No. 05-02-00478-CR
Opinion Filed August 6, 2003. Do Not Publish Tex.R.App.P. 47
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-56584-MS AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
Opinion by Justice LANG.
Bobby Gonzales appeals his conviction for murder. A jury found appellant guilty of the crime, found two enhancement paragraphs true, and assessed punishment at life imprisonment. Appellant's attorney filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response, presenting eight grounds he contends are arguable issues. Appellant complains the evidence is insufficient to support his conviction, the State failed to disclose exculpatory evidence, the prosecutor asked improper questions, appellant was improperly impeached, he received ineffective assistance of counsel, and inadmissible gang evidence was introduced.
Sufficiency of the Evidence
In his first ground, appellant complains there is legally insufficient evidence to support his conviction for murder. Appellant points out that only one eyewitness saw him shoot the victim and no physical evidence linked him to the crime. Appellant asserts the testimony of the eyewitness is questionable and the police did not test anyone's hands for the presence of gunshot residue. Appellant contends he did not shoot the victim, the clothes he wore the night of the shooting had no pockets from which he could have produced a gun, and that "Joe" was the murderer. When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine if any rational jury could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). In this review, we do not re-evaluate the weight and credibility of the evidence, but only decide if the jury reached a rational decision. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App. 1996). The jury determines the credibility of all witnesses. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1995). To obtain appellant's conviction in this cause, the State was required to prove appellant intentionally and knowingly caused the death of Hector Galvez, an individual, by shooting him with a deadly weapon, specifically, a firearm. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). The indictment also alleged that appellant intended to cause serious bodily injury to Galvez and committed an act clearly dangerous to human life, specifically, shooting Galvez with a firearm, a deadly weapon, and did thereby cause the death of Galvez, an individual. See id. § 19.02(b)(2). Cecelia Gonzales is appellant's sister. On September 16, 2001, Cecelia and appellant were drinking and playing dominoes at the home of Daniel Salazar. With them were Cecelia's boyfriend David, Galvez, and "Joe." Cecelia testified Joe was a "Mexican guy" who worked in the "butcher department" of a nearby grocery store. Galvez was intoxicated and "talking noise." Galvez asked appellant about his tattoos, but appellant ignored him. Galvez walked away and talked to Salazar about purchasing "some dope." Salazar, Galvez, and Joe left to make the transaction, but only Salazar and Galvez came back. Salazar and Galvez went to the bathroom to smoke some crack cocaine. Appellant told Cecelia that Galvez "was going down" and that "he was going to get the guy." Cecelia testified the comments had nothing to do with Galvez dying. Cecelia told appellant she did not want any trouble. Once Salazar and Galvez left the bathroom, Cecelia and Salazar's wife, Monica Oswello, went inside. A few minutes later, Cecelia heard shots. Monica and Cecelia ran from the house. Cecelia then drove appellant to their mother's house. Cecelia testified she had been in jail for failing to obey a subpoena to appear at her brother's trial. She claimed she had been threatened and was afraid to testify. Salazar testified that, on the night of the shooting, everyone was getting along and playing dominoes until Galvez arrived. Galvez began bothering appellant, but Salazar could not clearly hear what was being said. Salazar pulled him aside and tried to calm him down. Galvez wanted to buy some crack cocaine, so Galvez and Salazar went to purchase some. While doing so, they gave Joe a ride to his house. After that, Salazar and Galvez obtained the drugs and returned to Salazar's house. Galvez went to the bathroom to smoke the cocaine, and he was eventually joined by appellant and David. All three smoked cocaine in the bathroom. Appellant and David then rejoined the domino game, while Galvez continued to smoke. When Galvez finally emerged from the bathroom, appellant put his hand in his pocket, pulled out a gun, and shot Galvez three times. Galvez was not armed when he was shot. Salazar ran from the house with Monica and their son. Salazar testified that both appellant's family and Galvez's family put pressure on him regarding his testimony. Salazar denied that Galvez had discussed robbing Joe or that Joe came back to the house angry at Galvez over a drug transaction. Salazar testified that Galvez did not like Joe. Dallas police officer Chris Dobson was the first officer at the scene. He had a difficult time getting information from Monica, but she did identify Cecelia as the shooter's sister. Cecelia told Dobson she had been at home all day, but Dobson disbelieved her. Dobson noticed that Cecelia's car's engine was still hot, but Cecelia said it had not been moved. Cecelia changed her story several times while talking with Dobson. The police gathered as many witnesses as they could find and took them all to the police station to give statements. Detective Dan Wojcik testified he collected the physical evidence left at the scene. He recovered shell casings and some domino score sheets, but was not able to obtain any fingerprint evidence. Detective