Clifford Horn v. State of Texas--Appeal from 159th District Court of Angelina County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-00-483 CR
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CLIFFORD HORN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th District Court
Angelina County, Texas
Trial Court No. 21,540
O P I N I O N

A jury convicted Clifford Horn of manslaughter. See Tex. Pen. Code Ann. 19.04 (Vernon 1994). He was sentenced to fifteen years imprisonment. Horn challenges his conviction on the grounds that the evidence was legally and factually insufficient, that the jury was not sworn prior to voir dire, and that the trial court improperly admitted testimony concerning extraneous offenses.

 

The Evidence

Horn's third point of error challenges the legal and factual sufficiency of the evidence. We will review this point of error first, since a finding of legal insufficiency would entitle Horn to acquittal. See Moron v. State, 779 S.W.2d 399, 403 (Tex. Crim. App. 1985).

In evaluating the legal sufficiency of 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 essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In reviewing a factual sufficiency challenge, we conduct a review of all the evidence, both for and against the finding, to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination. See King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). In addition, we ask if the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. "[W]e will reverse the fact finder's determination only if a 'manifest injustice' has occurred." Id. (footnote omitted).

Appellant Clifford Horn and his "distant cousin," Joel Winn, went to the home of Martin Ocon on March 25, 2000. A confrontation between Winn and Ocon escalated into a gunfight between Horn and Ocon, both of whom admitted shooting at each other. In the process, Winn and Horn were wounded and Cornelio Retana, who was married to Ocon's niece, was killed. In reviewing the sufficiency of the evidence, we summarize the testimony of the primary witnesses for both Horn and the State.

Dr. James Bruce

Dr. Bruce performed the autopsy on Retana. He testified that Retana suffered a bullet wound to the right upper chest which penetrated his trachea, the main artery on the left side of his neck, and his left lung. The injuries to the artery and lung caused death from blood loss. Dr. Bruce testified that, assuming Retana was wearing a shirt when shot, he could not discern how far the gun was from his chest when the shot was fired.

Martin Ocon

On March 25, the victim, Cornelio Retana, was at Ocon's house to ride horses. Horn arrived at Ocon's home with another man, later identified as Horn's "distant cousin," Joel Winn. Horn was driving a small car. Ocon had never seen appellant before, but knew his passenger. The passenger [Winn] asked Ocon if he wanted to buy a dog; Ocon declined.

The car followed Ocon up his driveway, and the passenger began cursing him. Ocon told the men to leave "a lot of times" and then obtained a revolver from a shed. The passenger [Winn] began to get out of the car, threatening to make Ocon "eat" the pistol. Retana grabbed the passenger and tried to push him back in the car. The passenger was seated in the car with one foot out on the ground, slapping at Retana. Retana's head and chest were inside the car. Horn then shot Retana "real close", and Retana went backwards. Ocon then shot at Horn, and Horn shot at Ocon. Ocon threw his gun into the woods and told police who arrived the night of the shooting that he did not know how Retana had been killed. Two days later he went to the sheriff's office and told the full story to an investigator.

Adelaido Ocon

Adelaido Ocon, Martin Ocon's brother, was Retana's father-in-law. He testified that on the afternoon of the shooting two men arrived at Martin Ocon's house in a car driven by Horn. He heard "the other guy" talking loudly to Martin Ocon, and Martin telling the men to leave. Then the passenger opened the car door, and Adelaido saw that the passenger had a gun by his ankle. Retana began pushing the passenger and telling him to go.

The passenger slapped Retana three or four times. The driver shot Retana with a pistol held in the driver's right hand and began shooting at Martin Ocon. Adelaido stated that Horn could not have been firing at Martin Ocon when he shot Retana; the gun was "more or less two feet" from Retana when Horn shot him. Adelaido testified that Retana did not have a gun that day.

 

Other Witnesses

The court also heard from Maria, Angelica and Dina Ocon, who are respectively the wife, daughter, and daughter-in-law of Martin Ocon. Dina was indoors when she heard the first shot; Maria and Angelica were outdoors but out of sight of the car when they heard the first shot. None saw Retana shot, but all testified that after they heard the initial shot they saw Retana moving backwards and Martin Ocon exchanging shots with the driver of the car. Angelica and Dina identified Horn; Maria acknowledged that "I never did see him."

Deputy Alan Hill

Deputy Hill went to a local emergency room when told that people possibly involved in the shooting were there. In the trauma room he encountered Horn, who said that he had been shot while he was asleep.

