Opinion
No. 04-06-00636-CR
Delivered and Filed: December 28, 2007. DO NOT PUBLISH
Appeal from the 79th Judicial District Court, Jim Wells County, Texas, Trial Court No. 05-04-11609-CR, Honorable Richard C. Terrell, Judge Presiding. AFFIRMED
Sitting: CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Appellant Juan Manuel Mendoza was convicted by a jury for the murder of his wife, Sandra Zavaleta, and the trial court sentenced Mendoza to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of twenty-five years. Mendoza maintains the shooting was accidental and raises issues relating to insufficient evidence, erroneous admission of evidence, improper jury argument and ineffective assistance of counsel. We affirm the judgment of the trial court.
FACTUAL BACKGROUND
On February 4, 2004, at approximately 3:09 a.m., a 911 call to the Jim Wells County Sheriff's Department reported that Sandra Zavaleta, Appellant Mendoza's wife, had been accidentally shot in the face. The 911 dispatcher testified the caller explained that he was cleaning a firearm when Zavaleta "tried to grab the gun, and it shot her in the face." Two officers arrived at the Mendoza home where they found Zavaleta, on the bed, deceased. Mendoza described the circumstances surrounding the incident to Officer Joe Martinez explaining that "he was walking out of the bathroom with the weapons in his hand, and that the handgun accidentally discharged and struck [Zavaleta] in the face." Captain Enrique Saenz transported Mendoza to the Jim Wells County Sheriff's Office, where Mendoza provided a written statement regarding the shooting.ADMISSION OF EVIDENCE
Mendoza asserts the trial court erred in admitting the 911 recording into evidence. We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). As long as the trial court's ruling was within the zone of reasonable disagreement, we will not interfere with the ruling. Id. A. The 911 Recording Mendoza contends the trial court abused its discretion by admitting the 911 recording based on the State's failure to either identify the caller or show a proper chain of custody. Although the Texas Rules of Evidence do not specifically define the term "chain of custody," Rule 901(a) provides that, for admissibility purposes, the authentication or identification of an item is satisfied by evidence that is sufficient to support a finding that the item in question is what its proponent claims. TEX. R. EVID. 901(a); Silva v. State, 989 S.W.2d 64, 67 (Tex.App.-San Antonio 1998, pet. ref'd) (explaining that chain of custody goes to weight and not to admissibility). Evidence may be authenticated or identified by different methods, including testimony by a witness with knowledge that "a matter is what it is claimed to be." TEX. R. EVID. 901(b)(1); see also Angleton v. State, 971 S.W.2d 65, 67-68 (Tex.Crim.App. 1998). The court properly admits evidence when a reasonable juror could find that the evidence has been authenticated or identified. See Pondexter v. State, 942 S.W.2d 577, 586 (Tex.Crim.App. 1996). Here, the 911 dispatcher testified that, although he neither made the recordings nor retained custody of the recordings, the two recordings were true and accurate representations of the calls he received on the evening of the incident. The evidence supports the trial court's determination that Rule 901 was satisfied. TEX. R. EVID. 901; see Angleton, 971 S.W.2d at 67-68 (upholding admission of audiotape when a witness, with knowledge, testified that the enhanced recording produced at trial was an accurate copy of the relevant contents of the original recording). Accordingly, the trial court did not abuse its discretion in admitting the testimony.B. Mendoza's Statement
Mendoza next contends that his statement was inadmissible because it was not recorded in accordance with Article 38.22 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2005). Article 38.22 sets forth the necessary requirements for admissibility of a written statement. See id. To comply with Article 38.22, Section 2, the face of the written statement must show the accused (a) received certain admonishments and (b) "prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section." Id. There is no requirement, however, that an audio or video recording be made of the statement. Mendoza provided his statement to Captain Saenz. The statement was typed and printed; Mendoza's initials were affixed to each of the statutorily prescribed warnings; and the statement was signed by Mendoza. Thus, the face of Mendoza's written statement shows compliance with Article 38.22, Section 2. Id. An audio or video recording of the statement was not necessary and, therefore, the trial court did not abuse its discretion in admitting the statement into evidence.C. Crawford and the Sixth Amendment
