Robert Cruz Lozano v. The State of Texas--Appeal from 362nd District Court of Denton County (Majority)
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
ROBERT CRUZ LOZANO
THE STATE OF TEXAS
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
A jury found Appellant Robert Cruz Lozano guilty of the murder of his wife,
Virginia Lozano, and sentenced him to forty-five years in prison. The trial court
entered judgment accordingly. Appellant raises seven issues challenging the
sufficiency of the evidence, several of the trial court‘s evidentiary rulings, and a
portion of the trial court‘s jury instructions.
II. Factual Background
On July 6, 2002, Appellant‘s wife, Virginia (Viki) Lozano, died of a multipletrauma gunshot wound in the bedroom of their Denton residence, where they
lived with their eleven-month-old son, Monty, and Viki‘s mother. At that time,
Appellant was a detective with the Denton Police Department.
A. Appellant’s Written Statements
In a voluntary statement given two days after his wife‘s death, Appellant
gave a lengthy, detailed description of the activities leading up to the shooting.
He explained that he and his wife had gone out the evening before to celebrate
their sixteenth wedding anniversary, had come home, played with Monty, and
gone to bed. The next afternoon, he, Viki, and Monty went to Target and arrived
back home around 4:30 p.m. According to Appellant, Monty went to bed around
7:00 p.m. Appellant then,
decided to play a computer game called either Mo-Huang or MaHuang [sic]. It is a game of puzzle pieces which require that they all
be removed in order to win. Viki chose to lie in bed and watch t.v.
She had not felt well for the last week. . . . I played the computer
game for nearly an hour when I decided that I would take a moment
to clean my service weapon. I currently possess a Glock 9mm
handgun. Viki and I had made plans to shoot my gun at the Denton
P.D. firing range the following day. . . .
I went into the kitchen and I grabbed a section of the day‘s
newspaper. . . . I returned to the bedroom and I unfolded the paper
and laid it on the bed opposite where Viki was lying. . . . I placed my
gun cleaning box on the paper and then I removed my gun from my
duty shoulder holster. I removed the fully loaded magazine from the
gun and I placed it atop the paper. I then also removed the live
round from the gun‘s chamber. I left the gun with its slide locked
open. I asked Viki if she didn‘t mind that after I cleaned the gun if I
could go to tan. She offered to clean my gun while I went to tan so
that we would have a little more time together when I returned. I told
her not to worry about it since it would take only a few moments to
clean the gun. As I started to take the rags from the cleaning box, I
changed my mind and decided to go and tan first and then return to
clean the gun. I didn‘t want to have the residue of the cleaning fluids
on my hands when I went to tan. She again offered to do it for me
and [I] told her to relax and watch whatever it was she was watching.
. . . I believe that it was nearing 8:30 p.m. when I left the house. I
tanned for a twenty-minute session and as I was leaving, I asked the
kid at the front desk how his Fourth of July celebration had gone for
him. He told me that he had spent it with some friends and had a
good time. . . .
When I returned home which was approximately 9:00 p.m., I
noticed that Viki was lying somewhat awkwardly on the bed. She
was facedown and slightly to the left of her left hip. I asked her if
she was feeling ill and I received no response. As I continued to
walk around to her side of the bed, I again asked her if she was
okay. I then noticed that the newspaper and the cleaning box had
been moved from where I had left it. I think I may have again asked
if she was okay but this time it was much more frantically. I raised
her up and as if it were in slow motion, her listless body fell
backward onto the pillow nearest the metal headboard. I saw her
tongue hanging from her mouth and the color of her face was
extremely pale. I looked down where she had laid and I noticed a lot
of blood on the sheets. I grabbed her by her shoulder and I
screamed for her to respond. She remained completely lifeless as I
repeatedly shook her to have her regain consciousness. When I
saw the hole in the middle chest portion of her nightgown, I knew
that she had been shot. I then thought only to run to the bedroom
telephone to call 9-1-1. . . . I begged that she have ambulance
personnel come quickly. My thought then suddenly turned toward
my son. . . . I ran to his bedroom which is located across the house
and I opened his door. I immediately picked him [up] and it was
apparent that I had scared him since he began to cry. He was
actually sound asleep. I ran back to the telephone in the bedroom
and I again spoke with the dispatcher. I recall her asking whether
she was still breathing and I think I replied that I didn‘t know. She
asked that I begin CPR until the paramedics arrived. I think that I
placed Monty down on the floor near the telephone as I ran back to
Viki‘s side of the bed. I started to cross my left leg over her body for
better leverage when massaging her chest and then blowing in her
mouth. I then noticed the gun which I picked up and tossed to one
side. Although I did not straddle her body, I did begin CPR
procedures from her side of the bed. I know that I was failing to do it
properly because I was overcome with emotion. I begged her not to
die and not to leave us alone. Moments later, I think I ran back to
the phone to tell the dispatcher that she was either not breathing or
that she was unconscious (perhaps neither or both). . . . I left the
front door wide open to help the paramedic‘s entry into the house
and I believe that I turned on several outside lights. I‘m not sure
what happened after this. . . .
I believe that Viki‘s untimely death was purely accidental. She
had been so happy and had found great joy in the life of our
newborn child. . . . Viki was not suicidal. She had no reason to be
so. . . .
I was asked whether Viki ever suffered from depression. My
answer is ―yes‖. When her father ha[d] passed away several years
ago, I hadn‘t actually realized how close they had been. She was
tormented by his death from cancer and often cried for his absence
from our lives. . . . Viki, herself, was ill for much of the last several
years of our marriage. She suffered from a condition which involved
long moments (days) of fatigue, listlessness, and an arthritic
condition. She was also medically deemed a ―free-bleeder‖. . . .
This was our major concern after we decided to have our child. We
knew that the possibility existed that she would not survive childbirth.
Incredibly, Monty‘s birth went extremely well. However, the doctor
discovered that she was torn from the inside as he passed through
her vaginal canal. Her vaginal canal suffered a four to six inch tear
which required stitching. . . . On the follow-up visit soon after
Monty‘s birth, the gynecologist (Dr. Popov) discovered that the
stitche[s] had torn and were no longer holding the vaginal wall intact.
She did not order a second surgery fearing that Viki was too weak to
survive it. It was requested that she be bedridden for almost two
months and that failure to follow these instructions exactly would
result in continued free bleeding from her vaginal tear. As it
occurred, Viki heeded this advice as I was left to attend to Monty‘s
every need. . . . Other than these two matters (her father‘s death
and her inability to care for Monty during his early childhood), Viki
never appeared overly depressed. She had everything to live for as
she voluntarily took one year‘s leave of absence from school to be at
home with Monty. . . .
At the time of Viki‘s death, Appellant was dating fellow detective Cynthia
Waters. When Waters learned that Appellant‘s wife had died, she approached
her supervisors, revealed her relationship with Appellant, and provided several
After learning of this, Appellant provided officials with a
supplemental statement, explaining that his prior statement—that he and Viki had
played with their son and then gone to bed after their anniversary dinner—was
―incorrect.‖ He explained that he actually left home that night (telling Viki he
needed to go to the office), went to Waters‘s home for two hours, and then
B. First Responders and Initial Investigation
Captain Luke Scholl
At 9:05 p.m. on July 6, 2002, paramedic and firefighter Captain Luke
Scholl was dispatched to an emergency at 3800 LaMancha in the city and county
of Denton, Texas. The dispatcher alerted all the responders to a gunshot wound
and advised more than once that CPR had been started by the 911 caller.
Captain Scholl arrived at 9:09 p.m. He testified that the victim‘s chest wound
was directly where the palm of the hand would be placed to start CPR and that
performing CPR for five minutes would cause a person to be out of breath.
When Captain Scholl arrived, however, he saw a calm adult male (hereinafter
Appellant) with no apparent blood on his hands or clothes standing on the front
porch holding a child.
Captain Scholl testified that he entered a bedroom and found a female
(hereinafter Viki) in her mid-thirties lying on her back on a bed, blood in the
middle of her chest, with her right leg hanging off the side.
She was not
conscious or breathing. She was very cold to the touch and very waxy, which
indicated that she had been dead ―for quite some time.‖ She was pale and had
lividity in her right foot around the ankle area. Captain Scholl explained that
lividity is the pooling of the blood that starts thirty to forty-five minutes after death,
gives the body a mottling or blanched look, and begins in the lowest part of the
―[L]ividity is an indication that [the person has been] deceased long
enough that they are not salvageable, that their body has begun the process of
The first responders did not try any life-support techniques
because the victim had sustained a gunshot wound to the chest, the body had
observable lividity and was very cold to the touch, and the skin was waxy and
clammy. Captain Scholl agreed on cross-examination that lividity can set in as
early as twenty minutes after death but added that in his experience ―that body
had been there a lot longer than an hour.‖
Firefighter and Paramedic Brandon Galbraith
Firefighter and paramedic Brandon Galbraith also responded to the scene.
When Galbraith asked Appellant if he had performed CPR, Appellant responded,
―She‘s in there.‖
Galbraith ultimately concluded that CPR had not been
performed. Galbraith noticed that Viki had been shot and showed no signs of
life; her hand was cold to the touch, her skin looked pale white, and she had
lividity in her right foot. Galbraith lifted Viki‘s right shoulder to check for lividity,
which he saw in her lower right back. On cross-examination, Galbraith disagreed
with a description in the official EMS patient form that he had rolled Viki‘s body to
check for lividity. Based on lividity and Viki‘s skin temperature and appearance,
Galbraith determined that she had been dead longer than an hour.
Police Social Worker Richard Godoy
Richard Godoy, a certified police officer and social worker with the Denton
Police Department, testified that he and Appellant were colleagues and friends.
Officer Godoy described Lozano as ―Mr. GQ,‖ very polished, and obsessed with
neatness and looking good. At the scene, Appellant looked ―real polished‖ and
―like he had just got out of the shower, ready to go take some pictures.‖
Appellant told Officer Godoy that he had left his gun on the bed and had gone to
the tanning salon; he stated, ―[Y]ou know how Viki likes to tinker with things and
she‘s always doing things for me, and maybe she wanted to clean my gun for me
while I was gone.‖ In Officer Godoy‘s opinion, Appellant‘s statements that he had
tried to revive Viki with CPR seemed inconsistent with his clean appearance.
Officer Godoy testified that Appellant‘s facial expression was a forced grimace
that looked like he was trying to imitate crying. On cross-examination, Officer
Godoy acknowledged that people grieve differently and that police officers are
trained to control their emotions.
Chief Deputy Sheriff Lee Howell
Lee Howell testified that he was presently the Chief Deputy Sheriff of
Denton County but that in 2002 he had been a lieutenant in the Denton Police
Department and supervised Appellant.1 After arriving at the scene, Chief Deputy
Howell contacted the Texas Rangers to help conduct the investigation due to
Appellant‘s position.2 The chief deputy testified that Appellant appeared to be
more nervous than upset; appeared to be worried about what law enforcement
was doing; and never made eye contact with, or spoke to, him.
Chief Deputy Howell used photographs to describe the crime scene—the
deceased lying face up on the bed, a gunshot wound in her chest, her right leg
hanging off the bed, and a considerable amount of lividity in her lower right leg
and foot. Also on the bed was a single sheet of newspaper, a Glock pistol, a
brown box that contained gun-cleaning supplies and tools, a dishtowel and a pair
of white athletic-type socks. The chief deputy testified that, due to the location of
this newspaper sitting on top of the folded-back bedspread and the location of
the other items on the bed, the scene appeared to be staged. It is unusual for
someone to clean a gun on a bed, but even more than that, it did not look as if
someone had actually cleaned the gun on the bed; instead it appeared that
―someone had come in afterwards and put the items in place.‖
Chief Deputy Howell testified that he had either investigated or supervised
several hundred major crime scenes.
