JAMES CARLOS CAVAZOS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed October 27, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01352-CR
............................
JAMES CARLOS CAVAZOS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-32441-SM
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OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Francis
        A jury convicted James Carlos Cavazos of capital murder in the shooting death of his ex- girlfriend, and the trial court imposed an automatic life sentence. In seven issues, appellant complains about the legal and factual sufficiency of the evidence to support his conviction, admission of evidence, and legality of the search warrant. We affirm.
        Witnesses testified that on March 17, 2004, appellant dragged Virginia Hernandez from her workplace, as she screamed and begged for help. Minutes later, Virginia was shot in the forehead and died four days later. Appellant was charged with capital murder.
        Reyna Barrera testified she is Virginia's mother. At the time of Virginia's death, Mrs. Barrera lived with Virginia and her husband of seventeen years, Ricardo Hernandez, and their three children. Some time in 2002, Virginia began an affair with appellant, who worked with her at Poly- America. By the latter part of 2003, Mrs. Barrera said the affair had ended and Virginia and her husband had “repaired” their marriage. After that, Virginia would come home from work with bruises on her arms and legs and eventually told her mother that appellant hit her because he did not understand that the relationship was over. Appellant would call the house at all hours, prompting the Hernandezes to change their telephone number several times and to complain to the police. In February 2004, appellant went to the Hernandez house in the middle of the night demanding to see Virginia. Again, the Hernandezes called the police, but appellant left before the police arrived.
        Mrs. Barrera testified that on the day before the shooting, Virginia arrived home from work late. She seemed “very, very stressed” and was crying. She told her mother that appellant grabbed her while she was at a gas station, wrestled with her, and tried to take her with him. According to Mrs. Barrera, appellant told Virginia that if she did not “take off with him,” he was going to kill her. Virginia had marks on her neck from the attack.
        Mrs. Barrera called appellant that night and asked him to leave her family “in peace” and explained that her daughter was trying “to get back with her family.” Appellant refused, saying that he would not leave Virginia and preferred to see her dead. Mrs. Barrera testified that appellant said he would kill Virginia and then himself and that “he already had a letter.” Mrs. Barrera said she did not call the police because she was accustomed to appellant's threats and she “never imagined he would do it the next day.”
        The next morning, Charita Franklin, a machine operator at Poly-America, was assisting Virginia at work. Virginia appeared to be “frantic.” At about 6:10 a.m., appellant walked up and began talking to Virginia in Spanish. Virginia “was shaking her head . . . looking down and away.” Franklin said appellant “was doing all the talking,” and Virginia was shaking her head no.         Appellant wanted Franklin to take over the line, but Virginia said no. Franklin then told appellant to leave Virginia alone, and appellant pulled a gun and pointed at Franklin's stomach. Franklin testified appellant pushed her down and began leading Virginia out of the plant. Franklin said Virginia was scared and grabbed on to whatever she could while saying “help me.” Franklin ran to tell her supervisor that a man with a gun had Virginia. According to Franklin, her supervisor “automatically knew who it was.”
        Another coworker of Virginia's, Lamanuel Jackson, testified he arrived at work about 6:10 a.m. and, as he walked down the aisle, heard someone yelling for help. He looked over and saw Virginia “struggling and wrestling” with a man, who he identified at trial as appellant. Jackson said appellant had Virginia by the arm, and she was trying to get away from him. The two were arguing in Spanish, and Jackson noticed appellant had a gun. Virginia was “doing the dead weight thing, falling down, kicking like most kids do when they're struggling.” Appellant yanked Virginia back up and was dragging her, “forcing her to go wherever he's trying to make her go.” After a couple of times, he slammed Virginia into a nearby concrete and steel pillar to weaken her. When Virginia noticed Jackson, she began calling his name. Jackson told appellant to let her go, and appellant then pointed the gun at Jackson, and angrily yelled, “Get the fuck away.” Jackson called 911 and went to report the incident to his supervisor. When he looked back, Virginia and appellant were gone. Jackson described Virginia as “scared out of her wits” with a “look of despair.”
         Jason Huckins, a maintenance technician at Poly-America, was in the parking lot between buildings when he saw two people come out of a door. Huckins testified it looked like they “may have been playing around, kind of bumping each other.” Huckins watched as the two walked to the parking lot and went behind one of the vehicles. He saw the woman “come out from behind the truck and then get yanked back toward - on the other side.” Huckins said he pulled directly in front of the vehicle and yelled to find out what was going on. The doors of the truck were open - one opened backward and one opened forward - and the two people were between the doors. The woman was struggling, crying and “begging for help.” Huckins said the man ducked down for a second and came back up with a nickel-plated pistol pointed in his direction and asked, “What do you want, mother fucker?”