On appeal, Mendoza asserts both the 911 recording and the written statement were admitted in violation of Mendoza's Sixth Amendment right to confront witnesses under the United States Constitution. Specifically Mendoza argues: (1) the 911 recording was played before the jury prior to identifying the caller B allegedly Mendoza B on the recording; and (2) the written statement was a selective transcription and inconsistent with Mendoza's prior oral statements. Trial counsel's objection to the introduction of the 911 recording was limited to Mendoza's inability to confront "the witnesses with regard to the chain of custody." (emphasis added). No specific objection was made regarding a lack of confrontation regarding the witness' actual testimony. When an appellate complaint fails to comport with the trial objection, nothing is preserved for review. TEX. R. EVID. 33.1(a); Swain v. State, 181 S.W.3d 359, 367 (Tex.Crim.App. 2005); see also Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005) (explaining when objection is not sufficiently specific for preservation of appeal). This is true even after Crawford v. Washington, 541 U.S. 36 (2004). See Campos v. State, 186 S.W.3d 93, 98 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (holding that a post- Crawford defendant waives appellate challenge based on Confrontation Clause for failure to object at trial). Mendoza raised an objection with regard to the chain of custody and not a Crawford violation before the trial court. Accordingly, we do not address the issue on appeal. Id.; see also TEX. R. APP. P. 33.1(a). With regard to the written statement, Mendoza argues that the lack of an audio recording of his statement impaired his ability to cross-examine witnesses about unrecorded gestures made by Mendoza in violation of the Confrontation Clause. In Crawford, the Supreme Court held that the Confrontation Clause bars the admission of out-of-court testimonial statements made by a witness who does not testify, unless the witness is unavailable to testify and the defendant has had a prior opportunity to cross — examine the witness. Crawford, 541 U.S. at 68 (emphasis added). Therefore, to implicate the Confrontation Clause, an out — of — court statement must be (1) made by an absent witness and (2) testimonial in nature. Id. Here, however, Texas Ranger Rey Ramon and Captain Enrique Saenz — the officers who took Mendoza's statement — testified at trial, and Mendoza had the opportunity to confront them at that time. Because both witnesses testified at trial, no Confrontation Clause violation is implicated.D. Expert Testimony
Mendoza asserts the trial court erred in admitting the expert testimony of the medical examiner, as well as the forensic firearms and tool marks examiner. Mendoza, however, acknowledges that no error was preserved. See TEX. APP. P. 33.1(a). Although trial counsel did not object to the testimony of either witness, Mendoza now claims the admission of the expert testimony was fundamental error pursuant to Texas Rule of Evidence 103(d) ("Fundamental error. Nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court."). Mendoza, however, makes no attempt to provide any authority wherein courts have found the same or similar testimony to have been fundamentally erroneous, or to have caused egregious harm to a defendant. We decline to accept Mendoza's request, and conclude that this issue was not properly preserved for appellate review. TEX. R. APP. P. 38.1(h). Even assuming the issue was properly preserved, the record supports the trial court's admission of the evidence. Construing Mendoza's brief liberally, although he asserts the expert testimony was conclusory and unreliable, we interpret his argument as the experts were unqualified to provide the opinions to which they testified. Akins v. State, 202 S.W.3d 879, 892 (Tex.App.-Fort Worth 2006, pet. ref'd) (Livingston, J., concurring) (reiterating that an appellate court must liberally construe a party's brief). Dr. Rey Fernandez testified regarding his employment as a medical examiner, his education and training, and his certification as a forensic pathologist. Thus, there was some evidence that Dr. Fernandez was qualified to offer opinion testimony as to the cause of Zavaleta's death and the path in which the bullet traveled. See Mays v. State, 563 S.W.2d 260, 263 (Tex.Crim.App. 1978) (permitting properly qualified expert pathologist to express his professional opinion on position of body of decedent at time shot was fired). Similarly, Richard Hitchcox testified regarding his employment as a forensic firearms and tool marks examiner with the Texas Department of Public Safety and his education and training. Hitchcox's testimony supports the trial court's conclusion that he was qualified to testify regarding the ballistics tests he performed. See Cantu v. State, 994 S.W.2d 721, 731 (Tex.App.-Austin 1999, pet. denied) (concluding that expert's experience and training in ballistics would assist jurors to understand evidence). We, therefore, overrule each of Mendoza's issues relating to the admission of evidence.JURY INSTRUCTION
