Affirmed and Memorandum Opinion filed July 15, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00836-CR
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JOE SALINAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1052584
M E M O R A N D U M O P I N I O N
Appellant Joe Salinas appeals from his conviction for murder. In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction and that the trial court erred in excluding evidence that appellant acted in self-defense. We affirm.
I. Background
On October 8, 2005, appellant shot and killed Robert Coleman. At trial, appellant claimed he did so in defense of himself and his friend, Lionel Munguia.
Arthur Williams[1] testified that on the night of October 8, 2005, he was sitting in his truck, which was parked in the driveway of his house. Sometime between 11:00 p.m. and midnight, Arthur looked down the street and saw appellant walk up to a vacant house while appellant=s friend, Lionel Munguia, waited in the street. Because it appeared to Arthur that the boys may have been intending to vandalize the house, Arthur notified his neighbor, Robert Coleman, who was also the complainant. Coleman was out in his front yard that night, along with several other family members. When Arthur informed Coleman of his suspicions, Coleman went into his house for a moment and then came back outside and began walking towards appellant and Munguia. Arthur followed in his truck.
Arthur testified that he saw appellant leave the vacant house and knock on the door of an adjacent house. No one answered, and appellant returned to the street where Munguia was waiting. Arthur testified that as Coleman approached the boys in the street, he could not see anything in Coleman=s hands. Coleman and appellant exchanged words, but Arthur could not make out exactly what was said. Arthur next heard Coleman say he was not afraid of appellant=s brother, and then Coleman asked appellant, AWhat was you reaching for?@ Arthur testified that at this point, appellant had turned his back to Coleman. Coleman reached over appellant=s shoulder just as appellant started turning back around. Arthur testified he could not see what Coleman was reaching for, but the next thing he saw was Coleman=s head going back and then Coleman hitting the ground. Appellant began backing up and shooting. Arthur testified he heard from four to six shots. At this point, Arthur put his truck in reverse and backed down the street to his house, where he called 911.
Officer Matthew Williams responded to the 911 call. Upon arriving at the scene, he found Coleman lying in the street surrounded by a group of Coleman=s relatives and neighbors. Coleman died before medical help could arrive. Officer Robert Gutierrez, the crime scene investigator, testified to finding an ammunition magazine for a semi-automatic pistol, fully loaded with .32 caliber bullets, lying on the ground approximately six feet from Coleman=s body. Despite a search of the area, no weapon capable of firing the magazine was found. Officer Gutierrez also found an unfired .38 caliber bullet behind some bushes about 150 feet away from Coleman=s body. Officer Gutierrez testified that the same weapon could not fire both the .32 caliber bullets and the .38 caliber bullet. According to Officer Gutierrez, typically a revolver, a different type of gun than a semi-automatic pistol, would fire the .38 caliber bullet. Although Officer Gutierrez recovered four fired .38 caliber casings and several more unfired .38 caliber bullets from appellant=s bedroom, no revolver capable of firing such bullets was found. Nor was a semi-automatic pistol capable of firing the ammunition magazine ever found.
Dr. Albert Chu, the medical examiner who performed the autopsy, testified that Coleman died as a result of a gunshot wound to the head. Dr. Chu testified that the gun was fired at Coleman from a distance of at least two feet. Dr. Eric Sappenfield, the trace evidence laboratory manager for the Harris County Medical Examiner=s Office, testified that no evidence of gunshot residue was detected on Coleman=s hands.
In support of his claim of self-defense and defense of a third person, appellant put on testimony from two eye-witnesses, Munguia and Pedro Anzares. Contrary to Arthur=s testimony, both Anzares and Munguia testified to seeing two males, Coleman and another unidentified male, armed with guns that night. Anzares testified that while sitting outside in his driveway, he saw Munguia and appellant walk by. About ten minutes later, Anzares heard two or three gunshots, and then he saw appellant running back up the street toward appellant=s house. Appellant stopped in front of Anzares=s house and bent down behind some bushes. Anzares testified that he saw Munguia run by, pursued by an unidentified male who was shooting at Munguia and appellant. Anzares said appellant stood up from behind the bush and fired one shot back towards Coleman. Anzares testified that a car pulled up and the male that was chasing appellant and Munguia stopped, bent down to look for something on the ground, then jumped in the car and drove away. After the car left, Anzares could see Coleman=s body lying in the street.
Munguia testified that Coleman and another large man approached Munguia and appellant as they stood in the street. The men were both carrying guns. According to Munguia, Coleman was carrying a semi-automatic handgun. Munguia testified that he and appellant were scared and turned around to go back to appellant=s house. Coleman told the boys to Acome here@ in a loud voice, and Munguia heard Coleman cock his gun so that it was ready to fire. According to Munguia, Coleman acted as the aggressor, grabbing appellant and hitting him in the face. Munguia testified that he saw appellant bleeding from the blow. Appellant managed to free himself and took off running down the street. Munguia testified that Coleman opened fire at appellant. Appellant ducked behind some bushes and then stood up and fired two shots back, hitting Coleman with the second shot.
