Dexter Lopez v. State

Affirmed and Memorandum Opinion filed November 5, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00693-CR

DEXTER LOPEZ, Appellant
V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1316109

MEMORANDUM OPINION

A jury convicted appellant, Dexter Lopez, of the felony offense of
aggravated assault with a deadly weapon and assessed his punishment at three
years‘ confinement. Appellant challenges his conviction in four issues, asserting
that the evidence is legally insufficient to support his conviction; that the trial court
abused its discretion by (a) admitting lay witness testimony that amounted to a
legal conclusion and (b) permitting improper impeachment of appellant in
violation of the Texas Rules of Evidence; and that the trial court committed
reversible error by failing to sua sponte provide a jury instruction regarding
extraneous offenses and prior bad acts at the punishment phase of his trial. We
affirm.

BACKGROUND

Appellant and the complainant, LaTonya Watts-Smith, had a friendly
relationship for several years before the incident in this case. At the time of this
event, their friendship had deteriorated. On August 9, 2011, LaTonya drove her
cousin, Joseph ―Jo-Jo‖ Johnson, to the apartment complex in Houston where
appellant lived to visit an acquaintance Jo-Jo was dating, Adrienne ―Peaches‖
Hogan. Watts-Smith‘s husband, Michael, was also in the vehicle with LaTonya
and Jo-Jo. When they arrived at the apartment complex, appellant was standing
outside with Peaches. Peaches walked up to the white Suburban that LaTonya, Jo-
Jo, and Michael were in and began talking to LaTonya. Jo-Jo got out of the SUV
and stood by the passenger door, talking to Michael. Appellant walked up to the
Suburban and started cursing and making derogatory remarks to LaTonya.

Jo-Jo took offense to these remarks and started verbally defending LaTonya.
He and appellant got into an argument; the two agreed to engage in a fight.
Appellant went back into his apartment to change into appropriate fighting shoes,
while Jo-Jo removed his shirt. Appellant came back outside, and he and Jo-Jo
began wrestling around on the ground. At the start of the fight, appellant gained
the upper hand and got a chokehold on Jo-Jo. LaTonya intervened in the fight and
hit appellant on the head a few times in defense of Jo-Jo. Michael pulled her away,
telling her to leave them alone because ―it‘s man on man.‖

At some point during the fight, appellant‘s wife, Angel, came out of their
apartment and stood nearby watching the fight. LaTonya confronted Angel; the
two began arguing. Jo-Jo began winning the fight, and appellant shouted to Angel
2
to ―let one off‖ or ―shoot that thing.‖ Angel pulled a gun out from behind her
back, but didn‘t shoot it and ―fumbled‖ it. Once she pulled the gun out, people
scattered in different directions, and appellant took the gun from Angel.

LaTonya and Jo-Jo ran and hid behind the Suburban; appellant chased them.
When LaTonya peeked up to try and see where appellant was, appellant, with the
gun in his hand, reached his arm inside the open window of the Suburban and shot
her through the tinted window on the other side of the SUV. Jo-Jo wasn‘t near that
side of the SUV and it was possible to see through the tinted window from inside
the truck. A shell casing was later found inside the Suburban.

LaTonya, not realizing she had been shot, ran toward a nearby fire truck that
had been called out in response to a report of an unrelated fire. Appellant followed
her as she ran towards the fire truck and pointed the gun at her again. The
firefighters inside the truck let LaTonya into the back of the truck and started
treating her. She had several bullet fragments in her mouth, and several of the
teeth on the left side of her mouth had been torn out. One of the firefighters called
the police, who arrived at the scene shortly thereafter and arrested appellant.

At trial, LaTonya, Michael, the firefighters, and several police officers
testified. Appellant testified and acknowledged much of the above. However, he
claimed that, prior to this incident, both Jo-Jo and LaTonya had threatened him.
He also asserted that LaTonya had previously called his mother several times and
expressed her anger towards him, which made him feel threatened. He testified
that, a few days before this incident, LaTonya had ―threaten[ed] to shoot me and
my family up.‖ Appellant stated that, when LaTonya, Michael, and Jo-Jo arrived
at the apartment complex, he approached the Suburban because he didn‘t want
them to come near his apartment and his family. He testified that he and LaTonya
exchanged words, although he stated that LaTonya started the verbal altercation.