Mendoza contends the trial court erred by failing to give the jury an instruction on the voluntariness of his written statement. An instruction on voluntariness, however, is not required if there is no evidence from which a reasonable jury could conclude that the confession was not voluntarily made. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 7; see Vasquez v. State, 225 S.W.3d 541, 545-46 (Tex.Crim.App. 2007) (defense must introduce evidence from which reasonable juror could conclude statement involuntarily made). Mendoza argues his statement was involuntary because he was held "incommunicado," interrogated for over four hours, handcuffed at one point, and had paper bags placed over his hands for a time. After being transported to the sheriff's office, Mendoza provided a statement to officers detailing the shooting. At the voluntariness hearing outside the presence of the jury, Mendoza complained that the handcuffs and paper bags over his hands prevented him from being able to use the restroom, eat or drink. Mendoza further denied being read his Miranda rights, and testified that Saenz told him to sign the statement and "we'll see about getting B you home." There is no evidence suggesting that Mendoza invoked either his right to terminate the interview or his right to counsel, or that he showed any hesitation in talking to the officers about the incident. The record does, however, affirmatively reflect that Mendoza initialed the written warnings above his statement, signed the statement, initialed each page, affixed his thumbprint to the end of the document and even confirmed that everything in the written statement was accurate. The trial court was within its discretion to conclude that Mendoza's written statement was given voluntarily. See, e.g., Smith v. State, 779 S.W.2d 417, 428-29 (Tex.Crim.App. 1989) (holding that eight hours of questioning without food did not render confession involuntary in light of appellant's willingness to continue, after being Mirandized, and understanding his rights); Bell v. State, 169 S.W.3d 384, 391-92 (Tex.App.-Fort Worth 2005, pet. ref'd). Because the record is silent with regard to any type of coercion or that Mendoza spoke against his will, he was not entitled to an instruction on the voluntariness of the statement. See Janecka v. State, 937 S.W.2d 456, 472 (Tex.Crim.App. 1996) ("Absent some positive evidence appellant's statements were coerced, we cannot say the trial court abused its discretion in failing to give the requested instruction."). Thus, we overrule this issue on appeal.DISABLED JUROR
Mendoza next argues the trial court erred in refusing to dismiss a disabled juror and in failing to grant a mistrial. After the trial started, a juror approached the bailiff and inquired whether Mendoza was being "screened" while coming in and out of the courtroom because she was worried about the jury's safety. The trial court did not interview the juror. After discussing the incident with the parties, the trial court overruled Mendoza's motions for mistrial and dismissal of the juror.A. Standard of review
We review a trial court's decision to declare a juror disabled under an abuse of discretion standard. Routier v. State, 112 S.W.3d 554, 588 (Tex.Crim.App. 2003); Gregg v. State, 881 S.W.2d 946, 950 (Tex.App.-Corpus Christi 1994, pet ref'd). Likewise, we review the denial of a motion for mistrial under an abuse of discretion standard. Dossett v. State, 216 S.W.3d 7, 31 (Tex.App.-San Antonio 2006, pet. ref'd) (citing Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App. 2004)).B. Analysis
