Cecilio Mendoza v. State

NUMBER 13-09-00027-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CECILIO MENDOZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 357th District Court
of Cameron County, Texas.

MEMORANDUM OPINION
Before Justices Garza, Vela, and Perkes
Memorandum Opinion by Justice Garza
A jury convicted appellant, Cecilio Mendoza, of attempted capital murder and

burglary of a habitation with intent to commit robbery, and sentenced him to forty-seven

years’ imprisonment on the attempted capital murder offense and fifteen years’

imprisonment on the burglary of a habitation offense, to be served concurrently. See

TEX. PENAL CODE ANN. §§ 15.01 (West 2003), 19.03(a)(2) (West Supp. 2010),
30.02(a)(1), (d) (West 2003). By eight issues, appellant challenges: (1) the sufficiency

of the evidence to support his conviction for attempted capital murder (issues one and

two); (2) the trial court’s refusal to submit an instruction on the lesser-included offense

of manslaughter (issue three); (3) the admission of his two statements on grounds they

were involuntary (issues four and five); (4) the trial court’s refusal to instruct the jury on

the voluntariness of his two statements (issue six); (5) the trial court’s failure to make

findings of fact and conclusions of law regarding the voluntariness of his two statements

(issue seven); and (6) the admission of a ―3D‖ exhibit and accompanying testimony of a

police officer (issue eight). We affirm.

I. BACKGROUND

In the early morning hours of February 26, 2007, appellant and an acquaintance,

Jose Limon, wearing ski masks and carrying guns, entered the home of the Vallejo

family in Brownsville, Texas. One of the family members escaped and called 911.

Police officers arrived, entered the house, and a shootout ensued. Limon died at the

scene. Officer Rolando Trujillo suffered multiple injuries, but survived. Appellant

attempted to escape by jumping through a window, but the police apprehended him

nearby. Appellant gave two statements to the police: (1) the first taken the day

following the incident, at the hospital, where he was receiving treatment for his injuries;

and (2) the second, taken four days later on March 2, 2007.

II. VOLUNTARINESS ISSUES

We first address appellant’s issues concerning the admissibility of his two written

statements.

A. Trial Court’s Findings of Fact and Conclusions of Law

By his seventh issue, appellant contends the trial court erred in failing to make

findings of fact and conclusions of law regarding the voluntariness of his two

2
statements, as required by article 38.22, section six of the code of criminal procedure.

See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West 2005). In response to this issue,

we abated this cause for compliance with section six of article 38.22. See id.; Urias v.

State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004) (en banc) (―The proper procedure is

that the trial judge be directed to make the required written findings of fact and

conclusions of law.‖). Pursuant to our request, the trial court submitted findings of fact

and conclusions of law, and such findings and conclusions have been timely filed with

this Court. Accordingly, appellant’s seventh issue is overruled as moot.

B. Voluntariness of Statements

By his fourth issue, appellant contends that his first statement—taken at the

hospital on the afternoon following the incident—was involuntary because he was (a)

intoxicated due to his use of crack cocaine before the robbery and (b) ―suffering from

the pain and effects of a gunshot wound.‖ By his fifth issue, he contends that his

second statement was involuntary because he ―did not fully understand the rights he

was abandoning‖ and ―did not want to give another statement.‖

1. Standard of Review and Applicable Law

Whether a confession is voluntary is a mixed question of law and fact. Garcia v.

State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000); see Crenshaw v. State, No. 01-09-

791-CR, 2011 Tex. App. LEXIS 665, at *32 (Tex. App.–Houston [1st Dist.] Jan. 27,

2011, no pet.) (mem. op., not designated for publication). We give great deference to

the trial court's determinations of historical fact supported by the record, especially when

those findings are based on an evaluation of credibility and demeanor of the witnesses.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same

amount of deference to trial court rulings on mixed questions of law and fact when the

resolution of those ultimate issues turns on an evaluation of credibility and demeanor.

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Id. However, we review de novo mixed questions of law and fact that do not fit within

that category. Id.

A confession is involuntary or coerced if the totality of the circumstances

demonstrates that the confessor did not make the decision to confess of his own free

will. See Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007) (citing Arizona v.

Fulminante, 499 U.S. 279, 285-86 (1991)); Martinez v. State, No. 13-00-227-CR, 2001

Tex. App. LEXIS 4699, at *14 (Tex. App.–Corpus Christi July 12, 2001, pet. ref’d). The

court of criminal appeals has explained:

Under Article 38.21, ―A statement of an accused may be used in evidence
against him if it appears that the same was freely and voluntarily made
without compulsion or persuasion[.]‖ A defendant may claim that his
statement was not freely and voluntarily made and thus may not be used
as evidence against him under several different theories: (1) Article 38.22,
§ 6—general voluntariness; (2) Miranda v. Arizona as expanded in Article
38.22, §§ 2 and 3 (the Texas confession statute); or (3) the Due Process
Clause. It may be involuntary under one, two, or all three theories. A
statement that is ―involuntary‖ as a matter of constitutional law is also
―involuntary‖ under Article 38.22, but the converse need not be true. The
theory of involuntariness determines whether and what type of an
instruction may be appropriate. Thus, the first step in deciding upon an
appropriate jury instruction is identifying the theory of involuntariness.

Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008) (footnotes omitted).

The court has also held that although ―youth, intoxication, mental retardation, and other

disabilities are usually not enough, by themselves, to render a statement inadmissible

under [a]rticle 38.22, they are factors that a jury, armed with a proper instruction, is

entitled to consider.‖ Id. at 173.

