No. 05-03-00461-CR.
Opinion issued March 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F02-50053-VJ. Affirmed.
Before Chief Justice THOMAS and Justices, MORRIS and O'NEILL.
Opinion By Justice MORRIS.
In this case, Ivan Sanchez challenges his murder conviction. He alleges in two points of error that the trial court erred by failing to include in the jury charge an instruction on the lesser included offense of aggravated assault and that the evidence against him is factually insufficient. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Clinton Hicks was a friend of the deceased, Salvador Rodriguez, and was in Rodriguez's car when Rodriguez was shot and killed. Rodriguez was in the driver's seat of his car when the murder occurred. Rodriguez's girlfriend and appellant's sister, Claudia Sanchez, was in the front passenger seat with her baby. Hicks claimed that Sanchez's other child was sitting in the back of the car with him. According to Hicks, on the day of the shooting, appellant first pointed a shotgun at them as they passed him on the street in Rodriguez's car. No one in the car had a weapon, and Rodriguez drove away from appellant. Rodriguez tried to avoid appellant, but appellant eventually pulled behind them in his car while Rodriguez's car was at an intersection. Hicks looked out the back window of the car to see what was happening. He testified that he could see appellant even though the back window of Rodriguez's car was obscured with duct tape, dark tint, and broken glass from a previous clash between appellant and Rodriguez. Hicks saw someone in the passenger side of appellant's car. He then saw appellant lean his whole body out of his car and point the shotgun at Rodriguez's car. Hicks ducked and told the other people in Rodriguez's car to duck. Then he heard four gunshots. Hicks saw one bullet pass his head and hit Rodriguez in the back of the head. After Rodriguez was shot, Hicks had to jump out the passenger side window to escape the car, which was still moving. He flagged down a police officer to report the shooting. The officer testified that Hicks told her his friend had been shot in the head by appellant. Claudia Sanchez explained that the conflict between appellant and Rodriguez began when Rodriguez's little brother shoved her and appellant's little brother. As a result of the shoving incident, appellant and Rodriguez each broke the windows of the other's car. Afterward, according to Sanchez, there was a trash bag on the back window of Rodriguez's car that prevented passengers from seeing out. Less than two weeks after Rodriguez broke appellant's car windows, he was dead. Sanchez claimed that both her children were sitting between her and Rodriguez when Rodriguez was shot. She claimed she did not remember or know if appellant ever pointed the shotgun at Rodriguez. She also claimed at trial that she saw appellant's passenger sitting out of his car window with a big gun just before Rodriguez was shot. After the shooting, she saw her brother do a U-turn and leave the scene. Then she called 911 from a stranger's phone. On the telephone call to 911, Sanchez reported that appellant had shot Rodriguez. Later that day, she gave police a statement where she claimed her brother's passenger was the shooter. She claimed she told the 911 operator appellant had committed the murder because the passenger was still in appellant's car. Sanchez testified that approximately a month and a half after the shooting she drove appellant's car. At that time, the driver's side window would not work; if the electric window was rolled down, it would not roll back up. The car was new to appellant, and Sanchez had not seen it before the date of Rodriguez's murder. Appellant's cousin, who sold him the car, testified that the driver's side window "did not go up or down." The cousin also claimed he had owned the car only one day before he sold it to appellant. An employee of an auto repair shop where the car is now being repaired testified that the driver's side window will not go up or down. According to Sanchez, Rodriguez had chased appellant in his car for a time on the day he was shot. Hicks, on the other hand, claimed they were not actually chasing appellant but rather tailing him to see what he was doing. Sanchez agreed with Hicks that no one in Rodriguez's car had a weapon on the day Rodriguez was killed. Later on the afternoon of the shooting, a police officer saw appellant commit a traffic offense. When he tried to pull appellant over, appellant ran a red light to evade the officer. When the officer caught up with him, appellant stopped his car, got out of the driver's seat, and ran into a residential area. The officer chased appellant. At one point, the officer pulled his gun and ordered appellant to get on the ground. Appellant cursed at the officer and started running again. Appellant resisted the officer even as the officer was trying to handcuff him. The officer searched appellant's car but did not find any weapons. When the officer asked backup officers to watch appellant while he performed the search, appellant smirked and said, "You'll never find a weapon." Four total shell casings were found at the scene of the murder. Only two of the rounds had actually been fired. A third was a "primer" round that had been struck by the firing pin but had not fired, and the fourth was a live round. An officer examined Rodriguez's car after the shooting and determined that despite the tint, tape, and plastic bag on the back window, a person could see through it. Discussion
In his first point of error, appellant complains the trial court erred by failing to include an instruction on the lesser included offense of aggravated assault in the jury charge. To be entitled to a lesser included offense instruction, a defendant must show: (1) the lesser included offense is included within the proof necessary to establish the offense charged and (2) some evidence exists in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. See Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000). The evidence must show the lesser included offense is a valid rational alternative to the charged offense. Id. Here, appellant argues that the testimony of Clinton Hicks establishes his entitlement to a jury instruction on aggravated assault. Hicks testified that appellant had pointed a shotgun at Rodriguez and the others from the street before he later caught up with them in his car on another street, this time shooting and killing Rodriguez. Appellant claims Hicks's testimony shows he was guilty of aggravated assault by threat and nothing more — assuming the jury disbelieved Hicks's additional testimony that appellant later shot and killed Rodriguez. Obviously, Hicks's testimony included two different offenses. Appellant was indicted for only one of the offenses: shooting and killing Rodriguez. The fact that appellant may have committed a separate, second offense before the murder does not negate the charged offense. Aggravated assault by threat was not a valid rational alternative to the charged offense. We therefore overrule appellant's first point of error. In his second point of error, appellant complains the evidence against him is factually insufficient to support his conviction. In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 7. Appellant argues that the evidence in his case is factually insufficient because Clinton Hicks was not a credible witness. Appellant points to various discrepancies between Hicks's written statement and his testimony at trial and the internal inconsistencies of the testimony itself. He argues that Hicks's testimony on how many shots were fired conflicted with physical evidence suggesting only two shots were fired. He also argues that Hicks's testimony conflicted with Sanchez's testimony. Finally, appellant argues the evidence showed appellant could not have been the shooter because he was driving at the time of the murder. He contends the driver of the car could not have been the shooter because the shotgun had to be operated with two hands and because the driver's side window was broken. The jury was the sole judge of witness credibility. See id. After reviewing the entire record under the appropriate standard, we conclude the evidence is factually sufficient to support appellant's murder conviction. We overrule appellant's second point of error. We affirm the trial court's judgment.