Lozano v. State

• Decision Date: 26 January 2012
• Docket Number: No. 02–09–00296–CR.,02–09–00296–CR.
• Parties: Robert Cruz LOZANO, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

359 S.W.3d 790

Robert Cruz LOZANO, Appellant,

v.The STATE of Texas, State.

No. 02–09–00296–CR.

Court of Appeals of Texas, Fort Worth.

Decided: Jan. 26, 2012.

Sorrels Udashen, Anton Udashen, Gary A. Udashen, Dallas, TX, for Appellant.

Paul Johnson, Criminal District Attorney, Charles E. Orbison, Chief Appellate Section, Susan Calvert Piel and Cary Piel, Assistant District Attorneys for Denton County, Denton TX, for State.

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

A jury found Appellant Robert Cruz Lozano guilty of the murder of his wife, Virginia Lozano, and sentenced him to forty-five years in prison. The trial court entered judgment accordingly. Appellant raises seven issues challenging the sufficiency of the evidence, several of the trial court's evidentiary rulings, and a portion of the trial court's jury instructions.

II. Factual Background

On July 6, 2002, Appellant's wife, Virginia (Viki) Lozano, died of a multiple-trauma gunshot wound in the bedroom of their Denton residence, where they lived with their eleven-month-old son, Monty, and Viki's mother. At that time, Appellant was a detective with the Denton Police Department.

A. Appellant's Written Statements

In a voluntary statement given two days after his wife's death, Appellant gave a lengthy, detailed description of the activities leading up to the shooting. He explained that he and his wife had gone out the evening before to celebrate their sixteenth wedding anniversary, had come home, played with Monty, and gone to bed. The next afternoon, he, Viki, and Monty went to Target and arrived back home around 4:30 p.m. According to Appellant, Monty went to bed around 7:00 p.m. Appellant then,

decided to play a computer game called either Mo–Huang or Ma–Huang [sic]. It is a game of puzzle pieces which require that they all be removed in order to win. Viki chose to lie in bed and watch t.v. She had not felt well for the last week.... I played the computer game for nearly an hour when I decided that I would take a moment to clean my service weapon. I currently possess a Glock 9mm handgun. Viki and I had made plans to shoot my gun at the Denton P.D. firing range the following day....

I went into the kitchen and I grabbed a section of the day's newspaper.... I returned to the bedroom and I unfolded the paper and laid it on the bed opposite where Viki was lying.... I placed my gun cleaning box on the paper and then I removed my gun from my duty shoulder holster. I removed the fully loaded magazine from the gun and I placed it atop the paper. I then also removed the live round from the gun's chamber. I left the gun with its slide locked open. I asked Viki if she didn't mind that after I cleaned the gun if I could go to tan. She offered to clean my gun while I went to tan so that we would have a little more time together when I returned. I told her not to worry about it since it would take only a few moments to clean the gun. As I started to take the rags from the cleaning box, I changed my mind and decided to go and tan first and then return to clean the gun. I didn't want to have the residue of the cleaning fluids on my hands when I went to tan. She again offered to do it for me and [I] told her to relax and watch whatever it was she was watching.... I believe that it was nearing 8:30 p.m. when I left the house. I tanned for a twenty-minute session and as I was leaving, I asked the kid at the front desk how his Fourth of July celebration had gone for him. He told me that he had spent it with some friends and had a good time....

