Opinion issued February 10, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00906-CR
MANUEL ROSSEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 955543
MEMORANDUM OPINION
A jury found appellant, Manuel Rossel, guilty of murder and assessed his punishment at 99 years’ confinement and a $10,000 fine. In three points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction and that the trial court erred in excluding a videotaped re-enactment of his defense theory. We affirm.
Facts
Appellant and his wife, Alicia Rossel, lived with her best friend, Cherish Rodriguez, and Rodriquez’ husband, Johnny Rodriquez. On May 1, 2002, Alicia, after obtaining permission from appellant, went out with Cherish for a “girls’ night out.” They left home after dinner and went to a nearby bar to drink and snort cocaine. Appellant made several attempts to call Alicia on her cell phone, but Alicia did not answer the phone. Appellant was frustrated when Alicia did not answer the cell phone and was not home by midnight. When Alicia finally answered the cell phone at 12:45 a.m., she lied to appellant about why she was late. Alicia told Cherish that she was scared to go home because she knew appellant would be angry with her for being late.
When Alicia and Cherish returned home around 1:00 a.m., appellant met them outside the house. Cherish saw appellant pushing Alicia into their old, white Cadillac, hitting Alicia’s head on the door as he did so. Appellant then drove off with Alicia in the car.
Cherish testified that she was worried about Alicia and called appellant’s cell phone several times, but no one answered. Cherish testified that she was even more worried because appellant had been upset recently about a paternity dispute concerning Alicia’s youngest son. Alicia had been involved with another man, and allegations circulated that this other man, and not appellant, had fathered Alicia’s child. Cherish testified that appellant had become very frustrated in the days before Alicia’s death and that he had told Cherish shortly before Alicia’s death that “if he couldn’t have [Alicia] then no mother****** can have her and he’d kill her.”
When appellant finally answered his cell phone, an hour after leaving with Alicia, he told Cherish that Alicia had jumped out of the car at the intersection of I-10 and Mercury Road, that he could not find her, and that he was looking for her. Later, appellant told Cherish that Alicia had jumped out of the car at Furr High School. Cherish did not believe Alicia had jumped out of the car because she knew that the inside door handle on the Cadillac’s passenger side was missing, making it impossible to open the passenger door from inside the car.
Appellant returned home the next morning, but displayed no emotions and rejected Cherish’s suggestions to look for Alicia. After taking his children to school, appellant went to his mother’s house and washed the clothes he had been wearing the night before.
Alicia’s body was discovered around 8:00 a.m. on May 2, 2002, under I-10 near Normandy, floating in Greens Bayou. Houston Police Investigator Robert Parish concluded, based on his observations and experience, that someone had backed a car up to the bayou and dragged a body down to the water. He observed some sweeping marks on the ground, which he concluded were made in an effort to disguise the drag marks. Dr. Roger Milton, the assistant medical examiner who conducted Alicia’s autopsy, determined that Alicia’s death was caused by manual strangulation and blunt force trauma to her head. He explained that Alicia’s brain sustained injuries consistent with a severe beating. He further testified that Alicia had engaged in an “intense struggle” with her attacker. Dr. Milton explained that, although she had fluid in her lungs, which was indicative of drowning, the fluid did not conclusively establish that she had drowned. Dr. Milton further testified that, in his opinion, Alicia did not voluntarily enter the water because she had abrasions and contusions on her arms and legs, which were consistent with being dragged. He concluded that Alicia had been dead six to eight hours before her body was discovered.
Bob McKay contacted the police department two months after the murder to report that he had seen a white Cadillac stop under the bridge at Greens Bayou around 2:00 a.m. on May 2, 2002. After the car stopped, a door opened, and McKay heard a splash coming from the bayou. McKay then saw a man go toward the car making a sideways, sweeping motion in the dirt. McKay looked through his binoculars and was able to see the man’s face because, although it was dark, the face was illuminated by the car’s dome light. McKay testified that he did not report the incident until he recognized the photograph of appellant in a flyer he had seen at a nearby store. McKay stated that he recognized the man in the flyer as the man he saw under the bridge. However, he was unable to positively identify appellant as the same man he had seen on the night of the incident. McKay testified that he saw two of the characters, “XJ,” on the license plate. He also noticed some damage to the car, which was consistent with damage to appellant’s Cadillac. Appellant’s Cadillac had damage on its side and the license plate number was XJN21G.
