Appellant called another friend to pick up the body and get rid of it. According to appellant, the girl was scared to death and "knew that her life was in their hands." Detective Corporal James Gallagher testified he was assigned to Ivory's homicide case. The police took Ivory's wife's report that he was missing but had no leads until an anonymous phone call directed them to interview Cortez and Andy. Gallagher searched the area of the river where his investigation indicated Ivory had been dumped and found Ivory's jacket. He obtained arrest warrants for both appellant and Ortiz. He was able to contact them by phone, telling them an investigation was underway. Neither appellant nor Ortiz told him where Ivory's body was or what they had done with the weapons. Ivory's body was subsequently found in a tributary of the Trinity River. Appellant and Ortiz were arrested, and each gave a statement to the police. According to appellant's statement, Cortez asked appellant to sell Ivory some drugs; appellant asked Ortiz to be there since appellant did not know Ivory; Cortez and Ivory arrived at appellant's house and went in the dining room; Ivory looked at the drugs and said he wanted to buy them; Ivory "acted like he was going to pull out his money, but instead he pulled out a gun;" appellant ducked and ran in the kitchen; Ortiz pulled out his gun and, while Ivory was looking at Ortiz, appellant pulled out his gun; when Ivory fired his gun at appellant, Ortiz shot Ivory; appellant then shot Ivory who ran for the door; and Ortiz grabbed a shotgun and shot Ivory who then died. In his statement, appellant stated he called "Fernando" who told him he had two choices: call the police or get rid of the body. Appellant's statement also detailed calling Andy for help and disposing of Ivory's body. According to Ortiz's statement, appellant told Ortiz he was going to do a drug deal. Ortiz showed up at appellant's house with his gun. He was sitting on the couch when Ivory arrived, and the drug deal began. Ivory pulled out a gun and pointed it at Ortiz. Appellant shouted at Ivory who then turned toward appellant. Ortiz began shooting. He then dropped his gun and reached for a shotgun. Ortiz continued: "[Ivory] ran to the door. He couldn't get out — up. He backed around with the gun, and I shoot (sic) him twice." Ortiz, Andy, Fernando, Cortez, and "another guy" took the body and threw it over a bridge. Ortiz took the guns and put them in cement. He ended by stating: "When the black man turned back to me and pointed the gun, me and [appellant] both started shooting at him." After viewing all the evidence in the light most favorable to the prosecution, we conclude any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and the same rational trier of fact would have found against appellant on the self-defense issue and defense of a third person beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914. And, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence taken alone is too weak to support the finding or that the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuliani, 97 S.W.3d at 595. Therefore, we conclude the evidence is legally and factually sufficient to support appellant's murder conviction. We overrule his first, second, third, and fourth issues. Furthermore, after reviewing the evidence, we conclude any rational trier of fact would have found the essential elements of tampering with physical evidence, including that appellant knew an offense had occurred, beyond a reasonable doubt and that the State's evidence taken alone is not too weak to support the finding or that the proof of guilt, although adequate if taken alone, is not against the great weight and preponderance of the evidence. We overrule appellant's seventh and eighth issues.
Jury Charge
In his fifth and sixth issues, appellant claims the trial judge erred in submitting a jury charge that allowed the jury to convict him on a non-unanimous verdict. In his ninth issue, appellant complains the trial judge erred in denying his requested instruction.Non-unanimous Verdict
In his fifth and sixth issues, appellant claims the jury's verdict finding him guilty of tampering with physical evidence denied his right to a unanimous verdict. Under these issues, appellant contends the charge deprived him of a unanimous jury verdict because it did not require the jurors to agree on whether he knew (i) an investigation or official proceeding was pending or in progress or (ii) an offense had been committed when he altered, destroyed, or concealed the physical evidence in this case. In this case, appellant was indicted for tampering with physical evidence. The jury charge read as follows:Now, considering all the law contained in the court's charge, if you find and believe from the evidence beyond a reasonable doubt that on or about December 28, 2002, in Dallas County, Texas, [appellant], either acting alone or with another as a party to the offense, did then and there either:
knowing that an investigation or official proceeding was pending or in progress, alter, or destroy, or conceal a thing, more specifically the human remains of John Ivory or a firearm, with the intent to impair its availability as evidence in the investigation or official proceeding;
OR
knowing that an offense had been committed, alter, or destroy, or conceal a thing, more specifically the human remains of John Ivory or a firearm, with the intent to impair its availability as evidence in any subsequent investigation or official proceeding related to the offense;
you shall find the defendant guilty of tampering with physical evidence as charged in the indictment.At the conclusion of the trial, the jury found appellant guilty of tampering with physical evidence as charged in the indictment. On appeal, appellant claims the jury charge allowed the jury to convict him of either of two separate acts: (i) tampering with physical evidence knowing that an investigation or official proceeding was pending or in progress or (ii) tampering with physical evidence knowing that an offense had been committed. Appellant argues the different mental state results in a separate offense and that, as a result, we must reverse his conviction. We disagree. Jury unanimity is required in all felony criminal cases. Ngo v. State, 2005 WL 600353, at *4 (Tex.Crim.App. Mar. 16, 2005). Unanimity means each juror must agree that the defendant committed the same, specific criminal act. Ngo, 2005 WL 600353, at *4. If the State charges different criminal acts, the jury must unanimously agree the defendant committed the same criminal act. See Francis v. State, 36 S.W.3d 121, 124 (Tex.Crim.App. 2000) (separate offenses of indecency with child). If, however, the defendant is charged with committing a single offense, the State may allege differing methods of committing the single offense in the indictment. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991) (two different methods of committing single offense of capital murder). And, when alternate theories of committing the same offense are alleged in the conjunctive in the indictment, "it is proper for the jury to be charged in the disjunctive." Kitchens, 823 S.W.2d at 258. In determining whether a defendant's right to a unanimous verdict was violated, we must first determine whether the jury charge alleged different criminal acts or rather a different manner and means of committing the same criminal act. See Ngo, 2005 WL 600353, at * 3. Here, the question of whether appellant knew either an offense had occurred or that an investigation was pending or in progress goes to the manner in which he committed the offense of tampering with evidence. See Kitchens, 823 S.W.2d at 257-58; Drew v. State, 76 S.W.3d 436, 457 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Whether he knew an offense had been committed or that an investigation had ensued does not require unanimity because it involves "several possible sets of underlying brute facts" to make up the particular elements of tampering with physical evidence. See U.S. v. Richardson, 526 U.S. 813, 817 (1999). In other words, the jury had to unanimously agree that appellant altered, destroyed, or concealed physical evidence with the intent to impair its availability as evidence. The jury did not, however, have to agree about whether he acted knowingly as a result of his belief that an offense had occurred or that an investigation was pending. See Ngo, 2005 WL 600353, at *3 (discussing Schad court's conclusion that jurors were required to agree defendant had committed specific criminal act of murder but were not required to agree whether he committed murder "with premeditation or in the course of committing a robbery."). Because the jury in this case was required to be unanimous on the elements of tampering with physical evidence but not on the manner in which appellant committed the offense, appellant's right to a unanimous verdict was not violated, and the trial judge did not err. Accordingly, we overrule appellant's fifth and sixth issues, claiming jury charge error and the deprivation of his due process rights.