Juan Carlos Tirado v. The State of Texas--Appeal from Crim Dist Ct 3 of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-99-100-CR

JUAN CARLOS TIRADO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court 3

Tarrant County, Texas

Trial Court # 0665397D

O P I N I O N

Juan Carlos Tirado was charged with the murder of Rudy Gutierrez. Tirado was 15 years old at the time of the offense. The juvenile court waived its jurisdiction, and Tirado was tried as an adult in district court. A jury found him guilty of murder and sentenced him to 60 years in prison. He brings five issues for review on appeal. We affirm the conviction.

Facts

Troy Provost, a friend and roommate of the victim, Rudy Gutierrez, was having a birthday party at his house in Fort Worth on the night of June 28, 1998. A group of about 10 family members and friends were celebrating with him by cooking out, drinking, and watching a Tyson fight on television. Provost s girlfriend was standing on the front porch of the house when she was hit with a beer can thrown by some boys walking down the street. The incident frightened her. Provost ran after the boys; and when they ran off, Provost decided not to pursue them. Provost walked back to his house and sat on the front porch. A few minutes later, the boys reappeared in front of the house and taunted Provost. He then followed the boys to a house on the block behind his which was Grainger Street. Several people were outside that house, and Provost walked up to an older man standing in the crowd. The man represented himself as the uncle of one of the boys Provost had followed and told Provost to leave or the uncle would kill him. Provost turned to walk away when someone in the crowd fired some shots. Provost did not turn around to see who was shooting or whether he was the target of the shooting. He continued walking until he reached his house. Provost had never seen any of these people before.

When he arrived at his house, Rudy, his brother Victor, and a few other people came outside to find out what had happened. Rudy told Provost to call the police. Provost declined. As they were talking, Provost heard several shots ring out. When he turned around, he saw three people running away. He said the shots sounded like they came from a small caliber weapon, such as a .22 caliber. The shots were fired in quick succession. As Provost saw the three people run away, he heard Rudy say, I am hit, I am hit. Rudy then fell over about two feet from Provost. Provost called 911, and the police arrived quickly. But, Rudy had already died.

Provost recognized one of the three who ran away after the shots were fired as one of the boys he encountered earlier that night. He could not tell which person fired the shots. He could not identify Tirado as one of the boys running away from the shooting. No one at the scene could identify who fired the shots.

Provost testified that Rudy had not been out on the porch when the beer can was thrown and was not involved in chasing the boys. Rudy had been in the house during these incidents.

When the police arrived, the scene was chaotic. Friends of Rudy were desperately trying to save his life. Three spent shell casings and one unfired bullet were located in the street, so it was closed to protect the crime scene. It was discovered later that the three spent casings were fired from the same weapon.

The police were directed to the house on Grainger Street as a place to find the possible suspects. There, they spoke to an older man, Frank Cruz, his step-son, Chris Burgess, and his son s friend, Frank Smith, and determined the three had information possibly relating to the shooting. They were driven back to the crime scene and instructed to wait for a homicide detective to arrive. The three were then transported to the police headquarters. Based on the information obtained from these three people, a warrant was issued for Carlos Falcon, a/k/a Diablo, as the principal actor in Rudy s death. Burgess and Smith disliked Falcon, and Cruz did not want him around. Falcon admitted to being present at the shooting with Miguel Gonzales and Tirado, but denied being the one who fired the shots. He named Tirado, a/k/a Crow, as the shooter.

After having had his juvenile warnings read to him by a magistrate, Tirado gave a written statement. He related that on the night of the Tyson fight, he and five others drove around town, sniffing octane booster. Tirado had a .22 automatic handgun with him. They ended up at someone s house whom he did not know. Tirado s homeboy, Miguel, lived across the street. They were approached by a Varrio Centro gang member and were told of an altercation with someone down the street. Miguel asked Tirado and the others to back this fool, meaning to help retaliate. They agreed. Falcon, Tirado and Miguel walked up to the house, and as they did, Falcon told Tirado, Let s go for it. Tirado had the gun, and he understood Falcon to mean for Tirado to shoot. Miguel also told Tirado to [g]o for it, meaning the same thing. Falcon and Miguel told Tirado to [g]o shoot em, and to [g]o for it, Crow. Tirado saw the house down the street with people on it. He shot the gun at them about six times. He ejected the spent casings because the gun sometimes did not work. Tirado remembered also having to eject a bullet that would not fire. After the shooting, the three ran. Tirado did not know what or who he hit. Tirado then sniffed more octane booster. He stated that he shot the gun because Falcon and Miguel told him to do it. He thought the gun could be found under a bed at his cousin s house. The gun was not located.

