Opinion
No. 05-01-00589-CR.
Opinion Issued March 25, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F00-49603-VL. AFFIRMED.
Before Justices WHITTINGTON, MOSELEY, and FRANCIS.
OPINION
Roel Soto appeals his conviction for murder. After finding appellant was guilty and had used a deadly weapon in the course of committing the offense, the jury assessed punishment at forty years' confinement. In four issues, appellant contends the trial judge erred in excluding certain evidence, making improper comments during voir dire, allowing the prosecutor to strike at appellant over counsel's shoulders during closing, and submitting an improper instruction. In an additional issue, appellant contends the evidence is factually insufficient to support a finding that he did not act in self defense. We affirm the trial court's judgment.
Background
On the evening of May 28, 2000, Eriberto (Eddie) Lopez attended a graduation party for Juan Carlos Lopez. Appellant and his brother, Jose Soto, also attended the party. During the evening, appellant approached Eddie and spoke with him. The conversation ended when appellant shot Eddie in the head five times. Appellant was arrested and charged with murder. Although he testified he shot Eddie in self defense, the jury convicted appellant of murder. This appeal followed.Factual Sufficiency Of The Evidence
In his third issue, appellant claims the evidence is factually insufficient to support the implicit finding that appellant did not act in self defense. Under this issue, appellant claims the proof of appellant's guilt was either so weak as to undermine the jury's finding against self defense or was "greatly outweighed" by contrary proof. We disagree. When an appellant challenges the factual sufficiency of the rejection of a 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 v. State, No. 1168-01, slip op. at 8, 2003 WL 246065, *2 (Tex.Crim.App. Feb. 5, 2003); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000) . The use of deadly force is justified in self defense only when three conditions are present: (i) the defendant would have been justified in using force under section 9.31 of the penal code; (ii) a reasonable person in the defendant's position would not have retreated; and (iii) the use of deadly force was reasonably believed to be immediately necessary to protect the defendant against another's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32 (Vernon 1994); see Riddle v. State, 888 S.W.2d 1, 6 (Tex.Crim.App. 1994). In this case, the jury was instructed to acquit appellant on the grounds of self defense if:you find from the evidence beyond a reasonable doubt that [appellant] . . . did shoot [Eddie] with a firearm, a deadly weapon, but you further find from the evidence that, viewed from the standpoint of [appellant] at the time, from the words or conduct or both of [Eddie], it reasonably appeared to [appellant] that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of [Eddie], and that acting under such apprehension, he reasonably believed that the use of deadly force on his part was immediately necessary to protect himself against [Eddie's] use or attempted use of unlawful deadly force, and he shot the said [Eddie], and that a reasonable person in [appellant's] situation at that time would not have retreated . . .The evidence shows appellant and Eddie attended a party at Juan Carlos Lopez's house. Appellant knew Eddie because several years earlier, Eddie shot appellant's brother, Jose. Most of the people were in the backyard, but Eddie was sitting in the front yard on the porch with a girl. Appellant approached Eddie to speak with him because he wanted to ensure it was "okay" for appellant and Jose to be at the party. The two shook hands, and appellant asked if it was "okay" for him to be at the party. Eddie said that it was. Appellant, who was standing over Eddie, subsequently fired several shots, striking Eddie in the head and killing him. Eric Loera testified he arrived at the party with Eddie. According to Loera, Eddie was not carrying any weapons. Loera testified there was "bad blood" between Eddie and Jose. That evening, Jose told Loera he "was getting agitated" because of Eddie. He claimed "he wasn't going to do nothing," but said, "My little brother, I don't know about him. He might do something." Loera saw appellant standing over Eddie when Loera and George Martinez walked into the house to get something to eat. Several minutes later, he heard five or six rapid shots. Everyone fell to the floor thinking it was a drive-by shooting. Loera opened the door and saw Eddie lying on the porch. He had been shot in the head several times. Jose Rodriguez testified he went to the party with Eddie that night. He remained outside while the others went inside for food. He remembered seeing Eddie sitting on the porch with a girl. A guy was standing over Eddie, and the two men were talking in a "conversation tone." Although he saw the guy shoot Eddie, Rodriguez could not identify the killer because he "never got a good look at [him]." Janet Marquez testified she attended