Opinion issued January 15, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00991-CR
GUSTAVO DE JESUS LOPEZ, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1,085,785
MEMORANDUM OPINION
A jury convicted appellant, Gustavo De Jesus Lopez, of capital murder. See Tex. Pen. Code Ann. § 19.03(a)(7)(A) (Vernon Supp. 2008). The trial court assessed punishment at life in prison without parole. In four issues, appellant contends that: (1) the evidence supporting his conviction was legally and factually insufficient; (2) the trial court erred in admitting autopsy photographs of the deceased; and (3) the trial court erred in overruling appellant’s objections to improper jury argument by the State. We affirm.
Facts
At about 1 p.m. on January 10, 2006, in a strip center at Hardwicke and Airline, a woman flagged down Aldine Independent School District police officer Alfred Salazar and told him that two people were dead in a nearby record shop. Officer Salazar entered the shop, where he found a man lying about two feet from the door and a woman lying behind the sales counter. Both were dead. He secured the scene until Houston Police Department (“HPD”) investigators arrived. Nine-millimeter and .380 caliber bullets and shell casings were found at the scene and during the autopsies of the deceased. At trial, investigators testified that robbery did not appear to be the motive for the crime, as neither person’s wallet had been emptied or stolen and no one had tampered with the record shop’s cash register.
Appellant’s live-in girlfriend testified that appellant left their apartment in the morning on the day of the shootings and returned at approximately 3:00 p.m. with his Taurus nine-millimeter pistol in his hand and blood on his shoes. She further testified that, when a news report on the shootings aired on television later that day, appellant called her into the living room. She “asked him if he had done that,” and appellant, after first shaking his head no, said yes. That night, the girlfriend overheard a conversation in the living room between appellant and a friend about splitting money. The next day, appellant left the apartment and returned in a Cadillac Escalade. Immediately after telling his girlfriend that “some man” had given him the Escalade, appellant left and returned without it. He told his girlfriend that he had returned the car because he did not want to “catch the neighborhood’s attention.”
In May of 2006, appellant’s girlfriend attempted to obtain a restraining order against appellant. She testified that she told officers she was “kind of scared” of appellant because “supposedly he had done—he had killed people before.” She further testified that she specifically mentioned “the killing on Airline” of a man and a woman and “the 9-millimeter.” Based on her statements, homicide investigators went to appellant’s apartment to interview her. Appellant, who was in the apartment, consented to a search of the apartment. Investigators found nine-millimeter and .380 caliber ammunition and a Taurus nine-millimeter pistol, which ballistics tests indicated was used in the shootings.
Legal Sufficiency
In his first issue, appellant contends that the evidence is legally insufficient to support his conviction.
Standard of Review
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict and determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Cruz v. State, 238 S.W.3d 381, 386 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)). The trier of fact is the sole judge of the weight and credibility of the evidence. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
The Evidence
Under the law applicable in this case, a person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual and murders more than one person during the same criminal transaction. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A) (Vernon 2003 & Supp. 2008). The medical examiner testified that the deceased were killed by multiple gunshot wounds. The State’s ballistics expert testified that a Taurus nine-millimeter pistol seized during a consensual search of appellant’s apartment fired several of the bullets that were recovered at the crime scene and during the autopsies of the deceased. Investigators also found .380 caliber ammunition during the search of appellant’s apartment. The State’s ballistics expert testified that .380 caliber bullets were also recovered at the crime scene and during the autopsies.
Appellant’s live-in girlfriend testified that, on the day of the shootings, appellant left their apartment in the morning and returned at about 3:00 in the afternoon with his Taurus nine-millimeter pistol in his hand and blood on his shoes. She further testified that, later that day, appellant had told her he committed the crime and that she overheard appellant discuss splitting money with another man. Finally, she also testified that appellant drove a Cadillac Escalade to the apartment the next day and that he returned it to avoid “attention.” Prior to the day of the shootings, she stated, appellant had told her that he was going to “do something and make a lot of money” but would not tell her what it was.