        Huckins tried to figure out a way to help the woman but could not determine a means without getting injured. He said the man was trying to push the woman into the truck. She was half in the vehicle, half out, lying on her back, and the man was holding the gun in his right hand toward the woman's forehead. Huckins went to the building to report the incident. When he returned, the truck was gone and blood was on the ground near where the truck had been parked. When asked if it appeared that the woman was willingly attempting to get in the truck, Huskins replied, “No, she was fighting the whole time I was there.” Huckins said the woman was crying and tried to escape. Huckins identified appellant as the man with the gun.
        Vincente Renteria, a mechanic at Poly-America, was on a forklift when he saw Virginia and appellant leaving the building. The two were “wrestling around a bit” as they approached Renteria. When they got to the truck, appellant tried to force Virginia inside. Virginia was crying and screaming. Renteria told appellant to “let her go,” but appellant ignored him. Virginia tried to escape, and appellant grabbed her. When appellant pulled Virginia back, Renteria saw that he had “something shiny” in his hand. The object was “very close” to Virginia's head. As appellant pushed her back into the truck, Virginia was “leaning back” and her voice sounded as if she were in the truck. Renteria said he heard Virginia say “wait, wait,” immediately followed by a gunshot. Appellant closed the truck door and left.
        Grand Prairie police officer Richard Gambino received a call that an armed man had dragged a woman from Poly-America and was in a GMC pickup truck. Gambino and a rookie trainee were nearby and responded. When they arrived at the scene, they spotted a truck matching the description leaving the locale. It appeared that only one person was in the truck. The police attempted to stop the vehicle, but it crashed through the security gate. The officers followed the truck, which led them to Arlington Memorial Hospital. Once there, the driver, identified as appellant, got out of the truck with his hands up. He had a gun in his right hand and was crying. The officers demanded that appellant drop the gun, and after they subdued him, found Virginia lying unconscious in the back seat of the truck. She had been shot in the forehead and was covered in blood.
        Police cordoned off the area and recovered the gun, a Lorcin .38-caliber semiautomatic pistol with one bullet in the chamber and some rounds in the magazine. They also recovered a cartridge case, the same caliber as the pistol, from the rear bench seat and a damaged, fired bullet from the floorboard. Police found biological matter, such as brain, bone, blood, and hair, in the interior of the truck. Photographs were taken of the parking lot at Poly-America. The photographs showed a large pool of blood with possible bone fragments in one of the parking spaces. Five buttons were recovered from the parking lot; the buttons matched those missing from Virginia's work shirt.
        Charles Clow, a firearms and toolmark examiner with the Southwestern Institute of Forensic Sciences, testified that he compared the gun, magazine with cartridges, fired bullet, lead fragment, and cartridge case. Clow determined that the gun recovered by police discharged the bullet found in the truck. Clow could not say the whether cartridge case was fired from the gun. He tested the trigger pull on the gun to determine how much pressure was required to fire the gun when the trigger was pulled. He determined that it would take between 6.699 and 6.756 pounds of pressure to pull the trigger and fire the gun in comparison to a light trigger pull, which is less than two pounds. Clow testified he hit the gun on the floor, with his finger on the trigger but not pulling the trigger, and the gun did not go off. He testified that for the gun to fire, the trigger had to be pulled with at least 6.699 pounds of pressure.
        Dr. Gary Sisler, the deputy medical examiner for Tarrant, Parker, and Denton counties, performed the autopsy on Virginia. Sisler testified Virginia died of a gunshot wound to the head. The bullet traveled from front to back, slightly upward, and exited the back of the head. The bullet lacerated the frontal, temporal, and parietal lobes of the brain. Because soot or stripling was found near the entrance wound, Sisler believed Virginia was shot from less than two feet away.
