Perez v. State, NUMBER 13-11-00060-CR

CourtCourt of Appeals of Texas
Writing for the CourtGREGORY T. PERKES
Docket NumberNUMBER 13-11-00060-CR
Decision Date14 November 2013


NUMBER 13-11-00060-CR


Delivered and filed: November 14, 2013

On appeal from the 398th District Court
of Hidalgo County, Texas.


Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes

Appellant Daniel Gilberto Ramirez Perez appeals his conviction for murder, a first-degree felony. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A jury found appellant guilty and assessed punishment at forty years' imprisonment in the Texas Department of Criminal Justice, Institutional Division. By sixteen issues, which he

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argues in four sections, appellant contends that the trial court erred because: (1) the evidence is insufficient to support his conviction; (2) the State failed to disclose impeachment evidence; (3) the State made improper jury argument; and (4) trial counsel rendered ineffective assistance. We affirm.1


Summer Meland and appellant were involved in a romantic relationship. Appellant, however, was married to another woman, Virginia Garcia.2 Defense witnesses claimed that Meland knew about Garcia early in the relationship. Doriana Salinas and Veronica Villarreal, two of Meland's friends, testified that Meland did not find out that appellant was married until very late in Meland's pregnancy with appellant's child.

Villarreal testified that in September 2008, when Meland's and appellant's child was about two months old, Meland wrote appellant a letter in which she "gave [appellant] an ultimatum . . . either he left his wife or it was over." Later that week, on September 26, Meland informed appellant through text messages that she would end the relationship unless he left Garcia. Meland gave appellant until 5:00 p.m. that evening to make a decision. Meland was found dead the next morning.

Several witnesses testified that appellant physically abused Meland during their relationship. The assistant principal at the junior high school where Meland was a teacher related that Meland would come to school with black eyes and injuries. The assistant principal and the security officer for the junior high school testified that Meland

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told them appellant was beating her. Javier Barbosa, M.D., recounted that Meland came to him with a fractured leg and that she told him an unbelievable story regarding how it was fractured. Salinas testified that the leg was fractured while Meland and appellant were arguing.

Two witnesses related that in August 2008, Meland had some friends over at her house. Both witnesses testified that appellant "busted" or "barged" through the front door, stared at Meland's guests, and then exited the home. Abagail Gonzalez, one of Meland's friends, testified that appellant thereafter repeatedly called Meland's cell phone, and appellant called Gonzalez after Meland began ignoring his calls. He told Gonzalez that "if she doesn't answer my f_ing call, I'm going to shoot all of you guys. I have a gun." Gonzalez and the other witness stated appellant then approached another door with burglar bars, began shaking the bars, threw his cell phone in the house, and, according to Gonzalez, demanded that they open the door. Gonzalez called the police.

Gonzalez testified that on another occasion, about one week before Meland was killed, Meland told her that appellant threatened her with a knife. Gonzalez and Villarreal testified that a couple of days before Meland was killed, they had to pick her up from a parking lot, where she was hiding from appellant after he, according to Villarreal, became "very upset" with Meland because she answered a cell phone call from his wife.

Meland's mother testified that on September 25, which was during the week that Meland wrote appellant a letter threatening to break up with him, Meland told her that appellant "threatened to kill her, that he told her if he wasn't going to be with her, she

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wasn't going to live." Meland texted appellant the ultimatum the next day. She was found dead the following day.

Meland was shot in the face from close range in the middle of the night while she was in bed. Her bedroom window was shattered, but crime scene investigators deduced that someone broke the window from inside the room. They found blood on the inside portion of the curtain that covered the window. Rene Avendano Jr., a crime scene investigator, testified that the blood on the curtain appeared fresh and that he thought the curtain was used "as a buffer to break the glass." There was no other sign of forced entry, and nothing was taken from the house.

Meland's live-in housekeeper, Angela Mendez Rosas ("Mendez"),3 slept in a bedroom across the hall from Meland. She claimed that she did not hear anything that night. Mendez testified that Meland went out with some friends, leaving Mendez to care for the children, including the young baby. The paternal grandmother of Meland's two older children picked them up at about 8:00 p.m., and they stayed with her that night. Mendez stated she took the baby to her room and fell asleep around midnight. Meland came home around 2:00 a.m. and took the baby from Mendez's bedroom. Mendez found Meland dead the next morning.

Officer Rafael Ramirez, the lead investigator, testified that "immediately the name of Daniel Perez [appellant] was brought out as a person of interest."4 Appellant agreed to talk to Ramirez and gave a signed statement detailing "his whereabouts and alibi as to

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why he couldn't have committed the crime." Appellant told Ramirez that he did not own a gun. He stated that on September 26 he took Garcia to Fast Eddie's pool hall at 11:00 p.m. and that he stayed there until 2:45 a.m. on September 27. From there, appellant went straight home, picked up his children, left at 3:30 a.m., and drove directly to South Padre Island. According to appellant's statement, he had planned about a week prior to take the family to Schlitterbahn Water Park on September 27 because it was "the last weekend that the water park was going to be open for the summer." Appellant stated he arrived at South Padre Island around 4:50 a.m. and checked into a hotel around 5:50 a.m.

Appellant's family members generally confirmed appellant's version of the evening's events. Garcia testified that she and appellant went from Fast Eddie's to their house, and that they stayed at their house until they left for South Padre Island. She claimed they had been planning for weeks to go to Schlitterbahn. She emphasized that appellant never left the house until they left together to go to South Padre Island.

Breck Christopher McDaniel testified as an expert on cellular telephone antenna coverage. He analyzed appellant's cell phone records to see what cell phone antennas the cell phone used in receiving phone calls and texts that evening. McDaniel testified that at 9:21 p.m. on September 26 appellant's cell phone used a cell antenna consistent with appellant being at Fast Eddie's and that at 2:38 a.m. and 2:47 a.m. on September 27, appellant's cell phone used antennas consistent with appellant driving back to his house. McDaniel testified that "[b]etween 3:46 and 26 seconds a.m. and 3:48 and 5 seconds a.m. on Saturday morning . . . [appellant's] phone was utilizing antennas that are consistent with being at or very close to the victim's home." At 4:05 a.m., appellant's cell phone

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used an antenna consistent with him being back at his house. Between 4:37 a.m. and 5:24 a.m., appellant's cell phone used "a number of cell antennas," and it moved "from the area of McAllen, and it goes east to southeast ending up by 5:24 a.m. utilizing a cell antenna on South Padre Island." Comparing cell phone data to appellant's statement, McDaniel commented:

[H]e—the phone did not go directly home and then on to South Padre Island as the statement claims. The phone went around his home and then went back to the north/northwest after that and then went back around his home and then off to South Padre Island area later that morning.

The State admitted a Schlitterbahn brochure which showed Schlitterbahn was already closed for the season by September 27. Phillip Adam Stout, a forensic scientist from the Texas Department of Public Safety Crime Laboratory's trace evidence section, testified that investigators recovered "three particles indicative[5] of gunshot primer residue" from appellant's vehicle. During cross-examination, Stout acknowledged he had read studies showing that the three elements of gunshot residue could possibly be detected on brake pads and in brake dust. According to appellant's sister, appellant would come into contact with those elements on a daily basis because his job involved grinding brakes. Stout noted, however, "that research was done in Europe, and similar research has been conducted here but they haven't found all three." Stout also clarified, "When we're looking at these particles, we are looking to make sure . . . that these components are contained within the same particle and the particle is melted . . . ."

Edna Lissette Zavala, a forensic scientist with the Texas Department of Public...

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