No. 05-10-00241-CR
Opinion Filed April 18, 2011. DO NOT PUBLISH TEX. R. APP. P. 47
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F09-01175-L.
Before Justices RICHTER, LANG, and MYERS.
Opinion By Justice LANG.
After a jury convicted Steven L. Villa of the murder of Anthony White, the trial judge assessed appellant's punishment, enhanced by two prior felony convictions, at fifty-five years' imprisonment. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm the trial court's judgment.
Background
The indictment alleged that on August 16, 2008, appellant knowingly and intentionally caused the death of Anthony White by shooting White with a firearm, a deadly weapon. There is no dispute that appellant shot and killed White. The dispute is over whether appellant, in doing so, acted in self-defense. Jason Massey, a senior corporal with the Dallas Police Department, testified that on August 16, 2008, he responded to a call of a shooting at 5610 Cary Avenue, Dallas, Texas. He arrived just before the ambulance. When he arrived, he found three people in the front yard of the residence flagging him down. They directed Massey to the house. Inside the house, Massey found White sitting in a chair. White looked "bad"; he had a gunshot wound to the chest, was lying back in the chair, and was unresponsive. Massey checked the area for the shooter and for weapons, then secured the area. Massey did not find any weapons. Massey identified the witnesses and separated them by putting them in different patrol cars. He also radioed the information he had received that the suspect was driving a small, red, four-door vehicle, and he notified the homicide detectives of the incident. Massey did not recall smelling the odor of burnt crack cocaine. Oralia Acosta testified on the date of the shooting, she was living in the house at 5610 Cary Street. Also staying there were Perla Rubio and Esmeralda Lugo, and an "old man" lived in a room in the garage that was behind the house. Acosta knew appellant and his brother Jessie. Appellant was interested in Acosta's former sister-in-law. Acosta testified that she had smoked crack cocaine the night before, but had not smoked any the morning of August 16. She was sleeping in her room when White arrived at her house. Lugo woke Acosta to tell her that White and appellant were there. Lugo had called appellant to bring some drugs for White. After receiving this information, Acosta closed the door and went back to bed. She stayed in her room the entire time White and appellant were at the house. Later, White knocked on Acosta's door and told her he did not feel right buying drugs from appellant because he did not know appellant. Acosta testified White was a little drunk. She also testified that she heard appellant and White talking, and someone went to buy beer. White later asked Acosta if he could stay at the house because he did not want his mother to see him drunk. Acosta agreed to allow White to stay on the couch. Acosta later heard Lugo screaming at White and appellant that they were not going to "disrespect" the house and they had to leave. Acosta did not see a gun, but Lugo had said the men were playing Russian roulette. Appellant came to the door of Acosta's bedroom and said he was leaving, but he would be back in about twenty minutes. She heard the car drive off, but about five minutes later Acosta heard hard, loud knocking on the door. Acosta heard appellant's voice, and then she heard five to six gunshots. She looked out her window and saw appellant's car pulling away. She saw White in the doorway, and, when he turned, he had his hand over his chest. Acosta asked White if he had been shot, but he did not answer. His eyes rolled back in his head and he fell onto a couch. His hand fell off his chest, and blood started "gurgling out of his chest." Acosta called 911, and Lugo ran out the back door. Acosta testified she did not see White or Lugo with a gun, and there were no guns in the house. Esmeralda Lugo testified that on the date of the shooting, she was staying at Acosta's house. She knew White, and he occasionally came to the house. Lugo had met appellant. White came to Acosta's house on August 16. He looked like he had been drinking, and he told Lugo that he had already smoked some marijuana. White had a little money and he wanted to get some "rock." White asked Lugo to call someone she knew to get the crack cocaine, and Lugo called appellant. She told appellant she wanted to buy $10 or $20 worth of cocaine. Before appellant arrived, Lugo warned White not to be disrespectful to appellant. After appellant arrived, White apparently changed the amount of the purchase he wanted to make. Appellant felt like it was not worth his time, but he did not make a big deal about it. White then began to complain about the size and quality of the cocaine, and appellant may have felt like White was being disrespectful. There was no threatening talk, just complaints. Lugo took a hit of the cocaine, but she did not remember whether appellant also did. Appellant wanted beer, and he and White left together to get the beer. The two men returned with the beer, then appellant began playing Russian roulette with his gun. Lugo told appellant not to play Russian roulette because it was "disrespecting" the house. White and appellant began arguing and went outside, and Lugo