Investigator Mike Jinkins

Investigator Jinkins spoke to Horn at the hospital on March 29, four days after the shooting. Initially, Horn told Jinkins that he had been driving, but had been asleep when shot and did not know how Retana was shot. Neither Horn nor Winn expressed any desire to file charges against whoever shot them, and neither contacted him after being released from the hospital.

Jinkins testified that Martin Ocon came to the sheriff's office on two occasions, the first time two days after the shooting to speak to Jinkins and Investigator Torres. In those conversations, Ocon admitted lying to police the night of the shooting, and then gave a version of the shooting largely identical to the one he testified to in court.

Joel Winn

Winn was the passenger in Horn's car the afternoon of the shooting. He testified that after arguing with Martin he got in Horn's car to leave. He saw Ocon holding a gun and told Horn to stop the car. Winn got out of the car and Ocon pointed the gun at him. Winn re-entered the car and closed the door. He testified "the other guy" (Retana) opened the door and tried to pull him out. Then Martin Ocon shot both Winn and Horn. Winn testified that Retana continued trying to pull him from the car after Martin Ocon began shooting. Winn said that he did not see Retana shot, although he did think that Horn fired one or two shots.

Clifford Horn

Horn testified that he gave Winn a ride to Martin Ocon's property. As they were leaving, Winn told him to stop. Horn then saw Martin Ocon loading a pistol. Ocon pointed the pistol at Winn, who was outside the car at the time. Ocon continued to point the gun at Winn after Winn got back in the car. The passenger door opened and Retana tried to grab Winn. Horn stated that he pulled his gun from under the seat, and Martin Ocon "seen me going for my gun and that's when he started shooting." Horn testified he fired twice, feared for his life, and believed there was "no doubt" Martin Ocon would have killed him. But Horn also acknowledged he never saw Retana with a gun and never heard him make any threats.

Sufficiency of Evidence

The jury heard testimony that Horn shot Retana. Reconciliation of any conflicts in the testimony of witnesses is within the province of the jury. See Rachal v. State, 917 S.W.2d 799, 805 (Tex. Crim. App. 1996). The jury was entitled to judge the credibility of the witnesses, and to believe all, some, or none of the testimony presented by the parties. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.1991). The jury was instructed to convict Horn of manslaughter if they found beyond a reasonable doubt that he recklessly shot Retana. A person acts recklessly:

[W]hen he is aware of but consciously disregards a substantial and justifiable risk that the circumstances exist or the result will occur. The risk must be of such nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's viewpoint.

 

Tex. Pen. Code Ann. 6.03(c) (Vernon 1994). Some of the evidence that Horn behaved recklessly in Retana's death came from Horn's own testimony, including these exchanges with the State on cross-examination:

So Martin is standing right here and all of the sudden he starts shooting at you?

A. No, ma'am, not just all of the sudden.

 

Q. What happened?

 

A. He saw me reach for my gun.

 

Q. He saw you reach for your gun?

 

A. Yes, ma'am.

 
And then he started shooting at you?
Yes, ma'm.

Q. So, if he's here and Cornelio is over here, how do you shoot Cornelio?

 

A. I don't know. I don't know.

 

Q. They're not standing next to each other?

 

A. No, ma'am.

 

Q. So why do you shoot Cornelio instead of Martin?

. . . .

A. I don't know.

. . . .

Q. It's your testimony that Martin shot first?

A. Yes, ma'am.

Q. And you don't know how you shot Cornelio?

A. I know how, but I didn't know that I shot Mr. Retana. And I apologize.

 

Q. You do know how or you don't know how you shot him?

 

A. I know how I shot, but I don't know how he got shot.

 

In this testimony, Horn seems to acknowledge that he shot Retana, and cannot explain how or why he shot the admittedly unarmed Retana rather than the armed Ocon.

The evidence was legally sufficient and factually sufficient to permit the jury to find beyond a reasonable doubt that Horn recklessly caused Retana's death. Point of error three is overruled.

Juror Oath

Horn's first point of error notes that the record does not show the jury panel being sworn prior to voir dire. See Tex. Code Crim. Proc. Ann. art. 35.02 (Vernon 1989). However, Rule 44.2(c)(2) of the Rules of Appellate Procedure provides that we are to assume that the jury was "properly impaneled and sworn" unless the issue was raised in the trial court or the record affirmatively shows the contrary. Tex. R. App. P. 44.2(c)(2). The issue was not raised in the trial court. Horn argues that the record "affirmatively shows the contrary" because it does not reflect administration of the oath. In its brief, the State contends that the jury panel was sworn in Angelina County's other district court for voir dire in a civil case, then moved to the court below when it was not needed in the first court. In light of Rule 44.2(c)(2)'s presumption that the jury was properly impaneled and sworn, and in the absence of an affirmative contrary showing in the record, point of error one is overruled.