2. Trial Court’s Findings of Fact and Conclusions of Law

The trial court submitted the following findings and conclusions:

FINDINGS OF FACT

1. Defendant Cecilio Mendoza was charged with attempted capital
murder and burglary of a habitation with intent to commit robbery, a
felony.

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2. Prior to the incident in question, Defendant admitted to using
narcotics.

3. Defendant was involved in a firefight with officers from the
Brownsville Police Department.

4. One of those officers, Officer Rolando Trujillo, was wounded by a
round fired from the Defendant’s gun.

5. Defendant was wounded by return fire from Trujillo’s duty weapon,
as well as by jumping through a glass window in an attempt to
escape.

6. Defendant was immediately taken to the hospital upon his
apprehension.

7. Defendant was given his Miranda rights at the hospital.

8. Hospital staff informed the investigating Officer Thomas Clipper that
Defendant was capable of making a statement.

9. No medical expert testified for the defense as to the Defendant’s
purported intoxication either before or during the taking of the first
statement.

10. Defendant made a second, written statement to the police on
March 2, 2007.

11. The second statement was made after a valid, written waiver of
Miranda rights was signed by Defendant.

12. Defendant has not made a challenge to his second statement’s
voluntariness, except to say that he felt ―burned‖ by giving the first
statement and so made the second one.

CONCLUSIONS OF LAW

1. Defendant’s first statement was voluntarily given.

2. Injury and intoxication are, without some other evidence suggestive
of a lack of voluntariness, insufficient as a matter of law to declare a
statement involuntary.

3. No evidence supports Defendant’s theory that he was so
intoxicated and/or medicated for his injuries that he was not aware
of his rights.

4. Defendant waived his rights before giving his first statement.

5
 5. Defendant’s first statement was not the product of an overborne
will.

6. The treating nurse informed the officers that Defendant was lucid;
the only evidence before this Court, then, is that Defendant’s waiver
of rights was knowing, intelligent, and his statement voluntary.

7. Defendant made no challenge to the voluntariness of his second
statement except to say that it flowed as a natural consequence
from the first.

8. Defendant did not allege that his second waiver of rights was the
product of an overborne will or coercion.

9. Defendant introduced no evidence to rebut the presumption of
voluntariness that arises from a valid, written waiver of rights under
Texas Code of Criminal Procedure Art. 38.22.

10. Defendant has presented no new factual information upon which to
base an objection to the voluntariness of his second statement.

11. Defendant’s second statement was voluntarily given.

12. Defendant has failed to meet his burden to persuade this Court that
either of his statements should be suppressed.

13. Both of the statements were properly admitted during Defendant’s
trial.

3. Discussion

a. Appellant’s First Statement

Appellant argues—without citation to the record—that he ―was under the

influence of at least crack cocaine at the time of his first confession and was therefore

intoxicated.‖ The evidence regarding appellant’s use of cocaine prior to the robbery

was introduced during the cross-examination of Detective Thomas Clipper, the officer

who interviewed appellant at the hospital and took his first statement. Detective Clipper

testified that, pursuant to his investigation, sometime after he took appellant’s first

statement, appellant told him that prior to the events leading up to the robbery, he had

been at home and was using crack cocaine. Detective Clipper testified that before he

6
interviewed appellant at the hospital, he asked appellant’s attending nurse (1) whether

appellant was sufficiently alert and responsive to give a statement and (2) whether

appellant was taking any medication that could make him drowsy or impair his

understanding. Detective Clipper was told appellant was able to give a statement.

Appellant was given Miranda warnings prior to his statement and signed a written

waiver of his rights. On cross-examination, Detective Clipper admitted he did not ask

the nurse whether appellant was intoxicated or had been drinking any alcohol.

Detective Clipper testified that appellant was not impaired when he waived his rights

and provided the statement.

We agree with the trial court that appellant voluntarily waived his rights and

voluntarily gave his first statement. We overrule appellant’s fourth issue.

b. Appellant’s Second Statement

Appellant contends that his second statement was involuntary. Again, without

citation to the record, appellant asserts that ―[t]he [r]ecord reveals that once Appellant

understood that he was being required to give a second confession[,] he immediately

exclaimed that he had already given a statement; indicating he did not want to give

another statement.‖

At the beginning of appellant’s second statement, Detective Marian Culver stated

that she, Detective Clipper, and appellant were present.1 After Detective Culver read

appellant his rights and appellant affirmed that he understood and waived his rights,

Detective Culver asked, ―Now, do you want to provide a statement to myself and

Detective Clipper?‖ Appellant responded, ―I already had gave [sic] a statement.‖

Detective Culver said, ―It’s your decision.‖ The interview then continued; appellant did

not at any time assert or suggest that he did not want to continue the interview.

1
Although appellant’s second statement was videotaped, the jury only heard the audio recording.

7
 Appellant’s counsel objected to the admission of his second statement as

follows:

[Defense counsel]: Your Honor, we would object as [to] the
voluntariness of this. Previously when [appellant] gave his
statement he had already given one statement when he was, I
believe, had cocaine and alcohol in his system. He was already,
you know, felt like he was already burned and that’s why he
executed this one; therefore, we will go ahead and object to the
entry of this one.

We disagree that the record shows that appellant ―did not want to give another

statement.‖ Instead, the record reflects that appellant understood and waived his rights

and voluntarily gave the second statement. The trial court did not err in admitting the

second statement. We overrule appellant’s fifth issue.