the party and saw Eddie sitting on the porch. He looked sad so she went over and sat down with him. Appellant walked up and asked Eddie if it was "okay for him to be there." Eddie said it was okay, and the two shook hands. According to Janet, Eddie did not make any threats or threatening moves toward appellant; he just sat there. Janet testified shots rang out and although she did not see a gun, she saw the flashes from the muzzle of the gun when it was fired. She was about a foot or two away from Eddie when he was shot. Appellant walked away. Appellant's brother, Jose, testified he had known Eddie about seven years. In 1996 or 1997, Eddie shot Jose when he was playing basketball with appellant. Jose believed Eddie shot him because he owed Eddie money back then. According to Jose, appellant, Eddie, and another friend drove him to the hospital. On the night of the graduation party, Jose and appellant heard Eddie didn't want them there and they were not welcome. Appellant told him he would talk to Eddie and ask if it was okay that they were there. Jose decided to take his cousin, Sherman Lerma, home because he was drunk. Upon returning, Jose heard shots. Appellant ran to the car holding something under his shirt. Appellant said, "F-. Let's go home." Jose drove to their house. Appellant testified there was bad blood between "us and them." On the night of the party, he and Jose arrived before Eddie. Once Eddie arrived, appellant noticed people looking at him while they spoke with Eddie. He sensed there was a problem. Jose wanted to talk to Eddie but he had to take Sherman home. Appellant walked his brother to the car, then returned to the party. He saw Eddie sitting on the porch next to Janet. Appellant approached Eddie and said, "What's up? Is it all right if I'm here? Is there a problem?" Eddie said, "Everything's cool. Why?" Appellant responded that he thought Eddie did not want him there. Eddie asked him what he was going to do about it, then said, "You ain't's going to do shit, m____ f___," and reached for his gun. When appellant saw Eddie reach for his gun, he pulled his gun and shot Eddie. 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, slip op. at 8; Johnson, 23 S.W.3d at 11; Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's third issue.
Exclusion of Evidence
In his first issue, appellant contends the trial judge erred in excluding certain evidence. Under this issue, appellant claims the trial judge should have allowed evidence of Eddie's gang affiliation because it was relevant to show the relationship between appellant and Eddie and that appellant had reason to believe Eddie was violent and motivated to kill. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). In a hearing outside the presence of the jury, appellant offered evidence that Eddie was a member of a gang. Appellant argued the evidence was relevant to show "the relationship between the parties." When asked if the gang affiliation evidence was relevant to show the killing was a result of Eddie's being a gang member, appellant responded no and reasserted his position that he shot Eddie in self defense. At the conclusion of the hearing, the trial judge ruled the evidence was not relevant "at this point" and that even if it were, the "prejudicial use outweighs its probative value." After reviewing the record, we cannot conclude that the trial judge's decision to exclude evidence of Eddie's membership in a gang was an abuse of discretion. Furthermore, even assuming the trial judge erred in excluding this evidence, we would nevertheless conclude the error is harmless. Numerous witnesses testified Eddie shot Jose in late 1996 or early 1997 with some witnesses testifying it was possibly an accident. Several witnesses testified there was "bad blood" between Jose and Eddie. Regarding the prior shooting, Jose testified he and appellant were playing basketball when Eddie drove up and shot him. According to Jose, he owed Eddie money at the time. After shooting him, Eddie threatened Jose if Jose told police Eddie shot him. Thereafter, whenever he saw Jose, Eddie would tell Jose "not to say anything." Jose stated he did not think the shooting was an accident because Eddie did not say he was sorry. Appellant testified that when he was twelve or thirteen years old, Eddie shot Jose. According to appellant, Eddie and his brother did not really communicate after that incident, as though there was "some beef between us and them." Appellant further described the relationship as "bad blood" or "bad feelings." Appellant testified he stayed away from Eddie after that until the night Eddie died. Thus, the record contains evidence establishing that Eddie and appellant had a troubled "relationship." Because appellant was permitted to elicit evidence of his relationship with Eddie, we conclude appellant was not harmed by the exclusion of evidence of Eddie's gang affiliation. See Easterling v. State, 710 S.W.2d 569, 574 (Tex.Crim.App. 1986) (no error in excluding certain evidence when "it is clear that the import of what appellant was trying to convey to the jury was in fact conveyed to the jury"). We overrule appellant's first issue.Comment on the Weight of the Evidence
