JOSEPH BARRAGAN CAMPA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 2, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01210-CR
............................
JOSEPH BARRAGAN CAMPA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-66294-NQ
.............................................................
OPINION
Before Justices Wright, O'Neill and Lang
Opinion By Justice O'Neill
        After reviewing appellant's petition for discretionary review, we modify our prior opinion. We withdraw our April 20, 2009 opinion. We substitute the following as the opinion of the Court. Appellant was found guilty by a jury and sentenced to life imprisonment. In nine points of error, appellant contends (1) the trial court erred in two instances by failing to grant a mistrial, (2) harmful error arose from the exclusion of evidence, (3) the evidence is legally insufficient to negate his assertions of self defense and sudden passion, (4) the jury instructions failed to require a unanimous verdict and incorrectly instructed the jury on sudden passion, and (5) the cumulative affect of the trial court's errors warrants reversal. We affirm the trial court's judgment.
 
Background
 
        Between two and three in the morning on May 15, 2006, appellant shot Silverio Estrada, Jr. at least seven times, killing him. The shooting occurred after appellant went out with, among others, his cousin and his girlfriend, Vanessa.   See Footnote 1  Appellant had been drinking heavily at two different night clubs, the Club Che and the DMX.   See Footnote 2  At the DMX, his cousin had fought with two other girls, Elena and Nora Morales, and all three were thrown out of the club. Upon leaving the DMX, appellant's cousin followed the Morales sisters to a RaceTrac gas station, saying something like, “[l]et's get that bitch” or “[l]et's follow the bitches.” Appellant also followed with Vanessa in his car. Adjacent to the RaceTrac, appellant's car hit the back of the Morales' car. Elena Morales got out of her car to inspect the damage and was confronted by appellant who started “talking trash” to her. He then grabbed her hair and started punching her with a closed fist. Elena's sister, Nora, tried to stop appellant whereupon he started punching her.
        A crowd formed to watch appellant punch, hit and kick the girls “like they were ... dogs.” But, no-one intervened until Estrada and his friend drove up in a sports utility vehicle. Estrada asked appellant why he was beating up females and the two men started fighting. The Morales sisters then got in their car and drove off.
        When appellant appeared to be losing the fight with Estrada, appellant's girlfriend, Vanessa, got a gun from the trunk of appellant's car. She aimed the gun at the crowd and said “[b]ack the f*ck away [or I'll] shoot” and “[y]ou don't want me to dot this glock.” Estrada and his friend backed away when Vanessa showed the crowd the gun. Vanessa then gave the gun to appellant who pointed the gun at Estrada and his friend, and stated “I got something for your ass.” Appellant admitted walking toward Estrada while pointing the gun at him. Estrada tried to get away by running around to the other side of his S.U.V. Appellant fired the first shot through the vehicle's window. He then went around to the other side where he shot Estrada a few more times as Estrada fell to his knees and then to the ground. Appellant then walked directly up to Estrada and “unloaded the clip” shooting Estrada point-blank repeatedly in the back after Estrada fell to the ground. Crime scene investigators later recovered nine cartridge casings from the scene, all of which had been fired from the same gun. Estrada died before an ambulance reached the site.
        After shooting Estrada, appellant jumped into his car and erratically sped off. He was emotional after the shooting and told Vanessa he was sorry he had shot Estrada, he did not know why he did it, he knew he had “messed up,” and knew he was going to do some time. He later told the police: “I can't claim [self-defense] because I [shot] too many times.” Although he knew the police were looking for him, he left town. Appellant and Vanessa were apprehended over a month later in Lubbock. Vanessa and appellant were tried together and both found guilty of murder. After finding appellant had not committed the offense under the influence of sudden passion, the jury sentenced him to life imprisonment. Appellant now raises nine issues:
1.
 
The trial court erred in not declaring a mistrial when the state asked a witness whether he feared retaliation;
 
2.
 
The failure to comply with the optional completeness rule was an abuse of the trial court's discretion;
 
3.
 
The evidence is legally insufficient to sustain the jury's rejection of self-defense;
 
4.
 
The evidence is factually insufficient to support the jury's implicit finding that appellant did not act in self-defense;
 
5.
 
