Isidoro Valdez v. State

Opinion issued November 3, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00636-CR

———————————

ISIDORO VALDEZ , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 174th Judicial District Court

Harris County, Texas

Trial Court Case No. 1197254

MEMORANDUM OPINION

A

jury found appellant, Isidoro Valdez, guilty of the offense of capital murder, [1] and the trial court

assessed his punishment at confinement for life. In three points of error, appellant contends

that the evidence is legally and factually insufficient to support his

conviction and the trial court erred in denying his request to instruct the

jury on the lesser-included offense of murder and allowing the State to make an

improper argument at the close of the guilt phase of trial.

We

affirm.

Background

Adolfo

Gutierrez testified that in December of 2008, he lived with the complainant,

Ebodio Bautista, in a one-bedroom apartment, where Gutierrez slept on a

mattress in the living room. On December 17, 2008, Gutierrez returned from

work and fell asleep. He later awoke to

the sound of the front door being kicked in and saw appellant enter the

apartment carrying a “big gun.” Appellant

approached the complainant’s bedroom and, as the complainant was exiting the

bedroom, shot him “about three times.” Appellant

then exited the apartment and left the apartment complex in a white truck. Gutierrez noted that he had known appellant

for about ten years, appellant went by the name “Juan,” and he had previously

seen appellant drive the same white truck.

Cirilo

Rodriguez testified that he lived in the same apartment as Gutierrez and the

complainant, where he also slept in the living room. Rodriguez had been drinking beer with a

neighbor at the apartment complex when he left to purchase cigarettes at a

nearby store. On his way to the store,

he determined that it was “too late,” turned around, and returned to the

apartment complex, where he heard “at least two” gunshots coming from his

apartment on the second floor. After he

saw appellant leave the apartment and come down the stairs with “something in

his hand,” Rodriguez “got scared” and stayed in the apartment of a woman who

also lived in the complex. Rodriguez

noted that he recognized appellant because he had previously worked on

construction projects with him.

Houston

Police Department Sergeant J.C. Padilla testified that he was dispatched to the

scene of a homicide at the complainant’s apartment. Upon his arrival, he noted that there was

“forced entry into the apartment.” After

speaking to several neighbors, Padilla determined that appellant might be a

suspect in the homicide. He found

appellant in the parking lot of a nearby apartment complex, sitting in a white

truck with the complainant’s wife, from whom the complainant was separated. Appellant consented to an interview with

Padilla and a search of his residence, a two-bedroom house. In appellant’s bedroom, Padilla found twelve unfired

.38 Special live bullets, ten unfired .357 Magnum hollow-point bullets, and one

“small caliber live round.” He also

found a pair of pants with “a stain on it that appeared to be blood,” which he

submitted for DNA testing but never received results. Padilla retrieved a pair of work boots from

the apartment, which he submitted along with the complainant’s front door, to a

crime lab for testing. However, Padilla

did not receive a “definitive answer as to whether those boots were the same

boots that made the imprint on the door.”

He noted that a surveillance video of the apartment complex parking lot revealed

that a white truck entered and left the parking lot at approximately 11:30 p.m.

on December 17. Padilla explained that

the truck in the surveillance video was “similar in appearance” to appellant’s

truck, although the video did not reveal a license plate number.

Padilla interviewed Rodriguez, who

was still “visibly shaken” from the incident.

Padilla presented to Rodriguez a photospread containing a photograph of

appellant and five other men with similar physical characteristics. Rodriguez immediately identified appellant as

the man he had seen leave the apartment after the shooting.

Padilla interviewed Gutierrez, who

also immediately identified appellant in a photospread as the man who had

entered the apartment and shot the complainant.

During their interview, Gutierrez indicated that he was very frightened

of appellant “because [appellant] had been asking people about him and his

belief was because he was a witness to the incident.” Later that day, Padilla arrested appellant as

he was leaving the apartment of the complainant’s wife.

Dr.

Merrill Hines, an assistant medical examiner at the Harris County Institute of

Forensic Science, testified that the complainant suffered from gunshot wounds

to his head, chest, and right calf. The

wounds indicated that the shooter was one to four feet away from the

complainant at the time of the shooting.

During the autopsy, Hines was able to retrieve bullet fragments from the

complainant’s head and chest. On cross-examination,

Hines admitted that she was unable to conclusively eliminate the possibility of

more than one shooter.

Mohamad

Al-Mohamad, a forensic scientist at the HPD firearms lab, testified that he

analyzed the bullets recovered from the autopsy and the complainant’s apartment. His analysis demonstrated that the bullet

fragments recovered from the complainant’s head and chest were fired from one

gun, which was either a .38 Special revolver or a .357 Magnum revolver. There was no conclusive evidence that the

bullet recovered from the complainant’s apartment came from the same gun, but

Al-Mohamad explained that there was “some similarity” and it could have come

from the same gun as the bullets recovered during the autopsy. Al-Mohamad noted that the .38 Special bullets

found in appellant’s residence could be fired from a .38 Special revolver and

the .357 Magnum bullets found in appellant’s residence could be fired from

either a .38 Special revolver or a .357 Magnum revolver.

