Paul Rodriguez v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00463-CR
Paul RODRIGUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2002CR5086C
Honorable Pat Priest, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 7, 2004

AFFIRMED

Paul Rodriguez ("Rodriguez") appeals his conviction for murder. Rodriguez asserts three issues on appeal: (1) the trial court erroneously admitted Rodriguez's written statement, as the statement was an involuntary product of illegal coercion by law enforcement officers; (2) the trial court erroneously admitted unreliable scientific evidence; and (3) the evidence was factually insufficient to support the conviction. We overrule Rodriguez's contentions and affirm the trial court's judgment.

Background

In the early morning hours of April 4, 2002, Jerod Ramirez ("Ramirez") awakened Rodriguez and told him that Ramirez's girlfriend had been raped and he needed Rodriguez's help. At some point that night, Ramirez's girlfriend told him that she had been raped by Manuel Covarrubia, Jr. ("Covarrubia"). Thereafter, Ramirez asked Rodriguez and Leonardo Rivera ("Rivera") to go with him to Covarrubia's apartment to beat him up. Rodriguez took a .40 caliber handgun, and Ramirez took a .454 caliber revolver.

When the three men arrived at Covarrubia's apartment, they confronted Covarrubia regarding the rape, and Covarrubia denied raping Ramirez's girlfriend. A physical confrontation ensued. All three men hit Covarrubia at some point, and Ramirez repeatedly struck Covarrubia with a gun. The blows from the gun caused several lacerations on Covarrubia's head. Ramirez continued to strike Covarrubia with the gun until Ramirez lost his grip on the gun and dropped it.

When the handgun fell to the floor, Covarrubia jumped on top of the handgun, and Rodriguez jumped on top of Covarrubia. As the two men struggled for control of the gun, a gunshot rang out, and both men let go of the handgun. Covarrubia died at the scene from a gunshot wound. The bullet recovered from Covarrubia's body appeared to be from a .454 caliber revolver and not from a .40 caliber handgun.

Rodriguez was subsequently arrested under unrelated warrants. While in custody, Rodriguez made a statement regarding his involvement in Covarrubia's death. Rodriguez was indicted for murder. The indictment alleged alternative theories. Paragraph A of the indictment alleged that Rodriguez intentionally and knowingly caused the death of the decedent by shooting the decedent with a firearm. See Tex. Pen. Code Ann. 19.02(b)(1) (Vernon 2003). Paragraph B of the indictment alleged that Rodriguez, intending to cause serious bodily injury to the decedent, committed an act clearly dangerous to human life by shooting the decedent with a firearm. See Tex. Pen. Code Ann. 19.02(b)(2) (Vernon 2003). Rodriguez waived his right to a jury trial. The trial court found Rodriguez guilty of murder and sentenced him as a repeat offender to forty years of confinement.

Admissibility of Rodriguez's Statement

In his first issue on appeal, Rodriguez contends that the trial court erroneously admitted his written statement to the police because the statement was involuntary and was the product of illegal coercion by law enforcement officers. The State counters that the trial court did not abuse its discretion in denying Rodriguez's motion to suppress the statement.

In reviewing a trial court's denial of a motion to suppress, we must defer to the trial court's determination of the historical facts supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.1997). We review a trial court's ruling on a motion to suppress for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.1996). Under this standard, we view "the evidence in the light most favorable to the trial court's ruling," affording almost total deference to findings of historical fact supported by the record. Guzman, 955 S.W.2d at 89. However, when the resolution of factual issues does not turn upon an evaluation of credibility or demeanor, we review de novo the trial court's determination of the applicable law as well as its application of the law to the facts. Id.

When determining whether a statement is voluntarily given, we review the totality of the circumstances. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). A statement is not voluntary if there was "official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). If raised by the defendant, the prosecution bears the burden of proving by a preponderance of the evidence that the statement was voluntarily given. Id. The trial court is the sole judge of the weight and credibility of the evidence, and the trial court's finding on voluntariness may not be disturbed on appeal absent an abuse of discretion. Id.