The Texas Rangers are the investigative branch of the Texas Department
of Public Safety, and its primary function is to assist other agencies in their
investigations when asked.
Chief Deputy Howell also testified that he had cleaned firearms many
times before and that he did not know anyone who would soak a gun in as much
oil as this one had been. It appeared that someone ―had just taken the spray can
and held the gun and just sprayed it down, you know, all over, which would be an
odd way for me to do it, and I don‘t know of any other people that clean guns that
way.‖ He testified that the pair of dirty socks on the bed did not appear to have
any oil or gun residue on them and appeared out of place. They did not look like
they had been used in the cleaning process. Chief Deputy Howell testified that
Viki‘s hands did not look like she had cleaned a gun or even sprayed it down with
oil; her hands did not appear to have any oil or gun residue on them. He further
testified that the only way to keep gun residue off one‘s hands during gun
cleaning would be to wear gloves and that no gloves were found in the bedroom.
He testified that he had personally observed the onset of lividity in at least six
deceased individuals and that, in his experience, lividity usually did not become
visible in less than an hour and a half. He later acknowledged having heard in
training that it could set in after thirty minutes.
Chief Deputy Howell testified that when he read Appellant‘s voluntary,
written statement, he became more convinced that Appellant was not telling the
The chief deputy noted several inconsistencies between Appellant‘s
statement and the crime scene evidence. For one, the level of lividity in Viki‘s
body indicated that Appellant‘s time frame regarding his trip to the tanning salon
―should have been a little bit longer‖ than the forty to forty-five minutes Appellant
estimated; there had to be enough time for Viki to begin cleaning the gun, shoot
herself, and then time left for lividity to set in.
Further, Appellant described
finding Viki upright but ―facedown‖ (and demonstrated to Trooper Murphree how
Viki was upright with her face hanging down), but there was no lividity in her face,
and instead, her face was very pale.
Moreover, Appellant‘s obsession for
neatness, cleanliness, and appearance were inconsistent with cleaning a gun on
the bed. Also, Appellant‘s statement that Viki was ill that night was inconsistent
with Viki volunteering to clean the gun. Although Appellant described performing
CPR, there was no blood on Appellant or his clothing. Further, Appellant was
trained in CPR and should have known that Viki‘s body needed to be on a flat
surface like the floor to effectively implement CPR. If Appellant performed CPR,
it would have been for less than a minute (based on his conversation with the
911 operator), and police officers are trained that once CPR is initiated it should
not be stopped until paramedics arrive. Chief Deputy Howell also noted that
Appellant‘s first statement to officials omitted the relevant fact that he had a
mistress, and the existence of an affair could be a very stressful situation that
could show a motive for homicide.
On cross-examination, Chief Deputy Howell acknowledged that neither he
nor any other officer photographed Appellant‘s hands nor tested them for
gunshot residue that night.3
When asked why Appellant‘s car was not
impounded and the house sealed off, the chief deputy stated that, if he had it to
do over, he would do it differently. He explained that they were trying to minimize
the disruption to the family and that initially they had no reason to believe that
anything outside of the main bedroom suite and the immediate surrounding area
had any evidentiary value.
Captain Jeffrey Allen Wawro
Jeff Wawro, a captain in the Denton County Sheriff‘s Office, was an
investigator with the police department (and had investigated 250 to 300 cases a
year for fourteen years) and assisted in the instant investigation. He testified that
he did not see any evidence of blood on Appellant‘s hands or clothing or on the
baby‘s clothing, even though performing CPR on a chest wound would have
The investigative team photographed the crime scene before touching
anything, thereby freezing it in time.4 Captain Wawro testified that ―the first thing
that jumped out‖ was that there was a gun-cleaning kit and newspaper on top of
the bed. He explained that ―[i]t‘s pretty uncommon for us‖ to clean a gun in the
He further explained on re-direct that the gunshot residue kits they had at
the scene had expired and that he had heard that Appellant had already washed
his hands, which would have washed away any trace of gunshot residue.
Captain Wawro testified on cross-examination that the investigative team
began taking pictures approximately two hours after the police arrived at the
house, much less on a bed.
He also found it unusual that Appellant was
preparing to clean his gun before—rather than after—going to the gun range;
afterward it would be dirty from being fired. He also found the excessive amount
of oil on the gun to be unusual. Captain Wawro was the first to pick up the gun,
and it was ―dripping with oil.‖5 He explained that a Glock has a plastic finish, that
there are only a few metal parts, and that only a couple of drops of oil are needed
to keep it clean because ―[o]il collects dirt and dust, and then the weapon will not
clear and function.‖ Captain Wawro testified that he photographed Viki‘s hands
and that some specks of blood and residue—but no dripping oil—can be seen on
her right hand. ―It would be impossible, I would believe, to be able to hold this
weapon, as dripping with oil as it was, without having gun oil on your hand.‖
Viki‘s left hand had no signs of oil and less blood than the right hand. Referring
to crime-scene photographs, Captain Wawro described how he concluded
(based in large part on the blood evidence) that the comforter on the bed had to
have been moved after Viki had been shot and that the newspaper, gun, and
Viki‘s arm had to have been placed on top of the comforter.
Captain Wawro testified that Viki had to be lying on her left side when shot.
As the medical examiner concluded, the spent bullet passed through her heart
and, as it exited her left side, pushed the skin against a firm surface (in this case
Captain Wawro agreed on cross-examination that no oil is apparent in
certain photographs of the weapon on the newspaper. On re-direct, he testified
that a rag hides the majority of the oil in certain photographs but that another
photograph provided a much clearer image of the overspray on the gun.
the mattress), causing the bullet to remain inside her pajama top. The captain
and the prosecutor then demonstrated how Viki‘s body and the gun had to be
positioned in light of the wound, the track of the bullet, and the firing distance of
three to six inches. Captain Wawro testified that he had never ―pointed a gun
[lying] down on [his] side holding it like this,‖ that this would be ―[p]retty hard to
maneuver,‖ and that a person would probably not load the weapon before
The captain testified that if Appellant‘s statements were true—that he
found Viki ―facedown and slightly to the left of her left hip‖—there should have
been some lividity in her face and none in her back. Viki had no lividity in her
face, but clear lividity in her foot and back. Although he had seen many bodies
with lividity, he had never seen lividity appear as early as thirty to forty minutes. 6
The captain testified that blood transfer was found on a ―Break-Free‖ can
of oil, found between the newspaper and the gun-cleaning kit.
showed the blood to be Viki‘s. A fingerprint was found within the blood, but it
could not be identified (although the first responders and investigative team were
excluded because they all wore gloves). Captain Wawro testified that, assuming
the print was from human skin, someone moved the can after Viki was shot
because ―she would not be losing blood on a can unless it was after the shooting
When Appellant‘s trial counsel asked whether Captain Wawro had any
reason to dispute trained pathologists‘ opinions that lividity can set in as early as
twenty to thirty minutes, the captain responded, ―[o]ther than the fact that I‘ve
never seen it happen, no I cannot dispute that.‖
had occurred.‖ He further testified that, due to the nature of the wound, it was
highly improbable (although not impossible) that Viki was shot, got blood on her
hand, and then picked up the can and moved it.7
Later testing revealed popcorn on Viki‘s body and trace amounts in her
mouth, stomach, and in the bed; investigators did not look for popcorn at the
scene, however, because a bowl was not found on the bed, and no popcorn was
found on the floor or underneath the bed. Captain Wawro testified that, if Viki
had risen from bed to return the bowl, the popcorn in her loose pajamas would
have fallen. He also testified that it was unrealistic to think someone would eat
popcorn while cleaning a gun and that it would be inconsistent for someone to
snack on popcorn and then commit suicide.
Captain Wawro testified that, because a weapon had been fired,
investigators ―searched and searched‖ for the shell casing before moving
anything but did not find it. After the body was moved, the investigators collected
items off the bed ―layer by layer‖ and finally found the casing in a bedspread
wrinkle. Captain Wawro explained how the police later used the crime-scene
photographs to determine that the casing had been lying under the gun-cleaning
kit. The casing‘s location indicated that someone had placed the kit on top of the
He testified on cross-examination that he was aware that dogs were on
the bed when the police arrived but that he was not aware of a report that the
dogs had been licking the body. The captain agreed that, if the dogs were licking
the body, they might be inclined to lick the blood. He also agreed that,
theoretically, the dogs could have caused the Break-Free can to roll.
casing. Captain Wawro testified that he prepared a hand-held sketch at the
crime scene and then later tried to create a computer-aided drawing (CAD), but
the software program he used was ―archaic‖ and did not show all the dimensions
that the photographs portrayed. As a result, the CAD drawing is incomplete and
inaccurate, especially its depiction of the shell casing sitting above (instead of
under) the gun-cleaning kit.
Captain Wawro summarized (based on the physical evidence) what had to
have happened for Appellant‘s statement to be true: Viki would have picked up
the weapon, loaded it, put a round in the chamber, oiled the weapon excessively,
and laid on her left side, all while eating popcorn. She then would have pulled
the trigger, shot herself, and then pulled the bedding back, pulled the newspaper
over the bedding, and pulled the gun kit over the casing, before dying in an
upright position, with blood pooling only out of her lower wound and not out of her
On cross-examination, Captain Wawro agreed that the unfinished CAD
diagram shows the shell casing to be above the gun-cleaning kit.
acknowledged that neither his detailed report nor any of the other reports from
2002 documented that the casing was found beneath the gun-cleaning kit.
Appellant‘s trial counsel then read the following statement from the report of
Detective Jason Grellhesl: ―The spent shell casing was located very close to
where the body was found. I then picked up the gun cleaning kit.‖ The captain
characterized this statement as inaccurate and noted that he was ―familiar that a
few of [Grellhesl‘s] lines were out of order.‖
After eliciting from Captain Wawro that the investigators had not disturbed
the integrity of the environment, Appellant‘s trial counsel showed two
photographs of the ―same scene,‖ and Captain Wawro agreed that there were
differences in the photographs. For instance, in one photo the rag is seen on top
of the newspaper and in the other, the rag is seen on the bottom corner of the
On re-redirect, Captain Wawro explained that the photographs
demonstrated the process of moving, collecting, and then bagging evidence. He
also explained that the camera‘s angle can affect a photograph. Captain Wawro
testified that, in every diagram, the casing was listed as 32.5 inches from the
wall. When asked whether there were any indications that the casing was moved
from ―this core area,‖ the captain responded, ―No. Obviously, we were searching
around the perimeters.‖ He further explained that evidence was moved to see if
the casing was underneath, that when the casing was discovered it was
photographed, and that there are no photographs of the casing being discovered
in some other location.
Detective Jason Grellhesl and Officer Craig Fitzgerald
Detective Grellhesl testified that, upon entering the crime scene, he
questioned why anyone would clean a gun on a bed or use such an excessive
amount of oil. The detective testified that, when they began looking for the shell
casing on the bed, the newspaper, the gun case, and the gun-cleaning kit had
been moved down to the foot of the bed, which had already been searched. The
investigators then started trying to spread folds and creases out of the blanket.
After the casing was found, Detective Grellhesl picked up the kit at the foot of the
bed and handed it to another detective. He testified that the casing was under
the fold of the blanket in the same spot where he had picked up the gun-cleaning
kit, so the casing had to have been under the gun-cleaning kit.
Grellhesl testified on cross-examination that he omitted a step in his 2002 report
when he stated that the bedding was examined, the casing was found, and then
he picked up the gun-cleaning kit. But he explained that he actually removed the
kit to the foot of the bed before the casing was found, and this was corroborated
by a visual record.
Detective Grellhesl and Officer Fitzgerald searched the house and found
no evidence of forced entry, no suicide note, and no additional relevant evidence
other than the Target receipt from that day in one of the trash cans.