        On the day of the shooting, the police talked with Virginia's mother, Mrs. Barrera. Mrs. Barrera told them about the incident the night before and appellant's threat to kill her daughter and assertion that he had it “written down.” The police obtained a search warrant for appellant's apartment and found two letters, dated March 16, written by appellant, one addressed to his sister and the other to Virginia's teen-aged son. The letters were written with the presumption that both he and Virginia were dead. In the letter to his sister, appellant said he could not “bear the thought of walking through another failed relationship” and said the “world is better off without me and sure better off without her.” Appellant asked his sister to tell Virginia's family that he was sorry, “but I had to do it. I could not be here in peace knowing that she is playing everybody just to satisfy her selfish needs. I love her so much, I can't let her go. So if I can't be with her, then nobody is. . . I know I'm taking her kid's mother away, but somebody like her doesn't deserve to live either.” In the letter to Virginia's son, appellant wrote that Virginia broke his heart and lied repeatedly. Appellant asked the boy not to hate him, but to “[h]ate the mentality of a liar.”
        Appellant testified in his defense and characterized the shooting as an “accident,” denied dragging her against her will from the Poly-America facility, and denied grabbing her the night before at a gas station.         Appellant said he met Virginia in October 2002 and learned from coworkers that she was separated from her husband. Appellant approached her and the two began a relationship the following month. Over the next several months, the two had an on-again, off-again relationship that was in “constant turmoil.” During this time, appellant said Virginia lied to him repeatedly about the status of her relationship with her husband, causing him to be “very depressed.” He said he began drinking heavily and using drugs. He was prescribed Zoloft, an antidepressant, and began having “morbid thoughts, hurting myself, things like that.” He stopped taking the drug three months before the shooting.
        Appellant denied ever hitting Virginia and suggested any marks on her body were “hickeys.” Appellant said Virginia was the physically aggressive one in the relationship. On one occasion, he said she attacked him at work. After he reported the incident to his supervisor, he was moved to a different building. In 2003, he said he purchased the gun used in this shooting as protection from Virginia's husband, who he said had threatened to kill him.
         On the day before the shooting, appellant said he left work early, went home, and drank fourteen or fifteen beers, took pills, and smoked marijuana. He and Virginia had not been seeing each other for about two weeks. He wrote the two letters because he was “completely heartbroken and desperate.” That afternoon, he waited for Virginia on the Poly-America parking lot. Appellant said they went back to his apartment to talk. While there, she saw the two letters on the table. Appellant said he told her the contents of the letters, and she told him he would not have to mail them because “they were going to work it out.” Appellant said they made plans for Virginia to come to his apartment the next morning so they could ride to work together.
        The next morning, Virginia did not show up at appellant's apartment, upsetting him because he believed she had lied to him “again.” In a “daze” from the alcohol and drugs the day before, appellant drove to Poly-America to talk to her. Appellant said he approached Virginia, who was “shocked,” not because she was frightened of him but because he was not supposed to be in that building. Appellant asked why she had lied to him, and appellant said Virginia said “no,” that it had nothing to do with him and that she had to be at work early because of a problem with the line. Appellant accused her of lying, and Virginia shook her head and said, “No, I'm not lying.”
        Appellant asked Virginia to go outside to talk to him, put his arm around her waist, and turned to walk. Franklin, who was working with Virginia, grabbed him by the arm, and appellant said he “freaked out” and pulled out his gun “just to let her see it” but denied pointing it at Franklin. He also denied pushing Franklin down, saying that she tripped over a pallet while walking backwards. Appellant said he “didn't know” why he took the gun to work.
        On the way out of the building, appellant said they passed several people, and “no one even looked [their] way” because Virginia was not “kicking, fighting, or screaming.” He also said she never tried to grab onto anything. As the two walked to his truck, they passed Huckins on a forklift. Once they reached the truck, he opened the door and told her to get in. Virginia did not want to and grabbed the gun. The two struggled for the gun, and appellant “guessed” that Huckins saw them struggling over the gun. Appellant told Huckins to “fuck off.” During the struggle, the gun fell to the ground, and appellant picked it up. Virginia “went for it again,” and the two struggled and the gun fell to the ground again. Appellant said he told Virginia to quit reaching for the gun, “that it was going to go off.” Virginia reached for the gun again, and appellant said when he “finally got it away from her,” Virginia was on the ground and the gun had fired. Appellant said when Virginia fell to the ground, he “couldn't believe what [he] was seeing.” Once he “snapped out of it,” he reached down to pick her up and “that's when the buttons ripped off” her shirt.
        Appellant said he did not pull the trigger on the gun. He also denied that he was pushing Virginia in the truck at the time and instead said the two were standing, facing each other, and the gun was chest high. He could not explain, however, how the gun's cartridge ended up inside the truck if the two were standing outside when the gun discharged. Appellant testified that it was not his plan to kill Virginia and commit suicide.
