Ruben Ramirez Villalva v. State of Texas--Appeal from 106th District Court of Gaines County

Opinion filed July 3, 2008

In The

Eleventh Court of Appeals

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 No. 11-07-00279-CR

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 RUBEN RAMIREZ VILLALVA, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 106th District Court

Gaines County, Texas

Trial Court Cause No. 06-3710

M E M O R A N DU M O P I N I O N

The jury convicted Ruben Ramirez Villalva of the offenses of murder, unauthorized use of a motor vehicle, and possession of heroin. The jury also found the eight enhancement allegations to be true. The jury assessed his punishment at confinement for life for the murder conviction. For the unauthorized use of a motor vehicle and the possession offenses, the jury assessed his punishment at confinement for twenty years and a fine of $10,000 each. We affirm.

In his first issue, appellant challenges the legal and factual sufficiency of the evidence to support his conviction of murder. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

It was undisputed at trial that appellant struck the victim, resulting in the victim=s death, that he left the scene in the victim=s pickup without permission, and that he was in possession of heroin when he was later apprehended in the victim=s pickup by law enforcement officers. At trial, appellant contended that he acted in self-defense when the victim pointed a gun at his forehead. On appeal, appellant contends that there is no legally sufficient evidence and a lack of factually sufficient evidence that he acted intentionally or knowingly in causing the death of the victim as is required for the offense of murder. We disagree.

James Cauble testified that he had been the victim=s neighbor for thirteen years. After the victim=s wife died, Cauble and his wife checked on the victim on a daily basis. Cauble=s wife did bookkeeping for the victim. The Caubles were out of town the day of the victim=s death. When they returned that evening, there was a phone message from the victim from 11:39 that morning. Cauble called the victim twice. When the victim did not answer, Cauble went to the victim=s house. The lights and the TV were on, but no one came to the door. After banging on the door and calling out the victim=s name, Cauble became Asuspicious@ and was concerned that the victim had fallen and had broken his hip or hit his head.

The victim=s garage door was locked, and Cauble used the combination to open it. The victim=s car was inside, but his pickup was gone. When Cauble walked around the back of the car, he saw an object on the floor. At first, Cauble thought it was an animal. As he got closer, he realized the object was a body. There was so much blood Acaked@ on the victim that it took Cauble a Afew minutes@ to identify the victim=s facial features.

Cauble described the scene as Apretty gruesome.@ The victim was stretched out flat on his back with his legs straight, his left arm on his chest, and his right arm extended. The victim=s face and upper torso were Apretty well covered in blood.@ There was blood on the garage floor. It did not take long for Cauble to determine that there were no signs of life, and he left without touching anything to call 911.

Seminole Police Department Lieutenant Chad Hallum responded to the call. Lieutenant Hallum had been at the victim=s house the week before when the victim had reported the theft of some of his guns. Lieutenant Hallum found nothing that indicated anyone had gone into the house. He concluded that the incident started and ended in the area of the garage where the victim=s body was. The victim had Aquite a bit@ of defensive wounds on his hands and arms and gashes on his head. The victim=s glasses were found a Afairly good@ distance from his body. They were bent, and there were blood spatters on the lenses. The victim=s skull was cracked, and Lieutenant Hallum found brain matter on a four-inch by four-inch block of wood. Lieutenant Hallum found a claw hammer and a shop sledgehammer on a workbench near the body. There were gray hairs on both hammers. The blow on the right side of the victim=s head was consistent with the sledgehammer, and it appeared that the victim had been hit in the head with the claw end of the other hammer Aseveral@ times. The victim had an injury to his upper ribs, and it appeared that he had been kicked. The victim=s lips were also swollen.

The victim had no money in his pockets, and the only money in his billfold was a $100 bill folded up and hidden. Seminole Police Chief Mickey Browne was able to Ajiggle@ open the door to the victim=s safe in the garage. There was $42,035 inside. Lieutenant Hallum stated that the victim typically carried between $300 to $1,000 on him. Lieutenant Hallum also testified that a long-barrel shotgun was missing from the house.

