Garza v. State

• Decision Date: 06 May 1998
• Docket Number: No. 04-96-00229-CR,04-96-00229-CR
• Citation: 974 S.W.2d 251
• Parties: Jose GARZA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 251

974 S.W.2d 251

Jose GARZA, Appellant, v. The STATE of Texas, Appellee.

No. 04-96-00229-CR.

Court of Appeals of Texas,

San Antonio.

May 6, 1998.

Discretionary Review Refused Sept. 16, 1998.

Juan Martinez Gonzales, Law Office of Juan Martinez Gonzales, New Braunfels, for appellant.

Joe Frank Garza, Dist. Atty., Armando Barrera, Barrera & Barrera Law Firm, Alice, for appellee.

Before HARDBERGER, C.J., and RICKHOFF and DUNCAN, JJ.

OPINION

RICKHOFF, Justice.

Jose Garza was convicted of murder. In fourteen points of error, he raises complaints regarding the factual sufficiency of the evidence, the jury charge, and the trial court's granting of the State's motion to change venue without notice or a hearing. Although we disapprove of the trial court's ex parte granting of the motion to change venue, we affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Sixteen-year-old Jose Garza was driving his mother's car along the streets of Falfurrias, Texas on the evening of March 14, 1995. With him were two friends, his brother, and, fatefully, a .25-caliber handgun. Thirteen-year-old Joel Ramirez threw a bottle at the car. Garza stopped, opened the door, and fired once. Ramirez died later that evening as a result of the gunshot wound.

The juvenile court waived its jurisdiction, and Garza was indicted in Brooks County for Ramirez's murder. On the State's motion, the trial court later transferred the case to Jim Wells County. A jury there convicted Garza of murder and assessed his punishment at confinement for thirty-five years.

FACTUAL SUFFICIENCY OF THE EVIDENCE

In his eighth point of error, Garza asserts that the evidence is factually insufficient to support the conviction.

In reviewing the factual sufficiency of the evidence of the elements of an offense, a court of appeals must review all the evidence as a whole, without viewing it in the light most favorable to either party. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); see also Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997) (reiterating the Clewis standard). The court may set aside a verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 129. A court of appeals is not free to reweigh the evidence and set aside a jury verdict merely because the court believes a different result is more reasonable. See Cain, at 407; Clewis, 922 S.W.2d at 135. "[T]he appellate court must defer to jury findings, and may find the evidence factually insufficient only where necessary to prevent manifest injustice." Cain, at 407. In particular, the "weight to give contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor." Id. at 408-09.

Garza was indicted for murder as defined in section 19.02(b)(2) of the Texas Penal Code. The State charged that, with the intent to cause serious bodily injury, Garza committed an act clearly dangerous to human life that caused the death of Joel Ramirez. The only element of this offense that is in dispute is whether Garza intended to cause serious bodily injury. Garza presented evidence that he pointed the gun toward the ground, that he fired it only in an attempt to scare Ramirez, and that the bullet ricocheted off the ground.

Garza testified that while he was driving his brother, Daniel, and his friends, Onofre and Fidel, to Onofre's house, Ramirez threw a bottle, which hit the driver's side of the front windshield, causing the windshield to crack. Garza then stopped the car, opened the door, stuck one foot out, and fired a shot from his mother's .25-caliber pistol, which had been stored under the car seat. He stated that he "shot like at an angle down," that he did not aim at Ramirez, that he did not intend to hit Ramirez, and that he only meant to scare him. After firing the gun, he proceeded to drive to Onofre's house, not realizing that he had shot Ramirez. When they left Onofre's house, they went back to his house, where he told his mother that Ramirez had thrown a bottle at her car and that he had fired her gun.

Garza's mother testified that she left her gun in the car after she returned home from work and before Garza departed in the car. She stated that when Garza and his companions returned from Onofre's house, Garza told her about the bottle-throwing incident and that he had fired her gun toward the ground to scare Ramirez.

Daniel and Fidel corroborated Garza's version of events. They also testified that Ramirez was eighty-five feet away when Garza fired the gun. Nicole Rodriguez, a bystander who knew both Garza and Ramirez, testified that after the bottle hit the car, she saw Garza point the gun down and fire it.