Texas Ranger Tracy Murphree
Ranger Murphree arrived at the crime scene around 11:00 p.m. He was
part of the crime-scene team, and he took Appellant‘s voluntary statement. Upon
entering the bedroom, he saw Viki lying on the bed with a great amount of blood
on her left side; he also saw a gun-cleaning kit, a newspaper, and a handgun.
His initial impression was that cleaning a gun is extremely messy and that it was
absurd that anyone would consider cleaning a gun in the middle of a bed. In his
opinion, someone inexperienced in gun cleaning would not begin the process by
herself. Someone experienced in gun cleaning would know how messy it is,
would not have put that much oil on the gun, would not have put down only one
thin sheet of newspaper, and would not have faced the barrel toward herself
when charging the gun, i.e., getting the chamber ready to fire. He testified that
there is no circumstance whereby the first step in cleaning a gun would be to
load it. Further, it would take fifteen to twenty minutes to clean a gun ―decently,‖
and it would take as much as thirty minutes to ―really get it clean.‖ Ranger
Murphree testified that he held Viki‘s hand in his gloved hands and did not see
any oil or residue on them. Ranger Murphree testified that the popcorn residue
found in Viki‘s mouth and stomach and inside her shirt and the bedding indicated
that she had been eating popcorn. He testified, ―You don‘t eat popcorn and
clean a gun. Two reasons: Cross-contamination. You don‘t want to get salt in
your gun, and . . . . [y]ou certainly don‘t want [oil] in your popcorn.‖ Additionally,
no popcorn bags were found near the body, a great deal of the popcorn residue
would have fallen off if she had been walking around, and she would not have
been physically able to collect any other ―visible residue‖ after she was shot.
Ranger Murphree reiterated the medical examiner‘s finding that Viki was
lying on her left side when she was shot. This finding was based primarily on the
fact that Viki‘s left-side exit wound was ―shored,‖ meaning that she was lying
against something (like a mattress) when the bullet exited her skin, causing it to
stop and remain within her pajamas. He testified that the gunpowder on Viki‘s
right cheek was consistent with her being on her left side in that the only part of
her face being subjected to the gunpowder was the right side. Ranger Murphree
testified that he could not think of any reason why someone would lie on their left
side and clean a gun held out three to six inches away. He further testified that,
if Appellant‘s statement about Viki‘s body position were true—i.e., with her nose
and the front of her face down over her left side—he would expect to see lividity
in her face, chest area, and probably in her shoulders. He saw no lividity in Viki‘s
face. He explained that, even considering Appellant‘s statement that he lifted her
up and she fell back on the pillow, he still would have expected to see facial
lividity because it would take quite a bit of time for it to drain and go all the way to
the back of her shoulder. Thus, based on the lividity in her back and foot and the
shored exit wound, Ranger Murphree believed that Viki was never ―upright‖ as
described by Appellant. Ranger Murphree testified that, in his experience, the
onset of lividity can occur within thirty minutes to an hour of a person‘s death. In
his opinion, the mid-ankle lividity noted by first responders indicated that ―lividity
ha[d] been existent‖ for an hour to an hour and a half earlier.
timeline—estimated to have been about forty-five minutes—was inconsistent with
Ranger Murphree provided several reasons why he believed the crime
scene was staged. First, the gaps in the blood seen on the bedding indicated
that the bedding had been in contact with blood at one point and then pulled
back. He explained that, ―If it‘s soaking here, it doesn‘t skip an area and then
continue to soak here. It would be a continual soaking through the material. It
can‘t jump over part of the material and continue to soak up through.‖ Ranger
Murphree testified that the newspaper was found on top of a fold in the comforter
and that, because the blood was found underneath the paper (which soaked up
into the newspaper), ―[t]he blood‘s there before the newspaper‘s there.‖ He also
testified that the unidentified fingerprint found in Viki‘s blood on the Break-Free
can indicated that someone contacted Viki‘s blood, used the can to spray the gun
with oil, and then placed the can on the bed.
Ranger Murphree explained how the crime scene was processed and
photographed. He testified that when investigators discovered the shell casing,
they did not immediately recognize that it had been under the gun-cleaning kit
(because the kit and other items had been moved to the bottom of the bed). He
explained that, by using the photographs to obtain reference points (such as the
headboard and patterns on the bedding), they determined the location of the
casing and the kit within a couple of inches. Investigators determined that the
shell casing was underneath the cleaning kit and that the gun was fired before
someone (other than the deceased) placed the cleaning kit there.8
Ranger Murphree testified that the studies he had read indicated that
between 97% to 99% of wounds caused by firearm suicides are contact wounds,
Ranger Murphree did not believe that examining the bedding somehow
caused the casing to move under the box because the box was big and fairly
heavy, and the investigators were very meticulous in moving things.
meaning that the muzzle is up against the person‘s skin.9 Here, the weapon was
held out to the side anywhere from three to six inches.
Ranger Murphree would have expected the bullet to have traveled ―from midline
to midline‖ and contact to have been ―much more straight [i]n,‖ rather than exiting
on Viki‘s side. In Ranger Murphree‘s opinion, it seems inconsistent to clean a
gun before killing yourself.
Ranger Murphree testified that ―[i]f Appellant‘s
statement is true, based on the evidence, there‘s got to be a series of improbable
and impossible things take place.‖
On cross-examination, Ranger Murphree agreed that a person could
―quick clean‖ a gun in a few minutes. He acknowledged that the Glock handgun
was the subject of a lot of debate in the law enforcement community because it
has fewer safety features than other guns. He agreed with defense counsel‘s
statements that accidents can happen when cleaning a Glock and that ―if you
eject the round in the chamber first and then eject the magazine and then release
the trigger, you‘ve just fired that weapon.‖
Officer Rachel Fleming
Police officer Rachel Fleming (formerly Rachel Key) testified that when she
entered the bedroom at the scene, she saw Viki‘s body. She also saw multiple
lapdogs hanging around on the floor. She saw at least one of the dogs get on
Ranger Murphree agreed on cross-examination that he obtained his
statistics from Dr. DiMaio and that Dr. DiMaio‘s book states that a small but
significant number of suicides can be committed at an intermediate gunshot
range, which is generally accepted to be three to six inches.
the bed; he was positioned down towards the area where Viki‘s left knee was
bent. She did not see the dog ―do anything else‖ before it jumped down. Other
officers confined the dogs in the master bathroom. Officer Fleming testified that
the crime-scene photographs do not indicate that dogs walked on the newspaper
or had been on any of the kit area.
Officer Fleming testified on cross-
examination that she did not remember telling prosecutors a year later that dogs
were licking Viki‘s body but acknowledged that she must have when presented
with a prosecutor‘s notation that she had stated such.
C. Additional Aspects of the Investigation
Certified computer forensics examiner James Willingham testified that he
examined the computer located at Appellant‘s residence.
He found that the
game Mahjong started running on July 2, 2002, that it had been played
periodically through July 4, 2002, but that it had not been touched again until
after Viki‘s death on July 6. Willingham testified that the computer had not been
used for any purpose between 6:00 and 9:00 on July 6 (the night of the
shooting), and any claim that a computer game had been played between 7:00
and 8:00 that night would be false.
William Addington testified that he worked at the tanning salon used by
Appellant. Salon records showed that in the summer of 2002, Appellant tanned
May 13, 20, 28; June 8; and July 5 and 6. Appellant tanned for twenty minutes
on July 6.
D. Medical Evidence
Gary Sisler, D.O.
Dr. Gary Sisler, a deputy medical examiner for Tarrant, Parker, and
Denton counties, conducted Viki‘s autopsy the day after the shooting. Dr. Sisler
testified that the cause of death was a gunshot wound to the chest; specifically,
the bullet entered the chest from a distance of three to six inches and traveled
front to back and downward right to left; it traveled through her heart, left lung,
diaphragm, and spleen and exited on the left side of her chest. The exit wound
was ―shored,‖ meaning that the bullet pushed the skin against a surface and
caused the red abrasion around the wound. Based on the shored wound, Dr.
Sisler believed that Viki was lying on her left side on the mattress when the
Dr. Sisler testified that the manner of death was undetermined, meaning it
could have been a suicide, an accident, or a homicide. He based his conclusion
on the autopsy; he made his finding before DNA testing had been conducted,
before knowing all the results of the trace evidence collection, and without
considering the circumstances surrounding the shooting. He explained that it
was the jury‘s role and not within the medical examiner‘s realm to go beyond the
Dr. Sisler testified that a significant factor in his indeterminate finding was
the firearm examiner‘s estimate that the muzzle-to-target distance was three to
six inches, which was consistent with the powder tattooing Dr. Sisler saw on the
right side of the entrance wound. Dr. Sisler explained that, at that distance, it
was neither a contact nor a distance wound. Thus, it was anatomically possible
either for Viki to have held the gun and shot herself or for someone else to have
held the gun and shot her. Dr. Sisler did not find any oil or grease on Viki‘s
Dr. Sisler testified that, while the issue of lividity is very controversial, it is
generally thought to begin anywhere from twenty to thirty minutes to two hours.
He also testified that lividity ―depends if there‘s existing blood in the vessels [and]
[f]rom my looking at the scene, [Viki] lost a considerable amount of blood, and it
may delay the onset of this lividity we‘re talking about.‖
On cross-examination, Dr. Sisler testified that the Chief Medical Examiner
at the Tarrant County Medical Examiner‘s Office, Dr. Peerwani, reviewed his
report and agreed with his ―undetermined‖ finding. He also testified that the
State hired Dr. Edmund Donoghue, a medical examiner from Cook County,
Illinois, for a third opinion, that the two doctors spoke, and that Dr. Donoghue told
When the prosecutor asked if he had analyzed the defendant‘s
statement, Dr. Sisler responded that ―all‖ he had done was ―look at it.‖
him he agreed with the ―undetermined‖ finding. Dr. Sisler further testified that his
―undetermined‖ finding has not changed since 2002, even though additional
testing has been done by his office, even though he had been asked to review
the case again, and even though he attended a meeting of all the investigative
agencies to discuss the case. On re-redirect Dr. Sisler testified that he would not
change his findings based on law enforcement‘s conclusions or discussions
about a defendant‘s statement. On re-cross, he answered affirmatively that, if
evidence were presented to him that changed his mind, he would amend his
Monica Popov, M.D.
Monica Popov, an obstetrician and gynecologist, cared for Viki during her
pregnancy. Much of Viki‘s pregnancy was routine. Because Viki had indicated in
her medical history that she had bled a lot in prior medical procedures, Dr. Popov
referred her to a hematologist to check for a bleeding disorder, but the tests were
all negative. During her delivery, Viki experienced a second-degree tear, a fairly
common occurrence for a first-time mother. The tear had healed by Viki‘s sixweek postpartum visit. Dr. Popov never ordered Viki to be on bed rest, and there
were no indications that Viki could not take care of her baby or that she was nonfunctioning.
Dr. Popov testified that Appellant‘s statements regarding Viki‘s
pregnancy were untrue, including that there was a possibility that she would not
survive childbirth. On cross-examination, Dr. Popov acknowledged that she did
not know what Viki may have told Appellant.
E. Forensic Evidence
Ronald Singer, crime lab director for the Tarrant County Medical
Examiner‘s Office, examined the Glock handgun, which he determined worked
He testified that the Glock could not fire upon being bumped, hit,
dropped, or banged; instead, ―in order to fire it, you must have your finger on the
trigger and you must pull the trigger to the rear. . . . [The internal safety is]
disconnected as the slide goes back. You have to release the trigger and then
pull it [back] again‖ to fire the weapon.