Other witnesses corroborated the girlfriend’s testimony. The girlfriend’s sister testified that appellant told her that he returned the Escalade because “he didn’t want nobody to suspect that he had had some—he was involved in a killing.” Two men who were in a tire shop near the record shop on the day of the shootings heard gunshots and saw a man get into a blue car on the passenger side; another person was in the driver’s seat. The girlfriend testified that, on the day of the killings, appellant had a blue Lexus.
After reviewing this evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Bousquet v. State, 47 S.W.3d 131, 137 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). Accordingly, we hold that the evidence was legally sufficient to support appellant’s conviction and overrule appellant’s first issue.
Factual Sufficiency
In his second issue, appellant contends that the evidence is factually insufficient to support his conviction.
Standard of Review
When conducting a factual sufficiency review, we view all of the evidence in a neutral light. See Brown v. State, 212 S.W.3d 851, 859 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999)). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Brown, 212 S.W.3d at 859 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Brown, 212 S.W. 3d at 859 (citing Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006)). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. Brown, 212 S.W.3d at 859 (citing Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)).
We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.
The Evidence
Appellant contends that the testimony of appellant’s girlfriend was unreliable for several reasons: (1) she told appellant’s mother that she had lied to police; (2) she admitted on the stand that she had made statements to the authorities under the threat of losing her children; (3) she admitted to investigators that the police provided information for her to put in her statement; (4) she admitted to investigators that she implicated appellant because she was angry at him; (5) she had fabricated a police complaint about a former boyfriend; and (6) she admitted on the stand that she had been offered help in immigration proceedings in exchange for her testimony. The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury may believe some witnesses and refuse to believe others, and it may accept portions of the testimony of a witness and reject other portions. Id. In the instant case, the jury, despite an extensive and thorough cross-examination, chose to believe the girlfriend’s testimony implicating appellant. We cannot question the jury’s determination that that testimony was credible.
Appellant further contends that there is no direct evidence in the form of fingerprints, surveillance videotapes, or eyewitness testimony placing appellant at the scene of the crime. Circumstantial evidence alone is sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). It is not necessary that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). During a search of appellant’s apartment, investigators recovered a gun that was used in the shootings. Appellant’s girlfriend testified that appellant came home on the afternoon of the murders with that gun in his hand and blood on his shoes and that he later admitted his role in the killings to her. The girlfriend and her sister both testified that appellant told them that he returned the Escalade because he was concerned about “[catching] the neighborhood’s attention” and causing people to suspect that “he was involved in a killing.” Two men who were near the scene of the crime testified that, just after they heard gunshots, they saw a man get into a car that was the same color as appellant’s car. Viewing the relevant evidence in a neutral light, favoring neither the State nor appellant, and with appropriate deference to the jury’s credibility determinations, we conclude that the evidence supporting the verdict is not too weak to support the jury’s finding of guilt beyond a reasonable doubt and that the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof. Pena v. State, 251 S.W.3d 601, 609 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Accordingly, we hold that the evidence is factually sufficient to support appellant’s conviction and overrule appellant’s second issue.
Rule 403
In his third issue, appellant argues that the trial court erred in admitting autopsy photographs of the deceased. Appellant contends that the probative value of the photographs was substantially outweighed by their prejudicial effect on the jury and that the photographs were needlessly duplicative of other exhibits and testimony.