Following Rodriguez's oral motion to suppress, the trial court held a hearing on the voluntariness of the statement in accordance with Jackson v. Denno, 378 U.S. 368 (1964) and Article 38.22 of the Code of Criminal Procedure. Tex. Code Crim. Pro. Ann. art. 38.22 6 (Vernon 1979). During the hearing, Detective Thomas Matjetka of the San Antonio Police Department testified that he first came into contact with Rodriguez on April 5, 2002, when Rodriguez was arrested on outstanding warrants, unrelated to Covarrubia's murder. While Rodriguez was in custody, Detective Matjetka and Detective George Saidler interrogated Rodriguez. Detective Matjetka testified they released Rodriguez from his handcuffs, offered him food and water, and provided him with water. Detective Matjetka testified that before Rodriguez was interrogated, he read Rodriguez his rights and inquired as to whether Rodriguez would waive his rights and give a statement regarding the death of Covarrubia. Rodriguez agreed, and Detective Matjetka typed the statement as Rodriguez told his story. Detective Matjetka testified that when the statement was complete, Rodriguez acknowledged the waiver of his rights and the correctness of the statement in the presence of two civilian witnesses. Rodriguez then signed each of the four pages of the statement, which has written admonishments at the top of each page.

Rodriguez offered a different account regarding the police's acquisition of the statement. Rodriguez testified that he asked for a lawyer when Detective Matjetka first read him his rights and that Detective Matjetka responded, "If I have to wait for a statement, I am going to make sure this is a capital murder case and I am going to tell the D.A. to seek the death penalty." Rodriguez testified that he made the statement because he was scared and did not want to be charged with capital murder. Rodriguez also testified that he was not offered food or water and that his handcuffs were never removed.

The State recalled Detective Matjetka, who testified that when he took Rodriguez's statement Rodriguez did not appear to be scared. Detective Matjetka also testified that Rodriguez waived his rights and never mentioned the word "lawyer."

Here, the determination of whether Rodriguez's statement was voluntary involved the trial court's evaluation of the historical facts as well as the credibility of the witnesses: Rodriguez and Detective Matjetka. After evaluating the evidence, the trial court denied Rodriguez's oral motion to suppress the written statement and admitted the statement into evidence. The trial court rejected Rodriguez's factual allegations of official, coercive conduct, making the following findings of fact:

One, it happened exactly as Detective Matjetka said and not at all like the defendant did [sic].

Two, in other words, Detective Matjetka and Detective Sailder informed the defendant of his rights. The defendant waived his rights. The defendant at no time asserted that he wanted an attorney. The officers made no suggestions that he would be charged with capital murder and the death penalty sought if he did not give a statement and the defendant's handcuffs were removed.

Three, the defendant voluntarily, knowingly, intentionally, without illegal inducement or coercion, gave the statement[.]

The trial court's factual findings are supported by Detective Matjetka's testimony; therefore, the trial court did not abuse its discretion in denying the motion to suppress. Alvarado, 912 S.W.2d at 211. Rodriguez's first issue is overruled.

Admissibility of Scientific Evidence

In his second issue on appeal, Rodriguez contends that the trial court erroneously admitted unreliable scientific evidence. Rodriguez asserts that the State failed to meet its burden of proving the reliability of the chemical tests revealing that Rodriguez had more than 20 grams of cocaine in his possession when he was arrested. The State counters that Rodriguez failed to preserve the issue for review and that the trial court did not abuse its discretion in admitting the testimony regarding the chemical tests.

In order to complain on appeal that the trial court erred in admitting evidence offered by the State, the error must have been preserved by a proper objection and a ruling on that objection. Martinez v. State, 98 S.W.3d 189,193 (Tex. Crim. App. 2003). A proper objection is one that is specific and timely. Id. A defendant who allows evidence to be introduced from one source without objection forfeits any subsequent complaints about the introduction of the same evidence from another source. Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002).

