ANTONIO HERNANDEZ PINEDA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed May 28, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01635-CR
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ANTONIO HERNANDEZ PINEDA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-65154-UV
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MEMORANDUM OPINION
Before Justices Morris, FitzGerald, and Lang
Opinion By Justice FitzGerald
        Antonio Hernandez Pineda appeals his conviction for murder. After finding appellant guilty, the jury assessed appellant's punishment at fifty years' imprisonment and a $10,000 fine. Appellant brings three issues on appeal contending the evidence is legally and factually insufficient to support his conviction and that the trial court erred in overruling his motion for new trial based on newly discovered or newly available evidence. We affirm the trial court's judgment.
BACKGROUND
        Appellant and Victor Garcia were roommates who shared an apartment in Dallas. Garcia was shot and killed in the apartment on April 24, 2006.
        Juan Rosas, a friend of appellant and Garcia, testified he spent the night of April 23 at the apartment with appellant and Garcia. The next day, Rosas gave Garcia some money to go buy some food. Garcia returned with the food and began to cook. Appellant told Garcia to let him do the cooking, and Garcia refused. They argued until Garcia told appellant he was tired of appellant's arguing and that appellant needed to find another place to live. Appellant went to the bedroom, and Rosas heard a gunshot. Appellant returned to the living room, approached Garcia, and holding the gun in his right hand shot at Garcia repeatedly. Rosas heard a total of five gunshots. Garcia fell down and died on the kitchen floor. Appellant put on boots and a shirt and fixed the gun in his belt. He then turned to Rosas and said “let's go,” and walked out of the apartment. Rosas followed appellant out of the apartment. In his initial statement to the police, Rosas gave a false name and said he arrived at the apartment as appellant left and that he did not see the shooting. Rosas testified he lied to the police because he was in violation of the terms of his probation, he was scared of the police, appellant, and appellant's friends, and he did not want to get involved. The police tested Rosas's hands for gunpowder residue and found no gunpowder residue.
        When appellant and Rosas left the apartment, Jose Carrillo was standing outside a neighboring apartment talking on a telephone. As appellant walked away, Rosas approached Carrillo and asked him to call 911 because Garcia had been shot and was dying. Carrillo asked his girlfriend, who spoke better English, to call for help. Carrillo saw a man walking away. Carillo identified appellant from a photo line-up as the man he saw walking away from him, but he could not identify appellant in court.
        Rosas testified the police arrived about five minutes later. The first police officer to arrive testified he was dispatched between 3:00 p.m. and 3:15 p.m. When he arrived, Garcia was already dead.         At about 9:00 or 10:00 p.m. that night, appellant arrived at the hotel room of a friend, Martin Lerras, and asked if he could spend the night. Lerras let him in, and appellant spent the night on a mattress on the floor of the room. Lerras testified he never saw appellant with a gun.
        The day after the shooting, Maria Guerrero, a friend of appellant and Garcia, went to appellant's and Garcia's apartment. The apartment manager asked her if she had seen appellant because“they” were looking for him. She then went to Lerras's hotel room looking for appellant and Garcia. Lerras opened the door, and Guerrero asked to speak to appellant. She saw appellant lying on the mattress on the floor near the door. As appellant got up from the mattress, she saw the handle of a gun beneath a pillow on the mattress. Appellant stepped outside the hotel room and told her he had killed Garcia at 3:00 p.m. the previous day. After leaving the hotel, Guerrero called the police, told them where appellant was and that she had seen a gun. The police initially interviewed Guerrero for at least three hours, but she did not tell them appellant had told her he killed Garcia. Guerrero testified that she and appellant had a romantic relationship for about two months which ended before the shooting, that their relationship was no longer romantic on April 24, 2006, but that they were friends. She was also a friend of Rosas, and she believed appellant thought, incorrectly, that she was having an affair with Garcia.
        After receiving Guerrero's information, the police obtained a search warrant for Lerras's hotel room. Between Guerrero's departure and the police's arrival, Lerras and appellant left the hotel room to run some errands. While they were riding in the car, appellant told Lerras he had hurt Garcia. Lerras thought appellant meant he had beaten up Garcia. The police arrived after they returned to the hotel room. Lerras testified that when the police knocked on the door, appellant went into the bathroom. The police searched the hotel room and found the gun hidden in the toilet tank in the bathroom. Ballistics testing proved the gun had fired one of the two bullets recovered from Garcia's body and a cartridge found on the floor of appellant's and Garcia's apartment. The testing on the second bullet was inconclusive.
        The police also seized the shirt appellant was wearing the previous day and found two bloodstains; DNA testing established one stain was appellant's blood and the other was Garcia's blood.