In his second issue, appellant contends the trial judge erred in commenting on the weight of the evidence. Appellant claims certain comments made by the judge during voir dire diminished the prosecution's burden of proof and constituted fundamental error mandating reversal of this case. We disagree. As a general rule, a party must present a timely, specific objection at trial to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a); see Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998); Etheridge v. State, 903 S.W.2d 1, 14 (Tex.Crim.App. 1994); Little v. State, 758 S.W.2d 551, 563 (Tex.Crim.App. 1988). The failure to object can waive even an error involving constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex.Crim.App. 1993); Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990); cf. Cole v. State, 931 S.W.2d 578, 580 (Tex.App.-Dallas 1995, pet. ref'd) (defendant waives any due process complaint when he does not object to punishment or failure to consider evidence). During voir dire, the trial judge gave a hypothetical example to the panel members. Although appellant contends certain comments made during that hypothetical example constituted a comment on the weight of the evidence, he did not object. Failure to object to a judge's alleged comment on the weight of the evidence waives any error. Sharp v. State, 707 S.W.2d 611, 619 (Tex.Crim.App. 1986); Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Crim.App. 1983). Furthermore, although appellant claims the comments constituted fundamental error, we have examined the complained-of statements and, after doing so, conclude they did not rise to the level of the comments mandating reversal in Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000). The comments in this case were limited to the hypothetical example, and the trial judge clearly and repeatedly told the venire panel that the State was required to prove each and every element of its case against appellant. Because the trial judge's comments in this case did not impart information to the venire panel that either tainted appellant's presumption of innocence or otherwise lessened the State's burden of proof, we conclude appellant's argument under his second issue lacks merit. We overrule appellant's second issue.Jury Argument
In his fourth issue, appellant contends the trial judge erred in allowing the prosecutor to "strike at Appellant over counsel's shoulders" during argument at guilt/innocence. The law is well-settled that "[b]efore a defendant will be permitted to complain on appeal about an erroneous jury argument . . . he will have to show he objected and pursued his objection to an adverse ruling." Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim. App. 1996); see Mathis v. State, 67 S.W.3d 918, 927 (Tex.Crim.App. 2002) (declining defendant's invitation to overrule Cockrell). Because appellant failed to object to the prosecutor's statements, we conclude he has forfeited his right to complain about the argument on appeal. See Ladd v. State, 3 S.W.3d 547, 569 (Tex.Crim.App. 1999); Cockrell, 933 S.W.2d at 89. We overrule appellant's fourth issue.Jury Charge
In his final issue, appellant claims the trial judge erred in submitting the "disfavored Geesa reasonable doubt instruction." See Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim. App. 2000). Under this issue, appellant contends he was wrongly convicted because the instruction diminished the State's burden of proof. We disagree. When we evaluate a jury charge for a reasonable-doubt-definition error, we first determine if a definition of reasonable doubt exists in the jury charge. See Carriere v. State, 84 S.W.3d 753, 759 (Tex.App.-Houston [1st Dist.] 2002, pet. filed) (citing Paulson, 28 S.W.3d at 573). If not, the charge does not violate Paulson. In our case, the trial judge instructed the jury:It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all "reasonable doubt" concerning the defendant's guilt.This instruction does not "define" reasonable doubt nor does it lessen the State's burden of proof, particularly in light of the second sentence which correctly repeats the State's burden of proof. Thus, the charge in this case was not improper because it did not define reasonable doubt-rather, it merely instructed the jury that appellant's guilt must be proved beyond a reasonable doubt, not beyond all possible doubt. See Carriere, 84 S.W.3d at 759. Because the language used in this case does not define reasonable doubt, it does not violate Paulson. See Minor v. State, 2002 WL 31526593, *2 (Tex.App.-Fort Worth 2002, pet. filed). Finally, to the extent it was error to include the complained-of language, appellant did not object and, on appeal, he has failed to show he suffered egregious harm as a result of any error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1985); Brown v. State, 91 S.W.3d 353, (Tex.App.-Eastland 2002, no pet.). We overrule appellant's final issue. We affirm the trial court's judgment.