After the shooting, Munguia and appellant continued running back to appellant=s house. Appellant was arrested at his house later that night. Following a jury trial, appellant was convicted of murder and sentenced to ten years= confinement. This appeal followed.
II. Sufficiency of the Evidence
In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether a trier of fact could have found each element of the offense beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). When reviewing a legal sufficiency challenge on the issue of self‑defense, the reviewing court views the evidence in the light most favorable to the verdict to see if any rational trier of fact could have found (1) the essential elements of murder beyond a reasonable doubt and (2) against appellant on the self‑defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id. We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual sufficiency review, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust or (2) whether, considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Id. at 414B15.
In his first and second issues, appellant argues that the evidence is legally and factually insufficient to support his conviction for murder because the State failed to rebut his claims of self-defense and defense of a third person beyond a reasonable doubt. A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force. Tex. Penal Code Ann. _ 9.31(a) (Vernon Supp. 2007). A person is justified in using deadly force against another (1) if he would be justified in using force and (2) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other=s use or attempted use of unlawful deadly force. Id. _ 9.32. A person is justified in using deadly force to protect a third person if (1) the actor would be justified in using deadly force to protect himself against the unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect and (2) he reasonably believes that his intervention is immediately necessary to protect the third person. Id. _ 9.33 (Vernon 2003).
The initial burden of proving self-defense rests with the defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once evidence is produced, the burden shifts to the State to disprove the defense beyond a reasonable doubt. Id. The burden of persuasion is not one that requires the production of evidence. Id. Rather, it requires only that the State prove its case beyond a reasonable doubt. Id. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Id.
It was undisputed at trial that appellant shot and killed Coleman. However, appellant claims the following evidence supports his contention that he was acting in response to Coleman=s and another unknown male=s use of unlawful, deadly force.
Arthur testified that before walking down the street to confront appellant, Coleman told Arthur, Alet me run into the house and we=ll go around there.@ Appellant claims Coleman could have retrieved a gun when he went inside. In addition, according to appellant, the ammunition magazine found in close proximity to Coleman=s body constitutes proof that at least one of the males was armed and confronted appellant with deadly force. Appellant claims that the presence of the crowd around Coleman=s body raises a possibility that the second weapon was removed before the police arrived. Appellant also points out that the autopsy report showed that Coleman was legally intoxicated, and Dr. Chu testified that a person who is legally intoxicated could have impaired judgment.
Appellant further argues that the following evidence casts doubt on the credibility of Arthur=s testimony. Arthur testified he thought appellant and Munguia intended to break into the vacant house, but Arthur later admitted the house likely contained no property. Arthur admitted that he has difficulty with his vision, the scene was dark, and he could not see Coleman=s hands at the moment Coleman confronted appellant. Appellant argues that Dr. Chu=s testimony that Coleman was shot from a distance of greater than two feet contradicts Arthur=s testimony that appellant shot Coleman at point blank range. Appellant further challenges Arthur=s testimony that he saw appellant firing repeatedly at Coleman because Arthur testified that he was backing his truck away from the shooting and was therefore looking in the opposite direction at that moment. Finally, although Arthur testified to hearing at least four shots fired, appellant asserts that this evidence did not establish that appellant was the source of all four shots.
Appellant also points to the testimony of Anzares and Munguia as being contrary to the jury=s implied finding against appellant on the issue of self-defense. Both Anzares and Munguia testified that appellant fired his gun in response to being shot at by either Coleman or the unidentified male. However, the evidence shows that a second weapon was never found, the ammunition magazine was fully loaded and unfired, and no fired bullet casings matching the caliber of bullets in the magazine were recovered from the crime scene. The gunshot residue tests on samples taken from Coleman=s hands came back negative, indicating Coleman had not fired a gun that night. Officer Williams, who arrived within minutes of the shooting, testified that he did not see anyone tampering with the crime scene or picking things up. Arthur testified that he did not see Coleman carrying a gun that night, and it is undisputed that appellant was armed with a gun and that the .38 caliber bullet found at the crime scene matched bullets found in appellant=s bedroom.
Munguia also testified that Coleman was the aggressor, punching appellant in the face with his gun. However, Officer Rodriguez testified that he did not notice any obvious wounds or injuries on appellant and that appellant never requested medical attention. None of the other witnesses who saw appellant after the murder testified to seeing any injuries on appellant=s face. Officer Rodriguez recovered a bloody shirt and bloody towel from appellant=s bathroom, but no other evidence was presented as to the source of the blood. Moreover, Munguia testified that when appellant first approached the vacant house, appellant tripped and fell, scraping his hands and causing them to bleed.
