Farhad George Villarreal a/k/a Farhad George, Jr. v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-02-00224-CR & 04-02-00225-CR
Farhad GEORGE, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2001-CR-4063 & 2001-CR-4064
Honorable Sid L. Harle, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 12, 2003

AFFIRMED

Farhad George, Jr. ("George") appeals two murder convictions. Because the issues in these appeals are settled by existing precedent, we affirm the trial court's judgments in this memorandum opinion. Tex. R. App. P. 47.4.

1. In his first issue, George asserts that the trial court abused its discretion in finding that the statement George gave to police was voluntary. The State correctly responds that any error in admitting the statement was waived when trial counsel stated that he had "no objection" after questioning the police officer on voir dire. See Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986); De Hoyos v. State, 81 S.W.3d 853, 854 (Tex. App.--San Antonio 2002, no pet.).

2. George's second issue complains that the trial court erred in admitting a statement by George's brother into evidence as an adopted admission. During the testimony of Andrew Reyes, the prosecutor inquired about conversations he had with George and George's brother, Hector. Reyes testified that he expressed concern about what might happen to him in view of the shootings that had occurred. Hector told Reyes that he had nothing to worry about because George had shot the victim after the victim cut Hector in the face. George then told Reyes that if he had to go to jail, he would go to jail. Rule 801(e)(2)(B) provides that a statement offered against a party is not hearsay if the party manifested an adoption or belief in its truth. Tex. R. Evid. 801(e)(2)(B). "Adoption of statements may be manifested in actions, responses, or acquiescence." Legate v. State, 52 S.W.3d 797, 802 (Tex. App.--San Antonio 2001, pet. ref'd). George's response manifested an adoption or belief in the truth of Hector's statement; therefore, the trial court did not abuse its discretion in admitting the statement.

3. George's third issue complains about the admission of a crime scene videotape and an autopsy photograph. George contends that the evidence's prejudicial effect outweighed its probative value. Before the videotape was introduced into evidence, the only objection raised by trial counsel was that the videotape was repetitious. While the videotape was being played for the jury, trial counsel raised an objection regarding its relevance and its prejudicial effect. Assuming that the objection during the playing of the videotape was timely, the trial court overruled the objection but stopped the playing of the videotape, stating "I think anything left on the tape is beyond the scope of this proceeding." Assuming the trial court erred in not excluding the remainder of the videotape, "[w]e will not overturn a case on a non-constitutional error if, after examining the record as a whole, we have a fair assurance that it did not influence the jury, or influenced them only slightly." Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002). Considering the weight of the other evidence, including the testimony of the other witnesses and George's statement to the police, the admission of the videotape did not unduly influence the jury in its decision. See id. Similarly, if the trial court erred in admitting the autopsy photograph, the error was harmless. See id.

4. George's fourth issue complains that the trial court abused its discretion in admitting evidence of a broken pool cue without connecting the broken pool cue to George. Trial counsel objected to the evidence on relevancy grounds. Relevant evidence means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. In the instant case, several witnesses testified about the use of broken pool cues in the fight at the bar preceding the shootings, and other witnesses testified about the pool cues being taken from the bar when one of the victims was being chased. The evidence of the broken pool cues tended to support these witnesses' version of the events and was relevant for that reason. Accordingly, the trial court did not err in admitting the evidence.

5. In his fifth point of error, George contends that the trial court erred in denying his request to include in the jury charge the lesser included offenses of manslaughter, criminally negligent homicide, and deadly conduct. Because the lesser included offenses were not requested in trial court number 2001-CR-4063, this issue is not properly presented for our review in appeal number 04-02-00224-CR.

In order to be entitled to a lesser included offense instruction, the lesser-included offense must be included within the proof necessary to establish the offense charged, and there must be some evidence in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty of only the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Moreno v. State, 38 S.W.3d 774, 779 (Tex. App.--Houston [14th Dist.] 2001, no pet.). George was not entitled to the lesser included offense of deadly conduct because deadly conduct is not included within the proof necessary to establish murder. Moreno, 38 S.W.3d at 779. With regard to whether George was entitled to instructions on the lesser included offenses of manslaughter and criminally negligent homicide, George's brief contains an abundance of citations to cases examining lesser included offense instructions; however, George's brief does not provide any record citations to testimony in the reporter's record that would permit a jury to rationally find that George was guilty only of a lesser offense. The reporter's record contains approximately 1,000 pages of trial testimony presented during the guilt-innocence phase of the trial alone. A brief must contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). George's brief ignores the record citation requirement set forth in rule 38.1(h); therefore, George has not properly presented this issue for our review.

Even if we address the issue based on the record citations provided in the State's brief, we would conclude that George was not entitled to instructions on the lesser included offenses of manslaughter and criminally negligent homicide because George's testimony at trial would not permit a jury to rationally find that George was only guilty of a lesser offense. George stated that he pulled the gun up and pulled the chamber/slide at the same time. In response to whether George saw the intended victim when the pistol discharged, George stated that "When I shot - because I shot and I was looking - it is like my hand almost hit my fac[e]. I looked again, he's in a crouched position running away." Although George testified that he did not have time to aim or to look and study the surrounding area, George stated that he brought the pistol up and fired, knew he shot somebody, but knew he did not hit his intended victim. The fact that George hit an unintended victim does not entitle him to a charge on a lesser included offense because George's intent with regard to his intended victim transfers to the actual victim. See Tex. Pen. Code Ann. 6.04(b) (Vernon 1994); Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App. 1999); Harrell v. State, 659 S.W.2d 825, 827 (Tex. Crim. App. 1983).

The trial court's judgments are affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH