ARTURO BORJAS PERALEZ v. THE STATE OF TEXAS--Appeal from 389th District Court of Hidalgo County

NUMBER 13-04-048-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 ARTURO BORJAS PERALEZ, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 389th District Court

of Hidalgo County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Arturo Borjas Peralez, was charged with the offense of murder. See Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003). A jury found appellant guilty and assessed punishment at sixty years' confinement in the Texas Department of Criminal Justice-Institutional Division and a $10,000 fine. The trial court has certified that this is not a plea bargain case, and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2). By five issues, appellant challenges (1) the trial court's denial of his motion to suppress, (2) the trial court's denial of his motion for directed verdict, (3) the factual sufficiency of the evidence to support the jury's finding of murder, (4) the admission into evidence of photographs that are more prejudicial than probative, and (5) the State's use of improper jury argument. We affirm.

I. Background

All issues of law presented by this case are well-settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Motion to Suppress

By his first issue, appellant contends the trial court erred in denying his motion to suppress evidence gathered at his residence because it was the fruit of an illegal search.[1]

A. Standard of Review

We apply a bifurcated standard of review to a trial court's denial of a motion to suppress, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the trial court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc). In addition, we must afford almost total deference to a trial court's rulings on mixed questions of law and fact if the resolution of those questions turns on an evaluation of the credibility and demeanor of a witness. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc). We review de novo mixed questions of law and fact that do not turn on the credibility and demeanor of a witness. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

When, as here, the trial court does not make explicit findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling so long as those findings are supported by the record. Ross, 32 S.W.3d at 855 (citing Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000)). If the trial court's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 856 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)).

B. The Law

The Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution forbid unreasonable searches and seizures. See U.S. Const. amend. IV; Tex. Const. art I, ' 9. Warrantless searches are per se unreasonable unless they fall under one of a few exceptions. Brimage v. State, 918 S.W.2d 466, 500 (Tex. Crim. App. 1996) (op. on reh'g en banc) (citing Kelly v. State, 669 S.W.2d 720, 725 (Tex. Crim. App. 1984)). The Supreme Court has held that the emergency doctrine is one such exception. See Laney v. State, 117 S.W.3d 854, 861 (Tex. Crim. App. 2003). In addition, constitutional prohibitions against warrantless searches and seizures do not come into play when a person gives free and voluntary consent to search. Hernandez v. State, No. 13-02-620-CR, 2006 Tex. App. LEXIS 2853, at *6 (Tex. App.BCorpus Christi Apr. 6, 2006, no pet. h.) (citing Foster v. State, 101 S.W.3d 490, 495 (Tex. App.BHouston [1st Dist.] 2002, no pet.)).

Under the emergency doctrine exception, police officers are not barred from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Mincey v. Arizona, 437 U.S. 385, 392 (1978); see Laney, 117 S.W.3d at 861-62. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a perpetrator is still on the premises. Mincey, 437 U.S. at 392. In addition, the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Mincey, 437 U.S. at 393 (citing Michigan v. Tyler, 436 U.S. 499, 509-10 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 465-66 (1971)); Laney, 117 S.W.3d at 862. Moreover, the seizure of evidence in a subsequent entry that "did not come from a more extensive search beyond the scope of the plain view of the officers initially entering the premises during the exigency" is lawful. Johnson v. State, 161 S.W.3d 176, 183 (Tex. App.BTexarkana 2005, pet. granted).

C. Analysis

Through his first issue, appellant contends the trial court erred in denying his motion to suppress evidence obtained at his residence because it was the fruit of an illegal search. More specifically, appellant asserts that (1) the shotgun, (2) three shotgun shells, and (3) photographs taken inside his residence should have been suppressed because they were obtained without a warrant. We disagree.

The record establishes that appellant gave the Hidalgo County Sheriff's Department his written consent to search his residence at approximately 9:25 p.m.[2] The record also shows that the crime scene specialist did not begin to collect evidence, including the shotgun and three shotgun shells, from the scene or to take photographs of the scene until approximately 9:48 p.m., thirteen minutes after appellant's consent to search was obtained. Because the aforementioned evidence was obtained after appellant gave his consent to search his residence, we conclude that the trial court properly denied appellant's motion to suppress with respect to the shotgun, three shotgun shells, and the photographs taken by the crime scene specialist. We next determine whether photographs taken by other law enforcement personnel without a warrant and before appellant consented to the search of his residence are the fruit of an illegal search.