Sufficiency of the Evidence

In his first point of error, appellant argues

that the evidence is legally and factually insufficient to support his

conviction because Rodriguez’s testimony was “highly unreliable,” there is

“absolutely no physical evidence linking” appellant to the crime, and, no

rational jury could have found that appellant was the person who shot the

complainant.

We review the legal sufficiency of the evidence by

considering all of the evidence “in the light most favorable to the

prosecution” to determine whether any “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, 99 S. Ct.

2781 , 2788–89 (1979). Evidence is

legally insufficient when the “only proper verdict” is acquittal. Tibbs

v. Florida , 457 U.S. 31 , 41–42, 102 S. Ct. 2211, 2218 (1982). Our role is that of a due process safeguard,

ensuring only the rationality of the trier of fact’s finding of the essential

elements of the offense beyond a reasonable doubt. See Moreno v. State , 755 S.W.2d 866, 867 (Tex.

Crim. App. 1988). We give deference to

the responsibility of the fact finder to fairly resolve conflicts in testimony,

to weigh evidence, and to draw reasonable inferences from the facts. Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). However, our duty requires us to “ensure that

the evidence presented actually supports a conclusion that the defendant

committed” the criminal offense of which she is accused. Id . We now review the factual sufficiency of the evidence under the same

appellate standard of review as that for legal sufficiency. Ervin v. State , 331 S.W.3d 49 ,

52–56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d.).

A person commits the

offense of capital murder if he intentionally commits a murder “in the course

of committing or attempting to commit kidnapping, burglary, robbery, aggravated

sexual assault, arson, obstruction or retaliation, or terroristic threat.” Tex.

Pen. Code Ann. § 19.03(a)(2) (Vernon 2011). A person commits the offense of murder if he

intentionally or knowingly causes the death of an individual. Id.

§ 19.02(b)(1). A person commits the

offense of burglary if he “without the effective consent of the owner . . .

enters a building or habitation and commits or attempts to commit a felony,

theft, or an assault.” Id. § 30.02(a)(3).

In support of his

sufficiency challenge, appellant asserts that he was not the shooter of the

complainant, and he argues that Rodriguez’s testimony was “inherently

unreliable” because, on direct examination, he failed to identify appellant in

the courtroom and failed to definitively identify his own initials on the

photospread.

Viewing the evidence

in the light most favorable to the verdict, we note that Rodriguez later explained

on re-direct examination that his initial failure to identify appellant was

because appellant was not in the courtroom at that time. Padilla also confirmed that Rodriguez had

previously identified appellant in the photospread. It is the function of the jury to resolve any

conflicts in the testimony and evaluate the credibility of the witnesses. Williams ,

235 S.W.3d at 750 .

Additionally, Gutierrez

testified that he witnessed appellant kick down the door to the apartment

without his consent and intentionally shoot the complainant, which itself

satisfies the elements of the offenses of murder and burglary. The testimony of a single eyewitness may be

legally sufficient to support a conviction of a criminal offense. See

Aguilar v. State , 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (upholding

conviction for attempted murder where only one witness saw appellant with gun);

Davis v. State , 177 S.W.3d 355 , 358–59

(Tex. App.—Houston [1st Dist.] 2005, no pet.) (affirming conviction for

aggravated robbery where central issue involved a single witness’s

credibility); see also Proctor v. State ,

319 S.W.3d 175, 185 (Tex. App.—Houston [1st Dist.] 2010, pet. struck); Lee v. State , 176 S.W.3d 452 , 457–58

(Tex. App.—Houston [1st Dist.] 2004), aff’d ,

206 S.W.3d 620 (Tex. Crim. App. 2006).

Finally, although appellant argues that there is “absolutely no physical

evidence” linking him to the murder, Padilla retrieved ammunition from

appellant’s apartment consistent with the bullets recovered from the crime

scene.

Given this evidence, a

reasonable trier of fact could have concluded that appellant kicked down the

complainant’s door and shot him.

Accordingly, we hold that the evidence is sufficient to support

appellant’s conviction.

We overrule

appellant’s first point of error.

Lesser-Included Offense

In

his second point of error, appellant argues that the trial court erred in denying

his request to instruct the jury on the lesser-included offense of murder

because “there was some evidence that appellant was only guilty of murder and

not capital murder.”

We use a two-step analysis to determine whether an appellant

is entitled to a lesser-included offense instruction. Hall

v. State ,

225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau v. State , 855 S.W.2d

666 , 672–73 (Tex. Crim. App. 1993).

First, an offense is a lesser-included offense if (1) it is established

by proof of the same or less than all the facts required to establish the

commission of the offense charged; (2) it differs from the offense charged only

in the respect that a less serious injury or risk of injury to the same person,

property or public interest suffices to establish its commission; (3) it differs

from the offense charged only in the respect that a less culpable mental state

suffices to establish its commission; or (4) it consists of an attempt to

commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art.