3
 According to appellant, he was walking back to his apartment when Jo-Jo
verbally accosted him, and the two of them agreed to engage in a fight. Appellant
explained that, at the beginning of the fight, he had the upper hand. He testified
that LaTonya had interfered briefly in the fight when he had Jo-Jo pinned down,
but he stated that she punched him in the head numerous times. Appellant stated
that, during the fight, he had a slight epileptic seizure and got dizzy.1 He testified
he then asked his wife for his gun. When prompted by his counsel if he heard
LaTonya say anything, he responded,

Oh, yes, that‘s what made me get the gun because I heard her say --
***
[―]I‘m going to get my gun[,‖] and [she] started walking towards her
vehicle. That‘s when I asked where is that thing [gun]? In case
anybody gon‘ get hurt, it won‘t be me and my family.

Appellant testified that he cocked the gun and pressed the eject button so it
wouldn‘t automatically reload before approaching LaTonya and Jo-Jo. He stated
that he fired a warning shot, trying to scare them away ―because they were the ones
that [he] felt threatened by.‖ Appellant explained that he fired this shot at the
window of the Suburban, claiming that he didn‘t see ―any particular individuals.‖
He said he was trying to get them away from the SUV because he was frightened
by the comments that were made referring to ―grabbing a gun.‖

He acknowledged that a person could see through the tinted windows from
the inside of the truck if the other window was down. But he claimed that he
didn‘t have a clear view through the open window he shot through because his face

1
LaTonya testified that she was aware that appellant suffered from epilepsy.

4
was by a closed tinted window.2 He agreed that he fired the shot even though he
couldn‘t see what or who was behind the Suburban and acknowledged that he
knew both LaTonya and Jo-Jo were hiding behind it. He further agreed that he
pointed the gun at LaTonya as she was running toward the fire truck but denied
trying to shoot her. He testified that he went back into his apartment and put the
gun in the closet.3 Finally, appellant acknowledged that he never saw anyone else
involved in the incident with a gun.

Appellant called a neighbor, Pamela White, to testify on his behalf. Pamela,
who watched the fight from her upstairs apartment, described it quite differently
than the other witnesses, including appellant. She stated that the fight started and
appellant fell down with Jo-Jo on top of him. She testified that LaTonya came
over, and LaTonya and Jo-Jo proceeded to hit and kick appellant ―while he was
down.‖ According to Pamela, appellant‘s wife came out and said something.
Pamela testified that LaTonya got off appellant to go to her car, and Jo-Jo got up
and then ―everybody was running around.‖ She stated that she heard LaTonya yell
as LaTonya was going toward her car, ―I‘ll shoot you first.‖ Pamela testified she
didn‘t know to whom the statement was directed because LaTonya had been
arguing with Angel. Pamela stated she thought LaTonya meant that she was going
to get a gun when she made that statement because everyone scattered when
LaTonya said it. According to Pamela, she didn‘t see what happened afterwards.
She further acknowledged that she never saw LaTonya with a gun and that she
didn‘t know if LaTonya was running away from someone ―who had already pulled
a gun.‖
2
Appellant‘s testimony was inconsistent regarding the windows on the Suburban. He
testified at one point that all the windows were open on the SUV, but later testified that his face
was by a closed tinted window when he fired the ―warning shot.‖
3
Appellant testified he left the gun and bullets in plain sight in his closet. He could not
explain how the police, who searched his apartment, were unable to locate the gun.

5
 Appellant‘s mother also testified on his behalf, corroborating his testimony
regarding the angry calls from LaTonya. Appellant‘s mother further stated that
appellant was angry with LaTonya before this incident because appellant believed
that LaTonya had stolen some movies and cigarettes from him. She also
acknowledged that she wanted to do what she could to protect her son and that she
had no personal knowledge of what led up to the shooting.

After hearing the evidence and argument of counsel, the jury was charged by
the court. The charge included instructions on the law of self defense. The jury
found appellant guilty of aggravated assault. After a punishment hearing, the jury
assessed appellant‘s punishment at three years in the Institutional Division of the
Texas Department of Criminal Justice. This appeal timely followed.

SUFFICIENCY

We first address appellant‘s second issue, in which he challenges the
sufficiency of the evidence. Appellant contends that the evidence is insufficient to
sustain his conviction because (1) LaTonya is not credible, (2) the State failed to
prove beyond a reasonable doubt that he acted intentionally or knowingly, and
(3) the State failed to provide expert testimony to prove beyond a reasonable doubt
that the ―laceration‖ injuries LaTonya suffered were caused by a firearm and not
by something else.

When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the conviction and determine, based on that evidence
and any reasonable inferences from it, whether any rational fact finder could have
found the elements of the offense beyond a reasonable doubt. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010); Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The jury is the exclusive judge of the credibility of witnesses and the weight to be
6
given their testimony. See Isassi, 330 S.W.3d at 638. Further, we defer to the
jury‘s responsibility to fairly resolve or reconcile conflicts in the evidence, and we
draw all reasonable inferences from the evidence in favor of the verdict. Id.