C. Voluntariness Instruction

By his sixth issue, appellant contends the trial court erred in denying his request

for an instruction on the issue of the voluntariness of his two statements. Appellant

argues that he raised the voluntariness of his statements as an issue, and that the issue

should have been submitted to the jury. The State responds that: (1) the trial court did

not err in refusing a voluntariness instruction because the issue was not properly raised;

and (2) appellant has not shown that he was harmed by the trial court’s refusal to give

the instruction, and any error, therefore, is harmless.

1. First Statement

a. Requested Instruction

At the charge conference, appellant’s counsel offered a proposed jury instruction

regarding the voluntariness of appellant’s first statement:

[Appellant’s counsel]: The [defense’s] second [requested instruction],
Your Honor, is regarding the first confession,
Your Honor. We’re asking, and we have
provided defense proposed jury instruction No.
2, and it states, ―You are instructed that under

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 the law, under our law, a statement or
confession of the defendant made while he is
in custody of the officer shall be admitted into
evidence if it appears that same was freely and
voluntarily made without compulsion or
persuasion.‖

―Now, if you find from the evidence, or if you
have a reasonable doubt thereof that at the
time of the statement of the defendant in this
case, if such statement was, there was a
Detective Clipper, the defendant was under the
influence of—‖ we, I think insert here crack
cocaine—―to such extent as to be reduced to a
condition of mental impairment such as to
render the statement not wholly, not wholly
voluntarily [sic], then such statement would not
be freely and voluntarily made, and in such
case you will wholly disregard the alleged
written statement referred to and not consider it
for any purpose.‖

Counsel referred the trial court to: (1) Detective Clipper’s testimony that

appellant had been smoking crack cocaine before he was arrested; and (2) testimony

that appellant was suffering from an untreated gunshot wound, had not been given

medication, and therefore, would have been in pain at the time he was interviewed. 2

Although counsel did not specifically cite section six of article 38.22, the

language of appellant’s proposed instruction is a paraphrase of the instruction provided

for in section six of article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6;

Vasquez v. State, 225 S.W.3d 541, 543-44 (Tex. Crim. App. 2007) (holding that

although appellant did not cite a specific statute as basis for his request, he

paraphrased the statutory language provided in article 38.22, section six, and therefore

preserved issue as to trial court’s denial of instruction). Thus, we conclude that

appellant requested a ―general‖ voluntariness instruction under article 38.22, section six.

2
As noted above, appellant was given Miranda warnings at the beginning of each statement, and
signed a written waiver of his rights as to each statement.

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See Oursbourn, 259 S.W.3d at 181 (holding evidence that appellant was bipolar and in

a depressed or manic state raised a ―general‖ voluntariness question under article

38.22, section six, a statutory claim focusing on appellant’s subjective mental state).

b. Discussion

As noted, claims of youth, intoxication, and mental retardation, by themselves,

are rarely sufficient to render a statement inadmissible; however, a jury, armed with a

proper jury instruction, may consider these factors. See id. Entitlement to an instruction

under article 38.22, section six does not require a factual dispute. See id. at 176. Even

if evidence is undisputed that a defendant was ―high‖ on narcotics at the time he gave

his statement, ―if a reasonable jury could find that the facts, disputed or undisputed,

rendered [a defendant] unable to make a voluntary statement, he is entitled to a general

voluntariness instruction when he raised a question of the voluntariness of his

statement.‖ See id.

Here, appellant’s counsel pointed to evidence that appellant had been smoking

crack cocaine prior to the robbery and had suffered an untreated gunshot wound. We

conclude that this evidence raised a general voluntariness question under article 38.22,

section six, and the issue of the voluntariness of appellant’s first statement should have

been submitted to the jury. See id. at 181; Moore v. State, No. 14-07-00366-CR, 2008

Tex. App. LEXIS 7052, at *16 (Tex. App.–Houston [14th Dist.] Aug. 28, 2008, pet. ref’d)

(mem. op., not designated for publication) (finding evidence that appellant was under

influence of narcotics when interviewed, even though investigator did not observe signs

of intoxication, raised a general voluntariness question, and issue of voluntariness

should have been submitted to the jury under article 38.22, section six).

c. Harm Analysis

In evaluating alleged jury-charge error, we first determine whether error occurred

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and then determine whether the error caused sufficient harm to warrant reversal of the

conviction. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994) (en banc).

In cases where the defendant timely objected to the charge error, we reverse the

conviction if the defendant suffered some actual harm as a result of the error. Id. at

732; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). In

evaluating whether the defendant suffered some actual harm, we consider the entire

jury charge as given, the evidence, counsels’ arguments, and any other relevant

information in the record. Almanza, 686 S.W.2d at 171.

We first note that in his brief, appellant does not address whether or how he was

harmed by the trial court’s refusal to provide a voluntariness instruction as to his first

statement. Nonetheless, we conclude he cannot show he was harmed because

evidence of his guilt, other than the confession in his first statement, was overwhelming.

Officer Trujillo, the first police officer to confront appellant and Limon as the robbery was

in progress, testified that when he stepped into the doorway, he saw appellant holding a

.357 Magnum revolver to a woman’s head. Officer Trujillo testified that appellant fired

three shots from the revolver in his direction. According to Officer Trujillo, he heard the

shots, saw the ―muzzle flash‖ from the revolver, and ―felt something hit [him] in the

knee.‖ The .357 revolver was recovered in the bedroom where the shooting occurred.

Three fired bullet casings were retrieved from the cylinder of the revolver. In light of the

entire record, we hold that the trial court’s error in refusing to include a general

instruction as to the voluntariness of appellant’s first statement did not cause appellant

any harm and therefore does not constitute reversible error.

