Opinion
No. 08-01-00451-CR
January 22, 2004. DO NOT PUBLISH.
Appeal from the 34th District Court, of El Paso County, Texas, (Tc# 20010D02529).
Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
OPINION
Appellant Luis Gonzalez was indicted and tried for the murder of Lorenza Orozco. The jury found Appellant guilty of the lesser-included offense of manslaughter and assessed punishment of 18 years' imprisonment and a fine of $10,000. On appeal, Appellant raises eight issues, in which he challenges the legal and factually sufficiency of the evidence to sustain his conviction and argues that the trial court erred in admitting evidence seized from his home without his effective consent and erred in admitting into evidence his purported statement which was not voluntarily given. We affirm. On the evening of October 6, 2000, Appellant shot his wife Lorenza Orozco with a 12-gauge shotgun during an argument in their home. Ms. Orozco died as a result of the injuries she sustained. Appellant and the victim had been together for over three years and had a two-year-old son. They had a lot of problems in their relationship and financial disagreements. That evening, Appellant got out of work around 8:30 p.m. and went to the Lamplighter Bar, a strip club, and drank a couple of beers. About half an hour later, Ms. Orozco entered the club, went to Appellant's table, and started yelling at Appellant. The club's bouncer threw the couple out. Appellant arrived home first and as he got out of his vehicle, Ms. Orozco pulled up and almost ran him over. Appellant went to her vehicle, picked up their son from the back seat, and went into the house. Appellant recalled that while he was closing the door, Ms. Orozco hit him in the mouth. Appellant put his sleeping son on the sofa and he and Ms. Orozco continued arguing. In his statement to police, Appellant stated that during the argument he grabbed Ms. Orozco and shook her from the arms and stated that she was getting out of hand He then called her mother and told her what was happening and that he could not stand Ms. Orozco and did not want her there anymore. Ms. Orozco grabbed a lamp and Appellant hung up the phone and went upstairs. Appellant then went into his room, grabbed a shotgun that he kept loaded in his closet and went back downstairs. Appellant told Ms. Orozco to shut up and leave, but she kept going on and calling him names. Appellant pulled on the trigger and the shotgun went off. Ms. Orozco fell to the floor and he walked upstairs and put the shotgun away. Appellant returned and picked up his son who was crying. He then called 911 and told them to come quickly because he had shot his wife accidentally. Appellant stated that he did not want to shoot her, he just wanted to scare her. At trial, Appellant offered contrary testimony concerning the immediate events leading up to the shooting. Appellant testified that after they returned home and during their argument, his brother-in-law called on the phone. Appellant gave the phone to Ms. Orozco and while she was on the phone, he went upstairs to take a shower. Ms. Orozco followed Appellant upstairs and came towards him, threw something at him, and started yelling at him and hitting him. Appellant then picked up the 12-gauge shotgun, which was behind the 9-millimeter gun, on the top shelf in the closet. Appellant stated that he wanted to scare her and calm her down. Appellant testified that he did not grab the 9-millimeter because he knew it was loaded, but knew the shotgun was not loaded. Appellant went downstairs, carrying the shotgun, and Ms. Orozco followed behind him. She kept on hitting him, so he called his mother-in-law. After he hung up the phone, Ms. Orozco swung at him and threw something at him. Appellant picked up the shotgun, which was on top of the counter and put it by his side. Appellant pointed the shotgun at Ms. Orozco. Ms. Orozco had something in her hand and swung at him and Appellant told her to stop. When she did it again, Appellant flinched and the gun went off. Ms. Orozco grabbed her arm and asked Appellant to call 911. At first, Appellant could not react and did not respond to her. Appellant testified that he was in shock because the gun should have never been loaded. Ms. Orozco then yelled at him to call 911 and he did. After calling 911 and speaking with the operator, Appellant picked up his son, heard the ambulance, and ran outside. His neighbor, Anthony Martinez had just returned home when he saw Appellant's door open. Mr. Martinez was walking up to the door when Appellant walked out. Appellant told Mr. Martinez that he had shot his wife and walked past Mr. Martinez. Appellant appeared very sad and quiet. Appellant went into the street, waved to the ambulance, and then walked back in the house. El Paso Police Officers Adrian Estrada and Joe Lopez were the first officers to arrive at the scene. When they entered the kitchen, they observed Appellant on the phone and holding a small child. Officer Lopez ordered Appellant to hang up the phone, put down the child, and put his hands up. Officer Estrada recalled that Appellant was quiet, but kind of shocked, and complied with all the orders. Officer Estrada placed