Discussion
Sufficiency of the Evidence
In his first two points of error, appellant contends that the evidence is legally and factually insufficient to prove that he committed the offense of murder.
Legal Sufficiency
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562.
A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). The indictment charged appellant with (1) intentionally or knowingly causing Alicia’s death by striking, choking, or immersing her in liquid or (2) intentionally or knowingly causing Alicia serious bodily injury and committing an act clearly dangerous to human life that caused her death by striking, choking, or immersing her in liquid. Appellant argues the evidence is legally insufficient to convict him of murder because the State’s case was based on circumstantial evidence and the State was required to eliminate every reasonable hypothesis in order to establish his guilt. Appellant contends that “[w]ithout Bob McKay’s testimony the State falls short of eliminating all reasonable hypotheses as to the cause of death of the complainant.” Appellant argues that “McKay’s testimony was [so] incredible that it cannot be believed beyond a reasonable doubt.” He further contends that, “McKay’s testimony cannot conclusively place the appellant at the location of I-10 and Greens Bayou.”
Even when a case is based on circumstantial evidence, the State is not required to disprove every reasonable hypothesis other than appellant’s guilt. Geesa v. State, 820 S.W.2d 154, 156–61 (Tex. Crim. App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2002); Taylor v. State, 10 S.W.3d 673, 679–80 (Tex. Crim. App. 2000). To sustain a murder conviction in this case, the State was required to prove that appellant intentionally or knowingly caused Alicia’s death. See Tex. Pen. Code Ann. § 19.02(b)(1). Dr. Milton’s testimony clearly established that Alicia’s death was caused by blunt force trauma, manual strangulation, and drowning. The only issue at trial was the identity of the killer.
Appellant contends that the State failed to establish that he was the murderer because it failed to present any physical evidence showing that appellant killed Alicia. However, Cherish testified that appellant pushed Alicia into his white Cadillac; that appellant was upset with Alicia; that Cherish tried repeatedly to reach appellant on his cell phone during the next hours; that when appellant finally answered his cell phone, he told Cherish that Alicia had jumped out of the car at one location, but then subsequently changed the location; and that it was impossible to open the car door from the inside because the handle was missing. In addition, McKay testified that, on the night of the murder, he saw a white Cadillac stop under the bridge at Greens Bayou, where Alicia’s body was later found. He explained that, after the car stopped, a door opened, he heard a splash, and he then saw appellant under the streetlight through his binoculars making a sideways sweeping motion in the dirt as he returned to the car. The two letters on the license plate on the Cadillac that McKay remembered matched the first two letters of appellant’s Cadillac’s license plate. Also, the damage to the side of the Cadillac McKay saw was similar to the damage on appellant’s Cadillac.
The testimony of a single eyewitness can be sufficient to support a felony conviction. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to their testimony, a jury may believe or disbelieve all or any part of a witnesses’s testimony. McKinney v. State, 76 S.W.3d 463, 468–69 (Tex. App.—Houston [1st Dist.] 2002, no pet.). We will not substitute our judgment for that of the fact finder. Accordingly, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant committed the offense of murder.
We overrule appellant’s first point of error.
Factual Sufficiency
In his second point of error, appellant contends that the evidence was factually insufficient because the State failed to overcome the other reasonable hypothesis set forth by appellant.
We begin the factual sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004)). Our evaluation may not intrude upon the fact finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor; the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407–09. We must defer appropriately to the fact finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481–82.
