FRANCISCO CABRIALEZ v. THE STATE OF TEXAS--Appeal from 214th District Court of Nueces County

   NUMBER 13-04-163-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

FRANCISCO CABRIALEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 214th District Court

of Nueces County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Rodriguez and Garza

   Opinion by Chief Justice Valdez

Following a jury trial, appellant, Francisco Cabrialez, was found guilty of capital murder and sentenced to life imprisonment. On appeal, appellant raises two issues: (1) appellant was not convicted by a unanimous jury because the guilt-innocence charge allowed a conviction based upon a disjunctive finding amongst any one of several distinct and separate criminal offenses, and (2) the trial court committed reversible error when it allowed the State to introduce appellant=s extraneous offense of an assault on a public servant without first weighing the probative value of the evidence against the prejudicial impact of said evidence. We affirm the judgment of the trial court.

I. BACKGROUND

Appellant was charged with the murder of Hector Moreno in the course of committing robbery and burglary of a habitation.

In a voluntary statement to police officials, appellant recounted the events of April 22, 2002, as well as the events that led up to that night. According to this statement, appellant entered Hector Moreno=s home in the middle of the night in search of Hector=s son, Gavino Moreno. Two weeks prior, appellant and his brother-in-law, Mike Vela, had a run-in with Gavino and others, which culminated in Gavino threatening appellant with a shotgun and Vela=s car being vandalized. The estimated damage to the car was $1,000. Seeking revenge, appellant went to Gavino=s family home with a loaded pistol, accompanied by Vela. Appellant entered the home through the front door and proceeded to look for Gavino. Appellant stated that he walked into a bedroom where a woman, a young girl, and a baby lay sleeping. He awoke the trio and asked for Gavino; they replied they did not know where he was. Allegedly, Hector was hiding behind the bedroom door, which he quickly swung at appellant in an attempt to incapacitate him. Hector then allegedly punched appellant in the mouth, and a struggle ensued. Appellant stated that he fell on Hector and the gun inadvertently fired; Hector was shot in the abdomen and died soon after. Appellant led the women and baby to another room. Appellant asked them where the drugs and money were, and they responded that they did not have any. Appellant instructed them to inform Gavino that he owed them money for the damages to Vela=s car.

Diana and Gloria Moreno, Hector=s wife and daughter, respectively, testified as to appellant shooting Hector and then terrorizing them on the night in question. Diana testified that appellant pistol-whipped her on the back of the head, which resulted in a bloody gash. Both Diana and Gloria testified that appellant sat them, Diana=s granddaughter, and Gavino=s female friend, Monica Duran, on the couch and floor. There, appellant demanded $1,000 or else he would go back and kill everybody in the house.

II. JURY CHARGE

By his first issue, appellant contends that the trial court=s jury charge was flawed. Specifically, the jury charge allowed a conviction based upon a disjunctive finding amongst any one of several distinct and separate criminal offenses; therefore, the jury verdict was not unanimous.

The State argues that the trial court properly instructed the jury disjunctively on the aggravating offenses which elevate regular murder to a capital offense, based on long-standing precedent from the Texas Court of Criminal Appeals holding that those underlying offenses are merely alternate means of committing capital murder. Further, the State asserts that the requirement of jury unanimity is not violated by instructing the jury in the disjunctive on alternative theories of committing the same offense, in contrast to instructing the jury on two separate offenses involving separate incidents.

 A. Standard of Review

When we review a jury charge for alleged error, we determine (1) whether error actually exists in the charge, and (2) whether any resulting harm requires reversal. Castaneda v. State, 28 S.W.3d 685, 694 (Tex. App.BCorpus Christi 2000, no pet.); see Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). The standard to determine whether sufficient harm resulted from the error to require reversal depends upon whether appellant objected. Mann, 964 S.W.2d at 641. If the error in the charge was the subject of a timely objection, reversal is required if the error was calculated to injure the rights of the defendant, or in other words, whether there was "some harm." Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003) (en banc); Escobar v. State, 28 S.W.3d 767, 777 (Tex. App.BCorpus Christi 2000, pet. ref'd). However, if the alleged error was not properly objected to, we may reverse only if the record shows that the error was so egregiously harmful that the defendant was denied a fair and impartial trial. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000); Escobar, 28 S.W.3d at 777.

B. Analysis

After reviewing the record, we conclude that appellant did not raise a timely and relevant objection to the jury charge. Appellant objected only to what he construed as a typographical error involving where a comma should go in relation to the various offenses in the jury charge. Therefore, we review the record to determine if there was jury charge error and, if so, whether the error was so egregiously harmful that appellant was denied a fair and impartial trial. See Ovalle, 13 S.W.3d at 786; Escobar, 28 S.W.3d at 777.

i. Disjunctive Indictments

When an indictment alleges different methods of committing capital murder in the conjunctive, the jury may properly be charged in the disjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). Where the alternate theories of committing the same offense are submitted to the jury in the disjunctive, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. Id. Indeed, the supreme court has determined that Athere is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.@ Id. (citing Schad v. Arizona, 501 U.S. 624, 632 (1991)).

Appellant contends that the State submitted a Ashotgun@ jury charge because it allowed the jury to find appellant guilty if it found that appellant had committed a murder in the course of committing either a robbery or burglary of a habitation Aagainst any one of five (5) separate victims.@ The Avictims@ included Hector, Diana, Gloria, and Gavino Moreno, as well as Monica Duran.