The jury instructions failed to require a unanimous verdict;
 
6.
 
The trial court erred in not declaring a mistrial during the punishment phase when two witnesses communicated with a juror;
 
7.
 
The jury's failure to find that appellant acted under the immediate influence of sudden passion arising from an adequate cause was against the great weight and preponderance of the evidence;
 
8.
 
The trial court erred in instructing the jury on sudden passion; and 9.
 
the cumulative effect of the foregoing errors warrants a reversal.
 
None of appellant's issues persuades us and we affirm the trial court's judgment.
 
 
Discussion
 
A. The trial court's refusal to grant a mistrial
        In his first and sixth issues, appellant contends harmful error arose when the trial court denied his two motions for mistrial. Issue one relates to appellant's mistrial motion after the prosecutor asked a witness whether he feared retaliation. The witness said no. The trial court sustained appellant's objection to the retaliation question and instructed the jury to disregard. In issue six, appellant argues a mistrial was warranted, when during a break in the punishment phase, two State witnesses complimented a juror on her hair.
        In reviewing a trial court's ruling on a motion for mistrial, an appellate court must uphold the trial court's ruling if it was in the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). Only if prejudice is incurable, will a mistrial be required. Archie, 221 S.W.3d at 699 (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)); Gallo v. State, 239 S.W.3d 757, 775 (Tex. Crim. App. 2007) (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)).
        When determining whether to grant a mistrial, the trial court should balance three factors: (1) the severity of the misconduct; (2) the trial court's measures to cure the misconduct (i.e. the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct. Hawkins. 135 S.W.3d at 77. Ordinarily, a prompt instruction to disregard will cure error associated with an improper question or answer. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).         In his first issue, appellant contends a mistrial was warranted when the prosecutor asked a witness whether his hesitation to identify the car he was driving was due to a fear of retaliation. The witness said no. The prosecutor had asked the witness this question after the trial court had sought clarification of the witness's apparent reluctance to answer a question about the car. The prosecutor mistakenly believed the trial court was suggesting the witness feared retaliation. Regardless, after a bench conference, the trial judge explained to the jury that he did not intend to suggest to the prosecutor any questions to ask. The trial court sustained appellant's objection and “ordered” the jury to ignore the exchange. We conclude the trial court's instruction, particularly in light of the witness's denial of any fear, was sufficient to cure any harm. We resolve the first issue against appellant.
        In his sixth issue, appellant argues the trial court should have granted his motion for mistrial after two witnesses communicated with a juror. The two witnesses were sitting on a bench outside the courtroom. A juror walked by and one of the witnesses complimented the juror on her hair and asked if she got her hair done at a specific salon in Dallas. The juror replied that she did her own hair and worked at a salon in Grand Prairie. The other witness said that she lived by Grand Prairie. Appellant's trial counsel saw the witnesses talking to the juror and brought it to the attention of the trial judge. A brief hearing was held outside of the presence of the jury where the trial court heard testimony from the juror and witnesses. The witnesses both testified they were not aware the woman was a juror. The juror testified that she believed her juror badge was hidden at the time of the complained-of exchange. She testified that nobody had approached her during the trial to discuss the case. She did confirm that “someone” had said they liked her hair. The trial judge denied appellant's motion for a mistrial.
        The Texas Code of Criminal Procedure prescribes “[n]o person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.” Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 2006). The defendant, however, must establish that the communication involved the specific case and was more than an innocuous, unrelated comment or exchange. See Iness v. State, 606 S.W.2d 306, 315 (Tex. Crim. App. 1980); Starvaggi v. State, 593 S.W.2d 323, 326-27 (Tex. Crim. App. 1979); Wilkes v. State, 566 S.W.2d 299, 300 (Tex. Crim. App. 1978). Here, the communication was an innocuous communication about the juror's hair and did not relate to appellant's case. Appellant's sixth issue is overruled.
B. Exclusion of Appellant's Complete Statement
        In his second issue, appellant contends the rule of optional completeness was violated when a redacted version of his statement to police was admitted into evidence. The rule of optional completeness permits the introduction of otherwise inadmissible evidence when the evidence is necessary to fully and fairly explain a matter “opened up” by the adverse party. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim.App. 2007) (citing Tex. R. Evid. 107). The purpose of the rule is “to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation or writing.” Id. at 218. However, “Rule 107 does not permit the introduction of other similar but inadmissable evidence unless it is necessary to explain properly admitted evidence.” Id.
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). The trial judge's overruling of appellant's objection under the rule of optional completeness would constitute an abuse of discretion only if the judge's decision lies “outside the zone of reasonable disagreement.” Walters, 247 S.W.3d at 217. Appellant does not contend the redacted portion was necessary to explain his own guilt or to make the admitted portion of his statement fully understood.          Instead, appellant argues harmful error arose because the excluded portion of his statement contains his efforts to clear Vanessa, showing “he has a heart for somebody.” Specifically, in the excluded portion, appellant offers to plead guilty if the police agree Vanessa will not go to jail, and states several times: “I have to get my chick off.” The excluded portion therefore did not relate to appellant's culpability. Instead, it concerned the culpability of his girlfriend. Appellant now contends his attempt to remove blame from his co-defendant would have added (1) credence to his argument that at the RaceTrac, he was acting to protect others, and (2) “great weight to his character by demonstrating self-sacrificial acts.” The state counters that, because the excluded portion does not concern the same subject matter as the portion offered by the prosecution (i.e., his statement of guilt), the rule of optional completeness does not apply. We agree. Ziolkowski v. State, 223 S.W.3d 640, 649-50 (Tex.App.-Texarkana 2007, pet. ref'd) (self-serving declarations of an accused are ordinarily not admissible under rule of optional completeness unless they come under an exception such as being part of statement necessary to explain or contradict evidence first offered by the state).         Moreover, the trial court's refusal to admit the redacted portion did not create reversible harm. Tex. R. App. P. 44.2(a). The state did not dispute appellant's reluctance to implicate Vanessa. Cf. Renteria v. State, 206 S.W.3d 689, 697 (Tex. Crim. App. 2006) (where state created false impression, defendant had right to admission of remorse evidence). In addition, appellant later took the stand and had the opportunity to show remorse and his ability to make sacrifices for others. His mother also testified about his good nature. Accordingly, the redacted portion would have been cumulative of admitted evidence. We conclude the trial court acted within its discretion when it excluded the redacted portion of appellant's statement and overrule appellant's second issue.
 
