Gutierrez v. State, 03-01-00345-CR.

• Decision Date: 30 August 2002
• Docket Number: No. 03-01-00345-CR.,03-01-00345-CR.
• Citation: 85 S.W.3d 446
• Parties: Pedro Edwardo GUTIERREZ alias Pete Gutierrez, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 446

85 S.W.3d 446

Pedro Edwardo GUTIERREZ alias Pete Gutierrez, Appellant, v. The STATE of Texas, Appellee.

No. 03-01-00345-CR.

Court of Appeals of Texas, Austin.

August 30, 2002.

Rehearing Overruled October 3, 2002.

COPYRIGHT MATERIAL OMITTED

Keith S. Hampton, Austin, for appellant.

Lisa Dotin Stewart, Assistant District Attorney, Austin, for appellee.

Before Chief Justice ABOUSSIE, Justices YEAKEL and PURYEAR.

LEE YEAKEL, Justice.

A jury found appellant Pedro Edwardo Gutierrez guilty of the murder of Keith Watson and assessed punishment at fifty years' imprisonment and a $10,000 fine. See Tex. Pen.Code Ann. § 19.02(b)(1) & (2) (West 2002). We will affirm the conviction.

DISCUSSION

By eleven points of error, appellant contends: (1) the evidence is factually insufficient to support the conclusion that he intended to cause death or serious bodily injury; (2) the evidence is factually insufficient to support the conclusion that he did not act in self-defense; (3) the evidence is factually insufficient to support the conclusion that he did not kill Watson with sudden passion arising from an adequate cause; (4) he was deprived of the right to a fair trial because the prosecution failed to timely disclose exculpatory evidence concerning Watson's character for violence and his extensive prior criminal history of violent acts; (5) he was deprived of the right to a fair trial because the district court refused to order the prosecution to reveal certain exculpatory evidence until after trial commenced; (6) he was deprived of the right to a fair trial because the district court refused to grant a mistrial on the morning of trial due to the untimely disclosure of voluminous uninvestigated evidence supporting the defensive theory of self-defense; (7) the district court abused his discretion in overruling appellant's motion for new trial; (8) the district court erred by prohibiting defense counsel from cross-examining a witness about Watson's prior acts of violence; (9) the district court erred by permitting the prosecution to present a police narrative of hearsay testimony; (10) the district court erred by refusing to admit evidence that Watson carried an illegal knife; and (11) he was deprived of the right to a fair trial because the district court overruled appellant's motion for a mistrial due to the court's ill-treatment of potential jurors.

Factual Sufficiency

By points of error one and two, appellant contends that the evidence is factually insufficient to sustain his conviction on the basis that he intentionally and knowingly caused Watson's death or that, with intent to cause serious bodily injury, he committed an act clearly dangerous to human life. By point of error three, appellant challenges the factual sufficiency of the evidence to establish that he did not kill with sudden passion arising from an adequate cause.

A review of the factual sufficiency of the evidence begins with the presumption that the evidence supporting the judgment was legally sufficient. See Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). In such a review, we consider the evidence without employing the prism of "in the light most favorable to the verdict." Id. at 129. We consider all the evidence impartially, comparing evidence that tends to prove the existence of a disputed fact with evidence that tends to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997). The verdict or judgment is to be set aside only when the factual finding is against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129. In a factual-sufficiency analysis, it must be remembered that the trier of fact is the sole judge of the weight and credibility of the testimony. See Santellan, 939 S.W.2d at 164. The appellate court should be on guard against substituting its own judgment in these matters for that of the trier of fact. Id. One principle of the factual-sufficiency analysis is deference to the findings of the jury. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Moreover, "[a] decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State." Id. at 410.

In conducting a Clewis sufficiency review of the elements of a criminal conviction, an appellate court must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine the confidence in the jury's determination, or that the proof of guilt, although adequate when taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.App.2000).

