Davila v. State

• Decision Date: 21 August 1997
• Docket Number: No. 13-95-319-CR,13-95-319-CR
• Citation: Davila v. State, 952 S.W.2d 872 (Tex. App. 1997)
• Parties: Julio DAVILA, a/k/a Julio Yzaguirre Davila, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 872

952 S.W.2d 872

Julio DAVILA, a/k/a Julio Yzaguirre Davila, Appellant, v. The STATE of Texas, Appellee.

No. 13-95-319-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 21, 1997.

Rehearing Overruled Sept. 25, 1997.

Discretionary Review Refused Jan. 21, 1998.

J. R. "Bobby" Flores, Joseph A. Connors, III, McAllen, for Appellant.

Theodore C. Hake, Asst. Criminal District Attorney, Rene Guerra, District & County Attorney, Anibal J. Alaniz, Assistant District Attorney, Edinburg, for State.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr., and YANEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

A jury found Julio Davila, a/k/a Julio Yzaguirre Davila, guilty of murdering Adriana Ochoa on June 10, 1990, ¹ and the trial court sentenced him to fifty years' confinement. By five points of error, appellant contends that the evidence is insufficient to support the conviction and that the trial court erred by (1) not granting a mistrial during the prosecutor's closing argument, (2) denying his requested instruction for the lesser-included offense of criminal negligent homicide, (3) denying his requested instruction for the lesser-included offense of voluntary manslaughter, and (4) refusing to instruct the jury on the voluntariness of his actions. We affirm.

Sufficiency of the Evidence

By his fifth point of error, appellant complains that the evidence was insufficient to support his conviction. Specifically, appellant contends that the evidence is insufficient to show that he intentionally or knowingly caused the death of Adriana Ochoa. In the alternative, appellant argues that the evidence is insufficient to prove that he intentionally or knowingly committed an act clearly dangerous to human life.

A person acts intentionally, or with intent, when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE ANN. § 6.03(a) (Vernon 1994). ² A person acts knowingly, or with knowledge, when he is aware of the nature of his conduct or of the circumstances surrounding his conduct. TEX. PENAL CODE ANN. § 6.03(b) (Vernon 1994). A person also acts knowingly, or with knowledge, when he is aware that his conduct is reasonably certain to cause the result. Id.

When we review a legal sufficiency of the evidence point of error, 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Patrick v. State, 906 S.W.2d 481, 486 (Tex.Crim.App.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996); Turro v. State, 867 S.W.2d 43, 46-47 (Tex.Crim.App.1993); Arceneaux v. State, 803 S.W.2d 267, 269 (Tex.Crim.App.1990). The standard is the same for both direct and circumstantial evidence cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex.Crim.App.1991), cert. denied, 513 U.S. 966, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994); Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex.Crim.App.1984); Vela v. State, 771 S.W.2d 659, 660 (Tex.App.--Corpus Christi 1989, pet. ref'd). We measure the sufficiency of the evidence against the indictment as incorporated into the jury charge. Jones v. State, 815 S.W.2d 667, 670-71 (Tex.Crim.App.1991); Benson v. State, 661 S.W.2d 708, 715 (Tex.Crim.App.1982) (opinion on reh'g), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984).

The jury charge, incorporating the indictment, authorized the jury to find appellant guilty of murder if it found beyond a reasonable doubt that appellant either (1) intentionally or knowingly caused Ochoa's death by shooting her with a firearm, or (2) intentionally or knowingly committed an act clearly dangerous to human life by shooting her with a firearm and causing her death. The jury's verdict did not specify on which of these grounds appellant was found guilty.

To determine culpability the jury is entitled to consider events that occurred before, during, and after the commission of the offense. Henderson v. State, 825 S.W.2d 746, 749 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd). Appellant's acts, words and deeds may also infer intent. Hernandez v. State, 819 S.W.2d 806, 809-10 (Tex.Crim.App.1991), cert. denied, 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992); Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982); Sills v. State, 846 S.W.2d 392, 394 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd).