Appellant in handcuffs and escorted him out to the patrol unit. Then Officer Estrada sat Appellant down in the back of the unit and watched him. Officer Erik Messer and his partner Steven Lopez entered the residence directly behind Officers Estrada and Joe Lopez. Officer Messer observed the officers placing Appellant in handcuffs and made his way to the victim. She was lying on the floor in the den, suffering from an obvious gunshot wound. Officer Messer saw she had a large gaping hole in her upper right torso and the elbow area of her arm was severely torn up. Ms. Orozco had a very faint pulse and was not talking or responding. He and another officer were about to do CPR when EMS arrived and took over the victim. Officer Messer then assisted other officers in clearing the house to look for possible victims, suspects, or weapons, as a safety concern. Officer Messer went upstairs to the bedroom area and observed two weapons, a shotgun and a handgun, in an open closet on the shelf. The officer noticed that the shotgun still had the spent round in the chamber or the port ejection. After the officer located the weapons, he advised the sergeant on the scene. By then, they had learned that there were no outstanding suspects or victims and Officer Messer was asked to go outside and secure the perimeter. Officer Messer testified that he did not tag the shotgun as evidence nor was he told by anyone where the gun was located. Officer Estrada testified that he did not say anything to Appellant when he put him in the back of the patrol unit. At that time, his partner Joe Lopez was inside the residence, trying to find weapons and was trying to get a hold of Officer Estrada on his radio. Officer Lopez came out of the residence and told Officer Estrada to read Appellant his rights. Officer Lopez then asked Appellant "where are the guns" and Appellant replied, "upstairs." Officer Estrada recalled that Appellant began yelling out for his son and wife and that it seemed like he was going into a little bit of shock, either rocking back and forth or side to side. Since Appellant appeared to be going into a seizure, Officer Estrada called out for help, pulled Appellant out of the unit, and an ambulance showed up to transport Appellant to Del Sol Medical Center. Officer George Spencer, who had been canvassing the area for witnesses, was called over to the patrol car and told to ride in the ambulance. Officer Spencer observed Appellant sitting on the curb and gasping for air. Officers Estrada and Spencer rode in the ambulance with Appellant to the hospital. Officer Estrada recalled that during the ambulance ride, Appellant said, "I can't breathe." Appellant had on an oxygen mask for about half the trip, and eventually passed out. Officer Spencer recalled that Appellant's eyes were closed and he was kind of shaking around as if having some sort of seizure or something. The EMTs were tapping his eyes and saying his name. Appellant's eyes were flinching, but he made no verbal response. When they arrived at the hospital, Appellant was taken to an examining room. Officer Spencer recalled that Appellant was handcuffed behind his back and at the time, his hands were wrapped in paper to protect evidence of gunpowder residue. Appellant was complaining that his hands were numb, so Officer Spencer handcuffed Appellant to the bed rail. Officer Spencer recalled that Appellant was asking about his wife's condition. Crime Scene Officer Mark Fernandez was dispatched to Del Sol hospital at 11:45 p.m. to obtain photographs and evidence. Officer Fernandez took photographs of Appellant and noted that he was handcuffed to the rails, had blood on his clothing, and his hands were bagged and taped. Officer Fernandez unbagged Appellant's hands and tested for gunpowder traces with a collection kit. The officer also took Appellant's clothes and shoes, and later turned these items and the collection swabs over to Officer Tom Garcia. Officer Fernandez recalled that Detective Chavarria was not initially at the hospital when he arrived, but showed up while he was there. Officer Fernandez was advised by Sergeant Valenzuela to go to the crime scene to map the wall of blood splatter. Officer Fernandez left Del Sol at 1:07 a.m. When he arrived at the residence, officers were still standing by waiting for the videotaping and photographing of the scene. Wanda Guerrero Sanchez, a registered nurse at Del Sol Medical Center, was the emergency room triage nurse on duty when Appellant was brought into the hospital by the police. Ms. Sanchez testified that at that time, Appellant was not voicing complaints because he would not talk with medical staff. They took Appellant's vital signs and Ms. Sanchez did an assessment on him. While Ms. Sanchez was in the hallway, Jose Rodriguez, the physician's assistant on duty that night, entered Appellant's room and dropped a metal overbed tray on the floor. Appellant immediately responded and jumped, fully awake. Appellant did not seem to be in a state of shock because he snapped out of his unresponsiveness so readily with a loud noise. Appellant did not exhibit any symptoms consistent with a postictal state following a seizure. Ms. Sanchez