Richard Earnest, the senior fire arms examiner for the Tarrant County Medical Examiner's Criminalistics Laboratory, testified for the defense. He stated that ricocheted bullets are flattened on one side and usually have traces of whatever they strike. He had examined the bullet that killed Ramirez and found that one side of the bullet had been obliterated by striking something very hard. The bullet was missing eight percent of its original weight. While examining the bullet under a microscope at a magnification of up to forty times, he found trace evidence of a material that was consistent with asphalt, as well as microscopic granules of sand, on the bullet. These findings and the markings on the bullet indicated that the bullet struck asphalt. Earnest did not find any bone imbedded in the bullet, and the damage on the bullet was inconsistent with the type of damage one would find on a bullet that struck bone. He stated that a bullet loses some of its energy when it ricochets off a surface. Nevertheless, he opined that a bullet fired from a .25-caliber pistol could still have enough energy to kill someone after ricocheting off of asphalt.

The State's evidence contradicted the defense's theory. Onofre testified that Garza took the gun from his house and tucked it into the front of his pants before they left on the evening in question. He also stated that after Ramirez threw the bottle at the car, Garza stopped the car and fired the gun in the direction of Ramirez. Onofre testified that Garza asked him to say that the bullet ricocheted. Humberto Cruz, Ramirez's cousin, testified that he was present when the bottle-throwing incident occurred and that he saw Garza shoot at Ramirez. He also stated that there was no ricochet.

The State also presented the testimony of a medical examiner and a firearms examiner. Dr. Joseph Rupp, the medical examiner, testified regarding the autopsy report prepared by another doctor. He stated that the distortion in the bullet was consistent with it having hit a bone after it entered Ramirez's body. According to Rupp, the distortion in the bullet was not consistent with a ricochet. He also testified that the bullet went straight into Ramirez, rather than from an angle, and that the entrance wound was symmetrical, rather than jagged.

Edward McKinstry, the firearms and tool mark examiner for the Corpus Christi Police Department, testified that he examined the bullet that killed Ramirez. According to McKinstry, the bullet was not missing very much of its original weight. He testified that it was not probable that the bullet would have had sufficient energy to kill Ramirez if it had ricocheted off the asphalt before hitting him. He did not see any particles on the bullet that indicated it hit asphalt. Having examined the bullet under a microscope magnifying the bullet up to thirty times its size, he was confident he would have seen such particles if any were there.

It was within the province of the jury to resolve the conflicts in the evidence in this case. See Cain, at 408-09. While there was evidence supporting the defense's theory of the case, that evidence was not so overwhelming as to render the verdict clearly wrong and unjust. See Clewis, 922 S.W.2d at 129. We overrule Garza's eighth point of error.

JURY CHARGE

In his first seven points of error, Garza complains of errors in the jury charge.

A. Intent Charge

In his first point of error, Garza argues that the jury instruction on intent shifted the burden of proof to him. The charge defined "intent" as follows: "A person acts intentionally or with intent with respect to a result of his conduct when it is his conscious objective or desire to cause the result." This definition does not allude to any allocation of the burden of proof and it closely tracks the statutory definition of "intent." See TEX. PENAL CODE ANN. § 6.03(a) (Vernon 1994). The trial court also instructed the jury that "[t]he burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the Defendant," that "[t]he law does not require a Defendant to prove his innocence or produce any evidence at all," and that "[t]he State has the burden of proving the Defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and if it fails to do so, you must acquit the Defendant."

In Dowden v. State, the court of criminal appeals rejected an argument that a jury instruction tracking the language of section 6.03(a) of the Penal Code unconstitutionally shifted the burden of proof onto the defendant. See 758 S.W.2d 264, 274-75 (Tex.Crim.App.1988). Like the jury charge in this case, the jury charge in Dowden included proper instructions on the burden of proof. See id. at 275. Following Dowden, we conclude that the instruction on intent did not shift the burden of proof onto Garza. See Bethune v. State, 821 S.W.2d 222, 228 (Tex.App.--Houston [14th Dist.] 1991), aff'd, 828 S.W.2d 14 (Tex.Crim.App.1992). We overrule the first point of error.

B. Dynamite Charge

In his second point of error, Garza argues that the trial court improperly included a "dynamite charge" in the initial charge at the...