        Other witnesses to testify for appellant were his sister and two coworkers. His sister, Monica Martinez, testified that she was aware of appellant's relationship with Virginia and urged him several times to end it. She testified that after appellant met Virginia, he began drinking more and using more drugs. On the morning of the shooting, she said appellant called her and was “screaming and crying and was very confused.” She said appellant was “just sad” and “was just all over the place, very erratic.”
        Juan Salas, appellant's coworker, said he knew appellant and Virginia. He testified that he and appellant socialized outside of work about once a week. On those occasions, Virginia would call appellant constantly. He testified that Virginia had a reputation for being untruthful. Maria Carona, also a coworker, testified that Virginia was “two-faced,” explaining that to some people she said she was divorced and to others she would say she was married.
        In issues one through four, appellant contends the evidence is legally and factually insufficient to support his conviction because the State failed to prove he (1) intentionally caused Virginia's death and (2) voluntarily engaged in conduct that resulted in Virginia's death.
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).
        In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, PD-469-05, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). In conducting a factual-sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
        Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). The fact finder may draw reasonable inferences and make reasonable deductions from the evidence. Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Additionally, both standards apply to all of the evidence, whether properly or improperly admitted. See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (legal sufficiency); Young v. State, 976 S.W.2d 771, 773 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) (factual sufficiency).
        The indictment charged appellant with intentionally causing Virginia's death while in the course of committing and attempting to commit kidnapping. In his first and second issues, appellant contends the evidence failed to establish that he intentionally caused Virginia's death.
        Intentional murder is a result of conduct offense. Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). Intent is most often proven through circumstantial evidence surrounding the crime. Hernandez v. State, 819 S.W.2d 806, 819 (Tex. Crim. App. 1991). A jury may infer intent from any facts that tend to prove its existence, such as the acts, words, and conduct of the defendant. Id. The jury may infer the intent to kill from the use of a deadly weapon unless it would be unreasonable to infer that death or serious bodily injury could result from the use of the weapon. Ross v. State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992).
        Appellant argues that no witness saw the actual shooting and, at most, only saw appellant holding a gun close to Virginia's head. In contrast, he testified that the gun “went off” during a struggle in which they were standing, facing each other, and that he never pulled the trigger.
        After reviewing the evidence under the appropriate standards, we conclude it is both legally and factually sufficient to show that appellant intentionally caused Virginia's death. The evidence showed that on the night before the shooting, Virginia arrived home from work crying and stressed. She told her mother that appellant tried to grab her and threatened to kill her if she did not “take off” with him. When Virginia's mother called appellant to ask him to leave her daughter alone, appellant told her that he would not leave Virginia and preferred to see her dead. The next morning, appellant went to Virginia's workplace and dragged her outside at gunpoint. Several eyewitnesses testified that Virginia struggled and pleaded for help but could not escape. When coworkers attempted to intercede, appellant point the gun at them. Once outside, appellant tried to force Virginia into his truck and pointed the gun at her head as she was lying on her back in the truck. Just before the shot was fired, one witness heard Virginia say, “wait, wait.”
        In addition to this evidence, the State presented the two letters that show appellant had formed the intent to kill the day before the shooting. In particular, in the letter to his sister, appellant said he could not bear going through another failed relationship and said if he could not be with Virginia, “then nobody is.” Appellant also wrote that “somebody like her doesn't deserve to live.” Although appellant testified that he wrote the letters when he was depressed and never had the intention of killing Virginia, the jury was not required to believe his testimony.
        Given appellant's statements the night before and his actions on the day of the shooting, the jury could reasonably have inferred that appellant fully intended to kill Virginia when he kidnapped her from work and rejected his testimony that the shooting was an accident. We reject the first and second issues.
        In his third and fourth issues, appellant argues that the State failed to prove that he “voluntarily” engaged in conduct that resulted in Virginia's death. A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. Tex. Pen. Code Ann. § 6.01(a) (Vernon 2003). Voluntariness, within the context of section 6.01(a), refers only to one's physical body movements. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003). If those physical movements are the nonvolitional result of someone else's act, are set in motion by some independent nonhuman force, are caused by physical reflex or convulsion, or are the product of unconsciousness, hypnosis, or other nonvolitional impetus, that movement is not voluntary. Id.