Tirado was a known member of the Azlan Trese gang. Falcon and Miguel were both members of the Varrio Centro gang. Neither the Azlan Trese nor the Varrio Centro were considered major gangs in Fort Worth.

Tirado testified in his own defense. He denied shooting Rudy. He stated he had admitted to the shooting because he was afraid that something would happen to his family. He said he was being threatened by the Varrio Centro, including Miguel, Falcon, and Frank Smith, after the shooting occurred. Tirado admitted to being present at the shooting but said that Frank fired the shots. He was told not to say anything, or you know what I m going to do to you. Tirado interpreted this as a threat on his life. He did not want his family hurt either. Tirado said these gang members were crazy, although he did not know them. He was afraid of Frank and the others. Tirado had heard that Varrio Centro was the biggest gang on the south side. At the time of the trial, Tirado was no longer afraid of the gang members. Tirado was tired of being in jail for a crime he did not commit.

Tirado also stated that he quit school at the age of fifteen and in the eighth grade because he could not get along with others. He stated he had been in a gang since he was thirteen and had been sniffing, or huffing, paint since he joined the gang. He primarily huffed octane booster and airplane glue. On the night of the shooting, he and five others bought two bottles of octane booster and shared it. Tirado told the jury that when he huffs, he feels like his brain is slowing down. He said he walks slow, as well. He huffed every day. He stated that huffing has caused his brain to be damaged.

Tirado stated he had huffed two cans of octane booster before he was later arrested. He had also smoked two marijuana joints. Later in his testimony, he admitted to having ingested cocaine but could not remember if he drank any beer. When given his juvenile warnings, Tirado claimed he did not read them and did not understand when they were read to him. He claimed that he just signed the warnings, indicating that he understood them, because he was tired and sleepy. Tirado also contended that he could still feel the effects of the octane booster when he received his warnings.

Tirado claimed at trial that he lied in most of his written statement. He said he heard Falcon talk about having to eject the spent casings and the bullet. That was the reason why Tirado knew to put that in his statement. He knew Frank had a gun when they ran over to the house. He testified he saw Frank pull out a gun and shoot it at the people at the house. He knew Frank was going to shoot someone at the house. Tirado stayed with Frank because he wanted to get high, and Frank and the others had the money to buy the inhalent. Tirado denied having a gun at the time of the shooting. He admitted that he lied to the judge who reviewed his statement when he said he had a gun with him. In his statement, he discussed how the grips on the handgun were taped because they were broken. He testified at trial that he had heard Falcon say he had fixed the gun in that manner. He averred that everything he put in his statement was what others had told him. He again denied that he shot Rudy.

An autopsy was later performed on Rudy. The report revealed that a bullet entered his upper right chest and traveled through the aorta, the coronary artery, the right lung and the left lung. It exited through the left back. One fatal wound was the damage to the major arteries coming out of the heart. The damage to the left lung was possibly lethal as well. Rudy could not have survived, even with immediate medical attention. The injuries resulted from a low caliber firearm such at a .22 handgun. Based on the downward trajectory of the bullet, the medical examiner suspected that Rudy was either on his hands and knees or was bent over. Additionally, he testified that the murder weapon had to be pointed at Rudy when it was fired and that the bullet had not contacted anything very solid before it struck him.

Factual Sufficiency

In his fifth issue, Tirado argues that the evidence was factually insufficient to support the verdict. He contends that he initially admitted guilt because he and his family were threatened. Thus, the verdict was manifestly unjust. We disagree.