A senior trace analyst for the Tarrant County Medical Examiner‘s Crime
Lab, Patricia Eddings, conducted a trace examination on Viki. Eddings found a
single partial grain of what she believed to be a piece of popcorn on one of Viki‘s
front teeth. A forensic botanist confirmed it was popcorn. Eddings noted that,
even after a person dies, enzymes continue the digestion process. Eddings also
found small, particulate pieces of grain on the front of Viki‘s chest and also on her
side toward her back that the botanist confirmed were popcorn.
recovered remnants of popcorn from the contents of Viki‘s stomach that were
collected during the autopsy.
Eddings recovered small grains (identified as
popcorn) and salt grains from the blanket, sheet, and comforter.
Eddings examined the gun, which she noted had a considerable amount of
oil on it. She was unable to find any useable prints on the gun, the magazine (or
its cartridges), or the spent casing, due in part to the excessive oil. She also
testified that no gunshot particles were found on the clothes taken from Appellant
at the crime scene.
On cross-examination, Eddings agreed that there was no way to determine
how long the popcorn articles had been in the bedding.
When asked if the
popcorn could have been there for months, Eddings stated, ―depending on when
they washed the blankets and sheets last, yes, sir.‖ When asked if she could
determine how long the popcorn had been in Viki‘s stomach, Eddings responded
―[n]ot definitely,‖ but explained that stomachs empty after several hours and that,
while this is ―quite variable . . . . [w]e think an average of four to six hours.‖ The
piece of popcorn in Viki‘s mouth measured one millimeter by one and one half
millimeters. She testified that the photograph of the popcorn shown to the jury
was magnified many, many times. She agreed that the popcorn was a ―very
small grain‖ but that it was visible to the naked eye.
F. Background Contextual Evidence
Viki’s Friends and Coworkers
Vicki Sargent, an educator and Viki‘s friend, testified that Viki had been a
committed and passionate teacher for many years. When Sargent went to visit
Appellant and Viki‘s mother, Anna Farish, Farish specifically mentioned that
Monty, Appellant, and Viki had gone to the park the day of the shooting and that,
after eating popcorn, they had gone to Target.11
Sargent, as well as fellow teachers Teresa Starrett and Janet White,
testified that although Viki had returned to work after her maternity leave, she
had been approved and was very excited to take leave the next school year to
stay home with Monty. White also testified that Viki planned to teach piano
during her leave the following year. Viki‘s hair stylist, Cheryl Escobedo, testified
that Viki had a hair appointment scheduled for late July, several weeks after the
Karen Alexander testified that she dated Appellant from mid-1998 until
March 2001. While Alexander knew Appellant was married, he told her that he
did not love his wife, that he was not happy, and that at a ―certain time‖ he would
leave her. He told Alexander that he and his wife were inheriting money from a
trust his wife‘s father had established and that he needed to stay with her until
then. He also mentioned having a million-dollar life insurance policy on his wife.
―Money was important to him,‖ she said. In 2000, Appellant told Alexander that
his wife had terminal leukemia and had only six months to live. Appellant cried
about his wife‘s alleged condition and talked about assisting her in ending life.
Farish testified she knew that Appellant, Viki, and Monty went to Target
the day of the shooting, but she did not remember if Appellant told her that. She
also testified that Appellant did not tell her that he, Viki, and Monty had eaten
popcorn that day.
He explained that he wanted to end his wife‘s pain and had considered poisoning
her. Appellant told Alexander that when Viki died of leukemia, he would have
money from her family plus the million dollars from the insurance policy.
Appellant gave Alexander a promise ring, and they talked about getting married.
Detective Cynthia (Cindy) Waters
Cindy Waters began working in the Denton Police Department in 1994,
and by 2001, she had become a detective. In February 2001, she and Appellant
began dating, although they were both married at the time; Waters had two
children, and Appellant and his wife were expecting a baby.12 Appellant told
Waters that he did not have much of a sexual relationship with his wife, and he
described their relationship as a friendship but added that they did not get along
that well. Waters believed that both Appellant and his wife wanted the divorce.
Appellant told Waters that he and Viki had talked about splitting up one year after
the baby‘s first birthday, which was in August 2002.
Throughout their relationship, Appellant and Waters wrote love letters to
one another, several of which were read to the jury and introduced as evidence.
Appellant often wrote about the family he and Waters would have. In December
2001, Appellant gave Waters a ring, describing it as ―a temporary replacement
Waters testified that she and her husband had discussed divorce and
were moving in that direction when she began dating Appellant. She also
testified that Appellant pursued her and that she reluctantly let the relationship
expand beyond a friendship.
for the one forthcoming.‖ In February 2002, Appellant sent Waters a card that
stated, ―Happy Anniversary to My Wife.‖
In February 2002, unbeknownst to Waters at the time, Appellant took out a
$350,000 life insurance policy on Viki (in addition to the $750,000 policy that he
took out on her life in 1999). This same month, Appellant and Waters began
looking for houses in the $300,000– to $500,000 range where they could live as
a family. Although they could not afford a house in this range on their police
salaries, Appellant told Waters that he had approximately $700,000 in Mexico
that would not be involved in the divorce. Waters understood that Viki‘s family
had a lot of money, that her father had left her a trust fund, and that Viki would
receive a large sum of money when she turned thirty-six. Waters acknowledged
she was warned by colleagues that Appellant would never leave Viki because of
In March or April 2002, Appellant told Waters that he and Viki had agreed
to separate earlier than expected and that he would be moving out in June. He
said that he and Viki would file for divorce in April and that it would be finalized in
July. Appellant told Waters that he had rented an apartment to move into after
the divorce. At one point, Appellant told Waters that the divorce papers had
been filed but that Viki‘s mother had paid to have the records sealed. Waters
testified that she had since been told that Appellant had never filed for divorce,
and she read a certified statement from the clerk of the Denton County district
courts stating such.
In mid-June, Waters discovered that Appellant had lied to her about a trip
he took, telling her he was going to visit a relative when he actually went on a trip
with his wife, son, and mother-in-law.
Although Waters intended to end the
relationship, Appellant asked for another chance. Appellant told Waters that if he
had not moved out of his house by June 30th, he would understand if she did not
want to continue their relationship.
On June 30, Appellant met Waters in a
parking lot and told her that he could not move out, that he and Viki had been in
a fight, that he had slapped Viki, and that he did not know if she would press
charges. He returned all the cards Waters had given him. He told her Viki was
unstable and that he thought she had been giving Monty milk even though he
was allergic to it. He also thought Viki was poisoning him [Appellant]. Waters
told Appellant they needed to end their relationship.
She became afraid for
herself and Viki. Nonetheless, Appellant and Waters remained in contact, and in
the early morning hours of July 6, Appellant went to Waters‘s house. Appellant
insisted that he would get a divorce and that he and Waters could rebuild their
relationship, but Waters believed the relationship was over.
Waters testified that the day of the offense, she and her two sons went to
Lake Ray Roberts with her friend Jackie Coursey and Coursey‘s daughter. The
boys‘ father picked them up between 5:00 and 6:00 p.m. at Waters‘s home.
Afterward, Waters took a nap and then went to Coursey‘s house to borrow some
jeans. Waters left Coursey‘s house around 8:00 p.m., and Rhonda and Randy
Eakman picked up Waters at her home around 8:30 or 8:45 to go dancing.
Waters and the Eakmans went to a club. Waters identified her signature on an
application for temporary club membership that she signed at 9:14 p.m. She also
identified the Eakmans‘ signatures on the application that they signed at 9:15
p.m. Waters further testified that she and the Eakmans had one drink and left
the bar. Around that time, Coursey called Waters and the two met at Waters‘s
home. Coursey told Waters that Viki had died.
On Monday, July 8, 2002, Waters met with her supervisors. Over the
course of the next week, Waters gave several statements in which she confirmed
her affair with Appellant and told them Appellant was getting divorced.
eventually resigned. In the middle of the week, Waters told Appellant that she
had told her supervisors about the divorce. The two met several days later, and
Appellant told Waters that he had come from tanning and that he had found Viki
on the bed and that she had been shot. He told her that he moved Viki to the
floor and started CPR and that, other than that, it was better if she did not know
On cross-examination, Waters acknowledged that she and Appellant
resumed their relationship sometime after Viki‘s death.
Waters denied that
Appellant ―left her,‖ and she did not know whether Appellant subsequently
married one of Monty‘s teachers.
G. Defense Witnesses
Lawrence Renner, a certified senior crime-scene analyst, reviewed the
evidence in this case. He agreed that the manner of death was undetermined.
He testified that a person who is shot in the heart with a gun could still move, at a
minimum, for ten to fifteen seconds, depending on the organs that are injured.
Defense counsel asked, ―if Ms. Lozano did not die instantly, what effect could
that have on blood being on that [Break-Free] can?‖ Renner answered, ―If she
did not die instantly, then there would be the possibility for movement.‖
When asked, ―if a person put socks on their hand and was cleaning the
gun, would you necessarily expect to find oil on their hands,‖ Renner responded,
―it would depend on how oily the socks had become. They may protect the
hands from any oil.‖ He also agreed that oil placed on a person‘s hand could dry
and be invisible to the naked eye. Renner disagreed with the State‘s theory that
the newspaper had to have been placed on the bed postmortem, explaining that
there was no way to determine whether the blood was there first and the
newspaper put down or whether the newspaper was there first and the blood ran
over into it.
Renner testified that the crime-scene photographs were taken two hours
after Viki‘s body was discovered and that the stains shown in the photographs
might not be the same as when the body was discovered, thereby making
reconstruction difficult. Renner testified that the bloodstain on Viki‘s left pajama
sleeve and the blood on the comforter could not have occurred while Viki was in
the position in which she was found and that Appellant‘s statement about how he
found the body could explain the stains.
When asked to outline the movement that could have caused the shell
casing to change locations from the point of firing to the location where it was
ultimately photographed, Renner testified that the autopsy report establishes that
Viki was lying down on her left side at one point; Appellant reported finding her in
a more upright position; Appellant reported moving her onto her back; items were
moved when looking for the casing; dogs got on the bed; and the body was
removed from the bed.13
Renner agreed with defense counsel that there was no way, without
having been present, to reconstruct the shooting exactly the way it happened.
Renner testified that the evidence in this case is insufficient to classify Viki‘s
death as a homicide or to suggest that Appellant was in the room or had the gun
in his hand, at the time it was fired.
On cross-examination, Renner acknowledged that, if Viki died while
Appellant was gone, the evidence showed that she would have cleaned the gun
(leaving it oily), deliberately loaded it, deliberately charged it, and then laid down
holding it. Renner acknowledged that in a suicide to the chest, the ―most likely‖
Renner examined much of the bedding from the crime scene in front of
the jury and testified to seeing what appeared to be animal and human hairs on
the sheet, comforter, blanket, and pillows.
or natural gun position would be straight-on. A ―less likely‖ gun position would be
the one established in this case (indicated by the downward wound track).
Renner agreed that the established position of the gun in this case would be a
―natural‖ position for someone else to have been holding the gun when Viki was
shot. On re-direct, Renner agreed that there was no way to create one particular
scenario regarding what happened in this case.
Viki‘s mother, Anna Farish, testified that Viki was ―very, very mechanical,‖
that Viki had a gun at one point, and that she had gone to the firing range with
Appellant. Farish testified that she lived with Appellant and her daughter but that
she had been gone from the home the day of the shooting. She testified that
there had been other times, however, when she had gone back to their bedroom
when Appellant was not home and had seen the gun laying on the right side of
the bed on newspaper with socks and a cleaning kit. She testified that she had
never seen Viki clean the gun, explaining that she would leave the room because
she was not comfortable with guns.
Farish testified that Viki suffered from depression due to issues with her
weight and that their family had a history of suicide. Farish testified that Viki and
Appellant were extremely happy to have Monty and experienced their greatest
love for each other after his birth.