Extraneous Offenses

Horn argues that the trial court committed reversible error on two occasions by allowing testimony about extraneous offenses. The first occasion was during the testimony of Investigator Mike Jinkins. Jinkins testified that police seized approximately $1,250.00 in cash found in the car occupied by Horn and Winn at the time of the shooting. Jinkins was asked on redirect why police had seized the money. Horn objected to the question as having been asked and answered; the objection was overruled. Jinkins answered, "My investigation revealed that Mr. Horn and Mr. -- or Mr. Winn had a current charge of Delivery of Marijuana." Defense counsel asked to approach and objected on the grounds that the question and answer violated the motion in limine. The trial court overruled the objection, stating that (A) the motion in limine applied only to extraneous offenses by Horn, not by Winn, and (B) that the defense had opened the door by asking Jinkins about the seized money: "If you ask him, she can ask him." On recross, Horn's counsel led Jinkins to clarify that it was Winn, not Horn, who had a pending drug charge.

Q. Mr. Jinkins, you just said that Clifford Horn has got pending drug charges against him?

 

A. I wasn't aware that Clifford Horn did.

. . . .

 

Q. Okay. Let's just make sure that everybody in this jury knows it and knows it right. Mr. Horn is not under investigation or charged at this time or any other time for any type of marijuana or dope dealing, right?

 

A. I'm not aware of any, no, sir.

 

The trial court correctly ruled that the defense invited the testimony by asking questions about the police seizure of the money. In addition, Jinkins acknowledged that Horn had no drug charges pending that he was aware of.

The second incident took place during the punishment phase. A juvenile probation officer testified that Horn was placed on juvenile probation in November 1997 for aggravated assault. Asked about other grounds for probation, she replied that Horn's probation was extended in September 1998 for burglary of a habitation. Horn objected. At the bench, the trial court reprimanded the State for "interject[ing] an offense that shows no final conviction" and ordered the State to "get off" the topic of unadjudicated offenses, but refused Horn's request for a mistrial. The defense did not request an instruction for the jury to disregard the testimony. Horn argues that the refusal to grant a mistrial was reversible error.

 

Admissibility of punishment evidence is governed by the Texas Code of Criminal Procedure, specifically that part of art. 37.07 which allows for the admission of evidence relating to a defendant's adjudication of delinquency for felonies and for misdemeanors punishable by jail confinement. See Tex. Code Crim. Proc. Ann. art. 37.07 3(a)(1)(i) (Vernon Supp. 2002). Clearly, the adjudication of delinquency order for the felony offense of aggravated assault falls within the language of art. 37.07(3)(a)(1)(i).

Horn claims the evidence should not be admitted because the State did not clearly prove he committed the acts. The trial court's threshold determination of admissibility is based on relevancy, not on a reasonable doubt determination, and is reviewed by this Court under an abuse of discretion standard. See Mitchell v. State, 931 S.W.2d 950, 952-53 (Tex. Crim. App. 1996). In Huizar v. State, 12 S.W.3d 479, 482 (Tex. Crim. App. 2000) (op. on reh'g), the Court of Criminal Appeals further explained that "[a]rticle 37.07's requirement that extraneous-offense and bad-act evidence must be proven beyond a reasonable doubt is an evidentiary rule; it has no constitutional underpinnings." Here the jury was properly instructed that it could not consider extraneous offenses in assessing punishment unless it first found the defendant did in fact commit the offense beyond a reasonable doubt. The jury is presumed to have followed the court's charge. See Gaemz v. State, 737 S.W.2d 315, 324 (Tex. Crim. App. 1987).

Horn also argues that the admission of the extraneous acts is more prejudicial than probative. See Tex. R. Evid. 403. We disagree. The State offered the evidence to demonstrate that appellant, who had filed an application for probated sentence, was not a good candidate for probation. We find the evidence showing appellant had previously been on probation and was now before the court on another charge was probative of the issue of lack of suitability for probation, and not more prejudicial than probative. Issue two is overruled.

We affirm the judgment of the trial court.

AFFIRMED.

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DAVID B. GAULTNEY Justice

 

Submitted on February 12, 2002

Opinion Delivered May 15, 2002

Do Not Publish

 

Before Walker, C.J., Burgess, and Gaultney, JJ.