NUMBER 13-02-331-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESUS SANCHEZ, A/K/A
JESUS SANCHEZ BARRERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Opinion by Justice Garza
By five issues, appellant, Jesus Sanchez Barrera, challenges his conviction for murder. As this is a memorandum opinion, we will give only the basic reasons for our decision and will not recite the facts of the case. See Tex. R. App. P. 47.4. We affirm appellant’s conviction.
1. Errors in the Jury Charge
Appellant’s first and second issues complain of errors in the jury charge used in this case.
A. Standard of Review
Article 36.19 prescribes the manner in which jury charge error is reviewed on appeal. Tex. Crim. Proc. Code Ann. art. 36.19 (Vernon 1981); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, an appellate court must determine whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996); Morris v. State, 89 S.W.3d 146, 152 (Tex. App.–Corpus Christi 2002, no pet.). Second, the appellate court must determine whether sufficient harm was caused by the error to require reversal. Hutch, 922 S.W.2d at 170; see also Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). The degree of harm necessary for reversal depends on whether the error was preserved. Hutch, 922 S.W.2d at170; see also Arline, 721 S.W.2d at 351. Error properly preserved by an objection to the charge will require reversal “as long as the error is not harmless.” Almanza, 686 S.W.2d at 171. This means that any harm, regardless of degree, is sufficient to require reversal. See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Arline, 721 S.W.2d at 351. However, when the charging error is not preserved, a greater degree of harm is required. Hutch, 922 S.W.2d at 171. This standard of harm is described as “egregious harm.” See Almanza, 686 S.W.2d at 171; Ponce v. State, 89 S.W.3d 110, 118 (Tex. App.–Corpus Christi 2002, no pet.). Errors that result in egregious harm are those that affect “the very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.” See Almanza, 686 S.W.2d at 172; Ponce, 89 S.W.3d at 118. When conducting a harm analysis, the reviewing court may consider the following four factors: (1) the charge itself; (2) the state of the evidence including contested issues and the weight of the probative evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993).
B. Analysis
In his first issue, appellant claims that the trial court erred in overruling his objections to a concurrent cause charge requested by the State. The record shows that the jury was given the following instruction:
You are instructed a person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
At trial, appellant objected to this instruction on the ground that it allowed the jury to consider transferred intent. The trial court overruled his objection. On appeal, appellant argues that it was fundamental error for the trial court to present the jury with a concurrent cause charge because the charge unconstitutionally shifted the burden of proof to appellant.
There is no error in the trial court’s instruction on concurrent causation. It tracks the language of section 6.04(a) of the penal code. Tex. Penal Code Ann. § 6.04(a) (Vernon 2003). As the Texas Court of Criminal Appeals explained in Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978) and reaffirmed in Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994), “It is clear that a charge must include an accurate statement of the law.” We will not conclude that the Texas Penal Code’s statement of concurrent causation is an inaccurate statement of the law. See Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996) (“Following the law as set out by the Texas Legislature will not be deemed error on the part of a trial judge.”). Appellant’s first issue is overruled.
In his second issue, appellant claims that his right to due process was violated because the jury charge failed to apply the law of concurrent causation to the facts of the case. Our review of the record shows that the charge given to the jury instructed the jurors on the law of concurrent causation but failed to apply the law to the facts of the case. Appellant made no objections at trial.
A trial court is required to apply the law to the particular facts of a case. See Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977). Failure to apply the law of a case to its facts does not amount to a federal constitutional error but is merely a technical violation of a state-law rule. State v. Barrera, 982 S.W.2d 415, 417 (Tex. Crim. App. 1998). Charge errors not involving federal constitutional error that are not objected to are reviewed for “egregious harm.” Escobar v. State, 28 S.W.3d 767, 780 (Tex. App.–Corpus Christi 2000, pet. ref’d).
Appellant cites Nugent v. State, 749 S.W.2d 595, 597-98 (Tex. App.–Corpus Christi 1988, no pet.) in support of his issue. Nugent is not controlling in this case. In Nugent, the appellant properly preserved error by making a timely objection and tendering a suggested application paragraph that the court refused. Id. at 597. Therefore, a showing of “any harm” was sufficient to warrant reversal. See Almanza, 686 S.W.2d at 171. In this case, appellant failed to object, and therefore, he must show “egregious harm.” See Hutch, 922 S.W.2d at 171; Escobar, 28 S.W.3d at 780. He has not done so.
We base our conclusion on the following factors: (1) the jury charge was not otherwise erroneous—it authorized conviction only if the jury found all the elements of murder beyond a reasonable doubt; (2) the evidence supporting a concurrent cause instruction did not tend to show a concurrent cause sufficient to produce the victim’s death—it indicated only that after the victim was shot by appellant, she did not receive medical attention for approximately thirty minutes and that a question was raised as to the quality of the medical attention she received; and (3) at trial, defense counsel did not argue that the delay in receiving medical attention or the quality of the medical attention alone, without the gunshot wounds, would have caused the victim’s death. See Bailey, 867 S.W.2d at 43. In sum, we conclude that the omission of an instruction applying the law of concurrent causation did not inflict egregious harm on appellant. His second issue is overruled.
2. Violation of Defendant’s Right to Confront Witnesses
In his third issue, appellant argues that the trial court erred in not allowing defense counsel to impeach the State’s pathologist with a learned treatise.