Law

When conducting a review of the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We then apply the standard of review set out by the Court of Criminal Appeals. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). We ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the [fact finder s] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 11; see also Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In other words, evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. The jury is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Application

The jury was free to believe all, some or none of Tirado s testimony disclaiming involvement in the shooting. After reviewing the entire record, we do not find that the proof of Tirado s guilt was so weak as to be clearly wrong or unjust. We also do not find that the proof of guilt was greatly outweighed by Tirado s contrary testimony at trial. Thus, the evidence is factually sufficient, and Tirado s fifth issue is overruled.

Lesser Included Offenses

In his first two issues, Tirado argues that the trial court erred in refusing his request for charges on the lesser included offenses of aggravated assault and criminally negligent homicide. The State indicted Tirado on two forms of murder: (1) intentionally or knowingly causing the death of an individual; and (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) (Vernon 1994). The jury was charged the same and returned a general verdict of guilty. Now, Tirado contends that there is some evidence that, although Rudy was shot and killed, there was no intent to cause anyone s death or to cause anyone serious bodily injury.

Law

To establish that he was entitled to a lesser-included-offense instruction, Tirado must show that either aggravated assault or criminally negligent homicide (1) is a lesser-included offense of murder and (2) there was evidence that, if guilty of an offense, he was guilty only of the lesser-included offense. Cardenas v. State, 30 S.W.2d 384, 392 (Tex. Crim. App. 2000);Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App.), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a charge on the lesser offense. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). However, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser-included offense for the fact finder to consider before an instruction on a lesser included offense is warranted. Id. at 24; Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997);Reeves v. State, 969 S.W.2d 471, 488 (Tex. App. Waco 1998, pet. ref d).

If evidence from any source raises the issue of a lesser-included offense, an instruction on that offense must be included in the court's charge. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). If a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser-included offense, then a charge on a lesser-included offense is not required. Bignall, 887 S.W.2d at 24; Reeves, 969 S.W.2d at 488. There are two ways in which the evidence may indicate a defendant is guilty of only a lesser offense. There may be evidence which negates or refutes other evidence establishing the greater offense; or, the evidence presented may be subject to different interpretations and one of those interpretations must negate or rebut an element of the greater offense. Saunders, 840 S.W.2d at 391-92. Although it is true that a lesser-included offense may be raised when the evidence on the issue is subject to two different interpretations, it is fundamental that the second interpretation must negate or rebut an element of the greater offense suggested by the first interpretation. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996); Reeves, 969 S.W.2d at 488.

Evidence Submitted

Tirado gave conflicting accounts of his involvement in Rudy s death. According to his written confession, Tirado and his companions agreed to back a Varrio Centro gang member who was having problems with someone down the street. Tirado had his .22 caliber automatic handgun when he and two others walked up to the house. He was told to [g]o for it and [g]o shoot em. Tirado saw that the house had people around it and fired approximately six shots at the group. During the shooting, Tirado had to eject the spent casings because the gun would not. He also had to eject a bullet that would not fire. He and his accomplices then fled the scene. Tirado stated he did not know who or what he hit with the shots.

At trial, Tirado testified that Frank Smith fired the shots. He acknowledged that he agreed to back up Frank and accompanied him to the house, knowing that Frank had a gun and that Frank was going to the house to shoot someone. Tirado strenuously denied that he had a gun or that he shot a gun that night. He claimed he was just at the wrong place at the wrong time.

The medical examiner testified that the murder weapon had to be pointed at Rudy when it was fired and that the bullet had not contacted anything very solid before it struck him. The bullet entered Rudy s upper chest, caused several tears of vital organs, and exited his back. Testimony from others also established that a .22 caliber handgun is a deadly weapon and that firing the weapon at someone is an act clearly dangerous to human life.

Application

Both aggravated assault and criminally negligent homicide can be lesser included offenses of murder. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999); Saunders, 840 S.W.2d at 391. The parties do not contest that the first prong of the test has been met. Both parties focus their arguments on whether there was evidence that, if guilty of an offense, Tirado was guilty only of aggravated assault or criminally negligent homicide.

