Opinion
No. 05-03-01646-CR
Opinion Filed May 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-49989-U. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
A jury convicted Jose Olivarez, Jr. of the capital murders of Antonio Rodriguez and Gilbert Peralez. The trial court assessed punishment at life imprisonment. In two points of error, Olivarez argues the trial court erred by not allowing him to impeach the State's eyewitness and that the evidence is legally and factually insufficient to support the judgment. 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. Olivarez's first point of error argues the trial court erred in not allowing him to offer evidence to impeach the State's eyewitness, Teresa Diaz. Diaz testified that she worked nights at a bar called Robbie's and that she knew Rodriguez and Peralez. She saw them at Robbie's one evening before they left for another bar. She next saw them around 6:30 a.m. the next morning when they arrived at her house with Olivarez, whom she had never met. Diaz and the three men drank beer and used cocaine for a couple of hours before deciding to go back to Robbie's. Diaz admitted she supplied the beer at her house, but said that Olivarez had the cocaine. Diaz testified they were driving to Robbie's in Rodriguez's car when Olivarez asked to stop by his parents' house to get some money and cigarettes. The shootings occurred at Olivarez's parents' house. On cross-examination, Diaz denied that her house was a "bootleg" house, and stated she did not know what a "bootleg" house was. Olivarez called Jessica Tovar as a witness to impeach Diaz. Tovar testified she had lived in the area all her life, was familiar with Diaz's house, and had been to that house four or five times. Outside the presence of the jury, Tovar testified that she had last been to Diaz's house about two months before the shootings. The house was known in the neighborhood as a "bootleg," and had operated as such for three or four years. She testified that you could buy alcohol at the house at all times of the day or night and that drugs were also available. The State objected that the testimony was too remote in time, not linked to Diaz, and was improper evidence of specific acts of misconduct. The trial court sustained the objection and excluded the evidence. The decision to admit or exclude evidence is a matter falling within the trial judge's discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994); Jones v. State, 111 S.W.3d 600, 606 (Tex.App.-Dallas 2003, pet. ref'd). We review for an abuse of that discretion and as long as the trial court's ruling was within the "zone of reasonable disagreement," there is no abuse of discretion and we will uphold the trial court's ruling. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). Olivarez argues Tovar's testimony was necessary to impeach Diaz. Texas Rule of Evidence 608(b) prohibits the use of specific instances of conduct to impeach a witness's credibility. Tex. R. Evid. 608(b). However, if the witness creates a false impression on direct examination as to law-abiding behavior, the opposing party may expose the truth. See Delk v. State, 855 S.W.2d 700, 704 (Tex.Crim.App. 1993). This exception does not permit opposing counsel to use his own cross-examination to create a false impression in order to then offer the collateral matters to "impeach" the witness. See Lopez v. State, 928 S.W.2d 528, 531 (Tex.Crim.App. 1996); Crenshaw v. State, 125 S.W.3d 651, 656 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Because Olivarez elicited the alleged false impression from Diaz on cross-examination, we conclude the trial court did not abuse its discretion in refusing to allow the impeachment evidence. Even if the trial court abused its discretion by excluding the evidence, the error would be harmless. We will disregard a non-constitutional error if, after examining the record as a whole, we are left with the fair assurance that the error did not influence the jury, or influenced the jury only slightly. Schutz v. State, 63 S.W.3d 442, 443 (Tex.Crim.App. 2001) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000)). In this case the offenses took place at the house of Olivarez's parents, not Diaz. Whether or not Diaz's house was a "bootleg" house was not a significant issue in the case. Moreover, there was evidence before the jury that Diaz's house was a "bootleg" house. Olivarez admitted that he was with Rodriguez and Peralez at a club where they were using cocaine. When the club closed around 2:00 a.m., they told him they were going to a "bootlegger's" house and took him to Diaz's house. Diaz and Olivarez admitted to using cocaine at her house before the shootings. After reviewing the entire record including this evidence, we are left with the fair assurance that the trial court's error, if any, did not influence the jury, or influenced the jury only slightly. See Schutz, 63 S.W.3d at 443. Therefore, we conclude the error did not affect Olivarez's substantial rights. Tex.R.App.P. 44.2(b). We overrule Olivarez's first point of error. In his second point of error, Olivarez challenges the legal and factual sufficiency of the evidence to support the conviction. We apply the appropriate standards of review. 