Here, Rodriguez failed to timely object to the witness's opinion testimony regarding the identity and quantity of the substance in Rodriguez's possession at the time of his arrest. The record shows that Mark Florence, a forensic scientist with the Bexar County Forensic Science Center Crime Lab Identification Section, testified as to the results of three tests he administered on the substance recovered from Rodriguez. Without objection, Florence testified that all three tests revealed the substance was cocaine and that the cocaine, together with adulterants and dilutants, weighed 22.570 grams. When the State sought to introduce the Drug Identification Report prepared by Florence, Rodriguez took Florence on voir dire and objected to the report on the grounds that Florence was not an expert, as he did not understand the underlying theories of the tests. However, Florence had already delivered his opinion testimony regarding the identification of the substance without objection, and the report provided no additional evidence. Therefore, Rodriguez's allegation that the trial court erroneously admitted evidence showing that "Rodriguez had more than 20 grams of cocaine in his possession when he was arrested" has not been preserved for our review. Reyes, 84 S.W.3d at 638. Rodriguez's second issue is overruled.

Factual Sufficiency

In his third issue on appeal, Rodriguez contends the evidence was factually insufficient to support the conviction for the offense of murder. Rodriguez contends that the evidence of his guilt is weak and that the conviction is against the great weight of the evidence of Rodriguez's renunciation and Ramirez's independent impulse. The State counters that the evidence is sufficient to show that Rodriguez acted as the primary actor, or in the alternative as a party, in the chain of events that led to the shooting death of Covarrubia.

To determine the factual sufficiency of the evidence to support a conviction, we consider all the evidence in a neutral light and determine whether it is so weak as to make the verdict clearly wrong and manifestly unjust or whether the adverse finding is against the great weight and preponderance of the available evidence. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. In conducting this review, we must give appropriate deference to the findings of the fact finder and should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

We will first consider whether the evidence is factually sufficient to support a conviction under the theory that Rodriguez was the primary actor. Since the specific allegations in the indictment become "facts required to establish the charged offense," we look to the indictment against Rodriguez. Pesina v. State, 949 S.W.2d 374, 381 (Tex. App.-San Antonio 1997, no writ). Under the indictment, the State was required to prove either: (1) Rodriguez knowingly or intentionally caused the death of Covarrubia by shooting him; or (2) Rodriguez, intending to cause serious bodily injury to Covarrubia, committed an act clearly dangerous to human life by shooting Covarrubia. Tex. Pen. Code Ann. 19.02(b)(1), (2) (Vernon 2003).

In his testimony, Rodriguez admits to having the requisite intent under section 19.02(b)(2) of the Penal Code. Tex. Pen. Code Ann. 19.02(b)(1), (2) (Vernon 2003). Rodriguez admits that he, along with Ramirez and Rivera, went to Covarrubia's home with the intent to beat him up and that Rodriguez and Ramirez brought a .40 caliber handgun and a .454 caliber revolver, respectively. The evidence shows that when they arrived, all three men beat Covarrubia, and Ramirez struck Covarrubia repeatedly with a gun. Ramirez dropped the gun, and while Rodriguez and Covarrubia were engaged in a struggle for a gun, Covarrubia was shot. The .454 caliber revolver was never recovered, and the evidence shows that Covarrubia was not shot by Rodriguez's .40 caliber handgun. The evidence does show, however, that the muzzle impression and burns on Covarrubia's body are consistent with a close-range .454 caliber revolver shot and that the bullet recovered from Covarrubia's body was probably fired from a .45 or .454 caliber revolver. Witnesses testified that when Rodriguez returned to his apartment after the shooting his shirt and arms were covered with blood. Furthermore, witnesses testified that they saw Rodriguez and Ramirez cleaning both guns the next day.

The State alleges that Rodriguez shot Covarrubia with the .454 caliber revolver. In his defense, Rodriguez alleges that Ramirez shot Covarrubia at close range with the .454 caliber revolver while Rodriguez and Covarrubia were struggling for control of the .40 caliber handgun. Therefore, in order to convict Rodriguez under section 19.02(b)(2) of the Penal Code, the trial court had to determine whether Covarrubia was shot by Rodriguez during the struggle for the .454 caliber revolver or whether Covarrubia was shot by someone else during the struggle for the .40 caliber handgun. Tex. Pen. Code Ann. 19.02(b)(2) (Vernon 2003).

The evidence shows that Covarrubia suffered injuries consistent with injuries resulting from striking blows from a long-barreled weapon. The evidence shows that the .454 caliber revolver was approximately 12 inches long and had a scope mounted on it. This evidence indicates that Ramirez was striking Covarrubia with the .454 caliber revolver and dropped the revolver. Thus, the evidence supports a finding that Rodriguez and Covarrubia were struggling for control of the .454 caliber revolver when Covarrubia was shot.