Standard of Review
The trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). As a general rule, a photograph is admissible if it is relevant to a material issue and is an accurate representation of its subject as of a given time. Holford v. State, 177 S.W.3d 454, 463 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing DeLuna v. State, 711 S.W.2d 44, 46 (Tex. Crim. App. 1986)). However, relevant evidence, including a photograph, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or other Rule 403 counter-factors. See Holford, 177 S.W.3d at 463; Threadgill v. State, 146 S.W.3d 654, 670-71 (Tex. Crim. App. 2004); Tex. R. Evid. 403. We apply Rule 403 to these photographs and determine whether they assist the jury with its decision of guilt and add something relevant, legitimate, and logical to the testimony that they accompany. See Holford, 177 S.W.3d at 463; Erazo v. State, 144 S.W.3d 487, 491 (Tex. Crim. App. 2004). If helpful, photographs are admissible unless “the emotional and prejudicial aspects substantially outweigh the helpful aspects.” Erazo, 144 S.W.3d at 491-92.
Description of Exhibits
Appellant challenges the admission of three separate groups of photographs on the grounds that the photographs were inflammatory, prejudicial, and cumulative. All of the challenged exhibits were admitted during the testimony of the medical examiner.
State’s Exhibits 84, 85, 87, 88, and 89
Appellant first challenges the admission of State’s Exhibits 84, 85, 87, 88, and 89. Exhibits 84 and 85 depict a gunshot entrance wound on the male complainant’s chest. The first, shot from farther away, shows the location of the wound. The second, a close-up shot, enabled the medical examiner to explain to the jury how she was able to determine that the wound was an entrance wound.
Exhibits 87 and 88 depict a gunshot exit wound on the male complainant’s back. As with exhibits 84 and 85, one picture is shot from farther away and shows the location of the wound, while the other enabled the medical examiner to explain how the wound was characteristic of an exit wound.
Exhibit 89 shows all three gunshot entrance wounds on the male complainant’s body, one on his chest and two on his face. The medical examiner used this photograph to explain how blood loss and a skull fracture caused by the three wounds combined to cause the male complainant’s death.
State’s Exhibits 94-98, 100, and 101
Appellant next challenges the admission of State’s Exhibits 94-98, 100, and 101. These exhibits depict multiple gunshot entrance and exit wounds on the head and face of the female complainant. In explaining cause of death to the jury, the medical examiner used these photographs in much the same way she used those of the male complainant, employing wider angles to show the locations of the wounds and tighter shots to show whether the wounds were entrance or exit wounds.
State’s Exhibits 104-110
Lastly, appellant challenges the admission of State’s Exhibits 104-110. These exhibits depict multiple gunshot entrance and exit wounds on the hands and right arm of the female complainant. The medical examiner used these photographs to show that several bullets passed through the hands and arm of the female complainant.
Admissibility
We conclude that the autopsy photographs were probative of the nature of the injuries to the complainants and that they were helpful to the jury in determining appellant’s participation in the complainants’ deaths. See Erazo, 144 S.W.3d at 494 (finding photographs could be helpful to juries, in part, because they show wounds suffered by victim for whose death defendants were on trial). We next determine whether any unfair prejudicial effect of the photographs substantially outweighs their relevance. We consider the probative value of the evidence, the potential of the evidence to impress the jury in some irrational but nevertheless indelible way, the time that the proponent needs to develop the evidence, and the proponent’s need for the evidence. Id. at 489. In the context of photographs, we also consider the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up shots or of the whole body, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Id. (citing Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992)). Autopsy photographs generally are admissible unless they depict mutilation of the victim caused by the autopsy itself. Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). Here, the photographs, which were taken after the bodies were cleaned, show no mutilation, and they are not otherwise gruesome or wrenching in any way. While the jury saw color copies of the photographs, the photographs do not show the complainants’ entire bodies and were 8 x 10 inches in size. Although there are nineteen challenged photographs, they are not duplicative of other evidence in the case or of each other. The medical examiner spent a substantial amount of time—approximately thirty pages out of fifty-one pages of direct testimony—discussing the challenged photographs, but that time was not unreasonable given the large number of injuries.
We conclude that the probative nature of the challenged photographs was not substantially outweighed by any unfair prejudicial effect. The trial court thus did not abuse its discretion in admitting the autopsy photographs into evidence. We overrule appellant’s third issue.