Aggravated Assault

Tirado argues that a question remains as to whether the shooter, either himself or Frank, had the intent to kill someone or to cause someone serious bodily injury. If the intent was not there, he argues he is entitled to a charge on the lesser offense of aggravated assault. We think this argument is similar to an argument made recently to the Court of Criminal Appeals. In Forest, the defendant admitted to aiming for the victim s backside but denied intending to kill him. The Court of Criminal Appeals reversed a finding that the lesser offense of aggravated assault should have been charged. Forest, 989 S.W.2d at 367. Just as in Forest, by Tirado s own testimony, it is clear that the shooter, whether Tirado or Frank, intended to at least cause serious bodily injury to Rudy. It is not contested that the shooting caused Rudy s death. It is also undisputed that four to six shots were fired at the group, that the spent casings had to be manually ejected and that an unfired bullet had to be ejected. Firing a gun in the direction of an individual is an act clearly dangerous to human life. Id. at 368. There was no evidence, as Tirado suggests, that the shots fired were intended only to scare the group around the house. Therefore, there was no evidence that he was guilty only of aggravated assault.

Criminally Negligent Homicide

Tirado also argues that because he had been huffing octane booster the night of the murder, there was evidence that he was unable to appreciate the consequences of his actions and was entitled to an instruction on the lesser offense of criminally negligent homicide. The key to criminal negligence is the failure of the actor to perceive the risk created by his conduct. Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975); Nguyen v. State, 977 S.W.2d 450, 456 (Tex. App. Austin 1998), aff d, 1 S.W.3d 694 (Tex. Crim. App. 1999). It is essential that the record contain evidence showing an unawareness of the risk before a charge on criminally negligent homicide is required. Mendieta v. State, 706 S.W.2d 651, 653 (Tex. Crim. App. 1986); Nguyen, 977 S.W.2d at 456.

Tirado never testified, nor was there any other evidence presented, that his huffing habit made him unaware of the risk of pointing a gun at someone. Therefore, a charge on criminally negligent homicide was not required.

Conclusion

Because there was no evidence directly germane to the lesser-included offenses of aggravated assault or criminally negligent homicide, it was not error for the trial court to refuse those instructions. Tirado s first and second issues are overruled.

Findings of Voluntariness

In his third issue, Tirado complains that the trial court did not enter any written findings on the voluntariness of his confession as required by the Code of Criminal Procedure. // The Code provides in part:

If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of acts upon which the conclusion was based, which order shall be filed among the papers of the cause.

Tex. Code Crim. Proc. Ann. art. 38.22 6 (Vernon 1979).

Tirado cites us to a case from the Dallas Court of Appeals for the proposition that the findings must be in writing. See Nichols v. State, 810 S.W.2d 829 (Tex. App. Dallas 1991, pet. ref d). // Contrary to Tirado s assertions, the Dallas court did not hold that the required findings and conclusions by the trial court had to be in writing. The trial court judge had first made findings on the record which were transcribed and was then requested by the appellate court to make written findings on the disputed fact issues. When the exact same findings were submitted, the court held that the findings by the trial court were too conclusional. Id. at 832.

It is well settled that a trial court s findings and conclusions on the voluntariness of a defendant s statement which are dictated to the court reporter and then transcribed in the reporter s record can satisfy the requirements of article 38.22. Parr v. State, 658 S.W.2d 620, 623 (Tex. Crim. App. 1983); Andrade v. State, 6 S.W.3d 584, 592 (Tex. App. Houston [14th Dist.] 1999, pet. ref d); Lee v. State, 964 S.W.2d 3, 11-12 (Tex. App. Houston [1st Dist.] 1997, pet. ref d); Perkins v. State, 779 S.W.2d 918, 925 (Tex. App. Dallas 1989, no pet.); Horn v. State, 699 S.W.2d 714, 716 (Tex. App. Fort Worth 1985, no pet.). The findings need only be sufficient enough to provide the reviewing court and parties with a basis upon which to review the trial court s application of the law to the facts. Wicker, 740 S.W.2d at 783.

In the case at hand, the trial court orally made his findings of voluntariness on the record. The record was reduced to writing by the court reporter and filed with us. After reviewing the trial court s findings, we hold that they are sufficient and satisfy the requirements of the Code of Criminal Procedure. His third issue is overruled.

Voluntariness of Confession

Tirado also contends that the trial court erred in finding his confession to be voluntary. Because Tirado was a juvenile at the time of the offense, the Texas Family Code governs the manner in which his confession was taken. See Tex. Fam. Code Ann. 51.095 (Vernon Supp. 2001). He does not, however, contend officials violated any provision of the Family Code. Tirado argues that his confession was involuntary because he was under the influence of an inhalant and was not capable of making a rational and voluntary decision to confess.