told them they had to leave. A few minutes later, White knocked on the door and re-entered the house. Lugo did not see appellant's car at that time. However, a short time later, appellant was knocking on the door. Lugo opened the door. White "put his arms out and smiled," and Lugo believed White said something like "it's okay" or "it's cool," but he did not complete a full sentence before appellant started shooting. Lugo's hand was on the door knob, and she was facing the wall and talking on the phone when the shots began. She "froze" and told the person on the phone she had to go. Lugo said she was so close to White that their arms were touching. She looked at White and saw he had been shot. Lugo saw blood "bubbling" from White's chest. Acosta called 911 and tried to get Lugo to stay. However, Lugo ran because she knew she had violated her probation and was looking at prison time. Lugo hid in the detached garage for hours. She came out of the garage only after she thought the police had gone, but discovered they were still in the house. Lugo spoke to the police, but did not tell them the full story at that time. Lugo testified there were no guns in the house on August 16, 2008, and she had never seen White with a gun. Additionally, she testified the only drugs in the house that day were the ones they had "ordered" that appellant had brought over. Lugo testified her crack pipe was in her purse. If the police had searched her purse, they should have found the pipe. Salina Hernandez testified she was on the porch across the street from 5610 Cary Street. She did not know anyone who lived at 5610 Cary Street, but thought "bad things" happened there. On August 16, Hernandez's attention was attracted by an argument between a "Mexican" man, whom Hernandez identified as appellant, and a black man. The argument got loud and then stopped. The black man went back into the house and appellant either got into a red car or reached for something in the car. He then got out of the car and walked back to the house. Hernandez heard three or four gunshots. She did not run, but stayed to observe what was happening. She saw appellant "strutting" back to his car with a smile on his face. He got into the car and drove away. Hernandez contacted the police later that day to tell them what she had seen. Dallas Police Detective Dwayne Thompson, Sr. testified he received a call on August 16, 2008 about a homicide. Appellant was identified as a suspect, and Thompson went to appellant's mother's house to locate him. Appellant was not there, and Thompson left his card with appellant's mother. Appellant did not, however, contact Thompson. After appellant was arrested on the warrant by the Fugitive Apprehension Strike Team, Thompson conducted a videotaped interview with appellant at the police station. Thompson testified that appellant never said White had a gun or that White was a gang member. Neither did appellant say he believed he was in immediate danger. Rather, appellant had gone to his car, then returned to the house before shooting White. Appellant told Thompson that he "got mad and went back." Thompson had been informed by neighbors that the house at 5610 Cary might be a drug house, but Thompson did not know whether drugs or weapons had been found. The videotape of Thompson questioning appellant was admitted into evidence as State's Exhibit no. 40. During the questioning, appellant said White started with him and would not leave him alone. Appellant said he "just lost it" and shot White. Appellant said it was a little gun that he threw into a lake after the shooting. In the statement, appellant told Thompson that he learned White was dead from watching television. Vickie Hall, a trace evidence examiner with the Southwestern Institute of Forensic Sciences (SWIFS), testified she received evidence on White from the Medical Examiner. Hall found "one primer gunshot residue particle" on the back of White's left hand. No particles were on White's right hand. Hall testified the particle could have been deposited by: (1) discharging a firearm; (2) the hand being close to a discharging firearm; or (3) handling a firearm or firearm component. Hall could not definitively say how the particle got onto White's hand. Appellant testified he had been to Acosta's house several times. Appellant described it as a "dope house," where people go to do drugs, and also said prostitution went on there. Appellant would "pick up" girls at the house. Appellant further testified Lugo did not buy drugs from him. Rather, he would sometimes get them for her from other sources to whom she directed him. On August 16, 2008, appellant got off work at about 4:00 p.m. and bought a six-pack of beer. Lugo called him and said she had a "date" for him. He understood this to mean Lugo had someone with whom appellant could have sex. Lugo wanted appellant to pick up $10 or $20 worth of crack cocaine, so he did. He then went to Acosta's house and gave Lugo the drugs. Appellant went to the restroom, knocked on the bedroom door to say hello to Acosta, and then returned to the room in which everyone else was standing. Appellant described the room as a hallway. Appellant saw two shotguns in the corners by the door. Appellant testified that White and Acosta smoked the crack cocaine. White got angry about the drugs and started demanding that