A. Standard of Review
The right of cross-examination, while constitutionally secured, is not without limits. Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987). The court retains wide latitude to impose reasonable restrictions on examination of witnesses. Id.; Saenz v. State, 879 S.W.2d 301, 307 (Tex. App.–Corpus Christi 1994, no pet.). When appropriate cross-examination is limited, however, the constitutional right of confrontation is violated. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim App. 1996). To preserve error, appellant must establish what general subject matter he desired to cross-examine the witness about and, if challenged, show on the record why such should be admitted into evidence. Munoz v. State, 763 S.W.2d 30, 32 (Tex. App.–Corpus Christi 1988, pet. ref’d). We review the trial court’s ruling for an abuse of discretion. See Carroll, 916 S.W.2d at 498 (noting that “the trial judge has the discretion to limit cross-examination”); Crenshaw v. State, 125 S.W.3d 651, 654-55 (Tex. App.–Houston [1st Dist.] 2003, no pet.)
B. Analysis
On cross-examination of the State’s pathologist, defense counsel sought to contradict her testimony by introducing into evidence an article taken from an Internet medical journal used for continuing medical education. Defense counsel argued that the electronic article was admissible as a periodical under rule 902(6). Tex. R. Evid. 902(6) (deeming newspapers and periodicals to be self-authenticating). The trial court ruled that the document was not a periodical but a treatise and that it was not admissible as an exhibit. See Tex. R. Evid. 803(18) (creating a limiting exception to the hearsay rule for learned treatises). However, the trial court allowed defense counsel to question the pathologist regarding the article. In his third issue, appellant claims this ruling violated his right to confront the pathologist. We disagree.
Under rule 803(18), a learned treatise cannot be received as an exhibit. See id. There was therefore no error in refusing to admit it. Appellant does not argue that the article should have been received as a periodical. He argues that “counsel was erroneously denied the opportunity to impeach the witness by calling to her attention and then questioning her about several articles which completely contradicted the pathologist’s opinion about the probability of death when the vena cava is cut.” Appellant, however, has failed to show that he was not allowed to impeach the pathologist’s testimony with the article. In fact, appellant has not established that the trial court limited his cross-examination of the witness in any way. To the contrary, the record shows that appellant was allowed to question her on the article’s contents and that she gave her opinion as to its medical assertions. The only error alleged by appellant is that the trial court should have admitted the articles into evidence, but, as we have already noted, treatises cannot be admitted as exhibits. See id. We overrule appellant’s third issue.
3. Sufficiency of the Evidence
Appellant’s fourth issue claims that the evidence is insufficient to support a conviction for murder.
A. Standard of Review –Legal Sufficiency
Evidentiary sufficiency is measured against the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002). Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof. Malik, 953 S.W.2d at 240. The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In evaluating a legal sufficiency challenge, the evidence is examined in the light most favorable to the verdict. Id.
B. Analysis – Legal Sufficiency
Appellant claims that the evidence is insufficient to establish that he killed the victim intentionally and knowingly. We disagree. Three eyewitnesses testified that appellant fired a gun at the victim. Specific intent to kill may be inferred from the use of a deadly weapon. Bell v. State, 501 S.W.2d 137, 138 (Tex. Crim. App. 1973); see Guerrero v. State, 655 S.W.2d 291, 292 (Tex. App.–Corpus Christi 1983, no pet.). Where, as here, a deadly weapon is fired at close range and death results, the law presumes an intent to kill. Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981); Childs v. State, 21 S.W.3d 631, 635 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d). In the light most favorable to the verdict, the State’s evidence establishes that appellant killed the victim intentionally and knowingly. His legal sufficiency challenge is overruled.
C. Standard of Review - Factual Sufficiency
In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether “the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury’s finding “shocks the conscience,” or “clearly demonstrates bias.” Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder’s verdict even if probative evidence exists that supports the verdict. Id. at 164; see also Johnson, 23 S.W.3d at 7.
D. Analysis – Factual Sufficiency
Viewed in a neutral light, the proof of guilt is not so obviously weak as to undermine confidence in the jury’s determination. Furthermore, the proof contrary to the State’s evidence, which consisted mainly of appellant’s testimony to the effect that he was not upset with the victim on the night of the shooting, does not greatly outweigh the proof of guilt. Appellant’s factual sufficiency challenge is overruled.
4. Motion for Continuance
In his fifth issue, appellant argues that the trial court abused its discretion by granting the State’s oral motion for continuance after the trial had commenced because the motion was not made as a verified pleading.
A. Standard of Review
A trial court’s ruling on a motion for continuance is reviewed for an abuse of discretion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).
B. Analysis
A trial court has equitable power to grant an oral motion for continuance. See Darty v. State, 193 S.W.2d 195, 195 (Tex. Crim. App. 1946); Munoz v. State, 24 S.W.3d 427, 431 (Tex. App.–Corpus Christi 2000, no pet.). Although appellant argues that the trial court’s decision was an abuse of discretion, he fails to address the trial court’s equitable power to grant an oral motion. See Munoz, 24 S.W.3d at 431 (noting that “‘a motion for continuance, based on equitable grounds rather than statutory grounds, is entirely within the sound discretion of the court, and will only call for reversal if it is shown that the court clearly abused its discretion’”) (citing Alvarado v. State, 818 S.W.2d 100, 103 (Tex. App.–San Antonio 1991, no writ). Appellant is not entitled to relief because he has not established that the trial court abused its equitable power.
5. Conclusion
After consideration of appellant’s five issues and the arguments and authorities presented in support of each, we affirm his conviction for murder.
DORI CONTRERAS GARZA
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this the 29th day of April, 2004.