A juror is considered disabled from sitting on a jury if, after being sworn, the juror suffers from a physical illness, mental condition, or emotional state which affects his ability to perform the duties assigned to him as a juror. TEX. CODE CRIM. PROC. art. 36.29 (Vernon 2006); Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App. 1999). The Court of Criminal Appeals explained that a juror's disability from sitting on a jury refers to a physical, mental, or emotional disability. Ramos v. State, 934 S.W.2d 358, 369 (Tex.Crim.App. 1996). Without question, a juror's fear of retaliation can render a juror disabled when that fear impacts the juror's mental condition or emotional state to such a degree as to inhibit the juror from fully and fairly performing his functions as a juror. Reyes v. State, 49 S.W.3d 552, 554 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (upholding dismissal of juror based on the juror's personal "knowledge of the defendant," fact that the juror was "emotionally distraught, highly concerned for his own personal safety," and concerned that he would be forced to "violate his conscience and not render a proper verdict"). The juror in this case, however, did not express any personal knowledge of Mendoza, a fear of retaliation by Mendoza, or an inability to perform her duty as a juror. We conclude the trial court did not abuse its discretion in finding the juror was not disabled and in denying the motion for a mistrial. We overrule this issue on appeal.JUROR MISCONDUCT
Mendoza claims the trial court erred in denying his motion for new trial alleging juror misconduct. We review the denial of a motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). An appellant is entitled to a new trial "when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial." TEX. R. APP. P. 21.3(g). Construing his brief liberally, Mendoza states that the jurors considered "extraneous evidence" that implied the couple had a "propensity for arguing and fighting." See Akins, 202 S.W.3d at 892. During the hearing on the motion for new trial, the parties agreed the issue was one of outside influence. On appeal, Mendoza appears to add a claim of juror misconduct by a juror deliberately withholding information. We will address both claims. At the hearing on the motion for new trial, one of the jurors testified that jury conversations included "things . . . which were not in evidence," such as Mendoza receiving a large money settlement, frequent arguments between Mendoza and Zavaleta, and whether Mendoza was screened as he came into the courtroom each day. With regard to the couple's history of fighting, there was some testimony introduced at trial, specifically through their daughter Cassandra, that the couple fought. As to the money settlement, although not introduced at trial, Mendoza failed to show any such discussion caused an unfair or impartial trial. Because Mendoza failed to establish the causal connection between the alleged misconduct and lack of a fair and impartial trial, Mendoza failed to meet his burden of proof on the motion for new trial and the trial court properly denied the motion. Id. We next address the alleged withholding of information by a juror. Juror misconduct may also occur if a juror makes "affirmative misrepresentations to questions actually asked during the voir dire examination, [or if there is] any showing that [the juror] kept silent when [the juror] should have answered any such questions actually asked." Gonzalez v. State, 966 S.W.2d 804, 806 (Tex.App.-Amarillo 1998), aff" d, 3 S.W.3d 915 (Tex.Crim.App. 1999). Mendoza argues that some of the jurors obviously knew him or his family and failed to disclose that information during voir dire. The jury was asked whether any familiarity with the family would make it difficult to be fair and impartial. Mendoza asserts the discussion regarding a monetary settlement proves impaneled jury members did not answer this question truthfully. See Gunter v. State, 858 S.W.2d 430, 443 (Tex.Crim.App. 1993), rev'd on other grounds, Ex parte Smith, 185 S.W.3d 455, 466 (Tex.Crim.App. 2006) (holding that a juror's failure to truthfully answer questions put to him by the court may support a challenge for cause). Mendoza does not, however, provide any specific evidence that any jurors failed to answer questions truthfully and we overrule this issue. See Gonzalez, 966 S.W.2d at 806 (requiring an affirmative misrepresentation to questions actually asked during the voir dire examination or a showing that the veniremember kept silent when she should have answered the questions actually asked).SUFFICIENCY OF THE EVIDENCE
Mendoza next complains that the evidence was legally and factually insufficient to prove the requisite culpable mental state for murder. In relevant part, Section 19.02 of the Texas Penal Code provides that a person commits the offense of murder when he intentionally or knowingly causes the death of an individual; or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PEN. CODE ANN. § 19.02 (Vernon 2003).A. Standard of Review