When I returned home which was approximately 9:00 p.m., I noticed that Viki was lying somewhat awkwardly on the bed. She was facedown and slightly to the left of her left hip. I asked her if she was feeling ill and I received no response. As I continued to walk around to her side[ ] of the bed, I again asked her if she was okay. I then noticed that the newspaper and the cleaning box had been moved from where I had left it. I think I may have again asked if she was okay but this time it was much more frantically. I raised her up and as if it were in slow motion, her listless body fell backward onto the pillow nearest the metal headboard. I saw her tongue hanging from her mouth and the color of her face was extremely pale. I looked down where she had laid and I noticed a lot of blood on the sheets. I grabbed her by her shoulder and I screamed for her to respond. She remained completely lifeless as I repeatedly shook her to have her regain consciousness. When I saw the hole in the middle chest portion of her nightgown, I knew that she had been shot. I then thought only to run to the bedroom telephone to call 9–1–1.... I begged that she have ambulance personnel come quickly. My thought then suddenly turned toward my son.... I ran to his bedroom which is located across the house and I opened his door. I immediately picked him [up] and it was apparent that I had scared him since he began to cry. He was actually sound asleep. I ran back to the telephone in the bedroom and I again spoke with the dispatcher. I recall her asking whether she was still breathing and I think I replied that I didn't know. She asked that I begin CPR until the paramedics arrived. I think that I placed Monty down on the floor near the telephone as I ran back to Viki's side of the bed. I started to cross my left leg over her body for better leverage when massaging her chest and then blowing in her mouth. I then noticed the gun which I picked up and tossed to one side. Although I did not straddle her body, I did begin CPR procedures from her side of the bed. I know that I was failing to do it properly because I was overcome with emotion. I begged her not to die and not to leave us alone. Moments later, I think I ran back to the phone to tell the dispatcher that she was either not breathing or that she was unconscious (perhaps neither or both).... I left the front door wide open to help the paramedic's entry into the house and I believe that I turned on several outside lights. I'm not sure what happened after this....

....

I believe that Viki's untimely death was purely accidental. She had been so happy and had found great joy in the life of our newborn child.... Viki was not suicidal. She had no reason to be so....

I was asked whether Viki ever suffered from depression. My answer is “yes”. When her father ha[d] passed away several years ago, I hadn't actually realized how close they had been. She was tormented by his death from cancer and often cried for his absence from our lives.... Viki, herself, was ill for much of the last several years of our marriage. She suffered from a condition which involved long moments (days) of fatigue, listlessness, and an arthritic condition. She was also medically deemed a “free-bleeder”.... This was our major concern after we decided to have our child. We knew that the possibility existed that she would not survive childbirth. Incredibly, Monty's birth went extremely well. However, the doctor discovered that she was torn from the inside as he passed through her vaginal canal. Her vaginal canal suffered a four to six inch tear which required stitching.... On the follow-up visit soon after Monty's birth, the gynecologist (Dr. Popov) discovered that the stitche [s] had torn and were no longer holding the vaginal wall intact. She did not order a second surgery fearing that Viki was too weak to survive it. It was requested that she be bedridden for almost two months and that failure to follow these instructions exactly would result in continued free bleeding from her vaginal tear. As it occurred, Viki heeded this advice as I was left to attend to Monty's every need.... Other than these two matters (her father's death and her inability to care for Monty during his early childhood), Viki never appeared overly depressed. She had everything to live for as she voluntarily took one year's leave of absence from school to be at home with Monty....

At the time of Viki's death, Appellant was dating fellow detective Cynthia Waters. When Waters learned that Appellant's wife had died, she approached her supervisors, revealed her relationship with Appellant, and provided several statements. After learning of this, Appellant provided officials with a supplemental statement, explaining that his prior statement—that he and Viki had played with their son and then gone to bed after their anniversary dinner—was “incorrect.” He explained that he actually left home that night (telling Viki he needed to go to the office), went to Waters's home for two hours, and then returned home.

B. First Responders and Initial InvestigationCaptain Luke Scholl

At 9:05 p.m. on July 6, 2002, paramedic and firefighter Captain Luke Scholl was dispatched to an emergency at 3800 LaMancha in the city and county of Denton, Texas. The dispatcher alerted all the responders to a gunshot wound and advised more than once that CPR had been started by the 911 caller. Captain Scholl arrived at 9:09 p.m. He testified that the victim's chest wound was directly where the palm of the hand would be placed to start CPR and that performing CPR for five minutes would cause a person to be out of breath. When Captain Scholl arrived, however, he saw a calm adult male (hereinafter Appellant) with no apparent blood on his hands or clothes standing on the front porch holding a child.

Captain Scholl testified that he entered a bedroom and found a female (hereinafter Viki) in her mid-thirties lying on her back on a bed, blood in the middle of her chest, with her right leg hanging off the side. She was not conscious or breathing. She was very cold to the touch and very waxy, which indicated that she had been dead “for quite some time.” She was pale and had lividity in her right foot around the ankle area. Captain Scholl explained that lividity is the pooling of the blood that starts thirty to forty-five minutes after death, gives the body...