William J. Carollo investigated the shooting. He interviewed Salazar, David, Cecelia, and Monica. From the interviews, Carollo believed appellant was Galvez's killer, and he obtained a warrant for appellant's arrest. Appellant was eventually arrested in Laredo, Texas when he reentered the United States from Mexico. Dr. Lynn Salzberger performed the autopsy on Galvez. Salzberger determined that Galvez died of multiple gunshot wounds and testified that a firearm is a deadly weapon. Appellant testified he was drinking and playing dominos when Galvez arrived. Galvez peppered appellant with questions, but appellant remained calm. Joe wanted to purchase drugs, and he asked Galvez to give him a ride. Galvez refused. Joe went to use the bathroom, and Galvez began plotting to rob Joe. Joe, Galvez, and Salazar then left to buy drugs for everyone. Thirty minutes later, Salazar and Galvez returned without Joe. Galvez and Salazar began smoking crack. Joe returned to the house upset, and he confronted Galvez. Galvez pulled out a gun, but it fell out of his hand. When Joe picked it up, appellant ran. He did not see who shot Galvez but did hear shots as he ran away. Appellant did not stay in the area to talk with police because he had warrants for his arrest from unpaid traffic tickets. Appellant stayed at a friend's house for a few days, then spent some time traveling between Mexico and Laredo. Appellant denied shooting Galvez. The State impeached appellant's testimony with his parole violations and prior felony convictions. Appellant's contention that the evidence is legally insufficient because only one eyewitness testified at trial is without merit as one witness is sufficient to support a conviction if the jury believes that witness beyond a reasonable doubt and all elements of the offense are proven beyond a reasonable doubt. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App. 1971) (concluding testimony of eyewitness alone sufficient to support jury's verdict). Appellant contends that no one was tested for the presence of gunshot residue, but hand wipings were taken from the complainant, were tested for the presence of gunshot residue, and the tests were negative. No other testimony regarding trace-evidence analysis was presented to the jury because no other individuals were suspected or tested. Appellant was arrested two weeks after the shooting. The scene was processed for fingerprints and DNA, but no evidence was recovered. Three nine millimeter caliber shell casings were found at the scene. The jury evaluates the weight and credibility of the evidence presented and must reach a rational decision. Williams, 937 S.W.2d at 483. Based on the testimony of appellant's sister that on the night of the shooting, appellant threatened to "get" Galvez and that he "was going down," from eyewitness Salazar that appellant shot the complainant three times with what looked like a nine millimeter weapon, from officers Dobson and Carollo regarding their investigation of the offense, the jury could have found the elements of the crime beyond a reasonable doubt. Appellant presents no arguable issue in his first ground. Failure to Disclose Exculpatory Evidence
In his second ground, appellant claims the State failed to disclose State's Exhibits 7 and 8, consisting of photographs taken the night of the crime. Appellant contends his counsel could have used the photographs to cross-examine and impeach Salazar. The exhibits at issue show various people at the party. Appellant contends he is in the photographs and they prove he was wearing clothing that did not have pockets. Appellant asserts that, since his clothing did not have pockets, Salazar could not have seen him pull a gun from his pocket to shoot Galvez. In State's Exhibit 7, appellant is shown wearing a large baseball jersey. The jersey covers up the pants or shorts appellant was wearing. In State's Exhibit 8, appellant is shown sitting down at the far left lower edge of the photograph. Much of appellant's body does not appear in the photograph because it was outside of the frame. At a pretrial hearing, appellant's counsel told the trial court he had already received "crime scene photos." When the State moved to admit the exhibits 7 and 8, counsel had no objection. From the record, we cannot conclude appellant was unaware of the existence of the photographs, as there is no showing of surprise on his part. Moreover, had the existence of the photographs not been disclosed until after trial commenced, appellant waived any error by failing to request a continuance. See Williams v. State, 995 S.W.2d 754, 762 (Tex.App.-San Antonio 1999, no pet.). We conclude appellant does not present an arguable issue in his second ground. In his third ground, appellant complains the State failed to disclose letters appellant wrote from the jail to Mario, appellant's mother, and Eliberto Reyna. Appellant believes the letters contain evidence showing he was innocent, and appellant asserts it was unfair for the State to use the letters to impeach his testimony at trial. The letters were not introduced into evidence. The State has an obligation to disclose evidence favorable and material to a defendant's guilt or punishment under the Due Process Clause of the Fourteenth Amendment. Shpikula v. State, 68 S.W.3d 212, 219-20 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (relying on Brady v. Maryland, 373 U.S. 83, 86 (1963)). Brady does not apply to evidence that a defendant already knows exists. Havard v. State, 800 S.W.2d 195, 204 (Tex.Crim.App. 1989). The substance of the letters dealt with attempts by appellant to get witnesses not to testify against him at trial and to determine the legal consequences if a witness does not respond to a subpoena. Although the letters are not in the record, he maintains they also contain his own assertions that he did not commit the shooting. Because the letters are not in the record, we are unable to conduct a substantive review of the content. Even if they were in evidence, the State's impeachment of appellant with his written attempts to encourage witnesses not to appear in court is not covered by Brady. His self-serving statements denying the offense, made while in jail, would not have been admissible at trial. See Walck v. State, 943 S.W.2d 544, 545 (Tex.App.