Opinion
No. 05-04-00552-CR
Opinion Filed August 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-63541-IN. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Fernando Cantu Orozco of the murder of Lucia Zamudio and the trial court assessed punishment at fifty-five years' confinement. Orozco appeals. In three issues, he argues the evidence is legally and factually insufficient to support the conviction and that the trial court erred in admitting evidence of extraneous offenses. 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. Orozco's first two issues assert the evidence is legally and factually insufficient to support the murder 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). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. 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 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 Supp. 2004-05). There is evidence in the record that Zamudio and Orozco lived together for about a year before her death. On January 21, 2003, Police responded to a 9-1-1 call from Orozco, who was hysterical, and found Zamudio lying on the floor and bleeding from the head. She did not appear to be breathing. Orozco was holding and rocking her. A rifle was located on the floor to the right of Orozco with the muzzle facing Zamudio. Orozco was hysterical and agitated, but according to the officer, the emotions appeared exaggerated and insincere. Orozco did not appear to be remorseful. Zamudio died from a single gunshot to the head. The bullet entered her right cheek and exited below her left ear. The entry wound had no stippling or gunshot residue indicating the end of the rifle was fired from a few feet away from the wound. Testing determined that this rifle stopped depositing gunpowder residue at a distance between two and three feet from the muzzle. The distance from the muzzle to the trigger was sixteen inches. No blood was found on the rifle. The medical examiner concluded Zamudio's death was not a suicide because: of the location of the entrance wound; he had never seen a suicide with an entrance wound in the cheek; the lack of stippling or residue in the wound; and the length of the rifle made it impossible for the victim to have fired the rifle from a sufficient distance to not deposit gunshot residue in the wound. The medical examiner also found several bruises on Zamudio's arms, her left leg, and her left cheek. The bruises were likely caused within two days of Zamudio's death. The record also contains evidence of jealousy and conflict in Orozco's relationship with Zamudio. Three days before her death, Zamudio told her sister she was planning to leave Orozco and live in Mexico. Sophia Romero, Zamudio's friend, testified that Zamudio came to live with her several times in the months leading up to Zamudio's death. Orozco accused Zamudio of being with another man and threatened to kill the man she was with. Orozco threatened to kill Zamudio if she did not remain in a relationship with him. Romero once saw Orozco grab Zamudio by her hair and drag her away with him. Romero saw Orozco threaten Zamudio with a gun three times; he also threatened her without a gun on several occasions. Romero identified the rifle as belonging to Orozco and said that Orozco gave it to Zamudio to keep in the apartment. Angelica Garcia lived in an apartment near Orozco. Garcia heard Orozco threaten to kill Zamudio if she left him, and had seen Orozco with a gun many times. She also saw Orozco wrap his hands in Zamudio's hair and pull her up the staircase. A few days before Zamudio's death, Garcia saw Orozco hitting Zamudio in the face and Zamudio's face was bruised. Early in the morning of the day Zamudio died, Garcia heard the couple fighting and saw Orozco hitting Zamudio and pulling her hair. Garcia saw Zamudio sitting on the staircase crying when she left for work later that morning. The 9-1-1 recording was played and translated for the jury. Orozco said, "I have the gun right here. I thought there was no gun. I thought there was no bullet in it, and I shot. I shot her with the bullet. I just shot my wife. Please, hurry up." He continued, "Lucy. Lucy, forgive me. Don't die. No. Don't die. I thought it was discharged. I had taken charge out, the bullets out. She put them in. . . . She didn't want to be here anymore. She want-that's why she's died. She's dead. . . . That's the way she wanted to die. She didn't want to be here anymore. Lucy, forgive me." Orozco argues the evidence is insufficient based on evidence in the record that in the days before her death, Zamudio was more depressed than usual and was seen crying on the stairs outside the apartment a few hours before her death. One of the three elements of gunshot residue, lead, was found on Zamudio's hands, but none of the elements was found on Orozco's hands. However, there was testimony that the lead on Zamudio's hands could have come from a defensive move. And there was evidence that the gunshot residue is fragile and easily wiped away. Orozco points to other evidence that Zamudio had no defensive wounds and was likely lying on the floor when she was shot. He also argues the 9-1-1 recording indicates he confused his pronouns and shows that he was distraught. He suggests that he would not have called 9-1-1 if he had intended to kill Zamudio. 