        Appellant does not dispute that he was holding the gun when it discharged. Rather, he argues that the gun discharged “as a result of [Virginia] grabbing the pistol and the pistol did not discharge due to any physical movement” on his part. As before, he denies that he pulled the trigger and argues that no one saw the actual shooting.
        Jason Huckins testified he saw appellant trying to force Virginia into the truck, and she was half in the vehicle, half out, lying on her back while appellant held the gun to her forehead. Similarly, Vincente Renteria testified that he saw appellant with “something shiny” in his hand and the object was “very close” to Virginia's head. As appellant pushed Virginia into the truck, Virginia was “leaning back.” He heard Virginia say, “wait, wait,” immediately followed by a gunshot.
        Forensic evidence also supported that Virginia was lying on her back inside the truck when she was shot in the forehead from less than two feet away. The bullet traveled from front to back, slightly upward, and exited the back of the head. Police found pieces of biological matter, such as brain and bone, blood, and hair, inside appellant's truck. Additionally, they recovered a .380-caliber cartridge case on the rear bench seat and a damaged, fired bullet on the floorboard. The firearms examiner tested the trigger pull and determined it would take between 6.699 and 6.756 pounds to pull the trigger to fire the gun, compared to less than two pounds for a light trigger pull. Also by testing, the examiner determined the gun would not go off on its own even if it hit the ground.
        Reviewing the evidence under both standards, the evidence is legally and factually sufficient to prove that appellant voluntarily engaged in the conduct that resulted in Virginia's death. We reject the third and fourth issues.
        In his fifth and sixth issues, appellant complains the trial court erred in denying his motion to suppress the two letters seized from his Arlington home because (1) the search warrant affidavit did not contain probable cause for the magistrate to conclude the letters were probably at appellant's home and (2) the search warrant violated article 18.02(10) of the Texas Code of Criminal Procedure, which prohibits issuing a warrant for the seizure of the “personal writings” of the accused.
        A hearing was conducted on appellant's motion to suppress prior to jury selection. At the hearing, the search warrant was admitted into evidence. In the affidavit supporting the warrant, Detective Cliff Williams explained that police received a “shooting in progress” call. At the scene, one witness told police he saw appellant take Virginia to his truck, but the truck was gone and a large amount of blood was located where the truck was parked. Police spotted the truck, followed it to the hospital, where appellant was arrested and Virginia was treated for a gunshot wound to the head.
        When the police contacted Virginia's mother, she told them that appellant had grabbed her daughter the day before and threatened to kill her. Mrs. Barrerra said she called appellant and told him not to threaten her daughter, that her children needed her:
 
The suspect replied, I'm going to kill her, I'm going to kill myself and that he has it all written out, and he added that he had a son. It was learned that the victim and the suspect have had a relationship that she has been trying to end due to getting back with her husband. The suspect has been to Mrs. Barrerra's [sic] residence previously and has made threats to husband.
 
 
 
Based on the fact that the suspect made comments that he has everything written down about what he was going to do and those documents weren't located in his vehicle, they are possibly inside his listed residence.
 
The magistrate signed the warrant, and police searched appellant's apartment and found the two letters - sealed, stamped, and addressed - on a table.
        On appeal, appellant argues that the allegations in the search warrant are not sufficient to support the magistrate's conclusion that the object of the search - the letters - were probably at appellant's apartment. Appellant argues that the fact appellant had something “written down” could mean “on a park bench” or anywhere else, not necessarily in the apartment. Also, he argues the affidavit failed to set out how it was determined that apartment 275 in Silverwood Apartments at 1119 Golmark in Arlington was appellant's apartment.
        This Court reviews de novo the trial court's determination that the magistrate had probable cause to issue the search warrant. State v. Wester, 109 S.W.3d 824, 826 (Tex. App.-Dallas 2003, no pet.). Giving great deference to the magistrate's decision to issue the warrant, we determine whether, considering the totality of the circumstances, the magistrate had a substantial basis for concluding probable cause existed. Id.; see also Illinois v. Gates, 462 U.S. 213, 238 (1983). The allegations in the affidavit are sufficient if they would “justify a conclusion that the object of the search is probably on the premises.” Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996). A search warrant affidavit must be read in a common sense and realistic manner. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986), citing Gish v. State, 606 S.W.2d 883, 886 (Tex. Crim. App. 1980). The magistrate is permitted to draw reasonable inferences from the facts and circumstances alleged. Id. at 363. It is enough that a person of “reasonable caution” would believe that the articles sought were located at the place to be searched. Bower v. State, 769 S.W.2d 887, 902 (Tex. Crim. App. 1989).