-Eastland 1997, pet. ref'd) ("Self-serving statements of an accused are generally inadmissible."); Chambers v. State, 905 S.W.2d 328, 330 (Tex.App.-Fort Worth 1995, no pet.) (same). Finally, because appellant wrote the letters in question, he was already aware of their existence. Therefore, Brady did not require their disclosure. See Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App. 2002). We conclude appellant does not present an arguable issue in his third ground. Improper Questioning
In his fourth ground, appellant complains the State engaged in "improper questioning." Appellant points to many instances during the trial where this "improper questioning" occurred. We will address the instances in the order presented by appellant, and note that many of appellant's complaints are actually complaints regarding the admission of evidence. We review a trial court's decision to admit evidence for an abuse of discretion. Riney v. State, 60 S.W.3d 386, 388 (Tex.App.-Dallas 2001, no pet.). Appellant contends the State elicited hearsay testimony from Dobson on several occasions. As to all but one of these questions, appellant failed to object. Without objection, no error is preserved. See Tex.R.App.P. 33.1(a)(1). The single instance where appellant preserved error was when the prosecutor asked Dobson who Monica identified as having been at the house the night of the shooting. Appellant's counsel made a hearsay objection. In response, the State explained to the trial court that the evidence was not offered to prove the truth of the matter asserted, but to merely show why Dobson talked to Cecelia. A statement offered not to prove the truth of the matter asserted, but for some other purpose, is not hearsay. Mendoza v. State, 69 S.W.3d 628, 633 (Tex.App.-Corpus Christi 2002, pet. ref'd). Because the statement offered was not hearsay, the trial court did not abuse its discretion when it overruled appellant's objection. Next, appellant contends that some of the State's questions to Salazar concerning Monica may have left the impression Monica was a witness to the shooting. However, appellant lodged no objection to the testimony cited in his pro se response. Therefore, he has waived any error. See Tex.R.App.P. 33.1(a)(1). Additionally, appellant claims the State's questioning of Salazar regarding attempts others made to discourage him from testifying was improper. Appellant preserved this issue by objecting on the grounds of relevance. The trial court overruled appellant's objection, and Salazar testified that appellant's family and the victim's family had threatened him. Evidence of threats made to a witness to dissuade them from testifying is relevant to show the accused's "consciousness of guilt." See Peoples v. State, 874 S.W.2d 804, 809 (Tex.App.-Fort Worth 1994, pet. ref'd). We cannot conclude the trial court abused its discretion in overruling appellant's relevance objection. Appellant complains the questions propounded to him by the State concerning letters he wrote to Cecelia, his mother, and Eliberto Reyna were prohibited by rule 403 of the "Rules of Criminal Evidence" because the jury could have "inferred, assumed, or speculated that these letters had incriminating evidence." At no time did appellant object on the basis of rule 403 to the questions cited in his pro se response. Therefore, he did not preserve error. See Tex.R.App.P. 33.1(a)(1). In his last contention in this ground, appellant contends the State violated "Texas Rules of Criminal Evidence Rule 403 and 404(b)" when the prosecutor asked appellant about his membership in a prison gang known as the "Texas Syndicate." Again, appellant failed to object and, as a consequence, did not preserve error. See id. We conclude appellant does not present an arguable issue in his fourth ground. Improper Impeachment
In his fifth ground, appellant contends the trial court erred by allowing the State to cross-examine him regarding prior "acts of misconducts." At trial, the prosecutor asked appellant if he had possessed a firearm while on parole. Appellant objected on the grounds of relevance, and the trial court overruled the objection. Appellant testified he had "taken a picture or two with a firearm" that did not belong to him. The State then introduced into evidence a photograph showing appellant holding a handgun. Appellant admitted he had posed for the photograph while on parole. Appellant contends the photograph was irrelevant to "the issue at hand." However, appellant was charged with killing Hector Galvez with a firearm. The trial court could have reasonably considered evidence that appellant had recently possessed a firearm was relevant to the issue of whether appellant had killed someone with a firearm. Therefore, the trial court did not abuse its discretion when it overruled appellant's relevancy objection. We conclude appellant does not present an arguable issue in his fifth ground Ineffective Assistance of Counsel