When considering a legal sufficiency challenge, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex.App.-San Antonio 2006, pet. ref'd). We must affirm the trial court's judgment if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). When considering a factual sufficiency challenge, however, we view all the evidence in a neutral light and set aside the verdict only if the evidence is so weak the verdict is clearly wrong and manifestly unjust; or if the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). It is the sole purview of the jury to evaluate the credibility and demeanor of witnesses and determine the weight afforded contradicting testimony . Stogiera v. State, 191 S.W.3d 194, 196 (Tex.App.-San Antonio 2005, no pet.). As in most cases, when there is no direct evidence of a defendant's intent, the State may establish the necessary intent by circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978); s ee also Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999) (holding the standard of review for cases involving circumstantial evidence is the same as when a case is comprised of direct evidence).B. Testimony at Trial
Mendoza's written statement indicated that he and Zavaleta spent the day of the incident shooting newly purchased firearms. That evening, Zavaleta went out with a friend and arrived home in the early morning hours. While Zavaleta was out, Mendoza claims he cleaned Zavaleta's DAC 9 mm, an AK 47 and his .45 in the couple's bedroom. He explained the actions immediately preceding the incident:[I] took off the pistol grips, oil (sic), sprayed it down and then blow dried and oiled it. I then loaded (sic) magazine with 7 bullets and racked them all through the gun to see if they would jam. The bullets all went through and fell on the bed. I picked them back up and then loaded all of them back into the magazine and left the magazine on the bed, I did not put (sic) back into the gun.
. . . .
I was going to (sic) the guns away and I would go to bed. I grabbed the AK47 with my left hand, as it was still leaning up against the bed, and [then] grabbed the 45 with my right hand. The 45 went off as I picked it up and pulled the trigger at the same time. I dropped both guns on the floor and looked at the wall, hoping I had hit the wall, but did not see anything. I then looked at my wife and saw that she was bleeding from her mouth.Mendoza stated he immediately called 911. At trial, Mark Almaraz testified that several people, including Zavaleta, had been at Almaraz's house "around 12:00, 1:00 o'clock" that evening. At approximately 2:00 a.m., Almaraz knocked on Mendoza's door, but received no answer. As he was driving away, the kids came out of the Mendoza home screaming "`I heard a gunshot.' and `My mom was telling my dad to do this and this and this,' you know, `and, well, my dad was, you know trying to walk away."' He further testified the kids reported "[M]y mom, my dad, they were arguing. My mom was telling my dad mostly everything, my dad didn't want to do it." Gilberto Luna testified that Cassandra, his step-granddaughter, called the day after the shooting looking for her grandmother, Blanca Zavaleta, and asked if "we knew what had happened to her mother." When he told her no, Cassandra said "her father had thrown her mother on the bed and fired a shot at her." At trial, fourteen-year-old Cassandra testified that she was asleep in the living room when she was awakened by the sound of a gunshot. She denied talking to Luna on the phone or making any statement to Luna about her parents arguing. Dr. Fernandez, the medical examiner, noted bruises on Zavaleta's thighs. He also explained the angle of the bullet path indicated the firearm was at a different height than Mendoza's statement suggested, and that the bullet path was more consistent with a shooter standing over a sitting victim, rather than one lying down. Moreover, Dr. Fernandez noted the absence of a gunshot through the pillow under Zavaleta's head. Hitchcox, the State's ballistics expert, testified that "[t]he firearm will not fire unless you depress the grip safety." Additionally, Hitchcox explained that the trigger pull tests he performed revealed that five and a half to six pounds of pressure was necessary to pull the trigger on the gun. In his defense, Mendoza presented evidence that he purchased the firearms from a pawn shop only a few days before the shooting and Oscar Rosas, Jr. testified that he was with the couple earlier in the day and that the .45 "went off by itself," at least twice. Rosas further stated the couple did not appear to be fighting.