37.09 (Vernon 2011). We compare the

elements of the offense as they are alleged in the indictment or information

with the elements of the potential lesser-included offense. Hall , 225 S.W.3d at 535–36.

Second, some

evidence must exist in the record that would permit a rational jury to find the

defendant is guilty only of the lesser offense, if he is guilty at all. Hall , 225 S.W.3d at 536 ; Salinas v.

State ,

163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau , 855 S.W.2d

at 672–73. There must be some evidence

from which a rational jury could acquit the appellant of the greater offense

while convicting him of the lesser included offense. Moore v. State , 969 S.W.2d

4, 8 (Tex. Crim. App. 1998). We may not

consider whether the evidence is credible, controverted, or in conflict with

other evidence. Id.

Anything more than a scintilla of

evidence entitles a defendant to a lesser charge. Hall , 225 S.W.3d at 536 .

Because the State concedes that

murder is a lesser-included offense of capital murder, we address only the

second prong by examining whether the evidence would allow a rational jury to

find, if appellant was guilty, that he was guilty only of murder. See id. The indictment asserted that appellant, in

the course of committing burglary, intentionally caused the death of the

complainant. For appellant to be guilty

only of murder, the jury would have to find that he shot the complainant

without committing burglary. See Tex. Pen. Code Ann. §

19.03(a)(2) (defining capital murder to include murder “in the course of

committing . . . burglary”). Although appellant asserts that

the testimony of Gutierrez and Rodriguez “raised the issue” for a murder

charge, he cites to no specific testimony indicating that appellant did not

commit a burglary in the course of shooting the complainant. Furthermore, Gutierrez testified that he

witnessed appellant kick down the front door and shoot the complainant, and

Rodriguez testified that he witnessed appellant leave the apartment immediately

after the shooting. Neither testimony

indicates that appellant did not enter the apartment or entered the apartment

consensually. At trial, appellant took

the position that he did not commit the offense at all, and there is no

evidence that the perpetrator of the offense shot the complainant without

committing burglary. Thus, there is no

evidence in the record from which a rational jury could have convicted

appellant only of murder and not of capital murder. Accordingly, we hold that the trial court did

not err in denying appellant’s request to instruct the jury on the lesser-included

offense of murder.

We overrule appellant’s second point

of error.

Improper Jury Argument

In his third point of error, appellant

argues that the trial court erred in overruling his objection to the State’s

argument during the guilt phase of trial because the prosecutor “sought to

inject her personal opinion regarding the culpability of [a]ppellant.”

Proper

jury argument is generally limited to (1) summation of the evidence presented

at trial, (2) reasonable deductions drawn from that evidence, (3) answers to

opposing counsel’s argument, and (4) pleas for law enforcement. Westbrook v. State , 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000) (en banc) ; Swarb v. State , 125 S.W.3d

672, 685 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). The trial court has broad discretion in

controlling the scope of closing argument. Lemos v. State , 130 S.W.3d 888, 892 (Tex. App.—El Paso

2004, no pet.); see Herring v. New York , 422 U.S. 853 , 862–63, 95 S. Ct.

2550 , 2555–56 (1975). The State is

afforded wide latitude in its jury arguments and may draw all reasonable, fair,

and legitimate inferences from the evidence. Allridge v. State , 762 S.W.2d

146, 156 (Tex. Crim. App. 1988).

Appellant

complains that in the following excerpt from closing argument, the prosecutor

injected her “personal opinion” concerning the testimony of Rodriguez:

And

you know he’s been scared from the very beginning. My gosh, look how long it took them to be able

to track him down. Is that the action of

somebody who’s looking to get somebody in trouble? Don't you think he would have stuck around if

he wanted to get the defendant in trouble and say: I know, I know who it was. It was Juan. It was Juan. That’s not what he did. He tried to hide. He

didn’t want to be involved in this, because he knew this man was dangerous . .

.

A prosecutor

may argue her opinions “concerning

issues in the case so long as the opinions

are based on the evidence in the record and not as constituting unsworn

testimony.” McKay v. State , 707 S.W.2d

23, 37 (Tex. Crim. App. 1985) (en banc).

Rodriguez testified that after the shooting, he “got scared” because

“when a person commits a crime and you are there, they are going to kill you

also, so you don’t say anything.” Officer

Padilla testified that, during their interview, Rodriguez appeared “scared,

like he was reluctant to get involved,” and his demeanor “did not change

throughout” the interview. Thus, even if

classified as opinion, the State’s argument was based on permissible reasonable

deductions from the evidence. See Westbrook , 29 S.W.3d at 115 . Accordingly, we hold that the trial court did

not err in overruling appellant’s objection to the State’s closing argument.

We

overrule appellant’s third point of error.

Conclusion

We

affirm the judgment of the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1] See

Tex. Pen. Code Ann. § 19.03 (Vernon 2011).