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 resolve Orozco's first and second issues against him. Orozco's third issue argues the trial court erred in admitting evidence of extraneous offenses committed against the victim. The State argues that Orozco failed to preserve error because he did not object when similar evidence was offered through another witness. However, the record clearly shows that Orozco objected to the extraneous offense evidence from both witnesses during hearings outside the presence of the jury and that the trial court ruled the evidence was admissible. See Tex. R. Evid. 103(a)(1). With two exceptions, a party must continue to object each time inadmissible evidence is offered in order to preserve error. See Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003) (quoting Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991)). The two exceptions require a party to obtain a running objection or request a hearing outside the presence of the jury. Id. Orozco obtained hearings outside the presence of the jury as to both witnesses and the trial court ruled on his objections. Thus it was not necessary for Orozco to repeat the objections when the testimony was offered before the jury. Tex. R. Evid. 103(a)(1). Therefore, he preserved error as to these rulings. Outside the presence of the jury, Orozco objected to Romero's testimony that Orozco (1) threatened to kill Zamudio if she left him, (2) hit Zamudio, and (3) pulled her up the stairs by her hair. The trial court overruled his rule 403 and 404(b) objections. Tex. R. Evid. 403, 404(b). Romero testified to these facts before the jury. Also outside the presence of the jury, Garcia testified that on the morning Zamudio was killed and at other times, she saw Orozco (1) hit Zamudio, (2) pull her by the hair, and (3) pull a gun and threaten to kill Zamudio if she left him. The trial court ruled this testimony was admissible because the probative value outweighed the somewhat prejudicial nature of the evidence. The admission or exclusion of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App. 1990); Riney v. State, 60 S.W.3d 386, 388 (Tex.App.-Dallas 2001, no pet.). Absent an abuse of discretion, we do not disturb a trial court's ruling on the admissibility of evidence. Riney, 60 S.W.3d at 388. As long as the trial court's ruling was "within the zone of reasonable disagreement," there is no abuse of discretion, and we must uphold the trial court's ruling. Montgomery, 810 S.W.2d at 391 (op. on reh'g). Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity with that character. Tex. R. Evid. 404(b). Nevertheless, such evidence may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, or absence of mistake or accident. See id. However, while evidence may be admissible under rule 404, the trial court may exercise its discretion to exclude the evidence under rule 403 if it determines that the probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Mozon v. State, 991 S.W.2d 841, 846 (Tex.Crim.App. 1999). The evidence of prior threats and violence by Orozco against Zamudio was relevant to establish motive and intent and to rebut the theory that Zamudio committed suicide. Thus the trial court did not abuse its discretion in determining that the evidence was relevant apart from character conformity. See Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003). The trial court also determined that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. We review this decision for an abuse of discretion. The evidence of prior threats and violence against Zamudio was highly probative. The evidence was close in time to the crime, involved a firearm, and the threats related to Zamudio's leaving Orozco, which she indicated was her intent just three days before her death. The evidence of threats and violence did not have a potential to impress the jury in an irrational way; it related to the relationship between Zamudio and Orozco. While some time was required to develop this evidence, it did not distract the jury from the indicted offense. Further, the evidence was necessary to establish intent and motive and rebut the theory of suicide. See Montgomery, 810 S.W.2d at 389-90 (listing factors to consider in rule 403 balancing test). After considering these factors, we conclude the trial court's ruling is within the zone of reasonable disagreement and the trial court did not abuse its discretion. See Moses, 105 S.W.3d at 627. We resolve Orozco's third issue against him. We affirm the judgment of the trial court.