Law

An accused must give his confession voluntarily before it can be used against him. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995); Sendejo v. State, 953 S.W.2d 443, 447-448 (Tex. App. Waco 1997, pet. ref d). Once the accused contests the admission of his statement on the ground of involuntariness, the due process guarantee requires the trial court to hold a hearing on the admissibility of the statement outside the presence of the jury. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)(citing Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)). See also Tex. Crim. Proc. Ann. art. 38.22 6 (Vernon 1979).

Voluntariness is determined by a totality of the circumstances. See Spears v. State, 801 S.W.2d 571, 576 (Tex. App. Fort Worth 1990, pet. ref d). At the hearing, the trial court is the sole judge of the weight and credibility of the evidence. Alvarado, 912 S.W.2d at 211. Intoxication, while relevant, is not per se determinative of the voluntariness of a confession. Nichols v. State, 754 S.W.2d 185, 190 (Tex. Crim. App. 1988), overruled on other grounds, Green v. State, 764 S.W.2d 242, 247 (Tex. Crim. App. 1989). If an accused s intoxication rendered him incapable to make an independent, informed choice of free will, then his confession was given involuntarily. Id. We have already held a confession to be voluntary where the defendant testified that he smoked five or six marijuana cigarettes between the time of his arrest and the time he gave his statement and where he did not appear to the magistrate or the police officer to be under the influence of any intoxicating substances. Sendejo, 953 S.W.2d at 448.

On appellate review, we show almost total deference to a trial court s determination of admissibility if it is based on historical facts supported by the record or if it involves a mixed question of law and fact and the ultimate resolution of that question turns on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

The Record

A review of the record reveals that Detective Manuel Reyes of the Fort Worth Police Department learned through his investigation that Tirado was a suspect in Rudy s death. He checked Tirado out of the juvenile detention center where Tirado had been held on an unrelated matter for the previous thirty-six hours. Reyes immediately took Tirado to Judge Larry Reed for his initial juvenile warnings before giving a statement. With no one in the office other than the judge and Tirado, Judge Reed read to Tirado his juvenile warnings, and Tirado acknowledged that he understood his rights. Judge Reed testified that Tirado did not appear to be under the influence of any intoxicants that would affect his judgment. Judge Reed was satisfied that Tirado understood his rights. Both he and Tirado then signed the warning form.

Tirado was willing to discuss the murder with Reyes, so he was taken to the police department s youth division. He was not threatened, coerced, promised anything or had any necessity withheld. Tirado first told Reyes about Rudy s murder orally and then repeated it while Reyes typed the statement. To Reyes, Tirado did not appear intoxicated or unmindful of what was going on. After Reyes typed the statement, Tirado was taken back to Judge Reed where a second warning was read and where Tirado s statement was read back to him. Again, no one was present in the office other than the judge and Tirado. Tirado did not hesitate to agree that the statement just read back to him was his. Judge Reed again stated that Tirado did not appear to be under the influence of intoxicants. Judge Reed had Tirado sign the statement and then signed it himself.

Tirado testified that on the night of his arrest that landed him in the detention center, he had sniffed two lines of cocaine, smoked two marijuana joints, huffed two cans of octane booster and had possibly drank two beers. It was uncontroverted that Reyes picked up Tirado from the detention center thirty-six hours after his arrest. It is also uncontroverted that no illegal substances are available in the detention center.

After the hearing, the trial court found that Tirado had the sufficient mental capacity to understand the warnings and rights given to him and the sufficient mental capacity to knowingly, intelligently,...freely, and voluntarily waive those rights.

Application

There is some conflicting evidence regarding Tirado s mental capacity at the time he waived his rights and gave his statement to Reyes. The trial court resolved these conflicts in favor of holding the statement to be voluntary. Based on the record before us, the evidence supports the trial court s conclusion and we defer to the court s decision. Tirado s fourth issue is overruled.

Conclusion

Having overruled each of Tirado s issues for review, we affirm the conviction of murder.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed January 17, 2001

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