No. 05-03-00808-CR.
Opinion issued March 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-55871-MS. Affirmed.
Before Chief Justice THOMAS and Justices JAMES and BRIDGES.
Opinion By Justice JAMES.
Jesse Albert Rocha appeals his conviction for the murder of his son-in-law, Jose Luis Lopez ("Luis"). A jury convicted appellant, found an enhancement paragraph true, and assessed punishment at conviction for life. Appellant raises three issues on appeal contending: (1) the evidence was factually insufficient; (2) the court erred by admitting opinion testimony that the shooting did not involve self-defense; and (3) that opinion testimony decided the ultimate issue for the jury. We affirm the judgment of the trial court. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in any detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See 47.4.
Factual Sufficiency
Appellant contends the evidence is factually insufficient to support the jury's finding against the justification of self-defense. In reviewing the factual sufficiency of the jury's rejection of self-defense, the appellate court "reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). Any evaluation of the evidence should not substantially intrude on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). On appeal, appellant contends the testimony establishes Luis became intoxicated and belligerent and threatened appellant with a sheetrock hammer. Appellant did not testify, and only appellant and Luis were in the backyard when appellant shot Luis. No one provided testimony that Luis was attacking or attempting to attack appellant. Although there was evidence Luis was intoxicated (with a blood alcohol level of 0.24), there was no evidence indicating Luis was belligerent toward appellant before the shooting. Appellant hypothesizes Luis attacked appellant, appellant shot Luis, and Luis dropped the sheetrock hammer. He contends the medical examiner said it was possible Luis moved or ran after initially being shot. However, Jose Luis Lopez, Jr. (Joe Louie), Luis's son and appellant's grandson, testified he had been playing in the back yard with the hammer earlier that day. After looking at the photo of the scene taken after the shooting, Joe Louie testified he left the hammer in the same place as it was depicted in the photo and he did not believe it had been moved. Roland Rocha, appellant's grandson, testified that approximately one week before the shooting, Luis had kicked Jimmie Sneed. Sneed was Luis's friend and was living in a trailer at Susanna's house. Roland said Luis kicked Sneed because Sneed would not do "something" for Luis. Roland also testified that when Luis drank, his disposition would change and he would become belligerent. However, Susanna testified that when Luis drank he was playful and not violent. Susanna also said Luis had a high tolerance for alcohol. Appellant also argues that because Margarita Lopez, Luis's daughter and appellant's granddaughter, and Susanna only saw the last shot fired, their testimony does not contradict a theory of self-defense. However, the State's evidence is not too weak to support the jury's finding. Both Margarita and Susanna testified appellant shot Luis. When they came out of the house, seeing the last shot fired, appellant said, "He made me mad" and walked away. Appellant then left the backyard and walked toward a levee. The jury heard testimony that appellant was unhappy that Susanna Martinez Lopez, Luis's wife and appellant's daughter, had married Luis because Luis was from Mexico. Additionally, appellant drank often and sometimes when he had been drinking, he would get his gun, sit in the yard cursing and making derogatory statements. In further arguing the State's witnesses were not credible or reliable, appellant highlights contradictions in Margarita's testimony, and he argues Susanna's statement that appellant said "he made me mad" was not included in her affidavit-the statement she gave to Detective Muniz. He also remarks on Susanna's cross examination, during which the defense introduced two statements typed by Detective Daniel Muniz while he was interviewing Susanna. On the first statement, Muniz had typed, "When my father was shooting my husband, I think I saw something in my husband's hand. I don't know what it was." However, Susanna refused to sign that statement. She said Muniz, who had already questioned appellant, told her appellant had said Luis tried to hit him with a hammer, but she disagreed, saying Luis "would never do anything like that." Susanna testified she had not told Muniz she saw anything in Luis's hands. Muniz, on the other hand, testified Susanna had originally said that, but after she read the statement, she said, "Oh, no, that's not what I want to say; that's not — that's not true." Muniz typed another statement without that language, and Susanna signed the second statement. Any credibility issues were decided by the jury. See Johnson, 23 S.W.3d at 7. After a review of the record, we do not conclude the proof of guilt is against the great weight and preponderance of any evidence of self-defense. See Zuliani, 97 S.W.3d at 595. Furthermore, the State's evidence, taken alone, was not too weak to support the finding. Id. We resolve appellant's first issue against him. Opinion Testimony
In his second issue, appellant contends the court erred by admitting Detective Steve Reideler's opinion testimony that the shooting did not involve self-defense. In his third issue, appellant contends the complained-of evidence decided the ultimate issue for the jury; therefore, the court erred in admitting the testimony. Appellant complains of the testimony involving the following question: "Okay. Based on your professional opinion, do you think self-defense was involved?" Appellant objected to this question, stating it called for speculation and invaded the province of the jury. The court overruled the objection, and Reideler answered, "In my personal opinion, I don't think it is." However, the State had asked the prior witness, Muniz, to provide the same information: "Okay. And in your work as a detective and working on self-defense type cases, what would be your opinion as to self-defense right here?" Appellant did not object to that question, and Muniz responded, "I thought that would be unlikely." Furthermore, while cross-examining Reideler, defense counsel asked, "Now, you don't know if this was a self-defense case or not, do you?" We need not decide whether the evidence was admitted erroneously; appellant has waived both complaints. A party may not successfully challenge evidence admitted elsewhere without objection. See Johnson v. State, 803 S.W.2d 272, 291 (Tex.Crim. App. 1990), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex.Crim.App. 1991). We resolve appellant's second and third issues against him. We affirm the judgment of the trial court.