ADAM ERNEST CHAPA, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM; Opinion Filed November 13, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01359-CR
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ADAM ERNEST CHAPA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-35376-Q
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MEMORANDUM OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Moseley
        Adam Ernest Chapa appeals his conviction for the murder of David Holloway. Chapa was charged with the offense of capital murder, but the jury found him guilty of the lesser-included offense of murder. The jury found the enhancement paragraphs to be true and set punishment at seventy-five years' confinement. In five issues, Chapa asserts that the evidence is legally and factually insufficient to support the conviction, the State failed to prove the grand jury used due diligence to identify the murder weapon, and the trial court erred in denying motions for mistrial made after a police officer offered an opinion of the truthfulness of another witness and after the State improperly asked Chapa about a prior misdemeanor assault. The background of the case and the evidence adduced at trial are well known to the parties; thus we do not recite them here in detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. For the reasons set forth below, we affirm the trial court's judgment.
        Chapa's first and second issues challenge the legal and factual sufficiency of the evidence to support his murder conviction. We apply the appropriate standards of review. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Watson v. State, 2006 WL 2956272, *7 (Tex. Crim. App. Oct. 18, 2006) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000) (factual sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (legal sufficiency). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. See Tex. Code Crim. Proc. Ann. Art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
        A person commits the first degree felony offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02 (Vernon 2003). The record contains evidence that at approximately 1:20 a.m. on June 30, 2004, a police officer attempted to pull over a Toyota Camry, driven by Hamill and Chapa, a passenger. A chase ensued and during the chase a police officer saw Chapa throw a lighter in the backseat of the car. The police officer arrested Hamill and Chapa for suspicion of auto theft and outstanding warrants and took them to jail. At the time of arrest, the police officer noticed red splotches on Chapa's shoes and found a knife and a black and a brown wallet in his possession.
        Meanwhile, at approximately 3:20 a.m., an Irving maintenance worker discovered Holloway's body in a Porta-potty at Campion Trails Park. When the police officer arrived he saw blood everywhere and holes in Holloway's body. Holloway's pant pockets were turned inside out, and there was change on the ground near his body. At trial, the medical examiner testified that Holloway died as a result of three gunshot wounds to the face and the back of the head and neck and stab wounds. The firearm examiner testified that Holloway was shot with a .38 caliber gun. A witness testified he heard Chapa threaten Holloway's life and display a knife and a .38 caliber gun the day before the murder. The brown wallet found in Chapa's pocket was identified as Holloway's.
        Chapa argues the evidence is factually insufficient to prove he participated in Holloway's murder. He testified that he helped dispose of Holloway's body but was not present at the time of Holloway's murder. However, the DNA evidence presented at trial showed that the bloodstains on Chapa's shoes, shirt, jeans, and ring matched Holloway's DNA. The gunshot residue found on Holloway's shirt indicated that the shots were fired from a distance of approximately one and one half to two feet. The blood on Chapa's clothes was from high velocity blood splatter, indicating that the bloodstains were caused by the gunshot itself.
        Having considered all the evidence in the record (including the above evidence) in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Further, viewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson, 2006 WL 2956272 at *7. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We conclude the evidence is legally and factually sufficient to support Chapa's conviction for murder. We resolve Chapa's first and second issues against him.
        In Chapa's third issue, he contends the State failed to prove that the nature and description of the alleged deadly weapon used to stab Holloway was unknown to the grand jurors. He argues the State was required to prove that the grand jury used due diligence to discover the nature and description of the murder weapon. However, we measure the sufficiency of the evidence by the elements of the offense as defined by the “hypothetically correct jury charge for the case.” The hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense. Gollihar, 46 S.W.3d at 253; Malik, 953 S.W.2d at 240. A non-essential element of the charge, such as an allegation that the object used to cause the death was unknown to the grand jury, may properly be excluded from a hypothetically correct jury charge. See Gollihar, 46 S.W.3d at 256; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). Such an allegation is disregarded in reviewing the sufficiency of the evidence. See Gollihar, 46 S.W.3d at 256-57. Thus, even if the evidence were insufficient to show the object was unknown to the grand jury after due diligence, such would be an immaterial variance. Richards v. State, 54 S.W.3d 348, 350 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd). We resolve Chapa's third issue against him.
        In Chapa's fourth and fifth issues, he argues the trial court erred in denying motions for mistrial made (1) after a police officer offered an opinion on the truthfulness of another witness, and (2) after the State improperly asked Chapa if he had been convicted of misdemeanor assault. We will not disturb a trial court's ruling denying a motion for mistrial unless it amounts to an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A trial court should only grant a mistrial in extreme cases when error is so prejudicial as to appear calculated to inflame the minds of the jury members. Id. Whether an error necessitates a mistrial depends on the particular facts of the case. Id. Seldom will an improper question require a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Id.
        The record shows the question to the police officer related to his opinion concerning a witness's capacity for deception. The trial court sustained Chapa's objection, instructed the jury that what the attorney said was not evidence, and denied Chapa's motion for mistrial. Chapa argues, however, that the jury gave the police officer's opinion great weight and would be unable to ignore the evidence. We conclude the trial court's instruction cured any possible harm caused by the question. The question was not so prejudicial as to necessitate the conclusion that it was calculated to inflame the minds of the jurors. We conclude the instruction to disregard cured any harm that resulted.
        Chapa also argues the trial court erred in denying a motion for mistrial made after the State asked him about a prior misdemeanor assault conviction. Although Chapa did not respond to the question, he argues the information conveyed by the prosecutor portrayed him as a violent person and influenced the jury's verdict. After reviewing the record, we conclude the trial court's prompt instruction to the jury cured any error from the objectionable question. See Ladd 3 S.W.3d at 567. “Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer.” Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). Nothing in the record indicates this statement had the potential or was calculated to inflame the minds of the jury in such a way that any improper impression could not be cured by a prompt instruction. See Hinojosa v.
 
 
 
State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). We resolve Chapa's fourth and fifth issues against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051359f.u05
 
 

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