She testified that Appellant and Viki had
identical amounts of life insurance on the other and that they took out the
additional insurance due to their child‘s birth. Farish told Appellant, the police,
and others that the dogs must have gotten on the bed and caused the gun to go
She testified that Viki knew Appellant was having an affair
because Viki had seen several phone calls to the same number on a phone bill.
When asked on cross-examination whether she thought Appellant treated
her daughter well, Farish responded, ―She was very happy. He saved her life.‖
She explained that Viki had been ―a pretty lonely, miserable girl‖ until Appellant
came into her life. Farish testified that she still lived in the LaMancha house with
Appellant and his new wife.
III. Sufficiency of the Evidence
In his first and second issues, Appellant asserts that the evidence is legally
and factually insufficient to support his conviction. Because the court of criminal
appeals recently eliminated the factual sufficiency standard of review from this
state‘s criminal jurisprudence, Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010), we overrule Appellant‘s second issue and consider only the first in
determining whether the evidence is sufficient to support the jury‘s verdict.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether 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, 99 S. Ct. 2781, 2789 (1979); see Adames v. State, No. PD1126-10, 2011 WL 4577870, at *3–4 (Tex. Crim. App. Oct. 5, 2011). Each fact
need not point directly and independently to the guilt of the appellant, as long as
the cumulative effect of all the incriminating facts are sufficient to support the
conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The
standard of review is the same for direct and circumstantial evidence cases;
circumstantial evidence is as probative as direct evidence in establishing an
actor‘s guilt and can be sufficient to establish guilt. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010); Clayton, 235 S.W.3d 772, 778 (Tex. Crim. App.
We defer to the jury‘s determinations of credibility and may not substitute
our judgment for that of the factfinder. See Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007). We ―determine whether the necessary inferences
are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict.‖ Hooper, 214
S.W.3d at 16–17. When the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the prosecution and therefore
defer to that determination. Clayton, 235 S.W.3d at 778.
B. Applicable Law
A person is guilty of murder if he (1) intentionally or knowingly causes the
death of another or (2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an individual. See Tex.
Penal Code Ann. § 19.02(b)(1), (2) (West 2011). A person acts intentionally with
respect to a result of his conduct when it is his conscious objective or desire to
cause the result. See id. § 6.03(a) (West 2011). A person acts knowingly with
respect to a result of his conduct when he is aware that his conduct is reasonably
certain to cause the result. See id. § 6.03(b). The trial court‘s guilt/innocence
charge instructed the jury to find Appellant guilty of murder if it found he either (1)
intentionally or knowingly caused Virginia Lozano‘s death by shooting her with a
firearm, or (2) intended to cause her serious bodily injury and committed an act
clearly dangerous to human life by causing a firearm to discharge at or in her
Appellant asserts that no physical evidence or eyewitnesses prove his guilt
and that the State‘s theory—that he shot his wife and then staged the scene to
make it appear to be an accident or suicide—has no evidentiary support and is
nothing more than conjecture and speculation.
Appellant attempts to isolate and discount certain aspects of the State‘s
evidence; however, the court of criminal appeals has emphasized that
intermediate courts must not rely on ―the divide-and-conquer‖ approach and
instead must consider the combined and cumulative force of the evidence. See
Clayton, 235 S.W.3d at 778. We may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder. Williams,
235 S.W.3d at 750. Based on the analysis set out below, we disagree with
Appellant‘s assertion that the State did nothing more than raise various
questions, the end result of which is an exculpatory explanation.
Appellant challenges the State‘s theory that the lividity seen in Viki‘s body
by the first responders indicated that she had to have been dead before
Appellant left for the tanning salon. Appellant relies on Dr. Sisler‘s testimony that
lividity can begin as quickly as twenty minutes from the time of death. He also
relies on his own calculation (with no citation to the record) that the trip to the
tanning salon took ―a minimum of forty minutes and more likely fifty to sixty
minutes‖ and that it took another five to ten minutes before the paramedics
arrived. Appellant contends that the timeline shows that he was away from home
for a sufficient period of time for Viki to be fatally shot and for lividity to set in prior
to the paramedics arriving, even if lividity begins at thirty or more minutes.
Appellant‘s written statement provides that he left the house when ―it was
nearing 8:30 p.m‖ and that he returned home at approximately 9:00 p.m. The
evidence established that the salon was ten minutes away, that Appellant had an
8:26 tanning session that lasted twenty minutes, and that Appellant spoke to the
attendant. The 911 dispatcher called responders at 9:05 p.m. Throughout trial,
the State assumed that Appellant was away from home for forty to forty-five
minutes. As the State points out, there is no evidentiary support for Appellant‘s
suggestion on appeal that he was ―more likely‖ gone fifty to sixty minutes and
that the paramedics did not arrive for ten minutes after that.
Further, the State‘s evidence regarding the timing of Viki‘s death was not
based solely on lividity. Captain Scholl testified that the body was clammy, ―very
cold to the touch and very waxy, which is kind of an indication that she had been
dead for quite some time.‖ He testified that her temperature and appearance
matched the lividity and made him believe she had been dead for at least an
hour if not longer. While he agreed on cross-examination that lividity can set in
as early as twenty minutes after death, he added that, based on his experience,
―that body had been there a lot longer than an hour.‖
testified that Viki was cold to the touch, her skin looked pale white, and she had
lividity in her right foot.
Considering these three components, Galbraith
determined that Viki had been dead longer than an hour. Moreover, as Chief
Deputy Howell explained, the level of lividity in Viki‘s body indicated that
Appellant‘s time frame for his trip to the salon ―should have been a little bit
longer‖ because there had to be enough time for her to begin cleaning the gun
and shoot herself and then additional time for lividity to set in. Ranger Murphree
testified that it would take fifteen to twenty minutes to clean a gun ―decently‖ and
that it would take as much as thirty minutes to ―really get it clean.‖ 14 Dr. Sisler
testified that Viki‘s considerable blood loss may have delayed the onset of lividity.
Thus, there is evidence to support the State‘s theory that the lividity in Viki‘s body
indicated that she was dead before Appellant left for the tanning salon.
He acknowledged on cross-examination that a person could ―quick clean‖
a gun in a few minutes.
Appellant also challenges the State‘s evidence and theory that the crime
scene was staged.15 He initially addresses testimony from State‘s witnesses that
it was illogical for Viki and Appellant to clean a gun on a bed, characterizing this
as ―nothing more than an opinion expressed by State‘s witnesses.‖ He argues
that it is a reasonable inference from the evidence that cleaning the gun on the
bed was a regular activity for both Appellant and Viki.
The jury reasonably
Although Viki‘s mother testified that she had seen gun-
cleaning supplies on the couple‘s bed, the jury could have negatively assessed
her credibility, believed she was an interested witness who supported Appellant,
and disbelieved her testimony.
Likewise, the jury was free to believe the testimony from multiple witnesses
that Appellant was obsessed with neatness and cleanliness.
Appellant‘s neatness, Captain Wawro testified that it was ―pretty uncommon for
most of us‖ to clean a gun in the house, not to mention on a bed. Ranger
Murphree testified that cleaning a gun is extremely messy and smelly and that it
was ―absurd‖ that anyone would consider cleaning a gun in the middle of the bed.
Chief Deputy Howell testified that ―there were several things that just didn‘t look
We note that Chief Deputy Howell testified that the crime scene
appeared staged from the moment he arrived. Thus, although we address
Appellant‘s several challenges to individual pieces of evidence that the State
introduced to support the chief deputy‘s opinion, we consider the combined and
cumulative force of the evidence.
as if somebody had cleaned a gun there, actually cleaned it. It looked to me like
someone had come in afterwards and put those items in place.‖
Additionally, while Viki‘s mother testified that Viki was ―mechanical and
tinkered with things,‖ Ranger Murphree testified that someone who was
experienced in gun cleaning would not have put such an excessive amount of oil
on the gun. Appellant challenges this testimony, however, asserting that it shows
―nothing more than that [she] used excessive oil when cleaning the gun‖ and that
Viki was ―more likely to do this than [Appellant] himself, who was an experienced
Notably, Chief Deputy Howell testified that it appeared that
someone ―had just taken the spray can and held the gun and just sprayed it
down, you know, all over, which would be an odd way for me to do it, and I don‘t
know of any other people that clean guns that way.‖
Trace analyst Patricia
Eddings testified she was unable to find any useable prints on the gun due in part
to the excessive oil. Additionally, Captain Wawro, Chief Deputy Howell, and
Ranger Murphree testified that, despite the excessive oil on the gun, no oil was
seen on Viki‘s hands. Dr. Sisler did not find any oil or grease on Viki‘s hands.
Although Appellant‘s crime-scene analyst Lawrence Renner testified that socks
―may protect‖ a person‘s hands from oil when cleaning a gun, Chief Deputy
Howell testified that the pair of dirty socks on the bed did not appear to have any
oil or gun reside on them, did not look like they had been used for anything in the
cleaning process, and looked like they were just kind of thrown out there or
dropped onto the cleaning box.16 He also testified that he did not see any gloves
in the bedroom and that, if Viki had accidentally shot herself while wearing
gloves, the gloves still would have been on her hands. Witnesses testified that
popcorn found on Viki‘s person and in the bedding indicated she was eating
popcorn around the time of the shooting and that it would be unrealistic to think
someone would be eating popcorn and cleaning a gun at the same time.
Appellant also challenges the State‘s theory that Appellant placed the
cleaning kit on the bed (on top of the shell casing) after the shooting. Appellant
asserts that a ―fair review of the totality of this evidence shows that the shell
casing was found above the gun cleaning kit.‖ Detective Wawro explained that,
although his computer aided drawing showed the casing above the kit, the
drawing was incomplete and inaccurate. He and Detective Grellhesl testified that
investigators found the casing in a bedspread wrinkle after removing all the other
gun-cleaning-related objects off the bed and that crime-scene photographs were
later used to recreate the casing‘s location to be under the kit.17
Murphree explained that the photographs provided reference points such as the
headboard and patterns on the blanket.
He noted that the patterns on the
Eddings agreed with defense counsel that the black and gray staining on
the socks would ―certainly seem consistent with grease or oil‖ and that, if
somebody put socks around their hands before they cleaned a gun, that would
cause the black or gray staining on the socks.
Ranger Murphree testified that investigators did not immediately realize
that the casing had been under the box.
blanket were unique, that no two were exactly the same, and that one could look
at the patterns (as depicted in the photographs) and ―fairly accurately place . . . I
think within a couple of inches or so where that shell casing was.‖ A photograph
of the cleaning kit‘s location on the blanket before the kit was moved
demonstrates that the kit was on top of the casing.
Appellant asserts that,
despite this testimony, the casing could have moved when Viki‘s body was
examined, when the dogs jumped on the bed, or when the investigators were
moving the bed coverings to look for the casing. Ranger Murphree testified,
however, that he did not believe it would have been possible for the casing to
have moved under the kit while investigators were examining the blanket
because the kit was big and heavy, and the investigators meticulously moved
things. Further, Officer Fleming testified that the lapdog on the bed stayed near
Viki‘s left knee, that it did not go to Viki‘s shoulder area where the kit was located,
and that it did not appear to walk on the newspaper or to tug, drag, or move
Appellant challenges the State‘s ―assumption‖ that Viki‘s body and the
surrounding scene remained exactly the same throughout the police and
paramedic response. He relies on the fact that Officer Flemings‘s and EMT
Hankins‘s reports stated that both of Viki‘s feet were hanging off the bed, while
others reported seeing only one foot hanging off the bed. He also relies on
language in a report that paramedics either lifted or rolled her body to look for an
exit wound and lividity. Appellant asserts that, since the assumption that Viki‘s
body remained the same was shown to be erroneous, the State‘s theory that he
staged the scene was shown to be wrong. Additional evidence on this issue was
introduced, however. Ranger Murphree testified that Hankins never got closer
than eight feet to Viki‘s body and that, from his likely position, the body‘s
appearance would have suggested that two feet were hanging off the bed.