appellant return his money. Appellant told White that he did not have his money, and White would have to talk to Lugo. Appellant said he thought the drugs were for a girl. Appellant testified he had a .32-caliber or .38-caliber gun in his belt. White knew appellant had the gun, and said appellant better load the gun or get out. Appellant said he was leaving, and told White three times to leave him alone. Appellant testified White wanted to go get beer, but denied he drank beer with White. White began threatening appellant, claiming White was a member of the Crips gang, and that White knew where appellant lived. Appellant went to his car, got in, and started to pull away. Then, appellant testified, he began to wonder if White really meant the threat against his mother and sister. Appellant was angry because they knew where he lived. So, appellant returned to the house with the gun and knocked on the door. He could not see anything inside. Appellant testified he heard a "click" and then he began shooting back. Appellant believed he fired three or four times, but he was not sure. Afterwards, he walked, not strutted, back to his car, and he was not smiling. He went to a nearby creek and parked his car. Appellant called his mother and told her to leave the house for a while, then he went to a friend's house. Appellant acknowledged he did not tell Thompson during the videotaped interview about seeing guns in the house or that someone shot at him first. He did tell Thompson that he felt threatened. He was angry because Acosta and Lugo knew where he lived, and he thought they might tell White. On rebuttal, Dallas Police Detective Eddie Lopez testified that a search of available records did not reveal White was a member of a gang. The officers did not search the detached garage. However, the possessions of Lugo that were in the house were searched. Neither drugs nor drug paraphernalia was found in the house. Standard of Review and Applicable Law
In two issues, appellant challenges the legal and factual sufficiency of the evidence. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issues under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Brooks, 323 S.W.3d at 895. We must defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (West 2003). A person is justified in using deadly force against another if he reasonably believes deadly force is necessary to protect himself against the other's use or attempted use of unlawful deadly force. Id. § 9.31(a) (West Supp. 2010). However, the use of force is not justified in response to verbal provocation alone. Id. § 9.31(b)(1). The defendant has the burden of producing some evidence to support a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces some evidence, the State bears the burden of persuasion to disprove the raised defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). This burden does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. at 913-14. Self-defense is an issue of fact to be determined by the jury, and a verdict of guilty is an implicit finding by the jury rejecting the defendant's self-defense theory. See id. at 914. Analysis
Appellant contends the evidence is insufficient to show he committed murder. He argues the evidence shows he acted in self-defense, shooting White only after White first threatened appellant with a gun and then either White or Lugo fired a shot at appellant. The State responds that the jury, as fact finder, was free to believe the testimony of Acosta and Lugo, and disbelieve appellant's testimony that he shot White in self-defense, and the evidence is sufficient to support the murder conviction. Both Acosta and Lugo testified there were no weapons in the house on August 16, 2008. Additionally, Lugo testified that White did not have a weapon. Massey, who performed a sweep for weapons, testified no weapons were found in the house after the shooting. The jury heard testimony from Thompson, and viewed the videotape of Thompson's interview with appellant. At no time during the interview did appellant state either that he saw weapons inside the residence or that White had a weapon. Appellant alone testified at trial that he saw guns in Acosta's house on August 16, 2008, and that White, or someone else, shot at appellant before appellant shot White. Appellant's testimony alone will not conclusively prove self-defense, and the jury, as fact finder, was free to reject appellant's claim. See Saxton, 804 S.W.2d at 914. Moreover, appellant's challenge to the credibility of Acosta and Lugo is unavailing; the jury alone was responsible for determining their credibility. See Jackson, 443 U.S. at 326. Additionally, although appellant contends the evidence that a particle of gunpowder residue was on White's hand shows he fired a gun, Hall testified there were several ways the residue could have landed on White's hand-one was by White's hand being close to a firing gun. Lugo testified that White's arms were stretched out towards appellant when the shots were fired. Conclusion
Having reviewed all of the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have rejected appellant's evidence of self-defense and found appellant guilty of murder beyond a reasonable doubt. Thus, the evidence is sufficient to support the conviction. We overrule appellant's issues. We affirm the trial court's judgment.