Intent to kill may be inferred from the use of a deadly weapon per se. Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994); Moreno v. State, 755 S.W.2d 866, 868 (Tex.Crim.App.1988). Further, "[i]f a deadly weapon is used in a deadly manner, the inference is almost conclusive that [the defendant] intended to kill[.]" Adanandus, 866 S.W.2d at 215 (citing Godsey v. State, 719 S.W.2d 578, 581 (Tex.Crim.App.1986)). A firearm is a deadly weapon per se. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (Vernon 1994). ³

The trier of fact is the exclusive judge of the facts, credibility of witnesses and weight to be afforded their testimony. TEX.CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985); Sills, 846 S.W.2d at 394. The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981); Sills, 846 S.W.2d at 394. Simply because the defendant presents a different version of the facts does not render the State's evidence insufficient. Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App.1985), cert. denied, 479 U.S. 870, 107 S.Ct. 239, 93 L.Ed.2d 163 (1986); Sills, 846 S.W.2d at 394.

When a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted, the verdict will be upheld. Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App.1992), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993). The State need only have sufficiently proven one of the paragraph allegations to support the verdict of guilty. Id. Thus, we review the record for evidence to support a guilty verdict on either of the paragraphs submitted to the jury. Id.

The record shows that on evening of June 10, 1990, Maria Concepcion Cantu, appellant's girlfriend, gave Adriana Ochoa a ride to the Last Pocket Lounge in Hidalgo County. Ochoa, the front passenger, held Cantu's eighteen-month-old son during the drive to the lounge. In the back seat were Cantu's four-year-old son and Ochoa's nine-year-old daughter. Ochoa was to deliver quarters to the bar at the request of her boyfriend, lounge owner Nick Canales. Appellant had previously ordered Cantu to stay away from Ochoa and the lounge.

Upon arriving at the lounge, Ochoa handed the child to Cantu and went into the bar. Shortly thereafter, Cantu noticed appellant's car pull into the parking lot, and appellant approach her car. Cantu ordered the children to lock the doors and keep the windows up. Appellant knocked on the driver's side window several times, demanding that Cantu open the door or the window so they could talk. Cantu told him they could talk with the windows up. Exiting the lounge several minutes later, Ochoa saw appellant and ran to the car. Appellant hurriedly moved around the car to the passenger side, attempting unsuccessfully to grab the door before Ochoa locked it. Appellant then moved to the back passenger side of the car to a place where he was approximately seven to eight feet from Ochoa. At this point Cantu and Ochoa saw appellant open his shirt and remove a gun from the waistband of his pants. Still holding her son, Cantu ordered the children down, started the car, and began to back toward appellant, which was the only way she could get out of her parking place.

Appellant released the safety by cocking the gun, gripped the handle to release a second safety, aimed at the car, and fired, striking the front passenger fender and tire. Cantu continued to drive the car in reverse, and appellant aimed a second shot at the car. The bullet struck the back passenger window approximately in the center, causing the glass to shatter onto the children in the back seat. The bullet also struck Ochoa in the neck. Finally managing to leave the parking lot, Cantu sped away from the lounge, but appellant followed her. Realizing that she was going in an unfamiliar direction, Cantu turned around and again appellant followed. Upon turning, Ochoa fell to the side, and Cantu discerned that Ochoa had been shot. Cantu went back to the lounge for help. Appellant did not follow her at this point. Instead, appellant went to his house, wrapped the gun in newspaper and had his son take the weapon to a neighbor from whom it was later recovered. Ochoa subsequently died from her gunshot wound.

The record reflects that appellant was familiar with firearms, knew the gun was loaded, knew there were people in the car, including small children, and intended to fire at the car twice, in spite of this knowledge. Appellant admitted that such actions were clearly dangerous to human life. The record reflects that appellant believed Ochoa was a bad influence on Cantu and that Ochoa was attempting to convince Cantu to work at the lounge. Appellant had ordered Cantu not to give Ochoa any rides. There was also some evidence that several weeks prior to the shooting, appellant had threatened to kill Ochoa, her brother, and Canales if they did not leave Cantu alone. Appellant testified that when he saw Cantu at the lounge on the night of the shooting, he was angry and jealous.

In light of the above evidence, we conclude that any rational trier of fact could have found the essential elements of murder beyond a...