Viewing the evidence in the light most favorable to the verdict, we find a jury could have concluded beyond a reasonable doubt that Coleman did not use unlawful deadly force against appellant, and therefore appellant was not justified in using deadly force to protect himself or Munguia. See Saxton, 804 S.W.2d at 914. Viewing all the evidence in a neutral light, we further conclude that appellant=s evidence of self-defense and defense of a third person was controverted by Arthur=s eye-witness testimony and the lack of evidence indicating Coleman fired a gun. We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the verdict, and we must defer to that resolution. See Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). We also defer to the jury=s determination of the weight and credibility to be afforded the testimony brought in this case. See Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997) (holding that jury determines weight to place on contradictory testimonial evidence). Although Munguia=s and Anzares=s accounts contradicted Arthur=s testimony, the jury implicitly chose to accept Arthur=s testimony and to disbelieve Munguia and Anzares, and we may not re‑weigh the evidence and substitute our judgment for that of the jury. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Accordingly, we do not find the evidence weighing against the verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Watson, 204 S.W.3d at 414B15. We overrule appellant=s first and second issues.
III. Exclusion of Evidence
In his third issue, appellant challenges the trial court=s decision to exclude opinion testimony by Coleman=s sister, Ruthie Coleman. Texas Rule of Evidence 701 provides that if a witness is not testifying as an expert, testimony in the form of opinions or inferences must be limited to opinions or inferences that are rationally based on the perception of the witness and helpful to a clear understanding of the testimony or the determination of a fact in issue. Tex. R. Evid. 701. Whether an opinion meets the fundamental requirements of Rule 701 is within the sound discretion of the trial court, and its decision regarding admissibility should be overturned only for abuse of discretion. Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997). If there is evidence in the record supporting the trial court=s decision to admit or exclude an opinion under Rule 701, there is no abuse, and the appellate court must defer to that decision. Id.
In a hearing outside the presence of the jury, appellant called Ruthie Coleman to testify to a conversation between she and William Exley, the prosecutor in the case. However, Ruthie denied having the conversation with Exley. She testified that she was not present on the scene the night of the shooting and that she had not seen appellant that night. Appellant then called Exley to testify that Ruthie had called him and said that based on a phone call she had received from her nephew as the nephew stood over Coleman=s body, Ruthie believed appellant shot Coleman out of fear and not out of malice. Exley also testified that Ruthie said that a male who lived in the Coleman household could provide further information about appellant possibly acting in self-defense, but that Ruthie refused to provide a name. Exley testified he could not affirmatively say that the woman who identified herself on the phone as Ruthie Coleman was the same woman appellant called as a witness in court and who denied making the phone call to Exley. The trial court excluded Ruthie=s and Exley=s testimony on grounds that Ruthie was not an eye-witness and did not have personal knowledge of what occurred.
The Rule 701 requirement that lay opinion testimony be based on the witness=s perceptions incorporates the personal knowledge requirement of Rule of Evidence 602. See Tex. R. Evid. 602, 701; Fairow, 943 S.W.2d at 898. Perceptions refer to a witness=s interpretation of information acquired through her own senses or experiences at the time of the eventCwhat the witness saw, heard, smelled, touched, felt, or tasted. See Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). If the proponent of the testimony cannot establish personal knowledge, the trial court should exclude the testimony. Fairow, 943 S.W.2d at 898. Appellant introduced Exley=s testimony solely to get Ruthie=s opinion into evidence. However, Ruthie did not have personal knowledge of the events in question. She was not present the night of the shooting, and she did not have any interaction with appellant that night. Ruthie=s opinion testimony was therefore not based on personal knowledge of the event in question. Because the record supports the trial court=s decision to exclude Ruthie=s and Exley=s testimony, we conclude the exclusion of this evidence was not an abuse of discretion.
Appellant claims that excluding the evidence violated his fundamental right to present a complete defense as articulated in Holmes v. South Carolina, 547 U.S. 319, 324 (2006). In Holmes, the Court acknowledged that the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Id. Holmes prohibits excluding defense evidence under evidence rules that infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve. Id. The trial court excluded appellant=s evidence because Ruthie=s lack of personal knowledge made her testimony unreliable. A rule ensuring that only reliable evidence is presented at trial serves a legitimate interest and does not unconstitutionally abridge the right to present a defense. See United States v. Scheffer, 523 U.S. 303, 309, 317 (1998). The personal knowledge requirement therefore does not fall into the category of rules proscribed in Holmes. See Holmes, 547 U.S. at 324. We overrule appellant=s third issue.
We affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Judgment rendered and Memorandum Opinion filed July 15, 2008.
Panel consists of Justices Yates, Guzman, and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Arthur Williams and Houston Police Officer Matthew Williams both testified for the State. To avoid confusion, we will refer to Arthur Williams as AArthur@ and Officer Matthew Williams as AOfficer Williams.@