2. Second Statement

As to appellant’s second statement, appellant’s counsel requested the following

voluntariness instruction:

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 And unless you believe from the evidence beyond a reasonable doubt that
the alleged confession or statement introduced into evidence was freely
and voluntarily made by the defendant without compulsion or persuasion,
or if you have a reasonable doubt thereof, you should not consider such
alleged statement or confession for any purpose nor any evidence
obtained—nor any evidence obtained as a result thereof.

Appellant’s counsel argued to the trial court that the voluntariness of the second

statement was raised when appellant commented at the beginning of the second

interview ―that he’d rather not give a statement, that he had already given a statement

and then there’s silence.‖ Counsel’s argument to the trial court suggested that the

officers improperly continued to interview appellant after he indicated that he did not

want to give a statement. The trial court rejected counsel’s argument, and we conclude

that it did not err in doing so. Appellant’s actual comment was, ―I already had gave a

statement,‖ not that he would rather not give a statement.

We have already determined that the trial court did not err in admitting

appellant’s second statement. Article 38.23(a) states that:

No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury
shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, then
and in such event, the jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005); see Contreras v. State, 312

S.W.3d 566, 573-74 (Tex. Crim. App. 2010). The court of criminal appeals has recently

explained when an article 38.23 instruction is required:

The trial court has a duty to give an article 38.23 instruction sua sponte if
three requirements are met: (1) evidence heard by the jury raises an
issue of fact, (2) the evidence on that fact is affirmatively contested, and
(3) the contested factual issue is material to the lawfulness of the
challenged conduct in obtaining the statement claimed to be involuntary.
A statement is obtained in violation of constitutional due process only if the

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 statement is causally related to coercive government misconduct.
Coercive government misconduct renders a confession involuntary if the
defendant's ―will has been overborne and his capacity for self-
determination critically impaired.‖ Whether this has occurred is
determined by assessing the ―totality of all the surrounding
circumstances,‖ including ―the characteristics of the accused and the
details of the interrogation.‖

Contreras, 312 S.W.3d at 574 (internal citations omitted).

Here, the evidence does not raise a fact issue as to whether appellant requested

to terminate the second interview. He did not even assert, as counsel suggested, that

he did not want to give a second statement. He simply stated an undisputed fact: that

he had already given a statement.

A police officer does not need to stop questioning a suspect ―unless the

suspect’s invocation of rights is unambiguous, and the officer is not required to clarify

ambiguous remarks.‖ Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008)

(quoting Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996)). Appellant did

not invoke his right to terminate the interview—either ambiguously or unambiguously.

We conclude that the trial court did not err in refusing to submit a voluntariness

instruction as to appellant’s second statement.3 We overrule appellant’s sixth issue.

III. SUFFICIENCY OF THE EVIDENCE

By his first and second issues, appellant contends the evidence is legally and

factually insufficient to support his conviction for attempted capital murder. Specifically,

he contends that the evidence is insufficient that he had the requisite intent to commit
3
We note that in Contreras, the court of criminal appeals concluded:

Miranda or article 38.22, not article 38.23, is the vehicle for excluding statements
obtained in violation of Miranda guidelines. And because Miranda claims do not fall
within the ambit of article 38.23, a defendant is not entitled to a jury instruction under that
statute. Article 38.22, not article 38.23, is the appropriate vehicle for obtaining a jury
instruction regarding a purported violation of Miranda, to the extent such a vehicle is
available.

Contreras v. State, 312 S.W.3d 566, 583 (Tex. Crim. App. 2010). Thus, appellant was not entitled to a
voluntariness instruction under either article 38.23 or 38.22.

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murder. We detail below relevant testimony presented by some of the State’s

witnesses. The defense presented no witnesses.

A. Standard of Review

The court of criminal appeals has recently held that there is ―no meaningful

distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis

factual-sufficiency standard‖ and that the Jackson standard ―is the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893, 902-03, 912 (Tex. 2010) (plurality

op.). Accordingly, we review claims of evidentiary sufficiency under ―a rigorous and

proper application of the Jackson standard of review.‖ Id. at 906-07, 912.

Under the Jackson standard, ―the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.‖ Jackson v.

Virginia, 443 U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 898-99 (characterizing

the Jackson standard as: ―Considering all of the evidence in the light most favorable to

the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt‖).

We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.–Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). In order to prove that appellant committed the offense of

attempted capital murder, as alleged in the indictment, the State was required to prove

that (1) appellant, (2) either acting alone or as a party, 4 (3) with specific intent to commit

4
Appellant was charged as a party. See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2003) (―A
person is criminally responsible for an offense committed by the conduct of another if . . . acting with

14
an offense (capital murder of Rolando Trujillo, a peace officer who was acting in the

lawful discharge of his official duty and who appellant knew was a peace officer), (4) did

an act amounting to more than mere preparation (discharging a firearm at Trujillo), (5)

that tended but failed to effect the commission of the offense intended. See TEX. PENAL

CODE ANN. §§ 15.01 (listing elements of criminal attempt); Yalch v. State, 743 S.W.2d

231, 233 (Tex. Crim. App. 1988).5

A person commits capital murder if he commits murder as defined by section

19.02(b)(1) of the penal code and he intentionally commits the murder in the course of

committing or attempting to commit robbery. See TEX. PENAL CODE ANN. § 19.03(a)(2).

Attempted capital murder, as alleged in the indictment, is a ―result of conduct‖ offense.