In his sixth and seventh grounds, appellant claims he received ineffective assistance of counsel. Specifically, appellant complains in his sixth ground counsel failed to investigate Salazar before trial, failed to "preserve any material evidence in Appellant's favor," failed to present evidence impeaching Salazar's credibility, failed to argue Salazar could not have seen appellant take a gun out of his pocket, and failed to request a limiting instruction that appellant "committed these bad acts below which were inadmissible" during trial. Appellant complains in his seventh ground of numerous instances where counsel failed to object to evidence presented at trail. We use the Strickland standard in evaluating ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App. 1999). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). We indulge a strong presumption of counsel's competence. Bone, 77 S.W.3d at 833. If the record does not affirmatively reflect ineffective assistance, we cannot say counsel's performance was deficient. Id. at 835-37. Appellant's contentions regarding counsel's failure to investigate Salazar before trial revolve around appellant's contention that counsel should have impeached Salazar's testimony with State's Exhibits 7 and 8. These exhibits were the photographs taken the night of the crime showing what appellant was wearing. Appellant contends the exhibits show that his clothing did not have pockets and, therefore, counsel could have impeached Salazar with the fact that appellant had no pockets from which he could have produced a gun. We have examined the exhibits. State's Exhibit 7 shows appellant wearing a large baseball jersey. It is impossible to see what pants or shorts appellant is wearing, let alone whether or not they have pockets. In State's Exhibit 8, appellant is on the edge of the photograph, and it cannot be determined if his pants or shorts have pockets. Thus, the photographs do not demonstrate that appellant's clothing did not have pockets. Therefore, the photographs could not be used to impeach Salazar's testimony that appellant produced a firearm from a pocket and shot Galvez. Accordingly, appellant has not shown counsel's performance fell below an objective standard of reasonableness. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Therefore, appellant does not show counsel's ineffectiveness in this regard. The record does not show what investigation, if any, counsel undertook before trial. Further, no motion for new trial was filed and no hearing was conducted on the issue. Because the record does not affirmatively show ineffective assistance of counsel, appellant does not carry his burden to show ineffectiveness in this regard. Id. Appellant asserts that counsel should have argued to the jury that appellant did not have pockets from which he could have pulled a gun and that counsel should have presented appellant's clothes from the night of the crime to the jury. However, appellant does not show that his clothes from that night were available for counsel to produce. Further, appellant does not show that the results of his proceedings would have been different had counsel made that argument to the jury. Accordingly, he does not carry his burden to prove counsel's ineffectiveness in these regards. Id. We conclude appellant does not present an arguable issue in his sixth ground. Appellant contends in his seventh ground that counsel was ineffective in failing to object to evidence of numerous extraneous "bad acts" and failing to ask for limiting instructions. Appellant lists nine instances where he asserts counsel failed to take action to prevent or limit the introduction of evidence. However, appellant does not show how the results of his trial would have been different had counsel taken the actions appellant asserts he should have taken. Since no motion for new trial was filed, no evidence was adduced for consideration. Therefore, appellant fails to show counsel was ineffective. Id. We conclude appellant does not present an arguable issue in his seventh ground. Gang Evidence
In his eighth ground, appellant complains the State elicited inadmissible evidence from a witness concerning the activities of the "Texas Syndicate" prison gang and appellant's membership in the Texas Syndicate. Appellant contends the evidence of his membership in the gang and the gang's bad acts had a danger of unfair prejudice that substantially outweighed its probative value, was hearsay, and was irrelevant. At punishment, Robert Grant testified he was employed by the Texas Department of Criminal Justice and was the "security-threat group coordinator for the Northern Region" of Texas. His job was to supervise the "gang officers" for fifteen prison units. Without objection, he described the various criminal enterprises conducted by the Texas Syndicate, that members of the Texas Syndicate are members for life, and that only Texas Syndicate members are allowed to bear the Texas Syndicate tattoo. Through Grant, the State offered a business record from the department of criminal justice noting that appellant had claimed membership in the Texas Syndicate, but the trial court sustained appellant's objection to this record. Grant then testified without objection that appellant had been recognized as a Texas Syndicate member by the prison system in 1986. Grant also testified that appellant had a poor discipline record while in prison. Because appellant objected only to the business record offered by the State and not to Grant's testimony, he did not preserve error. See Tex.R.App.P. 33.1(a)(1). Therefore, he does not present an arguable issue in his eighth ground. Conclusion
We have reviewed the record, counsel's brief, and appellant's response. We conclude the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Therefore, we affirm the trial court's judgment. DOUGLAS S. LANG, JUSTICE