Jury Argument
In his fourth issue, appellant contends that the trial court erred in overruling appellant’s objections to improper jury argument by the State.
Standard of Review
Permissible jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Strain v. State, 126 S.W.3d 207, 209 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992). If we determine that the argument fell outside these four categories, we must then determine whether, in light of the record as a whole, there is a reasonable probability that the improper argument might have contributed to appellant’s conviction or punishment. Goldberg v. State, 95 S.W.3d 345, 388 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990)). If the argument exceeds the bounds of proper jury argument, reversible error occurs only when, in light of the record as a whole, the argument is extreme, is manifestly improper, injects new facts into the proceeding which are harmful to the accused, or violates a mandatory statutory provision. Simpson v. State, 886 S.W.2d 449, 454 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).
Prosecutor’s Statements
Appellant contends that the State made four improper arguments during its jury argument.
Lineup
Two witnesses testified that they heard shots and then saw a man come from inside the record shop or from the direction of the record shop and get into the passenger side of a blue car. Both witnesses looked at a lineup but could not make a positive identification. The State referred to the lineup in its closing argument:
Prosecutor: They could not identify the defendant. They said he could have been in the lineup, maybe he wasn’t. They don’t know. They just didn’t get good enough a look.
Defense counsel: Objection to mischaracterization of the testimony. They simply said they couldn’t identify anyone.
The trial court overruled the objection. Appellant contends that the prosecutor’s statement introduced new and harmful evidence, evidently because the statement eliminated the possibility that the witnesses were certain that the man they saw leaving the scene was not appellant. We disagree. One of the witnesses gave testimony that was virtually identical to the prosecutor’s characterization:
Prosecutor: And do you say that the man you saw getting into the passenger’s side was not in the lineup, or he could have been but you just didn’t see him enough?
Witness: He could have been, but I don’t recognize him.
Prosecutor: Okay. Why do you think it is that you wouldn’t recognize him?
Witness: It is impossible to recognize a person if you have only seen him for seconds.
The other witness testified that he only saw the man who left the record shop “from the back” and was also unable to recognize anyone in the lineup. We hold that the prosecutor’s statement was not an improper summation of the witnesses’ testimony.
Substance of Girlfriend’s Testimony
Appellant’s live-in girlfriend testified that appellant admitted his role in the killings to her. Responding to appellant’s attacks on the girlfriend’s credibility, the State argued in closing that there was “no evidence that anyone told her what she had to say.” Appellant objected to the prosecutor’s statement as being a direct contradiction of the evidence: “She did, in fact, say that people told her what to say.” The court overruled appellant’s objection.
Despite extensive cross-examination, appellant’s girlfriend never testified that she was coerced by investigators into fabricating testimony. This exchange, which took place on cross-examination of the girlfriend, effectively encapsulates the evidence presented during her testimony:
Defense counsel: I’m not saying the police told you, you have to put in this information, but they talked about things and you felt—I believe this is what you said, correct me if I’m wrong, that you felt you had to include these things they told you about in your statement to satisfy them; is that correct?
Witness: To leave me alone.
The girlfriend’s initial implication of appellant arose through voluntary statements made during her attempt in May 2006 to obtain a restraining order against him. As discussed below, by the State’s own admission, there is evidence in the record that the girlfriend was compelled to testify; but there is no direct evidence that she was made to perjure herself. We hold that the trial court did not abuse its discretion in overruling appellant’s objection to the prosecutor’s statement.
Compulsion of Girlfriend’s Testimony
The following exchange took place during the State’s argument:
Prosecutor: I’m sure they [investigators] did threaten her and tell her she had to tell them what she knew, because we have to know what she knows. She knows something and she’s in a position to know it, just like I have a duty to bring her here to you. You need to hear from her.
Let me ask you this question. You are taxpayers in this county and citizens here, and prosecutors and police officers are paid by the taxpayers of this county. You ask yourself—
Defense counsel: Your Honor, I object to this as improper argument.
