Lozano v. State, No. 13-03-742-CR (Tex. App. 8/30/2007)

• Decision Date: 30 August 2007
• Docket Number: No. 13-03-742-CR.,13-03-742-CR.
• Citation: Lozano v. State, No. 13-03-742-CR (Tex. App. 8/30/2007), No. 13-03-742-CR. (Tex. App. Aug 30, 2007)
• Parties: CHRISTOPHER LOZANO, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

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Unpublished Opinion

CHRISTOPHER LOZANO, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-03-742-CR.

Court of Appeals of Texas, Thirteenth District, Corpus Christi.

Memorandum Opinion Delivered and Filed August 30, 2007.

Do Not Publish. Tex.R.App.P. 47.2(b).

On Appeal from the 275th District Court of Hidalgo County, Texas.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.

MEMORANDUM OPINION

Memorandum Opinion by Justice RODRIGUEZ.

Christopher Lozano, Francisco Macias, and Megan Adams (the defendants) were convicted for the murder of Jan Barnum, Adams's maternal grandmother.¹ The defendants were fifteen years old when the murder occurred and were tried together as adults. A jury convicted all three defendants, sentencing Macias and Adams to life in prison and Lozano to fifteen years' imprisonment. By four issues, Lozano contends that (1) the evidence was legally and factually insufficient to support his conviction, (2) the trial court erred by not charging the jury with the lesser-included offense of manslaughter, (3) the trial court erred in trying him with his co-defendants, and (4) the State improperly commented on his failure to testify. We affirm.

I. Background

A. Factual Background

The defendants, along with J.R., Macias's girlfriend, had been planning to run away to Louisiana by bus for several days. On March 5, 2003, Macias, Adams, and Lozano were reported as runaways. That afternoon, they were found trespassing in a vacant house near the apartment where Adams lived with Barnum. All three were detained at the police station until each was taken home by a responsible adult. The defendants made plans during their detention to return to the vacant house and to run away again.

Once the defendants were at their respective homes, they snuck out, proceeded to the vacant house, and ran into each other en route. According to the statements given by the defendants to the police after the murder, they decided to take Barnum's car shortly after joining up. Macias's statement and Lozano's statement simply state that they were going to take the car. Their statements do not specify whether the plan at that moment was to take Barnum's car to Louisiana instead of traveling there by bus, or whether the plan was, as Adams recounted, to take Barnum's car to Macias's girlfriend's house. In any event, a plan to take Barnum's car was devised before the defendants reached her apartment.

After the defendants met up, they walked to Barnum's apartment complex. Adams entered the apartment to find Barnum upset at her for leaving the apartment. Barnum instructed Adams not to leave again. Macias and Lozano waited by a storage shed near Barnum's apartment. At this point in the record, the defendants' statements deviate from each other regarding the events just before and during the strangulation. Moreover, Macias's in-court testimony varies in significant respects from his written statement. The statements reconcile after the defendants leave Barmun's apartment and attempt to flee the county.

1. Megan Adams's Written Statement

According to Adams's statement, she entered the apartment, walked into Barnum's bedroom, and took the car keys from her grandmother's purse. After taking the keys, Adams sat in the living room and watched a television show. Once the show was over, she returned to her bedroom. Macias came to her bedroom and told her to hurry up. Adams replied that she needed to wait until her grandmother fell asleep, to which Macias stated, "To hell with that[,] just kill her." Adams replied that she did not want to kill her grandmother and that they should just wait.

Barnum interrupted the conversation Adams was having with Macias. Adams told Barnum that she was just looking out the window and not talking to anyone. A little later, Barnum asked Adams if she had the car keys. Adams suggested they might be in the car and offered to check. Once outside, Lozano approached Adams and told her "what [Macias] was planning to do." Adams asked Lozano if he thought Macias was serious, and Lozano replied, "I think that [Macias] is." But then Lozano also stated that he "did not think that Frank had the guts to do it." When Barnum came out of her apartment, Adams quickly returned to the car and pretended to look for the keys. According to Adams, Barnum did not see Macias or Lozano. Adams walked into the apartment first, followed by Barnum. Macias was already inside the apartment waiting in the restroom.