Lieutenant Hallum testified that appellant was driving the victim=s pickup when it was recovered. There was blood on the hood, bumper, and Asuicide@ door behind the driver=s door. There was blood on the hood, and it had been Asmeared@ as though someone had taken a towel to clean it off. Items consistent with preparing heroin for injection were found inside the pickup.

Chief Browne testified that the victim had made three calls to the police department concerning theft of property. In the call the week before his death, the victim reported that a 30.06 rifle and a .22 rifle with a scope were missing.

Chief Browne stated that appellant was located at 11:00 p.m. on the night of the offense. Appellant was the only person in the victim=s pickup. There was a Asignificant amount@ of blood on the outside of the pickup. Chief Browne stated that there were Avery obvious signs@ that someone had wiped down the hood and side windows. Chief Browne saw a syringe and a 35 millimeter film canister in the door pocket on the driver=s side of the pickup. Inside the canister were twelve individual packets of black tar heroin. Chief Browne estimated that the heroin was worth around $500. Appellant was wearing new clothing. His jeans and shoes still had the price tags on them. Appellant had $371 in bills and $1.07 in change in the pocket of his jeans.

Chief Browne also observed the victim=s garage. He described the area that the victim was in as having a Asignificant amount of blood@ and stated that the victim had A[t]raumatic@ wounds Aabout his head.@ Chief Browne saw trace amounts of blood on both hammers.

Appellant told Chief Browne that Awhat he [had] done was totally out of character for him.@ Appellant stated that Athe old man@ pulled a gun on him and that he had Ajust lost it.@ Appellant said that Athe old man was stronger than he thought he=d be, and he put up a pretty good fight.@ Appellant further stated that this was Abothering his conscience@ and that he wanted to Aget if off his chest.@ Appellant told Chief Browne that he went to Odessa and traded a gun, that a Afriend@ had given him, for heroin. Appellant refused to identify the Afriend@ or his source for the heroin.

Thomas Richard Beaver, an assistant professor at Texas Tech University and the director of forensic pathology for the Health Sciences Center, testified that Dr. Ben Bristol conducted the autopsy and that he assisted in completing the case. The victim had Aextensive and numerous@ injuries consistent with being hit with the two hammers found at the scene. There were Apretty severe@ defensive wounds on the victim=s hands and arms consistent with the victim putting his hands up to protect his head and face. One of his fingers was broken. There was bruising on his neck, shoulders, chest, abdomen, and hip. The bruises and abrasions on the victim=s lower lip indicated that he had been struck in the mouth. Fists and kicking could have been involved in some of the bruising.

Dr. Beaver testified that the cause of death was blunt force injuries to the head. There were Amassive@ injuries to the victim=s scalp. His skull was fractured, and the doctors could see into his brain through one of the lacerations. There was a depressed skull fracture from the sledgehammer that drove a piece of the victim=s skull into his brain. Dr. Beaver described this blow as Anot compatible with life.@ A couple of the other lacerations to the victim=s head matched the claw end of the claw hammer. Dr. Beaver stated that a Amultitude@ of the other injuries to the victim=s head resulted from blows that could have been from either of the hammers or from other objects.

Rick Pippins testified that he was the owner of Western Forensics, a consulting and training business that trains in blood spatter analysis at crime scenes. Pippins reviewed the photographs of the crime scene, the police reports, the crime scene sketches, and the autopsy report in this case. Based on the large pools of blood, Pippins concluded that the attack began and ended in the same area.

The Amedium velocity impact spatter@ of blood indicated that the victim=s head was as close as one foot to the ground when he began to bleed. The lack of bloodstains on the victim=s shoes indicated that he left his feet Avery quickly after bloodshed occurred or immediately before@ and that he never Aregained his feet.@ The figure eight blood pattern on the garage floor indicated that the victim had been rolled over and then rolled back. Inside on the lining of the victim=s right front pants pocket were transferred bloodstains. Pippins could identify a minium of five blood-producing blows to the victim=s head. A geometric stain on the garage wall was consistent with the claw hammer becoming slippery from the victim=s blood and hitting the wall during a swing.