Turner v. State, 805 S.W.2d 423, 430 (Tex. Crim. App. 1991). A ―result of conduct‖

offense means that the accused had to have a particular mind set (i.e., intentional or

knowing) to cause the prohibited result. Richie v. State, 149 S.W.3d 856, 857 (Tex.

App.–Amarillo 2004, no pet.). ―Not only must the accused be found to have intended to

engage in the act that caused the death, he also must have specifically intended that

death result from that conduct; the mere intent to pull the trigger of a firearm will not

satisfy the statute.‖ Turner, 805 S.W.2d at 430. The jury may infer the requisite intent

from any facts which tend to prove its existence, including the acts, words, and conduct

of the accused, and the method of committing the crime and from the nature of the

wounds inflicted on the victims. Yanez v. State, 187 S.W.3d 724, 742-43 n.13.

intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense.‖).
5
The indictment alleged, in pertinent part:

CECILIO MENDOZA . . . did then and there, with the specific intent to commit the offense
of CAPITAL MURDER of ROLANDO TRUJILLO, a peace officer who is acting in the
lawful discharge of an official duty and who the DEFENDANT knows is a peace officer,
do an act, to-wit: discharging a firearm at ROLANDO TRUJILLO which amounted to
more than mere preparation that tended but failed to effect the commission of the offense
intended.

15
 As noted, appellant challenges only the sufficiency of the evidence as to the

intent element: that he intended to murder Officer Trujillo.

B. The State’s Evidence

1. Officer Rolando Trujillo

Officer Trujillo testified that he responded to an emergency call regarding a home

invasion in the early morning hours of February 26, 2007. As he approached the house,

Officer Trujillo said he heard voices inside the house saying that ―they were going to

start shooting.‖ Other officers arrived, and the officers lined up and entered the house

through an open sliding glass door at the rear of the house. Once inside the house,

Officer Trujillo ―took the lead‖ because he had more experience than the younger

officers. The officers proceeded down the hallway of the residence. As the officers

made their way down the hallway toward the master bedroom where the residents were

being held, Officer Trujillo observed two men face down on the floor. As the officers

approached, Officer Trujillo saw a female standing; he also saw an outstretched arm

holding a revolver pointed at the woman’s head. Officer Trujillo stepped into the door

frame and announced, ―Police.‖ Officer Trujillo saw a second suspect (Limon) holding a

handgun. Officer Trujillo heard one round fired, and he fired also. According to Officer

Trujillo, appellant fired three times in the officer’s direction. Officer Trujillo felt pain in his

hands and realized he had been shot. He stepped outside the bedroom, saw blood

coming from his left hand, and saw a finger dangling. He also felt pain in his abdomen.

After composing himself, Officer Trujillo went back into the bedroom and fired one round

at Limon, who was on the ground. Officer Trujillo saw appellant move away; he saw the

revolver pointed at him and saw the muzzle flash from the revolver. He then felt

something hit him in the knee and ―started buckling down.‖ As Officer Trujillo was going

down, he saw a second and third muzzle flash from the revolver. Evidence showed that

16
there were three bullet holes in the bedroom door that was behind Officer Trujillo.

Officer Trujillo testified that appellant’s first shot hit him in the knee. Officer Trujillo was

injured in both hands, the abdomen, and the knee. After suffering these injuries, Officer

Trujillo dragged himself into a bedroom across the hall. A second officer, Officer John

Paul Wright, went into the master bedroom. A third officer, Officer Raymond Rora,

assisted Officer Trujillo.

Officer Trujillo identified photographs of injuries that he suffered during the

gunfight. He described the injury to his knee as a ―slicing wound‖ across the kneecap,

which is consistent with a wound inflicted by a .357 Magnum, the weapon used by

appellant.

2. Officer Manuel Lucio

Manuel Lucio, an officer with the Brownsville Police Department, testified that

three spent bullet casings were recovered from the cylinder of a .357 Magnum found at

the crime scene.

On cross-examination, Officer Lucio testified that the .357 Magnum was found on

the floor of the master bedroom. At the time it was recovered, the cylinder of the .357

Magnum was open, which rendered the weapon inoperable; however, it had spent

casings inside the cylinder and several unfired rounds were found outside the weapon.

3. Sergeant Kirk Massey

Sergeant Kirk Massey testified that he was one of the officers who entered the

Vallejo residence. After the shooting started, Sergeant Massey went to the back of the

house to secure the area. He heard the sound of a window glass breaking in the room

where the shooting occurred, and saw a figure jump from the window. Sergeant

Massey fired at the suspect, later identified as appellant.

On cross-examination, Sergeant Massey stated he did not know whether

17
appellant was armed when he jumped out the window, and did not know whether he hit

appellant when he fired.

4. Detective Cris Ortiz

Detective Cris Ortiz testified that he set up a perimeter and secured the area

where appellant had escaped. Detective Ortiz apprehended and arrested appellant,

who had suffered a gunshot wound to his leg. After appellant was taken to the hospital,

Detective Ortiz spoke to him and confirmed that he had waived his rights. Appellant

agreed to allow Detective Ortiz to collect samples from appellant’s hands for gun-

residue testing. Detective Ortiz collected the samples from appellant’s hands.

5. Thomas Rusk White

Thomas White, a forensic chemist with the Texas Department of Public Safety

Crime Laboratory Service, testified that he performed a gunshot-residue test on

samples taken from appellant’s hands the night of the robbery. White testified that

gunshot residue was present in the samples taken from appellant’s hands. According to

White, a person who had fired a .357 Magnum revolver three times would ―more than

likely‖ have gunshot residue on his hands.