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); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000) (factual sufficiency). The jury is in the best position to determine the credibility of the witnesses and the weight to give their testimony. We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. The jury 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). The jury 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). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). A person commits capital murder if he intentionally or knowingly causes the death of more than one individual during the same criminal transaction. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A) (Vernon 2003 and Supp. 2004-05). There is evidence in the record that when the group stopped at Olivarez's parents' house, Olivarez got out and went to the back of the house. He then returned and called for Rodriguez to come to the side of the house. Rodriguez did so, and then returned to tell Diaz and Peralez that Olivarez wanted them to meet his parents. Diaz and Peralez told him no and to hurry. Rodriguez then went back down the side of the house. Then Olivarez returned alone and waived. Diaz and Peralez followed him to the back of the house and into the kitchen where they found Rodriguez shot to death on the floor. Olivarez had a gun in one hand and a pillow in the other. Olivarez told Diaz to undress and perform oral sex on him while he held the gun on her. Olivarez then told them to move to the bedroom, told Peralez to sit in a chair near a broken window, and told Diaz to perform oral sex on him again. Diaz then heard Peralez jump out of the window and then heard a gunshot. Olivarez went through the window, called Diaz to the window, and told her to look at Peralez and do what he said or she would be next. Olivarez took Peralez's wallet and money and told Diaz to get dressed, but he did not give her time to put on her underclothes. They left in Rodriguez's car. Diaz was able to jump out of the car, leaving everything behind, and eventually found a police car and told the officers what happened. Rodriguez was found in the kitchen of Olivarez's parents' house and Peralez was found in the backyard near a broken window. They both died from single gunshot wounds to the head. The wounds indicated they had been shot from a distance of three feet or more or that something had been interposed between the weapon and the victims. A pillow was recovered at the scene with four defects and two bullet pathways in it. These pathways indicated either that two bullets had been fired through the pillow or the pillow had been doubled over and one bullet shot through it. The police later found Rodriguez's car abandoned in the street with the engine running. Inside the car, police found Diaz's purse, underwear, and sandals, and Peralez's wallet. Olivarez did not deny shooting and killing both Peralez and Rodriguez. He claimed he incurred a debt of $250 buying cocaine from Diaz after Peralez and Rodriguez took him to her house, which was a "bootleg." After they insisted on payment, he took them to his parent's house to get the money. His parents were not home and Rodriguez insisted they break in to find some money. Rodriguez broke a window and everyone except Peralez went inside. After Olivarez was unable to find any money in the house, he became fearful that Diaz and Rodriguez would take his parent's computer from the kitchen. He went to his father's closet and got his father's loaded gun. Olivarez returned to the kitchen where Diaz and Rodriguez were unplugging something on the computer. Diaz screamed "He's got a gun," and Olivarez grabbed a pillow. As Rodriguez ran in front of him, Olivarez fired the gun and shot Rodriguez in the head killing him. Olivarez then ran to the bedroom and saw Peralez looking in the broken window. He ordered Peralez to stop, then tripped over some rolled up carpet and the gun fired striking Peralez in the head and killing him. Olivarez then told Diaz they were going to the police to explain what happened. He denied forcing Diaz to perform oral sex on him, threatening her, and going through Peralez's wallet. As they were driving to the police station, Diaz jumped out of the car and grabbed the gun. Olivarez tried to follow her, eventually got out of the car to chase her, but could not find her. He then walked to the police station and turned himself in. Olivarez maintained that he was scared and did not intend to kill the two men. Having considered the evidence in the record (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 the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Viewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We conclude the evidence is legally and factually sufficient to support the conviction. We overrule Olivarez's second point of error. We affirm the trial court's judgment.