Hankins also incorrectly described Viki as wearing a long, white nightgown, when
she was actually wearing a pajama top and bottom. Officer Fleming testified that
her report was incorrect and that she had ―[n]o doubt at all‖ that only one foot
was hanging off the bed. Paramedic Galbraith testified that he lifted Viki‘s right
shoulder and that ―there was no movement of the body.‖ Captain Scholl testified
that, when Viki‘s shoulder was rolled, her head may have moved, but that ―[t]hat
would be the only part of that body that may not have been exactly the way it was
when we walked in the door.‖
Appellant asserts that the medical examiner‘s testimony that the manner of
death was ―undetermined‖ is of ―critical importance‖ because the State had the
burden to prove that this was a homicide. Dr. Sisler testified, however, that his
conclusion was based on what he saw on the autopsy table; he did not consider
the circumstances surrounding the shooting.
He testified that, based on the
muzzle-to-target distance of three to six inches, it was anatomically possible for
Viki to have shot herself or for someone else to have shot her. Appellant‘s own
crime scene analyst, Lawrence Renner, agreed with Dr. Sisler‘s ―undetermined‖
finding. Further, the State introduced substantial evidence demonstrating that
Appellant shot and killed his wife. While Appellant challenged that evidence, we
must presume that the factfinder resolved any conflicting inferences in favor of
the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793. Cf. Payne v. State, No. 12-10-00027-CR, 2011 WL 1662856, at *1–6
(Tex. App.—Tyler Apr. 29, 2011, pet. granted), (mem. op., not designated for
publication), PD-1214-11 (Tex. Crim. App. Nov. 9, 2011) (review granted in part
on whether court of appeals erred in holding evidence sufficient to sustain
conviction where experienced crime scene expert found deceased committed
suicide), available at http://www.cca.courts.state.tx.us/issues/ISSUES.pdf.
Appellant challenges the State‘s theory that Viki‘s position at the time of
the shooting was not conducive to cleaning a gun and asserts that Viki may have
been in a different position while doing so. Appellant contends that ―[i]t is likely
that Viki had, in fact, cleaned the gun and was accidentally shot afterwards.‖
The State introduced several pieces of evidence indicating that Viki did not clean
the gun. That Viki was lying on her left side when shot was not a contested issue
at trial; it was also uncontested that the muzzle-to-target distance was three to
six inches. Witnesses testified that, for Appellant‘s version to be true, Viki had to
have laid on her side holding a deliberately loaded gun out three to six inches
while pointing it toward herself. While Appellant contends that the notoriously
dangerous Glock was known ―to go off accidentally and cause just this type of
tragedy,‖ forensics expert Ronald Singer testified that the Glock was designed
―so that in order to fire it, you must have your finger on the trigger and you must
pull the trigger to the rear.‖ The prosecutor also elicited the following testimony
Q. [State]: Now, if the trigger was pulled and still depressed in the
way that I‘m doing it now and the slide went back then came
forward, does that fire the weapon?
Q. What do you have to do to fire the weapon?
A. It‘s disconnected as the slide goes back. You have to release
the trigger and then pull it again.
Appellant also asserts that the failure of the police to perform various
investigative tests such as hand wipings was inexcusable and should be
considered in this review. While investigators admitted that they failed to swab
and test Appellant‘s hands for gunshot residue, Chief Deputy Howell testified that
he had heard reports that Appellant had already washed his hands that evening,
which would have washed away any trace of gunshot residue. While additional
investigation and testing at the scene might have produced additional probative
evidence, the standard of review remains the same, that is, we view all of the
evidence in the light most favorable to the prosecution to determine whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Appellant also asserts that, while his affair was improper, neither this nor
the fact that Viki and Appellant took out additional life insurance policies adds
evidence to this sufficiency analysis. As set out below, however, these facts are
probative of motive, and ―[m]otive is a significant circumstance indicating guilt.‖
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (noting that
appellant had motive to murder his wife because he was involved in a longstanding affair, his mistress gave him an ultimatum, and appellant did not want to
divorce his wife); see Clayton, 235 S.W.3d at 781.
We agree with the State that Appellant had the motive and opportunity,
that his inconsistent statements and implausible explanations indicate guilt, and
that additional evidence supports the jury‘s finding of guilt. In addition to the
evidence set out above, Appellant‘s actions and words indicate that he wanted
access to his wife‘s money without being married to her. His continued pursuit of
Waters after she tried to end the relationship and his dramatic pronouncement to
Waters that he could not move out of the LaMancha house indicates he felt
pressured by his two worlds. These facts demonstrate a motive for murdering
his wife. The evidence also establishes that Appellant had the opportunity to kill
Intent may also be inferred from circumstantial evidence such as acts,
words, and the appellant‘s conduct. Guevara, 152 S.W.3d at 50. Attempts to
conceal incriminating evidence, inconsistent statements, and implausible
explanations are also probative of wrongful conduct and are circumstances of
guilt. Guevara, 235 S.W.3d at 50; see Gear v. State, 340 S.W.3d 743, 747 (Tex.
Crim. App. 2011) (recognizing that fact finder can consider a defendant‘s
untruthful statement as affirmative evidence of guilt); Padilla v. State, 326 S.W.3d
195, 201 (Tex. Crim. App. 2010) (holding that rational fact finder can consider a
defendant‘s untruthful statements as affirmative evidence of the defendant‘s
guilt); Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. App.—Fort Worth 1999,
pet. ref‘d) (reasoning that a jury can infer that a defendant demonstrated
―consciousness of guilt‖ by lying about events surrounding the alleged crime).
The evidence in this case highlights Appellant‘s many untruthful
statements, his inconsistent statements and actions, and the improbability of his
explanations. For instance, Appellant told the 911 operator that he knew how to
perform and was administering CPR to his wife; however, he did not place Viki
on the firm floor (which he would have known from officer CPR training), and
multiple responders testified that there was no indication that Appellant had
performed CPR. Also, Appellant said that he began CPR procedures from Viki‘s
side of the bed but that he failed to do it properly because he was overcome with
emotion; however, he told Waters he moved Viki to the floor and started CPR.
Appellant admittedly omitted from his first statement that he had a mistress
and that he spent the night with her the night before the shooting; he provided
this information only after Waters told him she had told the police ―everything.‖
Additionally, Appellant claimed he played a computer game from approximately
7:00 to 8:00 p.m. the night of the shooting; however, forensic computer expert
James Willingham testified that Appellant‘s computer had not been used for any
purpose between 6:00 and 9:00 that evening, and Appellant did not challenge
this testimony. Further, it was inconsistent for Appellant to have gone tanning
the night of the shooting because he had just gone the night before, on July 5,
and the tanning salon records indicated that he typically tanned once a week at
most; the salon records showed that in the summer of 2002, he tanned on May
13, 20, 28; June 8; and July 5 and 6.
Appellant inexplicably told investigators in his written statement that
following Monty‘s birth, Viki‘s doctor ordered her to remain bedridden for two
months, that he (Appellant) had been Monty‘s primary caregiver, and that Viki
―remained positive yet somewhat depressed that she was unable to care for her
son.‖ Dr. Popov testified, however, that she never ordered bed rest for Viki and
that she saw no indications that Viki was non-functioning or could not take care
of her baby. Appellant also told Waters that Viki was unable to care for Monty
and that Viki wanted—and that he and Viki had filed for—a divorce. At trial,
however, the district clerk‘s certified statement showed that Appellant and Viki
had not filed for divorce.
Based on all of the evidence, the jury could have reasonably inferred—as
opposed to speculated—that Viki did not clean the gun, or even attempt to do so;
that Appellant never attempted CPR on Viki because he shot her and wanted her
dead; that he went to the tanning salon to establish an alibi; and that he staged
the crime scene. See Hooper, 214 S.W.3d at 16 (holding that an inference is a
conclusion reached by considering other facts and deducing a logical
consequence from them, and speculation is mere theorizing or guessing about
the possible meaning of facts and evidence presented). Viewing the evidence in
the light most favorable to the verdict, a rational jury could have found the
essential elements of the offense beyond a reasonable doubt.
Appellant‘s first issue.
IV. Exclusion of Evidence
In his third and fourth issues, Appellant asserts that the trial court erred by
excluding from evidence (1) a certified copy of the State‘s 2004 motion
dismissing the 2002 indictment against Appellant and (2) testimony from the
former district attorney regarding his dismissal of the 2002 indictment against
A. Factual and Procedural Background
A Denton County grand jury indicted Appellant for murder in December
2002. On July 14, 2004, then Criminal District Attorney Bruce Isaacks dismissed
the indictment. The motion to dismiss provided in pertinent part:
As a direct result of [interviews with members of the Tarrant County
Medical Examiner‘s Office,] the State has learned that the Medical
Examiner who performed the autopsy, Gary L. Sisler, D.O., now
favors suicide as the manner of death as opposed to undetermined
as initially stated in the autopsy report. Other members of the
Tarrant County Medical Examiner‘s Office now believe there is no
credible evidence of homicide as a manner of death.
The State has consulted with the Chief Medical Examiner for
Cook County, Illinois who was hired to review the evidence in this
case. In reviewing the evidence he found evidence that had been
overlooked by the Tarrant County Medical Examiner‘s Office that
supports a conclusion that the death was a result of suicide as
opposed to homicide.
Following the Cook County Medical
Examiner‘s review of the evidence the State requested the Tarrant
County Medical Examiner‘s Office to re-examine this evidence and
conduct additional tests.
The results of these tests were
communicated to the Chief Medical Examiner for Cook County,
Illinois. That Medical Examiner has informed the State that it is his
conclusion by a preponderance of the evidence that the manner of
death of Virginia Lozano was more likely suicide than homicide.
The State of Texas is unable to proceed given the current
opinion of these witnesses. The State of Texas has insufficient
evidence to present a prima facie case against Robert Lozano at this
time and requests that this case be dismissed.
The Denton County grand jury issued a new indictment on September 25,
2008. Prior to the July 2009 trial, the State filed a motion in limine requesting
that Appellant ask for a hearing outside the jury‘s presence before he or any of
his witnesses mentioned the prior indictment and dismissal or the contents of and
the facts surrounding the dismissal. While cross-examining Ranger Murphree,
Appellant requested permission to ask him whether he knew that Cook County
Medical Examiner Edmund Donoghue had concluded that the manner of death in
this case was more likely a suicide rather than a homicide. The State objected
that ―that‘s not what [Donoghue] said. And it‘s not what he told me, and it‘s not
what he told Dr. Sisler. It‘s not a finding of suicide the way it‘s been erroneously
portrayed.‖ Appellant‘s counsel responded, ―Mr. Isaacks will testify there was a
report when he was the DA. Now they‘re saying there‘s not one. I‘d like to call
Mr. Isaacks in that regard.‖
Outside the presence of the jury, Isaacks testified that he had been the
elected Criminal District Attorney of Denton County from 1991 until 2006 and that
Appellant had been indicted during that time. Isaacks testified that he had asked
Dr. Donoghue for an opinion regarding the manner of Virginia Lozano‘s death
and that Dr. Donoghue had sent him a report concluding that the manner of
death in this case was most likely suicide. After receiving this report, Isaacks
filed the motion to dismiss the indictment.
Following Isaacks‘s testimony, Appellant asked for a copy of Donoghue‘s
report. When the trial court ordered the State to provide it, the following dialogue
PROSECUTOR: I‘m willing to testify as an officer of the court.
There is no report. There is no report.
THE COURT: Have you — searched the DA‘s files?
PROSECUTOR: Every single page.
THE COURT: And —
PROSECUTOR: More than once.
THE COURT: Have you contacted Dr. Donoghue?