Pippins testified concerning the difference between Aactive@ defensive wounds and Apassive@ defensive wounds. Active defensive wounds occur when a person instinctively puts his hands up to defend himself from attack. These wounds occur to the palm side of the hand. Pippins stated that, at Asome point@ if a person is Ahurt enough,@ the person will stop actively defending himself and passively cover his head or whatever body part is threatened. These wounds occur to the back side of the hands. The victim=s wounds were passive defensive wounds, and there was no indication that he had anything in his hands.

Cecilia V. Duran testified that appellant was her common-law husband. In the days before the victim=s death, appellant had been sick because he had no heroin. He was so sick that she was afraid that he was dying. A few days before the victim=s death, appellant told her that he was ASuperman@ and that he was going to kill with his arms. He further told her that he had Aa plan.@ At 1:00 p.m. on the day of the victim=s death, appellant left their home without saying anything. Duran stated that in the past appellant had stolen from her, from his family, and from a friend of hers to support his drug habit.

Appellant testified that he had borrowed $20 from the victim and that he had gone over to the victim=s house to repay the victim by working for him. Appellant stated that he had no intent to rob the victim when he went over to the victim=s house. The victim accused appellant of stealing from him. Appellant could see in the victim=s eyes that he was mad. The victim then pulled a gun and pointed it at appellant=s forehead. The victim was shaking, and appellant felt that the gun was going to go off. There was nowhere to retreat in the garage. Appellant feared for his life and began to back up. He reached back, grabbed the shop sledgehammer, and swung at the victim. The victim still had the gun in his hand. Appellant stated that he Aguess[ed]@ he Apanicked@ and that he was not in his Aright mind.@ He remembered that the victim struggled to get the gun. He stated that he did not take money out of the victim=s wallet and that he did not recall using the claw hammer.

Appellant testified that he did not Aknowingly or intentionally@ take the victim=s pickup but that it was a Aspur of the moment@ thing. He was in a Apanic@ and drove off in the victim=s pickup. When he left, he thought the victim was alive. He showed the victim=s pickup to an acquaintance in Odessa and traded some guns for drugs. The guns were not the victim=s, and appellant stated that he had gotten them from a friend who had Aprobably@ stolen them. He drove back to Seminole because he wanted to return the pickup to the victim.

On cross-examination, appellant stated that he was twenty-six or twenty-seven years younger than the victim and that he outweighed the victim by forty pounds. Appellant maintained that he acted in self-defense, that he did not act Aintentionally or knowingly,@ that the victim had a gun pointed at him, that the victim=s trigger finger was shaking, and that the crime scene photographs were Asomething different@ from what he recalled.

We review the factfinder=s weighing of the evidence and cannot substitute our judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at133. Due deference must be given to the factfinder=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9; Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). This court has the authority to disagree with the factfinder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.

When viewed in the light most favorable to the verdict, the evidence is legally sufficient to support the conviction for murder. The jury could reasonably have determined from the photographs and the testimony that appellant committed the offense of murder by beating the victim to death. Likewise, when the evidence is viewed in a neutral light, the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust; and the verdict is not against the great weight and preponderance of the conflicting evidence. Therefore, the evidence is also factually sufficient to support the verdict. The first issue is overruled.

The trial court ordered that the punishments for appellant=s murder, unauthorized use of a motor vehicle, and possession of heroin convictions not begin to run until appellant had been discharged from his punishment for a prior Ector County burglary of a habitation conviction. Appellant contends in his second issue that the trial court abused its discretion because it only gave him credit for the time period between when he was paroled for the Ector County burglary and when he was arrested for the present offenses. Appellant requests that the court reverse the sentence and remand to the trial court with instructions to the trial court to give him credit from the date of his parole to the date of his parole revocation.

Each sentence awards appellant 510 days credit Afor time served in jail while awaiting the trial of this case.@ The record does not support appellant=s claim of credit for Astreet time.@ The second issue is overruled.

The judgments of the trial court are affirmed.

JIM R. WRIGHT

July 3, 2008 CHIEF JUSTICE

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.