6. Richard Hitchcocks

Richard Hitchcocks, a forensic firearms and tool mark examiner for the Texas

Department of Public Safety Crime Laboratory in McAllen, Texas, testified regarding

various firearms retrieved from the crime scene, including the .357 Magnum used by

appellant. Hitchcocks testified that, based on his examination of the .357 Magnum, it

was impossible to create an unintended discharge of the weapon; in other words, the

weapon would not fire unless the trigger was pulled. Hitchcocks testified that the .357

Magnum could not discharge with the cylinder open, but if it were dropped or thrown in

such a manner that it struck a surface, the impact could cause the cylinder to open.

18
However, he testified that it was not possible for the weapon to be dropped and

discharge three times. Hitchcocks also testified that based on his examination of three

.357 Magnum caliber bullets recovered from the master bedroom crime scene, those

three bullets were fired from the .357 Magnum revolver that appellant was using.

According to Hitchcocks, appellant’s .357 Magnum revolver was discharged a minimum

of three times.

7. Detective Thomas Clipper and Appellant’s Statements

Detective Clipper, a detective with the Brownsville Police Department, testified

that he was present when appellant was apprehended and taken by EMS to the hospital

for treatment. Pursuant to his assignment to investigate the incident, Detective Clipper

spoke to the police officers who assisted in stopping the robbery. He was unable to

interview Officer Trujillo for several weeks due to Officer Trujillo’s injuries.

A couple of hours after arriving at the scene, Detective Clipper went to the

hospital and spoke with appellant. He advised appellant of his rights, and appellant

waived his rights. Detective Clipper’s initial conversation with appellant at the hospital

was to learn the identity of Limon, the deceased. From this first conversation with

appellant, Detective Clipper learned the identity of the person who introduced appellant

to Limon. After following several contacts, the police learned Limon’s identity and that

two other suspects—the two who dropped appellant and Limon off at the house and

remained in the car—were involved in the robbery. Armed with this information,

Detective Clipper went to the hospital, read appellant his rights a second time, and

showed him photo lineups, from which appellant identified the two individuals in the

vehicle.

In the afternoon of the day after the robbery, Detective Clipper went to the

hospital a third time to interview appellant. Before conducting the interview, Detective

19
Clipper asked permission from appellant’s attending nurse and was told that appellant

was alert and responsive.6 Detective Clipper also asked whether appellant was under

the influence of any medications that could impair him from giving a statement and was

told that he was not.

After he advised appellant of his rights and appellant waived his rights, Detective

Clipper interviewed appellant. The jury was shown the videotaped interview. Bearing in

mind that appellant has challenged only the sufficiency of the evidence that he had the

requisite intent, we focus only on those portions of the statement related to that issue.

Appellant stated that Limon gave him a gun, the .357 Magnum revolver, to use in

the robbery. Appellant recognized Officer Trujillo when he came into the bedroom

because Officer Trujillo had been involved with appellant as a juvenile in prior

proceedings. Appellant stated, in relevant part:

Q [Clipper]: Okay. So who shot Officer Trujillo?

A [Appellant]: Joe.

Q: Joe shot him? How many times?

A: I think like three times, and I got scared and I shot mine,
too.

Q: How many times?

A: Like two or three times.

Q: Two or three times?

A: I was scared.

Q: The revolver—

A: Yes, sir.

Q: Did you hit Officer Trujillo?

6
On voir dire examination by appellant’s counsel, Detective Clipper admitted that he did not ask
whether appellant was intoxicated or under the influence of alcohol or crack cocaine.

20
 A: I’m not sure.

Q: You’re not sure?

A: No, sir.

Q: Okay. And then what did you do?

A: Then I jumped out the window.

....

Q: Okay, but you’re saying Joe shot him three times, and
you shot three times; but you were scared. So did you hit
him?

A: I don’t think so.

Detective Clipper testified that he interviewed appellant the second time on

March 2, 2007 at the Brownsville Police Department. Detective Clipper stated that he

advised appellant of his rights and appellant waived his rights. He also stated that

appellant was not under the influence of any drugs or alcohol and did not at any time

ask to stop the interview. An audio-recording of the interview was played for the jury.7

In the second statement, appellant provided conflicting statements as to what occurred:

A [Appellant]: And out of nowhere I just heard, [―]Brownsville PD.[‖]
And when I heard, [―]Brownsville PD.,[‖] I turned around,
and when I turned around, Trujillo shot me in the leg.
And when Trujillo shot me in the leg, so my friend Joe, he
started shooting at Trujillo. And that’s the rest of the
cops—

....

And then, pos,[8] I got scared. I never aimed at Trujillo. I

7
Although the interview was video-recorded, and the videotaped statement was introduced for
purposes of the appellate record, the jury was not shown the video-recording because of concerns that
appellant was dressed in prison attire. In the second interview, appellant was questioned by Detective
Clipper and Detective Marian Culver.
8
―Pos‖ is a colloquial variation of the Spanish slang expression, ―pues,‖ which, used at the
beginning of a sentence, as here, translates roughly as ―well.‖ See ELIZABETH REID & LINTON H.
ROBINSON, MEXICAN SLANG PLUS GRAFITTI 38 (2003).

21
 never shot my gun, but I remember I never shot my gun.

....

So, when Trujillo, when Trujillo and the rest of the cops
started shooting at Joe, so I got scared and threw my
gun, jumped on top of the bed and went out the window.

Q [Culver]: Did you fire a gun at any time?

A: No, ma’am.