C.        Insufficient Evidence
Self-Defense
        In his third issue, appellant argues the evidence was legally insufficient to sustain the jury's implied rejection of self-defense. When reviewing a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). Our review encompasses all the evidence, whether properly or improperly admitted. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). However, the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
        The applicable provisions of the Texas Penal Code state a person is justified in using deadly force when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against another's use or attempted use of unlawful deadly force and a reasonable person in the actor's situation would not have retreated. Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2003). The defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The issue of self-defense is a fact to be determined by the jury. Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991).
        Appellant offered no evidence of his need for self-defense except his own testimony. A defendant's testimony alone will not conclusively prove self-defense as a mater of law. London v. State, No. 05-07-00983-CR, 2008 WL 5102975 at *8 (Tex. App.-Dallas Dec. 8, 2008, pet. ref'd). The jury had reason to question appellant's credibility. The jury knew he was drunk when he shot Estrada and had prior felony convictions. There was no allegation that Estrada had a weapon. Appellant admitted he pursued Estrada and continued shooting his victim even after he knew Estrada had fallen to the ground and posed no threat. Further, evidence admitted during the trial showed appellant was violent before Estrada showed up. Appellant had already hit the Morales' car and multiple witnesses testified about his brutal beatings of the Morales sisters. The jury also saw photographs of the young women showing the injuries he inflicted. We therefore conclude the evidence was legally sufficient for the jury to reject appellant's theory of self-defense and find him guilty of murder. Appellant's third issue is overruled.
        In his fourth issue, appellant claims the evidence was factually insufficient to support the jury's implicit finding that appellant did not act in self-defense. When deciding whether the evidence is factually sufficient, the reviewing court examines all the evidence in a neutral light and sets aside the verdict only where it is clearly not rationally justified. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). The reviewing court accords due deference to the trier of fact's “determinations concerning the weight and credibility of the evidence.” Marshall, 210 S.W.3d at 625. The fact-finder may choose to believe or to disbelieve all or any part of any witness' testimony. Sharp, 707 S.W.2d at 614.
        By finding appellant guilty, the jury rejected his claim of self-defense. Saxton, 804 S.W.2d at 913-14 (jury verdict of guilty constitutes an implicit finding rejecting a self-defense theory). Accord Harrod v. State, 203 S.W.3d 622, 627-28 (Tex.App.-Dallas 2006, no pet.). We give deference to the jury's findings, including its determination of appellant's credibility. Our review of the evidence before the jury leads us to conclude the jury's verdict was not manifestly unjust or against the great weight and preponderance of the evidence. Watson , 204 S.W.3d at 415 (reversal on a factual sufficiency challenge proper only when the great weight and preponderance of the evidence contradicts jury's verdict); see also Garza v. State, 213 S.W.3d 338, 344 (Tex. Crim. App.2007). We resolve the fourth issue against appellant.
2.
 