In his defense, Rodriguez testified that he did not know Ramirez had a gun, so he gave Ramirez his .40 caliber handgun when they arrived at Covarrubia's apartment. He testified that Ramirez began to strike Covarrubia with the .40 caliber handgun. When Rodriguez saw the blood from Covarrubia's resulting lacerations, he told Ramirez to stop. When Ramirez continued, Rodriguez got between Covarrubia and Ramirez. Ramirez struck Rodriguez on the arm and the back of the neck with the handgun and continued to strike Covarrubia with the gun until Ramirez lost his grip on the gun and dropped the gun. Rodriguez testified that he and Covarrubia were wrestling for control of the .40 caliber handgun when Covarrubia was shot. Additionally, Rodriguez and his girlfriend testified that on the day of the murder Ramirez confessed to them that he shot Covarrubia with the .454 caliber revolver. (1)

Rodriguez's testimony, however, is inconsistent with the statement he gave to the police on April 5, 2002, one day after Covarrubia was killed. In his statement, Rodriguez makes no reference to his attempt to stop Ramirez's assault on Covarrubia or to Ramirez's alleged confession.

Additionally, although Rodriguez alleges that he did not know that Ramirez had the .454 caliber revolver, several witnesses testified that they saw Ramirez with the revolver on the night of the incident. Furthermore, the State raised doubt with regard to whether Rodriguez would hand his .40 caliber handgun over to Ramirez when they arrived at Covarrubia's apartment since Rodriguez was told that other people would be at Covarrubia's apartment. The State argued that it also was implausible that Ramirez would accept the .40 caliber handgun since Ramirez was carrying a .454 caliber revolver and would likely prefer to have Rodriguez armed as his backup.

The trial court evaluated Rodriguez's credibility and concluded that his testimony was inherently suspicious. The trial court did not believe Rodriguez's contention that he had not seen Ramirez carrying a 12-inch long revolver. Furthermore, the trial court found that the bruises on Covarrubia's body were caused by the .454 caliber revolver and not the .40 caliber handgun. Considering the trial court's evaluation of Rodriguez's credibility, the evidence tending to show that Rodriguez shot Covarrubia, and the evidence tending to disprove this fact, we conclude that the evidence before the trial court is not so weak as to render the judgment clearly wrong and manifestly unjust. Johnson, 23 S.W.3d at 7.

Rodriguez makes two additional arguments challenging the sufficiency of the evidence to establish his guilt as a party to the offense. First, Rodriguez asserts that he renounced his participation in the beating of Covarrubia. Second, Rodriguez asserts that the murder was the independent impulse of Ramirez. Because the evidence is sufficient to establish Rodriguez's guilt as a primary actor, we need not consider Rodriguez's alternative arguments, as they provide a defense only to Rodriguez's guilt as a party. Tex. Pen. Code Ann. 15.04 (Vernon 2003) (providing defense of renunciation to the inchoate offenses of criminal attempt, criminal conspiracy, and criminal solicitation); Garcia v. State, 106 S.W.3d 854, 857 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (discussing defense of independent impulse). The evidence is factually sufficient to support the conviction. Rodriguez's third issue is overruled.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

Alma L. L pez, Chief Justice

Do not Publish

1. Rodriguez's girlfriend, Erica Garcia, testified:

Q. What did Jerod [Ramirez] tell you that next morning?

A. Not to be upset with Paul [Rodriguez] because Paul didn't do anything wrong. He said, "I did it. I messed up."

Rodriguez testified:

Q. ... After [Ramirez] got to the apartment did he say anything about how Manuel Covarrubia was shot?

A. I went to the room and Erica started fighting with me and he said it wasn't me.

Q. What did he tell you?

A. He said something like, "Don't be mad at him. It was me. I fucked up." And he walked out of the room, and I said, "What the fuck do you mean it was you, what are you saying?" And it was me, Mark and Beaker.

Q. And at that time did he say anything about the .454?

A. He said, "Bro, I shot him because y'all were fighting for that gun and I thought you were going to get shot"; and he put a .454 revolver bullet that had been fired on the table.