        Appellant testified he did not shoot Garcia and he does not know who did. He testified that at about 2:00 a.m. of the day Garcia was killed, he and Garcia had an argument and appellant left the apartment. Appellant walked to an abandoned apartment complex and slept until about 2:30 p.m. Appellant then walked to the apartment of a brother of a friend, Jose Rincon, from where he telephoned Rincon to ask for a ride to Lerras's hotel. Rincon told appellant to wait, and Rincon drove appellant to Lerras's hotel that night. Appellant said he did not put the gun in the toilet tank of Lerras's hotel room and that he did not know how the murder weapon got there. Appellant testified that when Guerrero arrived at the hotel room, Lerras opened the door, and Guerrero asked to speak to Garcia; Guerrero did not enter the hotel room. Appellant testified he did not tell Guerrrero he killed Garcia because of her. Appellant said Guerrero was his and Garcia's friend, and he denied having a romantic relationship with Guerrero. Appellant stated he was not jealous of Guerrero and Garcia because “[s]he was nothing to me.” After Guerrero left, appellant went with Lerras while Lerras ran some errands. After they returned to the hotel room, the police arrived. Appellant denied going into the bathroom when the police knocked on the door and testified Lerras went into the bathroom. Appellant stated that the lock on Lerras's hotel room door did not operate properly and that the door could be opened with a hard push.
 
 
SUFFICIENCY OF THE EVIDENCE
        In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction. In determining the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict 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 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). In a legal sufficiency review, we defer to the jury on determinations of the credibility of witnesses and the weight to be accorded conflicting evidence. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
        In a factual sufficiency review, we view all the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations). Unless the record reveals a different result is appropriate, we must defer to the facfinder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        The evidence before the jury included Rosas's testimony he saw appellant shoot Garcia, Guerrero's testimony appellant told her he shot Garcia, Lerras's testimony appellant said he hurt Garcia, and the discovery of the murder weapon in the toilet tank of Lerras's hotel room where appellant was staying.
        Appellant argues that despite this evidence, the evidence is legally and factually insufficient. He asserts that Rosas may have been the shooter. However, there is no evidence in the record to support this theory.
        Appellant also argues that because of the faulty lock on the door of Lerras's hotel room, someone could have slipped into Lerras's hotel room when Lerras and appellant were running errands and hidden the gun in the toilet tank. However, the record contains no evidence to support this theory.
        Appellant also points to evidence that there were only two small bloodstains on appellant's shirt and only one of the stains was appellant's blood. Appellant argues that if this was the shirt appellant wore when he shot Garcia, then the shirt should have been covered in Garcia's blood due to the closeness of the gunshot. However, Rosas testified appellant put it on after he shot Garcia.
        Appellant also points to evidence that he is left handed, but Rosas testified appellant held the gun in his right hand. Although appellant testified he was left handed and appellant's attorney commented that the jury could see appellant wrote using his left hand, no evidence shows appellant was unable to fire a gun with his right hand.
        Appellant also asserts that Rosas's and Guerrero's testimony was not credible because their testimony at trial varied significantly from their police statements. Appellant also asserts Carillo's out-of-court identification of appellant should not be considered because Carillo testified he never saw appellant's face, he based his identification on hair style, and because he could not identify appellant in court. In a legal sufficiency review, we defer to the jury on determinations of the credibility of witnesses and the weight to be accorded conflicting evidence. Williams, 235 S.W.3d at 750. In a factual sufficiency review, due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. Lancon v. State, No. PD-0182-07, 2008 WL 2081638, *6 (Tex. Crim. App. May 14, 2008); Johnson, 23 S.W.3d at 8. Indeed, “the jury is the sole judge of a witness's credibility, and the weight to be given the testimony . . . .” Lancon, 2008 WL 2081638, at *7
        After considering all the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We overrule appellant's first and second issues.