In the jury charge, the State essentially asked the jury to determine if the appellant committed murder in the course of either committing robbery or burglary of a habitation. A person commits robbery if, in the course of committing theft as defined in chapter 31 and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. ' 29.02(a)(1)-(2) (Vernon 2003). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of the property. Id. '31.03(a). A person commits burglary if, without the effective consent of the owner, the person (1) enters a habitation, or a building not then open to the public, with intent to commit a felony, theft, or an assault; or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. Id. '30.02(a)(1), (3).

The jury heard the evidence and determined appellant had murdered Hector. Appellant testified and said in a sworn voluntary statement that he went to Gavino=s house because Gavino was responsible for the damage committed on Vela=s father=s car. Whether appellant sought direct compensation from Gavino is irrelevant when examining the entire record. Once appellant entered Gavino=s home, he asked Diana, Gloria, and Monica where any money and drugs were. Although appellant was told Gavino was not there, he continued to demand they tell him the whereabouts of any money and drugs. After shooting Hector, appellant sat the women on the floor and couch and continued to badger them about Gavino=s whereabouts. Further, he threatened their lives and continued to demand money. Considering all the evidence, it is probable for a jury to have determined that appellant attempted to either rob or burglarize one, several or all of the parties listed in both the indictment and jury charge. See id. '' 29.02(a)(1)-(2); 30.02(a)(1), (3). Therefore, we conclude that there was no jury charge error here, and furthermore, even were we to assume error, the harm was not egregious. See Ovalle, 113 S.W.3d at 786; Escobar, 28 S.W.3d at 777.

ii. Jury Unanimity

The jury verdict was unanimous. The unanimity requirement is not violated by instructing the jury on alternative theories of committing the same offense, in contrast to instructing the jury on two separate offenses involving separate incidents. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). The jury was correctly instructed as to alternative theories of the same offense and rendered a proper, unanimous verdict. Appellant=s first issue is overruled.

III. EXTRANEOUS OFFENSES

By his second issue, appellant contends that the trial court committed reversible error when it allowed the State to introduce appellant=s extraneous offense of assault on a public servant without first weighing the probative value of the evidence against the prejudicial impact of said evidence. Appellant bases his argument on Texas Rules of Evidence 403 and 404(b). Appellant contends that videotape evidence of appellant attacking J.E.T (jail extraction team) officers and biting Officer Mercado on the side of his face had no probative value regarding the issue of whether or not he had killed the victim in this case. Furthermore, appellant argues that the trial court did not weigh the probative value of the videotape and Officer Mercado=s testimony versus its prejudicial value.

The State asserts that appellant failed to preserve error because he Anever pressed the trial court to make a specific ruling concerning his objection to the admissibility of Officer Mercado=s testimony concerning the extraneous offense.@ In the alternative, the State argues that if error was committed, it was cumulative of other evidence in the case and therefore harmless.

 A. Standard of Review

A trial court=s rule 403 ruling is reviewed under an abuse of discretion standard. See State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). Similarly, a rule 404(b) ruling is also reviewed under this standard. See Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004). An appellate court will not reverse a trial court=s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

Once a rule 404(b) objection is made, a further objection based on rule 403 is specifically required to ensure a balancing of probative weight against the prejudice it will instill in the jury. Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh=g). Appellant failed to properly preserve the issue for appeal by neglecting to make a rule 403 objection. Therefore, there is no need to conduct further analysis under rule 403, and we will discuss only appellant=s properly preserved rule 404(b) objection.

i. Analysis under Rule 404(b)

Texas Rule of Evidence 404(b) establishes that "evidence of other crimes, wrongs

or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Tex. R. Evid. 404(b). The rule prohibits the use of character evidence and is designed to prevent the trier of fact from inferring that the person acted in conformity with that character trait. Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004).

Extraneous act evidence, however, may be admissible if it logically proves some other fact. Id. Acceptable purposes to allow admission of such evidence include proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b); see Albrecht v. State, 486 S.W.2d 97, 100 01 (Tex. Crim. App. 1972). The threshold inquiry to admit extraneous evidence is whether that evidence is relevant to prove a material issue or simply to define the defendant's character. See Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988). Furthermore, where intent is a material issue in the case, and cannot be inferred from the act itself, then extraneous evidence is relevant. Morgan v. State, 692 S.W.2d 877, 880 (Tex. Crim. App. 1985).

Regardless of whether the trial court erred in admitting the extraneous evidence, we find that the evidence would not have led to the rendition of an improper verdict. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). A criminal conviction should not be overturned if, after examining the record in its entirety, the appellate court has fair assurance the error had only slight effect and did not influence the jury's decision. Johnson, 967 S.W.2d at 417.

In the present case, appellant voluntarily testified on his own behalf about his prior conviction for aggravated assault, his altercation at Gavino=s home prior to the events of April 22, 2002, and his prior membership in two separate gangs, including Raza Unida, where one has to Astab, kill or do something dirty to get in.@ Appellant=s voluntary submission of his violent nature and gang affiliation clearly outweigh any influence the videotape may have had. See id. We overrule appellant=s second issue.

IV. CONCLUSION

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this 19th day of January, 2006.