Opinion
No. 04-04-00046-CR
Delivered and Filed: January 5, 2005. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-5086B, Honorable Juanita Vasquez-Gardner, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Leondro Rivera was convicted by a jury of murder and sentenced by the trial court to fifty years imprisonment after pleading true to an enhancement as a repeat offender. On appeal, Rivera asserts five points of error contending: (1) evidence of a co-defendant's hearsay statements were erroneously admitted as an adoptive admission; (2) a detective's testimony revealing statements made by Rivera's co-defendants was inadmissible hearsay and violated his right of confrontation; (3) the trial court erroneously commented on the weight of a detective's testimony; and (4) the evidence is legally and factually insufficient to support his conviction. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. See Tex.R.App.P. 47.4.
Sufficiency of the Evidence
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to 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, 319 (1979). In our factual sufficiency review, we must consider all of the evidence to determine whether the judgment is "so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The trier of fact evaluates the credibility and demeanor of the witnesses and determines the weight to be given contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). We are not permitted to reweigh the evidence, rather we defer to the trier-of-fact's findings, particularly those based on credibility determinations. See id. at 407-09. Doctor Daniel Mais was living in the Summit Turtle Rock apartment complex on the night the victim was murdered. Mais was awakened by the sound of a gunshot around 6:00 a.m. Immediately after hearing the gunshot, Mais opened his door, saw the victim covered in blood in the adjacent doorway, and saw a man standing in the hallway with a bloodstain on his shirt. The man was later identified as Paul Rodriguez. Deputy Rudy Reyes was an on-site courtesy officer at the Summit Turtle Rock apartments. Around 5:00 a.m. on the day of the murder, Reyes questioned a male and female who were sitting on a retainer wall by the clubhouse. In response to which apartment they were from, they said apartment 934. The victim's apartment was 934. Deputy Reyes stated that the features of a female in a photograph later identified as Michelle Lopez were similar to the female he questioned that morning. Deputy Reyes identified another photograph as the male he questioned that morning. The male in the photograph was later identified as Michael Bennett. Donald Lundy was walking his dogs around 6:00 a.m. on the day of the murder. He noticed two vehicles driving through the complex. The lead vehicle containing two men was a maroon-looking color sedan, and the second vehicle was a small black pickup truck. The passenger of the lead vehicle asked if he knew where building nine was. Lundy identified a photograph of a car as the same style and color as the car he had seen. The cars traveled in the direction Lundy had given. Mark Sauceda was living with Rivera, Rodriguez, Jerod Ramirez, and several others in an apartment at the time of the murder. Sauceda identified the photograph previously shown to Lundy as Rodriguez's Grand Am. When Sauceda and Ramirez arrived home from work on the day of the murder, Ramirez became upset when a friend of his, Michelle Lopez, phoned and told him she had been raped. Ramirez woke Rodriguez and told Rodriguez he wanted to go over and beat up the man who raped Lopez. Ramirez and Rodriguez left the apartment and returned about twenty minutes later with Michelle and another male later identified as Bennett. Ramirez, Rodriguez, and Rivera left the apartment to "teach [the] guy a lesson" after further talking with Michelle. The men took two guns with them. Rodriguez and Rivera rode in Rodriguez's Grand Am, and Ramirez drove the truck owned by Rodriguez's girlfriend. When Rodriguez and Rivera returned, they had blood on their shirts and pants. They were acting scared. Rodriguez related that upon arriving at the victim's apartment, Rivera, Ramirez, and he were punching the victim and hitting him with the gun. While they were fighting, Rodriguez's gun fell out of his hand, and Rodriguez and the victim were wrestling for the gun. Rivera was trying to help Rodriguez get the gun back. Sauceda testified that "They said the gun went off and they didn't know whose it was. Rodriguez felt like it was his." Sauceda stated that Rivera went to purchase ammonia at a convenience store to clean the blood from the guns and clothes. After purchasing the ammonia, Rivera washed the clothes in the ammonia to remove the blood. On cross-examination, Sauceda admitted that some of the details in his testimony had changed from prior testimony in two other trials. On re-direct examination, Sauceda testified that most of his testimony was consistent with the statement he initially gave to the police. On the day of the murder, Jessica Valenzuela