As Adams passed the restroom, she saw Macias in it and signaled for him to do nothing. He just shook his head. When Barnum passed by the restroom, Macias jumped out with a red, white, and blue ribbon that had been hanging in the bathroom. Macias began strangling Barnum, and both fell to the floor. Adams ran outside to find Lozano. When Lozano entered the apartment, he told Macias to stop, but Macias did not. Adams gathered some stuff and sat on a chair and cried. Macias walked over to Adams and told her he was sorry. Adams asked Macias to resuscitate Barnum, but Macias replied it was too late. Adams ordered Lozano to get Barnum's purse, which he did. When Lozano brought Adams the purse, he told Adams that Barnum was still breathing. The defendants then left the apartment and went to J.R.'s house. They drove around, but did not make contact with J.R. Shortly thereafter, they were apprehended by police at a convenience store.

2. Christopher Lozano's Written Statement

Lozano's statement does not mention whose idea it was to kill Barnum. Lozano stated that while waiting by the storage shed, Macias visited with Adams three times over the course of the evening. After these encounters, Adams walked out of the apartment and pretended to look for the keys in the car. At this point, Macias walked back to Barnum's apartment. Shortly thereafter, Adams returned to the apartment and had a verbal argument with Barnum. After the argument, Adams again walked back outside the apartment and pretended to look for the keys.

While Adams was looking for the keys, Lozano approached her to speak with her. Afterwards, he entered the apartment and witnessed Macias choking Barnum with some kind of ribbon. Lozano exclaimed, "Dude quit . . . [it] and let[']s go." Macias stopped, dragged Barnum by the ankles, put her in her bedroom, and closed the door. Adams walked into the apartment during the choking, sat down, and began to cry. Lozano hugged her, told her he was sorry, and then said that they should leave.

Lozano and the two co-defendants left the apartment. However, Lozano returned twice. On the first occasion Lozano retrieved Adams' hamster and on the second trip he retrieved a green blanket. During this time, Macias and Adams made three trips into the house to retrieve items. The defendants fled in Barnum's car and were detained shortly thereafter.

3. Francisco Macias's Written Statement

According to Macias's statement, it was Adams's idea to kill Barnum. Macias and Lozano waited at the storage shed for a long time. Macias went to Adams's window to see what the delay was in leaving. Adams told Macias that she was still waiting for Barnum to fall asleep but that it was better if they killed her. Adams explained to Macias that he could suffocate Barnum while she and Lozano held Barnum down.

When Macias returned to Lozano, he relayed Adams's plans. Lozano replied, "just go for it." Adams then exited the apartment and told Lozano and Macias about the plan to kill Barnum. At this point, the statement does not precisely convey whether all three defendants or whether just Macias and Adams walked around the apartment complex discussing how Macias was going to choke Barnum while the other two held her down. Adams entered the apartment and returned a short time later with a ribbon. Adams and Lozano then left. Macias entered Barnum's apartment and proceeded to the restroom. Barnum came out of her bedroom because Macias made a lot of noise. Adams then entered the apartment. Barnum and Adams discussed where the keys might be. Adams suggested that Barnum check her bedroom again. When Barnum passed by the restroom, Macias emerged and began strangling her.

In the process of choking Barnum, both Barnum and Macias fell to the floor. Barnum was face down and Macias was on top of her, still choking her. Adams walked in and started to cry in the living room. Lozano entered the apartment shortly thereafter and was smiling. Lozano walked near Macias and Barnum, then returned to Adams. Once Barnum's legs and arms stopped moving, Macias went to Adams, hugged her, and said he was sorry. Macias then dragged Barnum's body into her bedroom as Lozano held the door open. Adams asked Lozano to get Barnum's purse and some cigarettes. After the defendants gathered their belongings they left the apartment.

4. Francisco Macias's In-Court Testimony

Macias's in-court testimony comports with his statement regarding Adams initiating the murder plan that evening. While Macias and Lozano were waiting across the street, Macias visited with Adams three times. On the first occasion, Adams asked Macias to wait for Barnum to fall asleep. On the second occasion, Adams told Macias that she was going to give Barnum nighttime cold medicine so she would fall asleep. On the third occasion, Adams hatched the suffocation plan as described in Macias's statement.

Later in the evening, Adams came out of the apartment and called the two other co-defendants over. From the stand, Macias could not recall if Lozano was present during the conversation that ensued. In that conversation, Adams asked Macias if he would go ahead with the plan. Macias replied, "I don't know." Adams returned to the apartment. Macias relayed to Lozano Adams's murder plans and told him that he did not know whether he should do it.

Macias's statement and in-court testimony differ significantly with regard to Lozano's culpability. In his written statement, Macias claims that while relaying Adams's plans, Lozano...