Opinion
Nos. 05-04-00549-CR, 05-04-00550-CR
Opinion issued March 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st District Court, Dallas County, Texas, Trial Court Cause Nos. F03-56789-PU, F03-56790-PU. Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Manuel Gonzalez, Jr. appeals his attempted capital murder convictions. A jury convicted appellant and assessed punishment at twenty years' confinement in each case. In three issues, appellant argues the evidence is legally and factually insufficient to support his convictions, and the trial court erred in denying his motion to suppress. We affirm appellant's convictions. On October 21, 2003, Dallas police officer Richard Martinez went to an apartment complex in Dallas to investigate reports that drugs were being sold in apartment 105, in the middle building facing a courtyard. Accompanying Martinez were officers Eggleston, Crawford, Allen, Aleman, and Marshall. Martinez watched for approximately twenty minutes and saw three or four different people going into apartment 107 and coming out again. Based on his experience with illegal drug transactions, Martinez became concerned about the activity at apartment 107. Martinez called for Aleman to pick him up, and they proceeded to a rallying point where Martinez discussed the activity he had observed with the other officers. Crawford, Eggleston, and Martinez approached the apartment, and Crawford knocked on the door. Crawford and Martinez wore uniforms, and Eggleston was dressed in plainclothes and wearing a white t-shirt. A man opened the door partially, and Crawford saw a black plastic bag containing crack cocaine in the man's hand. Crawford grabbed the man's hand in an effort to get the drugs and struggled with the man in the doorway. At that point, Crawford was shouting, "Police! Police!" Martinez and Eggleston were also yelling, "Police!" After struggling with the man, Crawford eventually pushed through the door, with Eggleston directly behind him. A few seconds later, Crawford heard a loud blast and saw a flash of light before becoming unconscious. Martinez heard the blast, which he recognized as a gunshot, and saw Eggleston and Crawford go down. With his gun drawn and his flashlight turned on, Martinez peeked into the apartment but did not see anyone inside. Martinez ran inside but found no one there. Allen called Martinez on the police radio to tell him officers had two suspects in the back, and Martinez left the apartment to cover Allen, who had two suspects lying prone on the ground. Allen had been waiting at the apartment's back door and, after he heard a gunshot, saw a man run out the back door. Allen drew his gun and ordered the man to stop, but he got away. Appellant and another man ran out the door, and Allen pointed his gun at them and ordered them down on the ground. Allen saw appellant had something in his hand that appeared to be a piece of black plastic or cellophane, and he ordered appellant to drop it. Appellant tossed the item, which turned out to be a bag containing crack cocaine, on the ground. Appellant was arrested and gave a voluntary statement in which he admitted shooting a sawed-off shotgun at the door but claimed the door was half closed and half open at the time, and he could not tell who he was shooting at. Although seriously wounded, Crawford and Eggleston survived the shooting. Appellant was charged with attempted capital murder of each officer, a jury convicted him, and these appeals followed. In his first and second issues, appellant argues the evidence is legally and factually insufficient to support his convictions. Specifically, he argues the evidence shows that appellant did not know Crawford and Eggleston were police officers, and he thought they were members of a gang rumored to be coming to shoot up the apartment. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits capital murder if he intentionally or knowingly causes the death of a peace officer who is acting in the lawful discharge of and official duty and who the person knows is a peace officer. Tex. Pen. Code Ann. § 19.03(a)(1) (Vernon Supp. 2004-05). A person commits a criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). Here, the record shows that Crawford, in full police uniform, struggled with a man in the doorway of the apartment while Crawford, Eggleston, and Martinez shouted, "Police! Police!" Nevertheless, appellant fired a sawed-off shotgun at Crawford, injuring Crawford and Eggleston. Appellant relies on the testimony of Carlos Rendon, one of the men in the apartment with appellant on the day of the shooting, to show appellant did not know Crawford and Eggleston were police officers. Rendon testified he heard a knock at the door and looked out a peephole but saw only "a patch of hair." Rendon put his foot on the door and opened it about two inches. Rendon testified he looked out the door and saw "a patch that said Dallas Police Department" before slamming the door shut and bolting it. Rendon "spun around and took off running and yelled, "Cops!" As Rendon ran, he heard the sound of the front door being kicked in and then a shotgun blast. As proof that the officers forced their way into the apartment, giving appellant no warning that they were police officers, appellant points to physical evidence introduced at trial showing the apartment door deadbolt was engaged, and the door frame was broken at some time after the shooting. Nevertheless, the jury was free to believe Crawford's, Eggleston's, and Martinez' testimony that they repeatedly shouted "Police" and did not break down the door. See Sharp, 707 S.W.2d at 614; McCray, 861 S.W.2d at 407. Under these circumstances, we conclude the evidence is legally and factually sufficient to show that appellant fired a shotgun at Crawford and Eggleston, and he knew they were police officers at the time. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first and second issues. In his third issue, appellant argues the trial court erred in overruling his motion to suppress evidence recovered from the apartment because the officers lacked probable cause to enter the apartment. To support this argument, appellant points to Rendon's testimony that he did not stick his hand out the door and did not have crack in his hand. Instead, appellant argues, Rendon's testimony shows that he simply opened the door briefly, looked out, slammed the door, locked it, and the police officers then broke the door down. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Here, the trial judge was free to believe Crawford's testimony that he saw a hand with crack cocaine reach outside the door, and they repeatedly shouted "Police" and did not break down the door. Having already concluded the evidence is legally and factually sufficient to show appellant knew Crawford and Eggleston were police officers, we conclude the testimony of Crawford and Eggleston supported the trial court's denial of appellant's motion to suppress the evidence found in the apartment. See Villarreal, 935 S.W.2d 138. We overrule appellant's third issue. We affirm the trial court's judgments.