MOTION FOR NEW TRIAL
        In his third issue, appellant asserts the trial court erred in denying appellant's motion for new trial based on newly discovered or newly available evidence. We review a trial court's ruling on a motion for new trial for an abuse of discretion. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Id.; Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court, but decide whether the trial court's decision was arbitrary or unreasonable. Webb, 232 S.W.3d at 112. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the ruling. Id.; Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
        An accused is entitled to a new trial where material evidence favorable to the accused has been discovered since trial. See Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006) (“A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.”); Wallace v. State, 106 S.W.3d 103, 107 (Tex. Crim. App. 2003). A motion for new trial based on newly discovered or newly available evidence is addressed to the sound discretion of the trial court, and its decision should not be disturbed on appeal absent a clear abuse of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002); Jones v. State, 711 S.W.2d 35, 36 (Tex. Crim. App. 1986). To be entitled to a new trial on the basis newly discovered or newly available evidence, the record must indicate that (1) the newly discovered, or newly available, evidence was unknown to the movant at the time of trial, (2) the movant's failure to discover the evidence was not due to his want of diligence, (3) the materiality of the evidence is such as would probably bring about a different result in another trial, and (4) the evidence is admissible, and not merely cumulative, corroborative, collateral, or impeaching. Wallace, 106 S.W.3d at 108; Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987). Where it should appear to the trial court under the circumstances of the case that the weight or credibility of the new evidence would probably not bring about a different result in a new trial, it is within the sound discretion of the trial court to deny the motion. Jones, 711 S.W.2d at 36-37; Dedesma v. State, 806 S.W.2d 928, 934 (Tex. App.-Corpus Christi 1991, pet. ref'd).
        Appellant asserts that the newly available testimony was that of Jose Rincon, the friend who drove appellant to Lerras's hotel. At the hearing on the motion for new trial, Rincon testified that appellant worked for him. Rincon stated that when he picked up appellant to drive him to Lerras's hotel, appellant was wearing a pair of shorts and carrying, but not wearing, his shirt. Appellant put on the shirt while in Rincon's car, and Rincon drove him to Lerras's hotel. Rincon stated he did not see a gun on appellant's person. Appellant telephoned him from jail and said he had been arrested for murder. Appellant told Rincon he gave Rincon's telephone number to a detective. Rincon said the only person who contacted him was a police detective who left a message for Rincon to call him; Rincon testified he tried twenty times to call the detective, but he could not get hold of him. Rincon testified that no one else contacted him about the case. Rincon said he did not testify at appellant's trial because no one told him when the trial was.
        Appellant's trial attorney, Donna Winfield, testified that before trial, appellant told her Rincon's name and telephone number, and she asked her private investigator, Anthony Montoya, to contact Rincon. When Montoya did not hear back from Rincon, Winfield made the decision to go forward with the case. Winfield testified she did not seek a continuance because Rincon was not a fact witness to the shooting, because there was no dispute that appellant went to Lerras's hotel, and because appellant had been in jail for six months and wanted to proceed to trial instead of waiting for her to find Rincon. She also testified she did not believe Rincon's testimony would “make or break our case.”
        Montoya testified that four days before the trial, he met with appellant and that appellant gave him Rincon's telephone number. Montoya called the number and left a message on a recording, but Rincon did not call him back. The day before trial, Montoya asked appellant how else to get in contact with Rincon, and appellant suggested trying to contact him at work. Although appellant used to work for Rincon, appellant could tell Montoya only that Rincon's workplace was in west Dallas on Singleton; appellant did not know the name of the business, the address, or the cross street. Montoya was unable to find Rincon before the trial.
        Appellant testified he gave Winfield the correct telephone number for Rincon. Appellant also stated that the police said the murder occurred at 2:00 p.m. and that he was using the telephone at Rincon's brother's house to call Rincon at that time.
        At the end of the hearing, the trial court took the motion for new trial under advisement and indicated he would consider whether Rincon's evidence was material and whether appellant exercised due diligence in securing Rincon's testimony for trial. When the court overruled the motion, the court did not indicate the basis for the order.         It appears from appellant's argument in the trial court and in this Court that the critical portion of Rincon's testimony was that when he picked up appellant, he did not see a gun on appellant. Rincon's testimony that he did not see a gun on appellant was merely cumulative and corroborative of appellant's testimony that he was not in possession of the gun.
        The record also shows appellant failed to use due diligence to discover the evidence. Appellant was arrested on April 25, 2006, and appellant's trial was almost seven months later in November 2006. Appellant knew he had ridden with Rincon and that Rincon's testimony could be important. After he was arrested, he telephoned Rincon and told him a detective would contact him. Yet the record does not show any additional attempts were made to contact Rincon until less than a week before trial. The court could also conclude a lack of due diligence from appellant's unexplained inability to remember Rincon's place of work besides being in west Dallas on Singleton despite having worked for Rincon. The record also shows appellant knew where Rincon's brother lived because appellant testified he walked there to call Rincon, yet the record does not show that any attempt was made to find Rincon through his brother.
        The record also supports a ruling that Rincon's testimony would not probably bring about a different result in another trial. Even if Rincon had testified he did not see appellant with a gun, his testimony fails to explain how the gun could have made its way from the murder site to Lerras's toilet tank other than by being transported by appellant.
        We conclude appellant has not shown the trial court abused its discretion in overruling appellant's motion for new trial. We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061635F.U05