received a phone call from Lopez around 5:30 a.m. Based on their conversation, Valenzuela went to Ramirez's apartment. A short time after talking with Lopez, Valenzuela left the bedroom and noticed that Rodriguez and Ramirez were not in the apartment. Valenzuela returned to the bedroom. Sometime later, Rodriguez entered the bedroom covered in blood. Rodriguez told them that he had been wrestling and fighting with the victim when a gun went off. Everyone gathered around the dining room table, and Rodriguez and Ramirez started cleaning the two guns. Valenzuela and Rivera left to buy ammonia because Rodriguez stated that it killed DNA. Several officers testified regarding the surveillance of the apartment where Rodriguez, Rivera, and Ramirez were living and a subsequent police chase involving Rodriguez and Rivera. Detective Coolidge testified that he observed that Rivera was holding something as he was running from the police. As Detective Coolidge was approaching Rivera to apprehend him, Rivera threw something in a stairwell which later was determined to be a handgun. The handgun was swabbed for DNA evidence because blood was observed on the handgun. The DNA tests later revealed that the DNA belonged to the victim and Rodriguez. Evidence Technician Delia Navarijo was dispatched to the defendants' apartment. Photographs and a videotape of the apartment were introduced into evidence, including a photograph of two bottles of ammonia recovered from under the sink. The only blood that was collected was from what appeared to be blood smeared on a wall. On cross-examination, Navarijo testified that she did not collect any other blood samples, that she did not notice any presence of ammonia other than in the bottles, and that she did not collect any fiber samples. Detective Robert Moffitt was assigned as the lead detective in the murder. After interviewing various witnesses, including Mais, Lundy, and the victim's ex-wife, Bennett, the last person seen in the victim's company, was identified as a suspect. Based on the statements given by Bennett and Lopez, Rivera, Rodriguez, and Ramirez were identified as suspects. After the three were arrested, Detective Moffitt obtained a statement from Rodriguez and obtained Ramirez's written consent to search the apartment. Detective Moffitt was not surprised that blood was not located in the apartment because he had information that measures were taken to eliminate the blood. Detective Moffitt stated that no gunshot residue test was ordered due to the lapse in time between the murder and the arrest. On cross-examination, Detective Moffitt stated that he did not test the fingernails of Rivera, Rodriguez, or Ramirez for evidence. Detective Moffitt later explained that tests on the fingernails were not conducted because the condition of the victim's body made it unlikely that any evidence would be recovered. No fiber samples were taken from the victim's clothes, and no search was conducted at the defendants' apartment or of the Grand Am for the victim's clothing or carpet fibers. Detective Moffitt later explained that fiber sample tests had only been successful in one of the thousands of cases he had worked. In addition, the defendants had taken measures to eliminate evidence, including burning clothes, throwing away clothes, washing clothes, and washing their hands and weapons in ammonia. After clothing and hands are washed in ammonia, the recovery of any DNA evidence is very unlikely. Luminol was not used in the apartment or in the cars to attempt to locate blood evidence even though it can find traces of blood after cleaning efforts have been made. Luminol is a chemical process that is used to show where blood may be if an item has been cleaned or rinsed. Detective Moffitt stated that luminol was not used because one of the chemicals it reacts with is ammonia, and luminol would have given false positives throughout the apartment. Dr. James Feig, the medical examiner who examined the victim's body, testified that the victim had seven to eight lacerations on his head consistent with being hit by the barrel of a gun. The majority of the lacerations were concentrated toward the back of the victim's head. Dr. Feig testified that the gunshot wound was the fatal injury. Rivera contends that the evidence is legally and factually insufficient absent the improperly admitted testimony of Sauceda and Moffitt. For the reasons discussed below, we hold that Sauceda's testimony was not improperly admitted. Furthermore, in assessing the sufficiency of the evidence to support a conviction, a reviewing court must consider all of the evidence the jury considered whether properly or improperly admitted. See Moffe v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004). Based on the testimony of Sauceda and the evidence regarding the circumstances in which Rivera was apprehended, we hold that the evidence is legally and factually sufficient to support Rivera's conviction. Although Sauceda's testimony contained some inconsistences, it was within the jury's province to determine the weight to be given the testimony. Cain, 958 S.W.2d at 408-09. Rivera's fifth and sixth points of error are overruled.Sauceda's Testimony