THE COURT: And what was his response when you asked
him for a report?
PROSECUTOR: ―I didn‘t do a report.‖
DEFENSE COUNSEL: I‘d like to add to that as well.
THE COURT: Okay.
DEFENSE COUNSEL: I‘ve spoken to Dr. Donoghue as well,
and what Dr. Donoghue told me was that was seven — five years
ago, I guess, at the time. He said, anything that I would have done
would be in Illinois. He is currently employed in the state of Georgia
. . . And he said, I can‘t tell you if I did or didn‘t.
PROSECUTOR: Judge, also, the prosecutors handling the
case at the time, Ms. Bender and Tony Paul, we‘ve also asked them,
and they‘ve said there was no report.
After the State rested its case-in-chief, Appellant offered into evidence the
2004 dismissal motion under rule of evidence 803(8)(C).
Tex. R. Evid.
Rule 803(8)(C) provides that ―factual findings resulting from an
investigation made pursuant to authority granted by law‖ are permissible as an
exception to the hearsay rule ―in criminal cases as against the state . . . unless
The trial court sustained the State‘s objections, explaining that the
dismissal was ―an opinion of the district attorney of — his interpretation of a
report that may or may not exist. . . . Second of all, the trustworthiness, there‘s a
big question here.‖ The trial court specifically referenced the fact that Appellant
had elicited Dr. Sisler‘s testimony that he had spoken to Dr. Donoghue and that
Dr. Donoghue had agreed with Dr. Sisler‘s ―undetermined‖ finding. The trial court
And so the medical examiner in this case who did his report
discussed with Dr. Donoghue this. That gives me a very, very big
question as far as the trustworthiness that another report is out
there. So I think it‘s just too highly prejudicial, amongst other
reasons that it‘s not trustworthy.
So, I‘m going to sustain the objection [to the dismissal motion]
and not admit any discussion of Dr. Donoghue‘s report unless we
can get that report here so everybody can look at it.
B. Standard of Review
We review the trial court‘s decision to admit or exclude evidence, as well
as its decision as to whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice, under an abuse of discretion
standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The
trial court does not abuse its discretion unless its determination lies outside the
zone of reasonable disagreement. Id.
C. Motion to Dismiss 2002 Indictment
Appellant asserts that the 2004 dismissal fits squarely within evidence rule
803(8)(C) because (1) the District Attorney‘s Office in 2004 reached a factual
conclusion following an investigation made pursuant to authority granted the
office by law and (2) the source of information and circumstances do not indicate
a lack of trustworthiness. In support of his argument, Appellant cites August v.
State for the proposition that factual findings in a police report are admissible
under rule 803(8)(C). See No. 02-04-00484-CR, 2006 WL 1174213, at *3 (Tex.
App.—Fort Worth 2006, pet. ref‘d) (mem. op., not designated for publication). He
cites Pondexter v. State for the proposition that a police officer‘s observations are
admissible. See 942 S.W.2d 577, 585 (Tex. Crim. App. 1996). These cases are
As a hearsay exception, rule 803(8)(C) allows a report to be used against
the State if it contains ―factual findings resulting from an investigation made
pursuant to authority granted by law‖ and ―unless the sources of information or
other circumstances do not indicate a lack of trustworthiness.‖18 Tex. R. Evid.
Rule 803(8) presumes admissibility, and the party opposing the
report‘s admission must prove the report‘s untrustworthiness. 19 Moss v. Ole So.
Real Estate, Inc., 933 F.2d 1300, 1305 (5th Cir. 1991); see Beavers v. Northrop
Worldwide Aircraft Servs., Inc., 821 S.W.2d 669, 674–75 (Tex. App.—Amarillo
1991, writ denied).
―[I]n determining trustworthiness under Rule 803(8)(C), credibility of the
report itself or the testimony in the report are not the focus. Instead the focus is
the report‘s reliability.‖ Moss, 933 F.2d at 1307. ―The Rule 803 trustworthiness
requirement, therefore, means that the trial court is to determine primarily
whether the report was compiled or prepared in a way that indicates that its
conclusions can be relied upon (‗reliability‘).‖ Id.
Here, the State tendered evidence that raised questions regarding the
reliability of the dismissal motion. For instance, the motion stated that ―the Chief
Medical Examiner for Cook County, Illinois‖ (identified by the parties during the
2009 trial as Dr. Donoghue) ―informed the State that it is his conclusion by a
Under rule 803(8)(C), investigative reports may contain opinions or
conclusions, as long as they are based on a factual investigation and they satisfy
the trustworthiness provision of rule 803(8). Perry v. State, 957 S.W.2d 894, 898
(Tex. App.—Texarkana 1997, pet. ref‘d) (citing Beech Aircraft Corp. v. Rainey,
488 U.S. 153, 170, 109 S. Ct. 439, 450 (1988)).
Texas Rule of Evidence 803(8) is almost identical to Federal Rule of
Evidence 803(8), and thus, an examination of federal cases is warranted. See
Cole v. State, 839 S.W.2d 798, 801–02 (Tex. Crim. App. 1990).
preponderance of the evidence that the manner of death of Virginia Lozano was
more likely suicide than homicide.‖ The report could not be produced, however.
The lead prosecutor testified as an officer of the court that he was not aware that
Dr. Donoghue had prepared a report, that such a report was not found in the
State‘s file after an exhaustive search, and that Dr. Donoghue personally told him
that he did not prepare a report.20 The lead prosecutor also testified that he had
spoken to the prosecutors originally assigned to the case and that they had
reported to him that there was no report.21 While Isaacks testified outside the
presence of the jury that Dr. Donoghue had sent him a written report concluding
that Viki‘s death was most likely a case of suicide, he acknowledged that he did
not have a copy of the report, explaining that he had left it in the case file when
he left the office of district attorney. Isaaks did not indicate during his testimony
whether he had ever spoken directly with Dr. Donoghue about this issue.
The dismissal motion also stated that Dr. Sisler ―now favors suicide as the
manner of death as opposed to undetermined as initially stated in the autopsy
Although defense counsel recounted to the court that Dr. Donoghue told
him that he could not say whether he wrote a report, the State tendered a posttrial, August 6, 2009 affidavit from Dr. Donoghue, which states, ―I never prepared
a report of my review of the Lozano evidence for the prosecutors.‖
In addition, one of two prosecutors originally assigned to this case, Tony
Paul, testified during a bill of exception that Dr. Donoghue never generated a
written report. Paul further testified that he and prosecutor Debra Bender were
the main contacts for Dr. Donoghue, that they contacted and met with Dr.
Donoghue, and that Dr. Donoghue never expressed an official or personal
opinion that Viki died as a result of suicide.
report‖ and that other members of the Tarrant County medical examiner‘s office
―now believe there is no credible evidence of homicide as a manner of death.‖
Dr. Sisler testified, however, that his ―undetermined‖ finding had not changed
since 2002 and that he and his supervisor, Dr. Peerwani, still believed that the
manner of Viki‘s death could have been by homicide, suicide, or accident.22
The trial court was understandably concerned that Dr. Donoghue‘s report
could not be produced and that the missing or non-existent report formed the
basis for the dismissal motion and Isaacks‘s proposed testimony. Under the
unique circumstances of this case and given the conflicting evidence presented
to the trial court concerning the existence or nonexistence of a written report and
the opinions allegedly contained within it, all of which formed the basis for the
2004 motion to dismiss the indictment, the trial court‘s determination that the
motion was not admissible under rule 803(8)(C) falls within the zone of
reasonable disagreement. See Martinez, 327 S.W.3d at 736 (stating trial court
does not abuse its discretion unless its decision falls outside zone of reasonable
disagreement); see also Rodriguez v. State, No. 07-09-00145-CR, 2010 WL
4628580, at *3–5 (Tex. App.—Amarillo Nov. 16, 2010, no pet.) (mem. op., not
designated for publication) (holding trial court did not abuse its discretion by
determining, based on conflicting evidence, that proffered hearsay testimony had
Appellant‘s own expert Lawrence Renner testified that he agreed that the
―undetermined‖ findings of Dr. Sisler, Dr. Peerwani, and Dr. Donoghue were
not been sufficiently corroborated as trustworthy and was therefore not
admissible under rule of evidence 803(24)). Therefore, the trial court did not
abuse its discretion by excluding the motion from evidence.
Appellant‘s third issue.
D. Former District Attorney’s Testimony
Appellant asserts that the trial court also erred by denying the following
Because we have in evidence right now that Donoghue talked to
Sisler and that Donoghue told Sisler he thought it was
Donoghue has also told Isaacks — and that‘s what Mr.
Isaacks will obviously testify to based on the testimony yesterday —
that his opinion was suicide.
So I‘d like to call Mr. Isaacks for the limited purpose of
establishing that he talked to Dr. Donoghue and Dr. Donoghue told
him his opinion was suicide, without referencing the report.
Appellant contends that Isaacks‘s testimony (set out above) was not hearsay and
was offered to impeach the hearsay testimony of Dr. Sisler (that Dr. Donoghue
agreed with his ―undetermined‖ finding).
Appellant explains that Isaacks‘s
testimony was presented as an attack on the credibility of Dr. Sisler‘s testimony
and not offered for the truth of the matter asserted. Appellant relies on rule 806,
which provides in relevant part, ―When a hearsay statement . . . has been
admitted in evidence, the credibility of the declarant may be attacked, and if
attacked may be supported by any evidence which would be admissible for those
purposes if declarant had testified as a witness. . . .‖ Tex. R. Evid. 806.
As the State points out, Appellant‘s attempt to impeach Dr. Sisler‘s
credibility is not covered under rule 806; when applicable, rule 806 allows the
declarant‘s—in this case Dr. Donoghue‘s—credibility to be challenged.
purpose of Rule 806 is ‗to establish a standard for attacking the credibility of a
hearsay declarant.‘‖ Craig v. State, No. 14-00-01282-CR, 2003 WL 21467209, at
*1 (Tex. App.—Houston [14th Dist.] June 26, 2003, no pet.) (mem. op., not
designated for publication) (quoting United States v. Graham, 858 F.2d 986, 990
(5th Cir. 1988)).
The intent of rule 806 is ―to permit impeachment and
rehabilitation by any means that could be used if the declarant were a witness.‖
Bee v. State, 974 S.W.2d 184, 190 (Tex. App.—San Antonio 1998, no pet.). If
the evidence is submitted primarily to prove the truth of the matter asserted, and
not wholly for purposes of impeachment, however, the trial court should exclude
it. Sohail v. State, 264 S.W.3d 251, 261 (Tex. App.—Houston [1st Dist.] 2008,
pet. ref‘d). Thus, the question is whether Dr. Donoghue‘s statement to Isaacks
constitutes impeachment evidence or was in actuality offered to prove the truth of
the matter asserted. See Del Carmen Hernandez v. State, 273 S.W.3d 685,
688–89 (Tex. Crim. App. 2008).
Statements offered for the purpose of showing what was said, and not for
the truth of the matter asserted, do not constitute hearsay. Montes v. State, 870
S.W.2d 643, 647 (Tex. App.—El Paso 1994, no pet.) (citing Nixon v. State, 587
S.W.2d 709, 711 (Tex. Crim. App. 1979)). This is particularly true when the
making of the statement is relevant to a matter at issue at trial. Id. (citing Rich v.
State, 510 S.W.2d 596, 598 (Tex. Crim. App. 1974)).
If the out-of-court
statement is relevant only if the trier of fact believes that the statement was both
truthful and accurate, then the statement is hearsay. Cardenas v. State, 971
S.W.2d 645, 650 (Tex. App.—Dallas 1998, pet. ref‘d).
Here, the trial court had previously ruled that neither the 2004 dismissal
motion nor testimony regarding Dr. Donoghue‘s report were admissible, thus, Dr.