Sudden Passion
 
        In his seventh issue, appellant argues the jury's rejection of his claim of sudden passion is against the great weight and preponderance of the evidence.   See Footnote 3  The Texas Penal Code defines sudden passion as “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the of the offense and is not solely the result of former provocation.” Tex. Penal Code Ann. § 19.02(a)(2) (Vernon 2003). The passion must arise from an adequate cause which is defined to be “cause that would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 2003).
        The doctrine requires the record contain (1) objective evidence of the victim's direct provocation (or the actions of someone acting with the victim) which incited the killer at the time, and (2) evidence from which the jury can subjectively decide the defendant killed the victim while in an excited and agitated state of mind arising out of the direct provocation. Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet. ref'd). The prosecutor is not required to negate the existence of sudden passion, and a defendant may not rely on a cause of his own making, such as provoking a confrontation. Trevino, 157 S.W.3d at 821-22.
        When a criminal defendant seeks review of a jury's failure to make a finding on which he has a burden of proof, he invokes our factual review jurisdiction. Naasz , 974 S.W.2d at 421 (citing Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990)). In that instance, we consider all the evidence and determine whether the judgment is so against the great weight and preponderance of the evidence as to manifestly unjust. Meraz, 785 S.W.2d at 155. Multiple witnesses testified appellant had beaten up the Morales sisters before Estrada showed up. Undisputed evidence proved Estrada stopped in response to seeing appellant beating up the two girls. Appellant admitted he walked over to his victim and unloaded the clip point-blank after he knew Estrada had been hit by at least one bullet and had fallen to the ground. Accordingly, there is sufficient evidence to support the jury's rejection of appellant's claim that he killed Estrada under the immediate influence of sudden passion arising from an adequate cause. We resolve the seventh issue against appellant.
D.        Jury Instruction Error
        Issues five and eight concern claimed failures of the jury instructions. Texas law requires an unanimous verdict in criminal cases. Tex. Const. art V, sect 13; Tex. Code Crim. Proc. Ann. arts. 37.02, 37.03 (Vernon 2006). Failure to require unanimity is error. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005) (“Under our state constitution, jury unanimity is required in felony cases, and under our state statutes, unanimity is required in all criminal cases.”).
        In issue five, appellant contends the trial court's charge did not require a unanimous verdict during the guilt phase because he was charged under two separate provisions of the the Penal Code, Sections 19.02(b)(1) and 19.02(b)(2), which require different factual elements. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003); London, 2008 WL 5102975 at *2. Appellant argues that since the guilt question did not require the jury to specify which statutory provision (i.e. Penal Code § 19.02(b)(1) or Penal Code § 19.02(b)(2)) applied, the charge failed to require an unanimous verdict. We disagree. “While jury unanimity is required on the essential elements of the offense, when the statute in question establishes different modes or means by which the offense may be committed, unanimity is generally not required on the alternative modes or means of commission.” London, 2008 WL 5102975, at * 6 (citing Jefferson v State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006)).        
        Here, the application paragraph of the jury charge at guilt/innocence authorized the jury to find appellant guilty of murder if it found that he either: (1) intentionally or knowingly caused Estrada's death by shooting him; or (2) intended to cause him serious bodily injury and committed an act clearly dangerous to human life by shooting him. Id. Whether appellant intentionally caused Estrada's death, or intended to cause Estrada serious bodily injury and committed an act clearly dangerous to human life that caused Estrada's death, he committed a murder. Jefferson, 189 S.W.3d at 312 (discussing means of committing course of conduct element of injury to a child); Yost v. State, 222 S.W.3d 865, 877-78 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd) (applying Jefferson analysis to charge on murder pursuant to section 19.02(b)(1) and (2)). We conclude the jury charge contained no error. Accordingly, we need not address whether appellant suffered harm. Ngo, 175 S.W.3d at 743. We resolve appellant's fifth issue against him.         