Because the jury is the exclusive judge of the credibility of witnesses, we
will not re-evaluate its determination of LaTonya‘s credibility. Id. Instead, under
the appropriate standard of review, we must determine whether the State
sufficiently established that appellant intentionally or knowingly caused bodily
injury to LaTonya using a deadly weapon. See Tex. Penal Code Ann.
§ 22.02(a)(2). A firearm is, per se, a deadly weapon. See id. § 1.07 (a)(17)(A);
Simpson v. State, 227 S.W.3d 855, 861 (Tex. App.—Houston [14th Dist.] 2007, no
pet.). Further, the fact that LaTonya‘s injuries may have been, in part, caused by
glass from the window shattered by the bullet does not negate evidence that her
injuries were caused by the use of a deadly weapon. Cf. Simpson, 227 S.W.3d at
861 (―The indictment charged that appellant . . . caused Gallentine bodily injury by
‗using a deadly weapon, namely, a firearm.‘ . . . The fact that Gallentine‘s injury
was caused by the butt of the gun instead of a bullet is of no consequence.‖). No
expert testimony was necessary to establish that LaTonya‘s injuries were caused by
appellant‘s use of a deadly weapon.4 See id.

Turning to the State‘s proof of appellant‘s mens rea, a person acts
intentionally ―when it is his conscious objective or desire to . . . cause the result,‖
and a person acts knowingly ―when he is aware that his conduct is reasonably
certain to cause the result.‖ Tex. Penal Code Ann. § 6.03(a), (b). Proof of a

4
Appellant has not cited a single case to support his allegation that expert testimony was
necessary to establish that LaTonya‘s injuries were caused by his shooting the gun. Indeed,
appellant never denied at trial that he caused her injuries by shooting her, and in his appellate
brief, he admits that numerous bullet fragments were removed from the area of LaTonya‘s
injuries. He claims that her injuries were ―caused first by shattering glass, and that bullet
fragments then followed within milliseconds.‖

7
mental state almost always depends on circumstantial evidence and may be
inferred from the surrounding circumstances. See Young v. State, 358 S.W.3d 790,
802 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

Here, the following evidence supports the jury‘s finding that appellant had
the requisite intent. On the day of the shooting, appellant approached the vehicle
LaTonya was in and the two exchanged words. He later agreed to fight Jo-Jo, and
when he started to lose, he told his wife to pull out a gun. When Angel fumbled
the gun, appellant took it from her. LaTonya, Michael, and appellant testified to
these facts. Appellant, with a gun in his hand, chased LaTonya and Jo-Jo around
their white SUV. LaTonya, Michael, appellant, and the three firefighters testified
to these facts. Both LaTonya and Jo-Jo were hiding behind the white Suburban,
with appellant, armed with a gun, on the other side. When LaTonya peeked up to
see where appellant was, appellant, with the gun in his hand, extended his arm
inside the open window of the SUV and shot her through a window. As LaTonya
ran away, appellant followed her and continued to point the gun at her. LaTonya
testified that she heard the gun ―clicking‖ as if appellant were trying to shoot at her
again as she ran towards the fire truck. Two of the firefighters testified that they
saw appellant pointing the gun at LaTonya as she approached their fire truck. One
of them testified that he believed that appellant was trying to shoot at her.
Appellant agreed that he pointed the gun at LaTonya as she ran towards the fire
truck. The jury was free to believe this testimony and disbelieve appellant‘s and
Pamela‘s testimony described supra. See id.

Based on this evidence and the reasonable inferences drawn from it, we
conclude that a rational factfinder could have found, beyond a reasonable doubt,
that appellant intentionally or knowingly shot LaTonya in the face with a gun—
i.e., caused bodily injury to LaTonya by using a firearm. See Hicks v. State, 401

8
S.W.3d 89, 92 (Tex. App.—Houston [14th Dist.] 2011), rev’d on other grounds,
372 S.W.3d 649 (Tex. Crim. App. 2012); Simpson, 227 S.W.3d at 861.
Accordingly, we overrule appellant‘s second issue.

EVIDENTIARY COMPLAINTS

A. Standard of Review

We review a trial court‘s admission of evidence for abuse of discretion.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). The trial court
does not abuse its discretion unless the court acts outside the zone of reasonable
disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008);
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh‘g).