As discussed above, appellant’s argument that the State was required to overcome other reasonable hypotheses set forth by appellant is without merit. See Geesa, 820 S.W.2d at 156–61. The only possible contrary evidence admitted at trial was McKay’s less-than-certain identification of appellant as the man he saw in early May 2002. Two months after watching a white Cadillac stop under a bridge at Greens Bayou, McKay gave his statement to the police. McKay explained that the man he saw driving the white Cadillac and making sweeping sideways gestures before re-entering the car was the same man he later saw in a flyer posted at a sandwich shop. The flyer had a photograph of appellant with Alicia and of the white Cadillac. McKay testified that the man he saw driving the white Cadillac was husky, about six feet tall, and Hispanic. He explained that although it was dark, he was able to see the man because, when the man re-entered the car, the dome-light turned on, lighting the inside of the car and the man.
McKay testified that appellant, as he appeared in court on the day of McKay’s testimony, looked different from the man in the flyer and the man he saw that night. McKay testified that, at the time of trial, appellant was more slender and paler and had a different hair style. McKay testified, however, that appellant, as he appeared in court, had the same hair color, although his hair was longer, and was the same height as the man he had previously seen at Greens Bayou. McKay testified that he could not be positive that the man from that night in early May was appellant.
It is well settled that a witness’s inability to make a 100% identification is a jury issue. Valenciano v. State, 511 S.W.2d 297, 299 (Tex. Crim. App. 1974). We defer to a jury’s fact findings and will find the evidence factually insufficient only when necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Id. at 410. Thus, the jury was free to believe or disbelieve all or any part of McKay’s testimony that he saw appellant at Greens Bayou on the night of Alicia’s murder, even though he could not positively identify appellant during the trial.
Accordingly, after examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met.
We overrule appellant’s second point of error.
Admissibility of Videotape Re-Enactment
In his third point of error, appellant contends that the trial court erred in excluding a video re-enactment which purportedly established how Alicia could have exited his car from the inside with little difficulty. According to appellant’s brief, the videotape consists of a three- or four-minute re-enactment showing his mother, Marjorie Rossel, opening the passenger door by reaching through the open window and pushing the outside handle. Appellant contends the videotape was offered to counter the State’s position that the Cadillac was difficult to exit and that appellant’s statements that Alicia jumped out of the vehicle were false. He argues the trial court abused its discretion because the videotape was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice.
Although the trial court did not admit the videotape, it did permit Marjorie Rossel to testify that she had observed Alicia easily exiting the Cadillac on several occasions. The trial court also admitted several photographs showing Marjorie exiting the Cadillac.
We review a trial court’s admission or exclusion of evidence for an abuse of discretion. Jones v. State, 944 S.W.2d 642, 652(Tex. Crim. App. 1996). The trial court abuses its discretion if its ruling lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). Trial courts have broad discretion in their evidentiary rulings. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A trial court is generally “in the best position to make the call on whether certain evidence should be admitted or excluded.” Id. Furthermore, there should be “reluctance on the part of an appellate court to reverse trial court decisions which admit or exclude evidence.” Montgomery, 810 S.W.2d at 378.
Rule of Evidence 403 provides that a trial court may exclude otherwise relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403. In determining whether evidence is admissible, the trial court should consider the following factors: (1) the inherent probative value of the evidence; (2) the potential that the evidence would impress the jury in some irrational but indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence. Reese v. State, 33 S.W.3d 238, 240–41 (Tex. Crim. App. 2000).
The trial court admitted Marjorie’s testimony about observing Alicia easily exiting the Cadillac and photographs depicting Marjorie as she exited the vehicle. The videotape purportedly showed what Marjorie stated in her testimony and what was depicted in the photographs; consequently, the videotape had little probative value. Moreover, any re-enacted criminal acts or defensive issues involving human beings are “impossible to duplicate in every minute detail and are therefore inherently dangerous, offer little in substance and the impact of the re-enactment is too highly prejudicial to ensure the State or the defendant a fair trial.” Lopez v. State, 651 S.W.2d 413, 416 (Tex. App.—Fort Worth), reversed on other grounds, 664 S.W.2d 85 (Tex. Crim. App. 1983). We conclude that the trial court did not abuse its discretion in refusing to admit the videotape.
We overrule appellant’s third point.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).