Q: And it never went off?

A: Hu-uh. It might went off when I threw it to the floor. I
don’t know. But I never fired the gun.

Q: You never pointed it at anybody?

A: Anybody.

Q: It never went off?

A: It never went off.

Q: Did you pull the trigger?

A: No, ma’am.

Q: Intentionally on purpose or accidental?

A: Maybe I did. I don’t remember. I was scared.

Q. Okay. So do you think it went off, or you think it didn’t go
off?

A: I think it never went off, but I was scared. When I got up,
I think the gun went off.

Q [Clipper]: When you got up, what do you mean?

A: When I get up to the bed, got off the floor, too. When I
got off the floor and jumped up to the bed, I think the gun
went off; but I never aimed [at] Trujillo for nothing.

....

Q: Do you remember shooting at any time?

22
 A: No, sir. Maybe I did, but I was scared, and everything
was just out of my mind.

Detective Clipper testified that, based on all the evidence, he concluded that

appellant fired the .357 Magnum revolver three times. On cross-examination, defense

counsel attempted to show that appellant may have intended to ―warn‖ Trujillo to stop

firing. Detective Culver responded:

So your question is if he [appellant] fired a round to warn Officer Trujillo?
The indications on the door is no. He aimed at Officer Trujillo. The only
thing that saved Officer Trujillo’s life is that his knee did buckle. He went
down. Because if you see the holes in the door, if he stood upright,
Officer Trujillo would have been hit in the—at least the torso area and the
neck area.

Appellant did not testify.

C. Analysis

In his brief, appellant argues the evidence is insufficient to support that he

intended to murder Officer Trujillo by shooting at him with a firearm, and points to the

following: (1) Officer Trujillo admitted that he fired first; (2) Officer Trujillo’s statement

does not assert that appellant fired at him9; and (3) in his statements, appellant said he

did not believe that he fired at Officer Trujillo and did not know whether he had.

A specific intent to kill is a necessary element of attempted murder. Flanagan v.

State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984). Intent may be inferred from

circumstantial evidence such as the acts, words, and conduct of the appellant. Guevara

v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Intent to kill may be inferred from

the use of a deadly weapon, unless it is reasonably apparent that serious bodily injury

9
During cross-examination of Officer Trujillo, appellant’s counsel offered in evidence Officer
Trujillo’s video-recorded statement that was taken by Detectives Clipper and Culver. Appellant’s counsel
asserted that the video-recorded statement differed in important respects from Officer Trujillo’s trial
testimony. However, in the statement, Officer Trujillo stated that when he felt the shot to his abdomen, he
did not know where it came from. He also stated that when he re-entered the room, he continued to fire
at Limon, then felt another impact to his knee, a ―powerful blow‖ that entered one side and exited the
other side of his knee. We are not persuaded that Officer Trujillo’s video-recorded statement contradicts
his trial testimony.

23
or death could not result from the particular manner of use. Jones v. State, 944 S.W.2d

642, 647 (Tex. Crim. App. 1996). A firearm is, per se, a deadly weapon. TEX. PENAL

CODE ANN. § 1.07(a)(17)(A) (West 2010).

The jury heard evidence that the .357 Magnum revolver used by appellant was

fired three times and could not have discharged accidentally. Although appellant gave

conflicting statements as to whether he fired or not, the jury could have believed his

testimony that he shot two or three times and disbelieved his testimony that he never

fired the gun. See Davila v. State, 147 S.W.3d 572, 575 (Tex. App.–Corpus Christi

2004, pet. ref’d) (noting that jurors are free to accept or reject any or all of witnesses’

testimony).

Viewing all the evidence in the light most favorable to the verdict, we conclude

the evidence is legally sufficient for a rational jury to find appellant guilty of attempted

capital murder. We overrule appellant’s first and second issues.

IV. LESSER-INCLUDED OFFENSE INSTRUCTION

By his third issue, appellant contends the trial court erred by denying his request

for an instruction on the lesser-included offense of manslaughter.

At trial, appellant’s counsel requested the lesser-included-offense instruction as

follows:

Obviously, this would be attempted manslaughter, and we would keep the
attempt definition as included in the Court’s charge for purposes of the
record.

The reason that we are asking for that is during the interview of Mr. Cecilio
Mendoza, I think this was the second interview, Detective Culver asked
him if he accidentally or he may have accidentally shot at the Officer
Trujillo. And at that time he indicated that, yes, he had. He said that he
was very scared and then he indicated that he may have shot at the
officer. This was during the second interview, Your Honor.

We first note that although appellant gave conflicting statements in the second

24
interview, his counsel’s characterization of those statements was somewhat misleading.

Appellant did not say that he accidentally shot at Officer Trujillo; when asked if he

―[i]ntentionally‖ or ―accidental[ly]‖ shot at Officer Trujillo, appellant said ―maybe‖ he did—

without specifying whether ―maybe‖ applied to intentionally or to accidentally—but did

not remember.

Nonetheless, appellant was charged with, and convicted of, attempted capital

murder. A person commits an attempt offense if ―with specific intent to commit an

offense, he does an act amounting to more than mere preparation that tends but fails to

effect the commission of the offense intended.‖ See TEX. PENAL CODE ANN. § 15.01(a).

A person commits manslaughter if he recklessly causes the death of an individual. See

id. § 19.04(a) (West 2003). A person acts recklessly when he is aware of but

consciously disregards a substantial and unjustifiable risk. Id. § 6.03(c) (West 2003).