B. Admission of “Legal Conclusion”

In his first issue, appellant asserts that the trial court abused its discretion in
admitting Peaches‘ testimony that ―it was wrong . . . for [appellant] to shoot
[LaTonya.]‖ Appellant objected that this testimony ―invade[d] the province of the
jury,‖ and the trial court overruled this objection.

Appellant complains that the trial court erred in overruling this objection
because a witness is not permitted to give an opinion on an ultimate fact.
Appellant‘s argument is incorrect; such testimony is expressly permitted under our
Rules of Evidence. Tex. R. Evid. 704 (―Testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.‖); Fairow v. State, 943 S.W.2d
895, 897 n. 5 (Tex. Crim. App. 1997); Ruiz-Angeles v. State, 351 S.W.3d 489, 499
(Tex. App.—Houston [14th Dist.] 2011, pet. ref‘d). Accordingly, we overrule
appellant‘s first issue.

9
C. Improper Impeachment

Appellant asserts in his third issue that the trial court abused its discretion in
allowing the State to improperly impeach him during the punishment phase in
violation of Texas Rules of Evidence 609 and 404(b).5

On direct examination of appellant during punishment, the following
exchanges occurred:

Q. When you were arrested this time, was that the first time you‘ve
ever been arrested?
A. First, yes, ma‘am.
***
Q. Is there something that you would like to tell the jury for them
to understand about you when they‘re deciding your fate?
A. Yes. I don‘t get in trouble. This is my first problems [sic] I
ever been in.

Following up on cross examination, the State questioned appellant as follows:

Q. Mr. Lopez, you said you were never arrested . . . before this
incident. That‘s not true, is it?
A. No sir, it‘s true.
Q. Back on September 12, 2009, you were arrested for assaulting a
woman named Tanika Martinez; do you remember that?
A. No, I wasn‘t arrested for that, sir. I had a warrant for driving
without a license, that‘s why they took me in. Allegations were made
against me, but that‘s not the reason they took me in.
Q. And one of the allegations was a Class C assault on Tanika
Martinez, which you were arrested and went to municipal jail,
correct?
A. No, I wasn‘t arrested for that, sir. So, no, incorrect.

5
Appellant made no objection regarding Texas Rule of Evidence 404(b), so we do not
address that portion of his issue. See Tex. R. App. P. 33.1(a).

10
 Q. Would your mug shot remind you?

At that point, appellant‘s counsel objected and asked to approach the bench,
where she claimed there was ―a clear request for 609 notice.‖6 See Tex. R. Evid.
609(f) (providing that evidence of a conviction is not admissible if, after timely
written request of adverse party specifying the witness, the proponent fails to give
that party sufficient advance written notice of intent to use such evidence). The
trial court responded that appellant had ―opened the door‖ to this evidence.
Defense counsel asserted that she would not have asked the questions that opened
the door if she had been properly noticed. The prosecutor responded that the
offense report had been in the State‘s file and that he had not planned to introduce
evidence of this arrest unless appellant opened the door. After hearing from both
the defense and the State, the trial court stated,

In light of [appellant‘s] representations, the question has already been
asked and answered and there was no objection at the time that he
answered -- that you asked the question or that he answered the
question. I think the objection came with regards to the mug shot.
So, let‘s move on.
When testimony resumed, the State clarified with appellant that the assault offense
was a ―fine only allegation,‖ that the woman had not been hurt, and that appellant
had not been convicted of this offense. Appellant denied again that he had been
arrested for this offense and reiterated that he was arrested for tickets he had
received for driving without a license.

Specific acts of misconduct are admissible to impeach a party or witness
only if both the crime was a felony or involved a crime of moral turpitude,

6
Appellant has not provided a record citation to such a request and our review has not
revealed any 609(f) request. Thus, to the extent that appellant urges error from lack of notice,
appellant has failed to establish that this evidence was not admissible under subsection (f) of
Rule 609.

11
regardless of punishment, and the trial court determines that the probative value of
the evidence outweighs its prejudicial effects. See Delk v. State, 855 S.W.2d 700,
704 (Tex. Crim. App. 1993); Reyna v. State, 99 S.W.3d 344, 348 n. 2 (Tex. App.—
Fort Worth 2003, pet. ref‘d); see also Tex. R. Evid. 609(a). An exception to the
prohibition against impeachment through a prior conviction arises when the
testimony of a witness during direct examination ―opens the door‖ or leaves a false
impression with the jury as to the extent of the witness‘s prior arrests, convictions,
charges, or trouble with the police. See Delk, 855 S.W.2d at 704; Reyna, 99
S.W.3d at 349. An exception to that general rule against admission of
unadjudicated bad acts arises when a witness leaves a false impression as to the
extent of his prior charges or ―trouble‖ with the police. Prescott v. State, 744
S.W.2d 128, 130–31 (Tex. Crim. App. 1988); Hall v. State, 161 S.W.3d 142, 156
(Tex. App.—Texarkana 2005, pet. ref‘d).