In his first point of error, Rivera contends that the trial court erred in allowing Sauceda to testify to the following statement made by Rodriguez after returning to the apartment, "They said the gun went off and they didn't know whose it was." Rivera asserts that the trial court should have excluded the testimony as hearsay. The State responds that the testimony was admissible as an adoptive admission. We agree. Rule of Evidence 801(e) identifies circumstances in which certain statements are not hearsay. Paredes v. State, 129 S.W.3d 530, 534 (Tex.Crim.App. 2004). A statement offered against a party which is "a statement of which the party has manifested an adoption or belief in its truth" is not hearsay. Id. (quoting Tex. R. Evid. 801(e)(2)(B)). In this case, the State had the burden of demonstrating to the trial court by a preponderance of the evidence that the testimony regarding Rodriguez's statement met the criteria for an admission. Alvarado v. State, 912 S.W.2d 199, 215 (Tex.Crim.App. 1995). Only upon finding an abuse of discretion may an appellate court disturb the trial court's ruling. Alvarado, 912 S.W.2d at 215; Legate v. State, 52 S.W.3d 797, 802 (Tex.App.-San Antonio 2001, pet. ref'd). Adoption of statements may be manifested in actions, responses, or acquiescence. Legate, 52 S.W.3d at 802. In this case, Sauceda testified that the statement in question was made in Rivera's presence and that Rivera could hear what was being said. Sauceda further testified that Rivera never expressed surprise or disagreement with the events being related by Rodriguez. The statement was made in the context of Rodriguez relating all of the events that occurred in relation to the shooting of the victim, including the struggle that occurred over the gun. Because the statement made by Rodriguez in the context in which it was made typically calls for a reply but Rivera remained silent, the trial court did not abuse its discretion in admitting the testimony as an adoptive admission. See Martinez v. State, 131 S.W.3d 22, 37 (Tex.App.-San Antonio 2003, no pet.). Rivera's first point of error is overruled.Moffitt's Testimony
In his second and third points of error, Rivera contends that the trial court erred in allowing Moffitt to reveal information contained in the statements of Rodriguez and Ramirez because such evidence violated his right to confrontation and was hearsay. On appellate review a trial court's admission or exclusion of evidence is subject to an abuse of discretion standard. Sells v. State, 121 S.W.3d 748, 766 (Tex.Crim.App. 2003). If the trial court's decision was within the bounds of reasonable disagreement we will not disturb its ruling. Id. Rivera contends that the admission of Moffitt's testimony referring to information previously obtained regarding measures taken to eliminate evidence necessarily referred to the statements obtained from Bennett, Rodriguez and Ramirez. We disagree. The testimony of Sauceda and Valenzuela already established that measures were taken to eliminate evidence. The only question in which express reference is made to information that was exclusively obtained from witnesses who did not testify in court was the following:Q. And the evidence that you found the ammonia that you found, was that consistent with what other people, other witnesses or — or co-defendants, Paul Rodriguez or Jerod Ramirez, told you was used to clean up?
A. Yes.Even assuming the trial court erred in overruling the objection to this question, Rivera cannot be said to be harmed by its admission. Assuming the damaging potential of the reference to Rodriguez and Ramirez was fully realized, Moffitt's testimony regarding the measures taken to eliminate evidence was less important in view of the testimony previously admitted and was cumulative of that testimony, the admission of the photographs of the ammonia recovered from the defendants' apartment corroborates the testimony, and the State's overall case was strong. See Hale v. State, 139 S.W.3d 418, 422 (Tex.App.-Fort Worth 2004, no pet.) (addressing harm where admission of evidence violated confrontation clause); Ferguson v. State, 97 S.W.3d 293, 298 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (holding admission of evidence in violation of hearsay rule harmless where evidence was cumulative). Rivera's second and third points of error are overruled. In his fourth point of error, Rivera complains that the trial court commented upon the weight of Moffitt's testimony by commenting that Moffitt could probably describe the law of parties better than the trial court could. Rivera did not object to the comment so error is not preserved. See Tex.R.App.P. 33.1. Furthermore, the comment was made during a bench conference, and the record does not reflect that the jury heard the trial court's statement; therefore, the statement cannot be a comment on the weight of the evidence.