The Court: Overruled.
Prosecutor: You ask yourself what, in the same position, you would have us do?
Appellant contends that the State’s argument was not a proper plea for law enforcement.
Proper pleas for law enforcement include arguing the relationship between the jury’s verdict and the deterrence of crime in general, arguing that juries should deter specific crimes by their verdicts, and arguing the impact of the jury’s verdict on the community. See Borjan v. State, 787 S.W.2d 53, 55-56 (Tex. Crim. App. 1990)). On the other hand, the State is not permitted to argue that the community or any particular group in the community demands or expects a verdict of guilty or a specific punishment. Id. at 56. In other words, the State cannot ask the jury to base a conviction on public sentiment or desire rather than the evidence before it. Cortez v. State, 683 S.W.2d 419, 421 (Tex. Crim. App. 1984). The State did not do so here, but rather asked the jury not to penalize the State for having compelled a witness’s testimony. We hold that the trial court did not abuse its discretion in overruling defense counsel’s objection.
Failure to Call Witnesses
Lastly, appellant contends that the following statements by the State constituted impermissible argument because they shifted the burden of proof:
Prosecutor: We both have the right to call witnesses. He certainly doesn’t have to and it’s all my burden and I’ve met it. And may I say to you fervently, the State has no doubt, no doubt at all. We both have the right to call witnesses. He didn’t call any witnesses to prove any of the stuff he just argued to you.
It is a well-settled rule that the State may comment in argument on the failure of a defendant to call competent and material witnesses. Ellis v. State, 877 S.W.2d 380, 384-85 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (citing Carrillo v. State, 566 S.W.2d 902, 912 (Tex. Crim. App. 1978)). The State may also argue that the reason for such failure is that any such testimony would be unfavorable to the defense. Id. We hold that the trial court did not abuse its discretion in overruling defense counsel’s objection.
Appellant further contends that the prosecutor’s statement was an impermissible comment on his own failure to testify. Although appellant did not preserve this complaint at the trial court level, no objection is required if an error is so egregious that it rises to constitutional dimensions. Boler v. State, 177 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Jasper v. State, 61 S.W.3d 413, 420 (Tex. Crim. App. 2001)); Tex. R. Evid. 103(d). To violate the right against self-incrimination, the offending language must be viewed from the jury’s standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). The test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. Id. If the language used can reasonably be construed as referring to the defendant’s failure to produce testimony other than his own, it is not improper. Nowlin v. State, 507 S.W.2d 534, 536 (Tex. Crim. App. 1974). It is not sufficient that the language might be construed as an implied or indirect allusion to the defendant’s failure to testify. Banks v. State, 643 S.W.2d 129, 134 (Tex. Crim. App. 1982) (citing Nowlin). The prosecutor’s statements require reversal if they call attention to the absence of evidence that only the testimony of the defendant could supply. Banks, 643 S.W.2d at 134-35 (citing Myers v. State, 573 S.W.2d 19, 20-21 (Tex. Crim. App. 1978)).
In the instant case, the prosecutor stated that appellant had not called any witnesses to support any of the arguments made by appellant during his closing. Appellant’s closing argument propounded four primary defensive theories: (1) the ballistics evidence indicating that the gun found in appellant’s apartment was used in the shootings was unreliable; (2) appellant’s girlfriend was not a credible witness; (3) there was no direct evidence that appellant was at the crime scene; and (4) the prosecution’s theory that appellant committed murder for hire was inconsistent with the evidence. None of these theories was dependent in its entirety on appellant’s testimony for its establishment. The language used by the prosecutor could reasonably be construed as referring to the defendant’s failure to produce testimony other than his own and was not manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify. Accordingly, we do not find any error so egregious as to rise to constitutional dimensions.
We overrule appellant’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
George C. Hanks
Justice
Panel consists of Justices Hanks, Bland, and Wilson.
Do not publish. See Tex. R. App. P. 47.2(b).