Here, we agree that appellant opened the door to the State‘s questions about
the prior assault allegation. Appellant made the blanket statement on direct
examination that he had never been arrested before, that he didn‘t get ―into
trouble,‖ and that this was the first ―problem‖ he had had, implying that he had
never had any interactions with the police before. After reviewing the record, we
agree that the trial court could have found that appellant left a false impression
with the jury through this testimony. Thus, the court‘s ruling that appellant
―opened the door‖ to the admission of evidence of this allegation is not outside the
zone of reasonable disagreement, and we will not disturb it on appeal. See Taylor,
268 S.W.3d at 579. We overrule appellant‘s third issue.

SUA SPONTE JURY INSTRUCTION

In appellant‘s fourth and final issue, he argues that the trial court committed
reversible error by failing to sua sponte provide a jury instruction on extraneous

12
offenses/prior bad acts in the punishment charge. This issue is tied to his third
issue, in which he complains that the trial court erred in permitting improper
impeachment, discussed above.

Section 3(a) of article 37.07 of the Code of Criminal Procedure prohibits the
introduction of extraneous bad acts and offenses during punishment unless the
factfinder is satisfied beyond a reasonable doubt that the conduct is attributable to
the defendant. Tex. Code Crim. Proc. art. 37.07 § 3(a), (b); Huizar v. State, 12
S.W.3d 479, 484 (Tex. Crim. App. 2000). A defendant is not required to object to
a lack of a burden of proof instruction on unadjudicated offenses admitted during
punishment for the purpose of assessing punishment. Id. The failure of the trial
court to provide a section 3(a) instruction in this case was error. Id. We thus
consider the harm of this error under the standard set forth in Almanza v. State, 686
S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh‘g) (providing standards of review
for jury charge error depending on whether the error was subject to timely
objection).

Because appellant failed to object to this error, we would only reverse if
appellant were egregiously harmed. Zarco v. State, 210 S.W.3d 816, 823 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (citing Almanza, 686 S.W.2d at 171).
We determine harm by considering the entire jury charge, the state of the evidence,
arguments of counsel, and any other information revealed by the record. Almanza,
686 S.W.2d at 171. Appellant must show actual harm, not simply theoretical
harm. Ferguson v. State, 335 S.W.3d 676, 686 (Tex. App.—Houston [14th Dist.]
2011, no pet.).

Here, appellant does not point to any actual harm resulting from the trial
court‘s failure to instruct on the burden of proof on unadjudicated offenses;
appellant merely urges that ―he did not receive a fair and impartial trial.‖ We have

13
examined the record and discern no actual harm. As discussed above, appellant‘s
objection to this evidence was a Rule 609 objection, indicating that appellant was
concerned with this evidence being used for impeachment purposes, rather than as
extraneous-offense evidence. And although the State did impeach appellant with
this evidence, the State then clarified that appellant had not been convicted for this
offense and that the woman had not been hurt. During closing argument,
appellant‘s counsel downplayed the significance of this offense by noting that it
was a minor offense that did not include any jail time. The State responded in
closing argument by noting that appellant did not have any prior convictions and
focusing on appellant‘s credibility during his testimony.

Moreover, we note that the State requested the maximum sentence of twenty
years, and the jury assessed appellant‘s punishment at three years, which is only
one year above the minimum. See Tex. Penal Code § 22.02(b) (aggravated assault
is a second degree felony under the facts of this case); id. § 12.33 (range of
punishment for second degree felony is two to twenty years); cf. Boston v. State,
965 S.W.2d 546, 550 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (concluding
that to find harmful error based on jury charge during sentencing, ―we must find
beyond a reasonable doubt that the error did not serve to increase the appellant‘s
punishment‖).

In light of the evidence, the nature of this offense, the arguments of counsel,
and the punishment appellant received, appellant was not egregiously harmed from
the erroneous jury instruction. See Almanza, 686 S.W.2d at 174; see also
Ferguson, 335 S.W.3d at 686. For the foregoing reasons, we overrule appellant‘s
fourth issue.

14
 CONCLUSION

We have overruled each of appellant‘s issues. We therefore affirm the trial
court‘s judgment.

/s/ Sharon McCally
Justice

Panel consists of Justices Christopher, McCally, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).

15