Deputy Martin Segura, the first officer to arrive at the crime scene in response to appellant's 911 call that he had shot Maria Petra Rodriguez (the victim), testified at the suppression hearing that he entered appellant's residence to check on the victim. Deputy Segura also stated that he checked the other rooms in the house "for officer safety" and to ensure that nobody else was in the house. When the prosecution asked Deputy Segura if he had gone "ruffling through drawers or looking under mattresses," he answered "no." Deputy Segura further testified that he entered the residence a second time, when the emergency nature of the situation had passed, to take photographs of the crime scene. In addition, Investigator Miguel Davila, Jr., testified at the suppression hearing that he entered the residence after the emergency nature of the situation had passed for investigative purposes and to take photographs of the crime scene. Investigator Davila further testified that all of the evidence obtained in the case was in plain view upon entering the residence. Based on the record evidence, we conclude that the trial court could have found that Deputy Segura's initial entry and search of the residence was permissible under the emergency doctrine exception. See Mincey, 437 U.S. at 392; Laney, 117 S.W.3d at 861-62. In addition, we conclude that the trial court could have impliedly found that the photographs taken after the passing of the emergency nature of the situation, but before appellant gave his written consent for officers to search his residence, were photographs of items that "did not come from a more extensive search beyond the scope of the plain view of the officers initially entering the premises during the exigency." See Johnson, 161 S.W.3d at 183. Therefore, we conclude the photographs were lawfully obtained. See id. Thus, the trial court properly denied appellant's motion to suppress. We overrule appellant's first issue.

III. Sufficiency of the Evidence

By his second issue, appellant contends the trial court erred in denying his motion for directed verdict. By his third issue, appellant contends that the evidence was factually insufficient to support the jury's finding of murder. More specifically, appellant asserts by his second and third issues that the evidence was legally and factually insufficient to prove beyond a reasonable doubt that he acted intentionally or knowingly when he shot the victim.

A. Standard of Review

1. Motion for Directed Verdict

We treat a challenge to a trial court's denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (citing Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993)). Evidence is legally sufficient when, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense proof. Id.

2. Factual Sufficiency

We measure the factual sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd). In reviewing the factual sufficiency of the evidence, we view the evidence in a neutral light. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005) (en banc) (citing Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996)). There are two ways in which a court may find the evidence to be factually insufficient: (1) the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt; or (2) the contravening evidence is so strong that the State could not have met its burden of proof. Id. (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004)).

B. Analysis

In order to prove that appellant committed the offense of murder under section 19.02(b)(1) of the Texas Penal Code, the State had to prove that appellant intentionally or knowingly caused the death of Maria Petra Rodriguez. See Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003). A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. Id. ' 6.03(a). A person acts knowingly when he is aware that his conduct is reasonably certain to cause the result. Id. ' 6.03(b). In addition, intent may be inferred from circumstantial evidence, such as the acts, words, and conduct of appellant. Guevara v. State, 152 S.W.3d 45, 50 ( Tex. Crim. App. 2004). At trial, the State introduced into evidence the 911 tape of the call made by appellant to the 911 operator relating to the fact that he had shot the victim. During the course of the 911 call, appellant stated the following, in pertinent part:

I just shot my wife. . . . I just killed my wife. . . . She was doing a bunch of shit to me. . . . I got tired of her. . . . I got tired of her already. . . . [L]ook, they are going to kill me with the needle. . . . I already screwed it up. . . . I couldn't stand her anymore, see here. . . . [S]he finally wanted to throw me out of the house. . . .

The State also introduced into evidence appellant's written statement, which read as follows, in pertinent part:

Maria kept laughing at me so I went to the back room and I grabbed the gun. I checked it to see if it was loaded. . . . Maria continued telling me that I was a piece of shit . . . . Maria . . . kept threatening me, telling me that they were going to lock me up and that I was not going to get out anymore. I told Maria not to threaten me because I had the gun in my hand. . . . I tried to fire a shot to scare her, but I shot her on the face. I then shot 2 more times and I shot her on the shoulder and on the face again. . . . I never intended to shot [sic] my wife. Before I fired the shot to scare Maria, Maria lurched [sic] at me and I shot her on the face.

In addition, the jury heard testimony from various State and defense witnesses, including various law enforcement officials, 911 dispatchers, crime lab employees, evidence technicians, and the doctor who performed the autopsy on the victim.