The indictment charges that appellant intentionally and knowingly cause[d] the death of ... Watson, by stabbing him ... with a knife, which knife, in the manner and means of its use and intended use, was capable of causing death and serious bodily injury, [a]nd ... with intent to cause serious bodily injury to ... Watson, commit[ted] an act clearly dangerous to human life, to-wit: stabbing him ... with a knife, which knife, in the manner and means of its use and intended use, was capable of causing death and serious bodily injury, thereby causing the death of ... Watson.

When the indictment alleges alternate theories of committing the same offense (here murder), it is proper for the jury to be charged in the disjunctive and to return a general verdict of guilty. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991); see TEX.CODE CRIM. Proc. Ann. art. 37.07, § 1(a) (West 1981) (verdict must be general).

The district court's charge to the jury provided, inter alia, that the jury could find appellant guilty of murder if the jury believed beyond a reasonable doubt that appellant

intentionally and knowingly cause[d] the death of ... Watson, by stabbing him ... with a knife, which knife, in the manner and means of its use and intended use, was capable of causing death and serious bodily injury, thereby causing the death of ... Watson, OR that [appellant] ... with intent to cause serious bodily injury to ... Watson commit[ted] an act clearly dangerous to human life to wit: stabbing him ... with a knife, which knife, in the manner and means of its use and intended use, was capable of causing death and serious bodily injury, thereby causing the death of ... Watson.

The conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted. Kitchens, 823 S.W.2d at 258; Nevarez v. State, 847 S.W.2d 637, 643 (Tex. App.-El Paso 1993, pet. ref'd).

Appellant argues that the evidence fails to show that he intended to kill or seriously injure Watson, as required for a conviction under the indictment. We hold the facts are sufficient to support the conviction. On October 31, 1999, appellant hosted a Halloween party at his residence. Watson, accompanied by his friend Paul Davies, arrived at the party around 10:00 p.m. Witnesses testified that at some point Watson engaged in a verbal altercation with a party guest inside appellant's home. There was no physical contact between Watson and the guest, nor were weapons drawn. Appellant asked Watson to leave. There was testimony that Watson did not want to leave because he resented being blamed for the altercation. Witnesses testified that Watson's friends were successful in encouraging him to leave the party and that they began walking toward their car.

As Watson was leaving, appellant went to the front yard of his home where he confronted Watson. Witnesses heard appellant ask Watson if he wanted to go "one-on-one," meaning that appellant asked Watson if he wanted to fight. Watson took off his shirt. There was no indication that he was carrying a weapon. Appellant and Watson began punching one another. Appellant pulled a knife from his back pocket and began waving it at Watson. Appellant stabbed Watson in the chest, puncturing his heart and killing him. There was testimony that witnesses did not realize Watson had been stabbed until he tried to scream and then fell to the ground. Appellant ran into his house, took off his shirt, and hid it in his couch. Appellant threw the knife away, and it was never recovered.

When first questioned about the event, appellant denied that he was involved in a physical confrontation with Watson and blamed Watson's death on an unknown Hispanic male. After being confronted with information gathered from other witnesses, appellant admitted he stabbed Watson.

By its verdict, the jury found that appellant intentionally or knowingly killed Watson, or the jury found that he committed an act clearly dangerous to human life with the intent to seriously injure Watson. A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Tex. Pen.Code Ann. § 6.03(a) (West 1994). A person acts knowingly with respect to a result of his conduct when he is aware that it is reasonably certain to cause the result. Id. § 6.03(b). Proof of a culpable mental state generally relies on circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978).

Appellant's claim that he did not intend to kill Watson is inconsistent with his conduct. Appellant admitted to stabbing Watson, and numerous witnesses testified they observed appellant stab Watson. Although appellant claims he acted in selfdefense, Watson was not in possession of a weapon, nor had he threatened appellant with deadly force. An autopsy of Watson's body revealed that he had defensive wounds on his hands and stab wounds in his back. Stabbing Watson in the chest was an act clearly dangerous to human life from which the jury could infer the culpable intent or knowledge. The jury's verdict was not against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 11. We hold that...