Donoghue‘s credibility was not an issue at trial. Indeed, Appellant‘s purpose in
introducing Dr. Donoghue‘s statements to Isaacks was not to challenge Dr.
Donoghue‘s credibility; as Appellant argues in his harm analysis: Isaacks‘s
testimony ―directly refuted the state‘s position‖ and ―would have undermined the
state‘s argument that the shooting was not suicide.‖ Thus, Isaacks‘s testimony
regarding information he received from Dr. Donoghue that the manner of death
was likely suicide was relevant only if the trier of fact believed that Dr.
Donoghue‘s statement was both truthful and accurate. Because Dr. Donoghue‘s
statement was offered to prove the truth of the matter asserted, it was
inadmissible, and the trial court did not abuse its discretion by excluding it.
The two cases cited by Appellant do not alter our holding. See Sohail, 264
S.W.3d at 261; In re E.S., No. 13-08-00530-CV, 2009 WL 2623352, at *5–6 (Tex.
App.—Corpus Christi Aug. 26, 2009, no pet.) (mem. op., not designated for
Appellant cites Sohail for the proposition that the State cannot
present hearsay to convict a defendant and then legitimately object when the
defendant offers hearsay to impeach the hearsay offered by the State. As the
State notes, however, the prosecutors did not present the challenged testimony;
instead, Appellant elicited the testimony on cross-examination through leading
questions. Moreover, Sohail is distinguishable because Sohail‘s impeachment
evidence—prior inconsistent statements—reflected on the declarant‘s credibility
and was therefore admissible. See Sohail, 264 S.W.3d at 261. Appellant cites In
re E.S. for the proposition that a prior inconsistent statement offered to impeach
a witness‘s credibility is not hearsay. See 2009 WL 2623352, at *5–6. While this
statement is accurate in a general sense, for the reasons set out above, it is not
dispositive of the issues raised in this case. We overrule Appellant‘s fourth issue.
V. Jury Instructions
In his fifth issue, Appellant asserts that the guilt/innocence phase jury
instructions failed to require a unanimous verdict in contravention of the Texas
Constitution and the code of criminal procedure. Specifically, Appellant asserts
that the State charged him with two separate criminal acts—murder under penal
code sections 19.02(b)(1) (intentionally or knowing causing death) and
19.02(b)(2) (committing an act clearly dangerous to human life with the intent to
cause serious bodily injury)—and that the trial court violated the unanimity
requirement by allowing the jury to find him guilty without requiring the jury to
agree on which offense he committed.
See Tex. Penal Code Ann. §§
At the charge conference, the trial court denied
Appellant‘s request to instruct the jury that it must be unanimous as to how
Appellant committed the murder.
The trial court‘s guilt/innocence charge instructed the jury to find Appellant
guilty of murder if it found he either (1) intentionally or knowingly caused Virginia
Lozano‘s death by shooting her with a firearm or (2) intended to cause her
serious bodily injury and committed an act clearly dangerous to human life by
causing a firearm to discharge at or in her direction. The charge presented the
jury with a general verdict form for murder.
Texas law requires a unanimous verdict in all felony cases. Tex. Const.
art. V, § 13; Tex. Code Crim. Proc. Ann. art. 36.29(a) (West 2006); Leza v. State,
351 S.W.3d 344, 356 (Tex. Crim. App. 2011).
―Put simply, the jury must
unanimously agree about the occurrence of a single criminal offense, but they
need not be unanimous about the specific manner and means of how that
offense was committed.‖ Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App.
2011). This court has held that penal code sections 19.02(b)(1) and 19.02(b)(2)
do not describe different offenses; rather, they set forth alternative methods of
committing the same offense. See Bundy v. State, 280 S.W.3d 425, 431–33
(Tex. App.—Fort Worth 2009, pet. ref‘d); see also Young, 341 S.W.3d at 423–24.
The jury unanimity requirement is not violated when, as here, the defendant was
indicted under a statute providing alternate means of committing the same
offense. See Davis v. State, 268 S.W.3d 683, 712 (Tex. App.—Fort Worth 2008,
pet. ref‘d); see also Bundy, 280 S.W.3d at 433 (―[B]ecause precedent clearly
holds that, for the purposes of jury unanimity, the variant means of murder
comprise only one offense, there is no violation of the unanimity requirement in
Our sister courts have similarly resolved this issue. London v. State, 325
S.W.3d 197, 207 (Tex. App.—Dallas 2008, pet. ref‘d) (rejecting argument that the
jury charge alleged two separate statutory offenses of murder, allowing the jury
to return a non-unanimous guilty verdict); Garcia v. State, 246 S.W.3d 121, 141
(Tex. App.—San Antonio 2007, pet. ref‘d); Yost v. State, 222 S.W.3d 865, 877
(Tex. App.—Houston [14th Dist.] 2007, pet. ref‘d); Barfield v. State, 202 S.W.3d
912, 916 (Tex. App.—Texarkana 2006, pet. ref‘d); see Villa v. State, No. 10-0900385-CR, 2011 WL 1902017, at *4 (Tex. App.—Waco May 18, 2011, pet. ref‘d)
(mem. op., not designated for publication).
Further, Appellant‘s reliance on Ngo is misplaced. See Ngo v. State, 175
S.W.3d 738 (Tex. Crim. App. 2005). The court of criminal appeals recently set
out the facts in Ngo as follows:
In a single-count indictment, Ngo was charged with credit card
abuse. The three paragraphs under the single count alleged three
separate acts of credit card abuse: that Ngo stole a credit card; that
Ngo received a stolen credit card; and, that Ngo fraudulently
presented a credit card to pay for goods and services. The evidence
showed that Ngo committed each of the credit-abuse offenses in a
different way on separate occasions. Setting out the three acts in
the disjunctive, the charge instructed the jury to convict Ngo of one
offense of credit card abuse if they found that he committed any of
the three separate offenses.
Cosio v. State, No. PD-1435-10, 2011 WL 4436487, at *4–5 (Tex. Crim. App.
Sept. 14, 2011) (citations omitted). The Ngo court held that, because the State
alleged different criminal acts, it was error to allow the jury to return a general
verdict on whether Ngo committed one of the acts. Ngo, 175 S.W.3d at 744–45.
Ngo is distinguishable from the instant case. See Davis, 268 S.W.3d at 712
(distinguishing Ngo because ―Davis was indicted for a single act: the murder of
Latarsha Hampton‖); Barfield, 202 S.W.3d at 916; see also Young, 341 S.W.3d
The trial court‘s charge properly required a unanimous verdict, and we
overrule Appellant‘s fifth issue.
VI. Hearsay / Confrontation
In his sixth and seventh issues, Appellant contends that the trial court
erred by overruling his backdoor hearsay and confrontation clause objections to
Ranger Murphree‘s testimony regarding certain witness interviews.
After Appellant rested his case in chief, the State recalled Ranger
Murphree, who testified as follows:
Q. [State]: And did we take statements during the investigation
to confirm Cindy Waters‘[s] whereabouts on the evening of July 6,
A. [Murphree] Yes.
Q. Did we speak and take statements from Rhonda Eakman?
DEFENSE COUNSEL: Judge, he‘s leading the witness —
Q. [State]: Can you tell me the three alibi witnesses that we
A. Randy Eakman, Rhonda Eakman, and Jackie Coursey.
Q. And without telling me everything they said, what was the –
DEFENSE COUNSEL: I‘m going to object to any attempt to
describe what they said or implied as hearsay.
THE COURT: Make sure that you don‘t ask them what was
said or was contained in any statements.
Q. [State]: After those interviews, was Cindy Waters ruled out
as a suspect?
DEFENSE COUNSEL: Judge, I‘m going to object. That‘s a
backdoor attempt at hearsay. That‘s trying to get into the contents of
THE COURT: Overruled.
A. [Murphee]: Yes, she was eliminated.
DEFENSE COUNSEL: Judge, at a later time I‘d like to make
further objections on the record to that testimony.
THE COURT: You may.
DEFENSE COUNSEL: The hearsay objection that we made is
based on our right to confront and cross-examine the witnesses
against us pursuant to the state and federal constitutions, as well as
the federal and state due-process-of-law provisions and due-courseof-law protections.
STATE: For the record, the, witnesses have been — they are
THE COURT: So you‘re saying the witnesses are available?
STATE: Yes, Judge, they‘ve all been subpoenaed.
At the time Ranger Murphree testified, Waters had already testified in detail to
her activities and whereabouts the day of the shooting.
The State also
introduced documentary evidence demonstrating that Waters was at a club with
the Eakmans at 9:15 on the night of the shooting.
Regarding his backdoor hearsay claim, Appellant complains that Ranger
Murphree was ―allowed to tell the jury that he interviewed Randy Eakman,
Rhonda Eakman and Jackie Coursey and they all confirmed Cindy Waters[‘s]
Regarding the Confrontation Clause claim, Appellant asserts that
―information given to a police investigator, during an investigation of an offense,
is classic testimonial evidence.‖ The State contends that Appellant‘s untimely
objections did not preserve error.
To preserve a complaint for our review, Appellant must have timely
objected. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691–92
(Tex. Crim. App. 2009). To be timely, an objection must be made as soon as the
basis for the objection becomes apparent. Aguilar v. State, 26 S.W.3d 901, 905
(Tex. Crim. App. 2000); Courson v. State, 160 S.W.3d 125, 129 (Tex. App.—Fort
Worth 2005, no pet.). Additionally, the point of error on appeal must comport
with the objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
The failure to object in a timely manner during trial forfeits
complaints about the admissibility of evidence. Fuller v. State, 253 S.W.3d 220,
232 (Tex. Crim. App. 2008), cert. denied, 555 U.S. 1105 (2009). This is true
even though the error may concern a constitutional right of the defendant. Davis
v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010), cert. denied, 132 S. Ct.
122 (2011) (holding that preservation requirements apply to Confrontation Clause
complaints); Robinson v. State, 310 S.W.3d 574, 577 (Tex. App.—Fort Worth
2010, no pet.).
Here, Appellant failed to preserve error on his specific complaint on
appeal: that Ranger Murphree was allowed to tell the jury that the Eakmans and
Coursey confirmed Cindy Waters‘s alibi. Appellant did not object to this opening
portion of Ranger Murphree‘s testimony; instead, Appellant lodged his hearsay
and confrontation objections later when the State asked, ―And without telling me
everything they said, what was the —‖ and also when the State asked, ―After
those interviews, was Cindy Waters ruled out as a suspect?‖ Thus, Appellant
forfeited the hearsay and confrontation complaints regarding Ranger Murphree‘s
earlier testimony that the Eakmans and Coursey had confirmed Waters‘s alibi.
To the extent Appellant‘s complaint on appeal can be construed more
broadly to include the portions of Ranger Murphree‘s testimony to which
Appellant lodged hearsay and Confrontation Clause objections—including the
State‘s question, ―After those interviews, was Cindy Waters ruled out as a
suspect?‖ and Ranger Murphree‘s response, ―Yes, she was eliminated‖—the trial
court did not abuse its discretion by overruling Appellant‘s objections because
the same or similar evidence had been previously received without objection.
See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that
―overruling an objection to evidence will not result in reversal when other such
evidence was received without objection, either before or after the complained of
ruling‖); see also Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App. 2010);
Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (―An error [if any] in
the admission of evidence is cured where the same evidence comes in
elsewhere without objection.‖). Ranger Murphree‘s testimony that he eliminated
Waters as a suspect after interviewing Coursey and the Eakmans was essentially
cumulative of his prior unchallenged testimony that the Eakmans and Coursey
confirmed Waters‘s alibi. Appellant does not argue that these statements have
substantially different meanings.
Because error was not preserved, we overrule issues six and seven.
Having overruled each of Appellant‘s seven issues, we affirm the trial
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DELIVERED: January 26, 2012