Based on the record evidence, we conclude that the jury could have inferred the requisite intent essential to the commission of the offense of murder on the part of appellant from his acts, words, and conduct. See Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003); Guevara, 152 S.W.3d at 50. Therefore, viewing the evidence in the light most favorable to the verdict, as measured against a hypothetically correct jury charge, we conclude that any rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly caused the death of the victim. See Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003); Malik, 953 S.W.2d at 240; Williams, 937 S.W.2d at 482 (citing Jackson, 443 U.S. at 318-19). Thus, we conclude the evidence was legally sufficient to submit the charge of murder to the jury and to support the jury's finding that appellant committed the offense of murder. We overrule appellant's second issue.

Moreover, viewing the evidence in a neutral light, as measured against a hypothetically correct jury charge, we conclude the evidence supporting the finding that appellant acted intentionally or knowingly when he caused the death of the victim, considered alone, is not too weak to support the jury's finding beyond a reasonable doubt and that the contravening evidence is not so strong that the State could not have met its burden of proof. See Drichas, 175 S.W.3d at 799 (citing Zuniga, 144 S.W.3d at 484-85). Thus, we conclude the evidence is factually sufficient to support the jury's finding that appellant committed the offense of murder. We overrule appellant's third issue.

IV. Admission of Photographs

By his fourth issue, appellant contends the trial court erred in admitting two photographs of the victim because their prejudicial effect outweighed their probative value.

A. The Law

The determination of the admissibility of a photograph pursuant to Texas Rule of Evidence 403 is left to the sound discretion of the trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004) (citing Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997)).

Texas Rule of Evidence 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. Several factors may be considered in determining whether the danger of unfair prejudice substantially outweighs the probative value of photographs, including (1) the number of exhibits offered, (2) their gruesomeness, (3) their detail, (4) their size, (5) whether they are black and white or color, (6) whether they are close-up, (7) whether the body is naked or clothed, and (8) the availability of other means of proof and the circumstances unique to each individual case. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999) (en banc) (citing Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim. App. 1994) (quoting Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991)). In addition, a photograph is generally admissible if verbal testimony about the matters depicted in the photograph is also admissible. Paredes, 129 S.W.3d at 539 (citing Williams, 958 S.W.2d at 195).

C. Analysis

Appellant asserts that the trial court erred in admitting two photographs, State's exhibit 24 and State's exhibit 25, because they were "more prejudicial than probative of defendant's guilt."[3] We disagree.

At trial, appellant objected to the admission of exhibits 24 and 25, arguing that they were more prejudicial than probative. In response to appellant's objection, the State argued that the photographs depicted the crime scene and should be admitted for the jury to see the evidence of the crime. In addition, Deputy Segura testified that exhibits 24 and 25 depicted the body of the victim as it was found at the crime scene. Exhibit 24 is a color picture of the victim's face and upper-body. The picture depicts the damage to the victim's face from the shotgun wound and the blood on the victim's shirt from the shotgun wound to her shoulder. Exhibit 25 is a color picture of the victim partially covered by a piece of carpet. The picture shows the blood on the victim's shirt from the shotgun wound to her shoulder, her bloody ear, and a blood stain on the carpet next to her head and shoulder. The photographs, though gruesome, "depict nothing more than the reality of the brutal crime committed." See Chamberlain, 998 S.W.2d at 237.

With respect to the admissibility of photographs, this Court has held that in murder cases, detailed photographs are relevant to the cause of death of the victim and are probative evidence of the killer's culpable mental state. Zepeda v. State, 797 S.W.2d 258, 261 (Tex. App.BCorpus Christi 1990, pet. ref'd) (citing Reimer v. State, 657 S.W.2d 894, 898 (Tex. App.BCorpus Christi 1983, no pet.); Montelongo v. State, 644 S.W.2d 710, 713-14 (Tex. Crim. App. 1980)). In addition, this Court has held that a photograph is not rendered inadmissible merely because it is gruesome or might tend to arouse the jury's passions. Id. (citing Purtell v. State, 761 S.W.2d 360, 371 (Tex. Crim. App. 1988); Martin v. State, 475 S.W.2d 265, 267 (Tex. Crim. App. 1972); Guzman v. State, 649 S.W.2d 77, 80 (Tex. App.BCorpus Christi 1982, no pet.)). Moreover, the Texas Court of Criminal Appeals has held the following:

[W]hen the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. A trial court does not err merely because it admits into evidence photographs which are gruesome.

Chamberlain, 998 S.W.2d at 237 (citing Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995)). Therefore, we cannot conclude, based on the facts of this case, that the trial court abused its discretion in admitting State's exhibits 24 and 25. Appellant's fourth issue is overruled.

V. Improper Jury Argument

By his fifth issue, appellant contends the State engaged in improper jury argument. We disagree.