        Here, the affidavit set out that appellant threatened to kill Hernandez the night before she was murdered. Hernandez's mother had a conversation with appellant that night and asked him to not to threaten her daughter. Appellant's response was that he was going to kill Hernandez and that he had it “all written down.” After Hernandez was shot by appellant the next morning, police did not find the writings in his truck. That being the case, it was reasonable for the magistrate to infer the writings would be found at appellant's listed residence, his apartment.
        With respect to appellant's argument that the affidavit does not set out how it was determined that apartment 275, Silverwood Apartments, 1119 Goldmark, was appellant's apartment other than stating it was his “listed residence,” appellant did not bring this complaint below. Consequently, it is waived. Regardless, the warrant application (1) listed the suspected place as 1119 Goldmark #275, Arlington, Texas, and (2) identified appellant as the person in charge of the place and provides his name, address, sex, gender, Texas driver's license number and Social Security number. The magistrate could infer that police obtained appellant's name and address (and the other information) from him when he was arrested and that the “listed residence” referenced in the affidavit is the suspected place controlled by appellant.
        We conclude the magistrate had a substantial basis for finding probable cause to search appellant's apartment for writings that appellant boasted he had relating to his plan to shoot Hernandez. We overrule the fifth issue.         In his sixth issue, appellant argues the letters were his “personal writings” and, as such, could not be the target of a search warrant.
        Article 18.02 of the code of criminal procedure provides that a search warrant may be issued to search for and seize “property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense[.]” Tex. Code Crim. Proc. Ann. art. 18.01(10) (Vernon 2005) (emphasis added).
        The law in this area is scant, but some courts have concluded that the “personal writings” exception was included to protect persons from searches designed to find written evidence by which a person might incriminate himself. Porath v. State, 148 S.W.3d 402, 409 (Tex. App.-Houston [14th Dist.] 2004, no pet., citing Reeves v. State, 969 S.W.2d 471, 483 (Tex. App.-Waco 1998, pet. ref'd). Courts have construed the term “personal writings” to mean those writings such as diaries, memos, and journals that were not intended by the writer to be published to third parties. See Mullican v. State, 157 S.W.3d 870, 873 (Tex. App.-Fort Worth 2005, pet. ref'd ); Porath, 148 S.W.3d at 409; Reeves, 969 S.W.2d at 483.
        Here, the evidence showed that the letters were found on a table at appellant's residence. While certainly personal, the evidence showed they were stamped, sealed, addressed, and ready to be mailed. Given these circumstances, we conclude they were intended by appellant to be published to third parties, in particular to the addressees on the letters. The fact that appellant had not actually placed the letters with the postal service is, in our view, immaterial, because it's appellant's intent that is important to our inquiry. We conclude the letters are not “personal writings” as contemplated by article 18.02(10), and the trial court did not err in failing to suppress the letters as evidence. We overrule the sixth issue.
        In the seventh issue, appellant complains the trial court erred in excluding the expert opinion testimony of forensic toxicologist Gary Wimbish. Appellant urges that Wimbish would have testified about how alcohol and marijuna consumed the night before the shooting impacted appellant's motor skills the next day. In particular, appellant argues Wimbish's testimony would have aided the jury in understanding his “physical actions during the struggle with the complanant over the pistol.”
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006), petition for cert. filed, (U.S. July 19, 2006) (No. 06-6055). If the trial court's decision was within the bounds of reasonable disagreement, the appellate court should not disturb its ruling. Id. Voluntary intoxication does not constitute a defense to the commission of a crime. Tex. Pen. Code Ann. § 8.04(a). (Vernon 2003). “Intoxication” means disturbance of mental or physical capacity resulting from the introduction of any substance into the body. Id. at 8.04(d).
        No evidence presented at trial indicates appellant was involuntarily intoxicated; to the contrary, appellant himself testified to the amount of beer he drank the day before the shooting and acknowledged he did so voluntarily. Dr. Wimbish's testimony would have addressed the effect of those twelve to eighteen beers on appellant's physical capacity the following morning. Because appellant's physical incapacity due to his voluntary intoxication would not constitute a defense, we conclude any evidence by Wimbish on this issue would not be relevant. Accordingly, we reject the seventh issue.
        We affirm the trial court's judgment.
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051352f.u05