        In his eighth issue, appellant contends that trial court erred when instructing the jury on sudden passion because the instruction did not explicitly require a unanimous verdict specifically on the sudden passion question. The charge given to the jury in the punishment phase states: “[y]our verdict must be by unanimous vote of all members of the jury. In arriving at the amount of punishment to be assessed, it will not be proper for you to fix the same by lot, chance, any system of averages, or any other method that a full, fair, and free exercise of the opinion of the individual jurors, and you must not refer to nor discuss any matter not in evidence before you.” In response, the jury answered the sudden passion question in the negative. After the jury's verdict on the sudden passion special issue was read, the jury indicated by raised hands that they were all in agreement with the negative answer.
        Appellant relies on Sanchez v. State, 23 S.W.3d 30 (Tex. Crim. App. 2000). However, the charge in the Sanchez case erroneously required the jury to find against the defendant on the issue of sudden passion if it could not unanimously agree the doctrine applied. Id. at 32. The Sanchez instruction was improper because it allowed the jury to return a non-unanimous decision adverse to the defendant. Id. at 33.   See Footnote 4  In contrast, appellant's jury was instructed that any verdict   See Footnote 5  in the penalty phase must be unanimous. We conclude, therefore, that there is no charge error.
        However, even if there had been error in the punishment phase jury charge, appellant did not object to the charge at trial. Accordingly, in order to obtain reversal, appellant must now show he suffered egregious harm. Harm is egregious only if it deprives a defendant of a “fair and impartial trial.” Neal v. State, 256 S.W.3d 264, 278-79 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 1037 (2009). To determine egregious harm, we examine the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008). A defendant must have suffered actual, rather than theoretical, harm. Id. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id.
        After our examination of the record, we conclude appellant was not deprived of a fair and impartial trial because of any claimed error in the sudden passion instruction. It is evident the jury did not believe Estrada provoked his own murder when there was evidence appellant was drunk and had fought with at least two people before Estrada showed up. Issue eight is overruled.
         E.        Cumulative Effect of Error
        In issue nine, appellant requests a new trial because of cumulative error. Since we find no harmful constitutional error raised in any of the appellant's first eight issues, we resolve his ninth issue against him. Tex. R. App. P. 44.2. See also, Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim.App. 2007).
 
Conclusion
 
        We affirm the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071210RF.U05
 
 
Footnote 1 Vanessa was also convicted of murder and sentenced to eight years in prison.
Footnote 2 Appellant's girlfriend testified that he drank at least ten or eleven royal f*cks, which she described as a combination of different alcoholic liquids, and was drunk. He was twenty years old.
Footnote 3 If appellant's sudden passion theory had been successful, his conviction would have been reduced to a second-degree felony. Tex. Penal Code Ann. § 19.02(d) (Vernon 2003); Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003).
Footnote 4 Our unpublished decision in Ibarra v. State, No. 05-04 -01294-CR, 2005 WL 1022700 (Tex.App.-Dallas 2005, no pet.), as well as our recent London opinion addressed the efficacy of jury charges substantially identical to the instruction disapproved in Sanchez. London, 2008 WL 51002975, at * 8. Accordingly, appellant's reliance on Sanchez and Ibarra is misplaced.
Footnote 5 The term “verdict” is defined to be a written declaration by a jury of its decision of an issue submitted to it. Tex. Code Crim. Proc. Ann. art. 37.01 (Vernon 2006). One of the jury's findings was that the doctrine of sudden passion did not apply.