recalled from her nursing notes that Appellant came into the hospital at 11:45 p.m. and was released by the physician into police custody at 1:05 a.m. Ms. Sanchez recalled giving Appellant two hospital gowns, covering his front and back, because the police had taken Appellant's clothes. When he was leaving, Ms. Sanchez got shoe covers for his feet and wrapped him in a warm blanket. Detective Gonzalo Chavarria, of the Crimes Against Persons ("CAP") Division in the El Paso Police Department, arrived at the scene of the shooting at approximately midnight and was advised to go to Del Sol Hospital to start his investigation. Detective Chavarria arrived at the hospital at approximately 12:45 a.m. While there, Detective Chavarria was advised by his supervisors to obtain Appellant's consent to enter his home for investigative purposes. Detective Chavarria read Appellant his rights and read the consent to search form, which states that he can refuse to consent to the search. Detective Chavarria testified that Appellant read the form, understood it, and signed it. After obtaining the consent form, Detective Chavarria met with the medical staff attending to Appellant. Appellant was cleared by medical staff for release and transported to police headquarters. Upon arriving at police headquarters, Appellant was turned over to Detective Chavarria's custody in the CAP office. They went into an interview room and Detective Chavarria read Appellant his Miranda rights, and Appellant signed and initialed each paragraph of the Miranda warning card. Appellant agreed to waive his rights and give a statement. Detective Chavarria testified that during the time he took the statement, Appellant did not tell him he wanted to cease the interview and he was not coerced or threatened in any way to give a statement. Detective Chavarria also testified that he did not directly or indirectly promise Appellant anything in return for his statement and stated that he was not denied any basic necessities like food or going to the restroom. Appellant read the statement on the computer monitor as Detective Chavarria typed and after it was finished, the detective gave Appellant a printed copy, which Appellant read aloud. Appellant initialed every paragraph and wanted no additions, deletions, or alterations to the statement. Appellant signed the document in the detective's presence, which was witnessed by Officer Spencer and Officer Gabriel Espalin. Crime Technician Officer Thomas Garcia arrived at Appellant's residence at approximately midnight. When Sergeant Valenzuela arrived about an hour later, Officer Garcia was assigned the duty of collecting evidence at the crime scene. Officer Garcia collected several items of evidence, including assorted ammunition from the kitchen pantry, a box of .38 caliber ammunition, a box of 9-millimeter ammunition found inside the kitchen cabinet, and an empty box of Federal brand shotgun ammunition found in the upstairs bedroom closet. In the upstairs bedroom closet, Officer Garcia also recovered a loaded 9-millimeter pistol, a loaded Mossberg 12-gauge shotgun, one spent shotgun shell taken from the receiver of the ejection port of the shotgun, and after unloading the shotgun, four live shotgun rounds inside the recoil tube. Joseph Correa, a firearms examiner for Texas DPS at the El Paso Crime Lab, conducted various tests on the 12-gauge shotgun in evidence and testified as a firearms expert for the State. Mr. Correa determined that the shotgun was functioning properly and had two safety locks, a sear that keeps the firing pin back and another on top of the receiver that was a trigger lock. Though he had heard of a shotgun firing when dropped, he saw no reason why this shotgun should fire if dropped. According to Mr. Correa, the shotgun in evidence was a slide-action or pump shotgun. In closed position, one inserts the shotshells into the tube of the magazine in the body. To load it, one would pull it forward and backwards, causing the lift to come down with the first stop opening to allow the shell to pop onto the lift and the second stop keeping the rest of the shells from coming down and jamming the firearm. Then one would rack it forward again, causing the lift to rise, the bolt to move forward, and the chambering of the round. In order to fire the weapon, it would have had to have already been racked. Mr. Correa also testified that the shotgun held a capacity of five three-inch shotshells, four in the magazine and one in the chamber. According to Mr. Correa, the five bullets recovered from the shotgun were three-inch shotshells. The jury found Appellant guilty of the lesser-included offense of manslaughter and assessed punishment at eighteen years' imprisonment and a $10,000 fine. Appellant's motion for new trial was overruled by operation of law. Appellant now brings this appeal. In four related issues, Appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction for manslaughter.
Officer Gabriel Espalin bagged Appellant's hands while Appellant was at the patrol unit. Appellant was crying at the time, but according to Officer Espalin, Appellant was not rocking back and forth in the car until after his hands were bagged.