The standard of review for improper jury argument is to review the record in its entirety to determine (1) whether any impermissible arguments were made, and if so, (2) whether said impermissible arguments were so prejudicial and harmful as to deprive the appellant of a fair and impartial trial. See Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989) (en banc). There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; and (4) plea for law enforcement. Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991) (en banc) (citing Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990)).

Appellant contends that the prosecution engaged in improper jury argument by stating the following during its closing argument in the guilt/innocence phase of the trial: "We know he was there. We know he was there from his statement. We know he was there from the 911 call. Carmilo was there when his mother got shot." Appellant objected to this jury argument as being outside the record, and the trial court overruled the objection. We conclude that the trial court properly overruled the objection because said jury argument is a summation of the evidence presented during the trial, and therefore, constituted permissible jury argument. See id.

Appellant also asserts that the prosecution engaged in improper jury argument by simulating the cocking of the shotgun used by appellant to shoot the victim. The prosecution made the following jury argument during the guilt/innocence phase of the trial:

Did you hear that? (Cocked shotgun). That was the last thing Maria Rodriguez heard, right there. He goes to the closet, he grabs it, he checks to see if it's loaded, and then he goes and points it at her. What was he going to do with it? Scare her? Then she lunged forward and he fires a shot, and then he has to cock it one more time (cocked shotgun) and fire another shot.

Appellant objected to this jury argument as being outside the record, and the trial court overruled the objection. We conclude that the trial court properly overruled appellant's objection because the prosecution's cocking of the shotgun during its jury argument was based on a reasonable deduction from the record evidence introduced at trial. Based on the facts in this case, it is a reasonable deduction (1) that the last thing the victim heard was the cocking of the shotgun and (2) that appellant had to cock the shotgun again to fire another shot at the victim. Therefore, the prosecution's jury argument was permissible. We overrule appellant's fifth issue.[4]

VI. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

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

Memorandum Opinion delivered and

filed this 25th day of May, 2006.

[1]Appellant also asserts that the trial court erred in denying his motion to suppress his written and oral statements. However, appellant does not develop this assertion in his brief. Therefore, it is not before us. See Tex. R. App. P. 38.1(h) (providing that appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).

[2]To the extent appellant contends his written consent to search was involuntarily given, his brief is inadequate. Therefore, such a contention is not before us. See Tex. R. App. P. 38.1(h).

[3]Appellant also argues that (1) the photographs in no way aided the jury in understanding verbal testimony, (2) the State would not have been disadvantaged without their admission, (3) the photographs failed to prove his intent, and (4) the photographs did not prove anything "that the jury had not already learned through other means." To the extent that these arguments are advanced to demonstrate that the photographs were more prejudicial than probative, they are inadequately briefed. Therefore, we will not consider them. See Tex. R. App. P. 38.1(h).

[4]We also note that appellant asserts that the prosecution engaged in improper jury argument in six other instances. However, appellant failed to preserve error in those instances. In order to preserve error in relation to improper jury argument, a defendant must have objected to the jury argument complained of and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc); Martinez v. State, 951 S.W.2d 55, 59 (Tex. App.BCorpus Christi 1997, no pet.). A defendant's failure to object to a jury argument or to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal. Cockrell, 933 S.W.2d at 89; Martinez, 951 S.W.2d at 59. In addition, if a defendant's objection to a jury argument is sustained, he must have (1) requested an instruction to disregard, if the erroneous argument was curable, or (2) requested a mistrial, if the erroneous argument was incurable, in order to preserve his complaint for appeal. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) (en banc).

By his first complaint, appellant contends that the prosecution argued outside the record by making reference to his two year old son who was present when defendant shot the victim and by stating that the child "ha[d] gone through enough." Although appellant objected to the statement and the trial court sustained the objection, appellant failed to either (1) request an instruction to disregard, if the argument was curable, or (2) request a mistrial, if the argument was incurable. Therefore, he failed to preserve error with respect to this complaint. Id. In addition, appellant failed to object to the remaining five jury arguments about which he complains; therefore, he failed to preserve error as to those complaints. Cockrell, 933 S.W.2d at 89; Martinez, 951 S.W.2d at 59. Because appellant failed to preserve error with respect to the six complaints, they are not before us. See Tex. R. App. P. 33.1(a).

Furthermore, to the extent that appellant seeks to complain that the cumulative effect of the prosecution's improper jury arguments constitutes reversible error, appellant's assertion is inadequately briefed and therefore is waived. See Tex. R. App. P. 38.1(h).