For a person to commit an offense under section 15.01(a), the attempt statute,

the person must have ―the specific intent to commit‖ the offense attempted. The

attempt statute does not apply when the culpable mental state for the offense attempted

is less than knowing. Gonzales v. State, 532 S.W.2d 343, 345 (Tex. Crim. App. 1976)

(noting that it is impossible to specifically intend to recklessly kill another); Strong v.

State, 87 S.W.3d 206, 217 (Tex. App.–Dallas 2002, pet. ref’d); Yandell v. State, 46

S.W.3d 357, 361 (Tex. App.–Austin 2001, pet. ref’d); see Townsend v. State, No. 11-05-

219-CR, 2006 Tex. App. LEXIS 4929, at **4-5 (Tex. App.–Eastland June 8, 2006, pet.

ref’d). Here, appellant’s counsel requested an instruction for ―attempted manslaughter.‖

Section 15.01(a) does not apply to manslaughter, and the trial court did not err in

refusing to give the requested instruction. Appellant’s third issue is overruled.

V. ADMISSION OF EVIDENCE

By his eighth issue, appellant contends that the trial court erred in admitting

25
State’s Exhibits 547, 548, 549, 550, and 551. The exhibits are DVDs which depict

three-dimensional (―3D‖) computer-generated representations of the crime scene.

Appellant complains the trial court erred in admitting (1) the 3D exhibits as scientific

evidence and (2) the testimony of Officer Julio Briones as expert testimony. Officer

Briones created the exhibits by using a commercially-available computer software

program.10

The State responds that: (1) appellant failed to preserve the issue because his

objection at trial differed from his argument on appeal; (2) Officer Briones was not

testifying as an expert; and (3) the exhibits are demonstrative evidence, which is

admissible if it tends to aid the jury in resolving issues relevant to the case.

A. Standard of Review and Applicable Law

We will not disturb a trial court's evidentiary ruling absent an abuse of discretion.

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). As long as the trial

court's ruling is within the zone of reasonable disagreement and is correct under any

theory of law, it must be upheld. Id.

B. Discussion

Assuming, without deciding, that appellant preserved this issue,11 we conclude

that the trial court did not abuse its discretion in admitting the 3D exhibits.

The trial court questioned the prosecutor, ―What are you—you utilizing him as an

expert to testify about how it was created?‖ The State responded, ―we can utilize

10
Officer Briones testified that he created the exhibits by entering room measurements, the
officers’ and suspects’ locations, and other relevant information into a computer software program. The
computer software, Crime Zone, utilizes the information to create a three-dimensional representation of a
physical setting. The software was also used to create State’s Exhibit 546, a ―flat‖ diagram of the house
showing the officers’ and suspects’ locations.
11
Among other arguments advanced by appellant’s counsel, he argued that, ―basically what they
are trying to say is that Officer Briones is an expert and he’s an expert in using this type of software and it
can be relied upon as such.‖

26
[Officer Briones] as a layperson.‖ Officer Briones testified that he: (1) was familiar with

the Crime Zone software used in this case; (2) had used the software on at least two

previous occasions and to create State’s Exhibit 546, a ―flat‖ diagram of the crime

scene; (3) believed the diagrams were to scale; and (4) believed the exhibits would

assist the jury in determining what happened the night of the crime.12

The State argued to the trial court that Officer Briones was ―not testifying as an

expert as to gunshot trajectories‖ and that the exhibits were simply ―demonstrative

element[s].‖ The trial court observed that State’s Exhibit 546, which was also created

by Officer Briones using the same computer software and information, was already

admitted in evidence. The court then overruled appellant’s counsel’s objections and

admitted the exhibits.13

Diagrams are generally admissible to explain the testimony of a witness and

render it more intelligible. Holding v. State, 460 S.W.2d 133, 135 (Tex. Crim. App.

1970); Mayfield v. State, 848 S.W.2d 816, 819 (Tex. App.–Corpus Christi 1993, pet.

ref’d); see Hartsock v. State, 322 S.W.3d 775, 778-79 (Tex. App.–Fort Worth 2010, no

pet.). Moreover, even if the trial court erred in admitting the 3D exhibits, the improper

admission of evidence is harmless if the trial record contains other, properly admitted

evidence that is probative of the same matter. See Saldano v. State, 232 S.W.3d 77,

102 (Tex.Crim.App.2007). Here, as the trial court noted, State’s Exhibit 546 had been

12
The State told the trial court that the 3D exhibits were ―not a movie‖ and ―not an animation.‖
Rather, the exhibits were ―a to-scale diagram using the Head Zone software called Crime Zone/Crash
Zone. It was used to create the diagram that’s already been admitted into evidence, and the actual
software needed to project it and to run it is on the computer here.‖ Outside the presence of the jury, at
the end of the day, the trial court granted defense counsel a continuance to view the 3D exhibits to
determine whether the defense ―had any other objections.‖ After viewing the exhibits outside the
presence of the jury, appellant’s counsel stated his desire to ―reserve the rest of [his] objections for the
morning.‖ The following morning, outside the presence of the jury, appellant’s counsel objected to
admission of the exhibits on grounds of ―reliability,‖ ―surprise,‖ and that the exhibits were ―highly
prejudicial.‖
13
The trial court stated that defense counsel ―had two objections . . . [t]he continuance and the
other one was [Officer Briones’s] qualifications or his ability to operate this.‖

27
admitted and depicted the same information without the 3D enhancement. We overrule

appellant’s eighth issue.

VI. CONCLUSION

We affirm the trial court’s judgment.

DORI CONTRERAS GARZA
Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
9th day of June, 2011.

28