Standards of Review
In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560, 573 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). We must evaluate all of the evidence in the record, whether it was admissible or inadmissible. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. In reviewing a factual sufficiency challenge, we view all of the evidence in a neutral light, both for and against the verdict, to determine whether it demonstrates that the proof of guilt is so obviously weak as to undermine our 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); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). We review the evidence supporting a disputed fact and compare it to evidence tending to disprove that fact. Johnson, 23 S.W.3d at 6-7; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). Although we are authorized to disagree with the jury's determination, we must give due deference to the jury's assessment of the weight and credibility of the evidence to avoid substituting our judgment for that of the fact finder. Johnson, 23 S.W.3d at 7; Jones, 944 S.W.2d at 648. We will set aside a verdict only where the evidence supporting guilt is so obviously weak or the contrary evidence so overwhelmingly outweighs the supporting evidence as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003).Manslaughter
In this case, Appellant was charged with murder, but at trial, the jury was also instructed on the lesser-included offenses of reckless manslaughter and criminally negligent homicide. The jury found Appellant guilty of manslaughter. A person commits manslaughter if he recklessly causes the death of an individual. See TEX.PEN.CODE ANN. § 19.04(a) (Vernon 2003). Section 6.03(c) of The Texas Penal Code provides:A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.TEX.PEN.CODE ANN. § 6.03(c) (Vernon 2003). To obtain a conviction for manslaughter, the State must prove that: (1) the risk that the defendant perceived was both substantial and unjustifiable; and (2) the defendant's disregard of the risk constituted a gross deviation from the ordinary standard of care. See TEX.PEN.CODE ANN. § 6.03(c). Under the Texas Penal Code, a person commits criminally negligent homicide by causing the death of an individual by criminal negligence. See TEX.PEN.CODE ANN. § 19.05(a). In defining criminal negligence, Section 6.03(d) of the Penal Code provides:
A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.TEX.PEN.CODE ANN. § 6.03(d). On appeal, Appellant argues that if he is guilty, he is guilty of the lesser-included offense of criminally negligent homicide, rather than manslaughter, because he failed to perceive the injury or death that could result from his conduct because he thought the shotgun was unloaded. Therefore, the only disputed element on appeal is Appellant's mental state, that is, whether he was aware of a substantial and unjustifiable risk created by his conduct and consciously disregarded it, or whether he was unaware of the risk involved or failed to perceive that risk. See Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App. 1975) (difference between criminally negligent homicide and involuntary manslaughter, now manslaughter, is the culpable mental state required to establish each offense). Proof of a culpable mental state often relies on circumstantial evidence, and in comparing recklessness versus criminal negligence, is a conclusion to be drawn by the trier of fact through inference from all the circumstances. Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978). In this case, according to his statement, Appellant and Ms. Orozco were in the middle of an argument when he went upstairs to his room and grabbed a shotgun that he kept loaded in the closet. Appellant then returned downstairs, continued arguing with Ms. Orozco, and then pulled on the trigger and the shotgun went off. Appellant stated that he did not want to shoot her, but only intended to "scare her." At trial, Appellant testified that he grabbed the shotgun because he knew is was not loaded, had never loaded the shotgun, did not know how the safety worked, and had never test fired the shotgun, which he had purchased used in December 1999. Appellant denied that he racked the shotgun and did not know who had racked it. Officer Garcia recovered assorted ammunition and other evidence at Appellant's residence, including a box of .38 caliber ammunition, a box of 9-millimeter ammunition, and an empty box of Federal brand shotgun ammunition from the upstairs bedroom closet. In addition to the loaded shotgun, Officer Garcia recovered a loaded 9-millimeter pistol. Firearms expert Joseph Correa testified that Appellant's shotgun was functioning properly, and in order to fire this type of shotgun, it would have had to have already been racked. Though Appellant testified that he had never taken a firearms safety course, he admitted that he had owned other guns before. Based on the evidence viewed in a light most favorable to the verdict, the jury could reasonably infer that Appellant knew the shotgun was loaded when he pointed it at Ms. Orozco and knew the risk of potential injury created by his conduct given his familiarity with guns and his intention of scaring the victim. See Thomas v. State, 699 S.W.2d 845, 850 (Tex.Crim.App. 1985) ("Evidence that a defendant knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points a gun at another, indicates a person who is aware of a risk created by that conduct and disregards the risk," not entitling a defendant to an instruction on criminally negligent homicide). The evidence also supports the inference that Appellant consciously disregarded the risk created by his conduct by pulling on the trigger while the gun was pointed at Ms. Orozco. We conclude that the evidence was legally sufficient to sustain Appellant's conviction for manslaughter. Further, we conclude the evidence is also factually sufficient because the proof of guilt was not so obviously weak nor was the contrary evidence so overwhelmingly outweighed by the supporting evidence as to render the conviction clearly wrong and manifestly unjust. Although at trial, Appellant denied knowing that the shotgun was loaded and testified that he did not know how the gun operated or how the safety worked, the jury was free to believe all, some, or none of Appellant's testimony. See Johnson, 23 S.W.3d at 9 (The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony.). A decision is not manifestly unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Finding the evidence both legally and factually sufficient to sustain Appellant's conviction, we overrule Issues One through Four.