Vasquez v. State, No. 14-07-00802-CR (Tex. App. 4/9/2009)
| Decision Date | 09 April 2009 |
| Docket Number | No. 14-07-00802-CR.,14-07-00802-CR. |
| Parties | ALEJANDRO VASQUEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 1072931.
Affirmed.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
Alejandro Vasquez was convicted of murder and sentenced to confinement for seventy-five years in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $10,000 fine. Vasquez challenges his conviction and sentence, contending that (1) the evidence was factually insufficient to support the verdict; (2) the trial court failed to properly charge the jury on the burden of proof associated with extraneous offenses and bad acts offered during the punishment phase of the trial; (3) the trial court improperly admitted evidence of extraneous offenses and bad acts during the punishment phase of the trial; and (4) he was denied the effective assistance of counsel during both the guilt and punishment phases of his trial. We affirm.
At about 2:10 a.m. on June 13, 2006, Harris County Deputy Sheriff J. Burton received a dispatch about a weapons disturbance in the 5300 block of Dunnethead in western Harris County. Upon arriving at the scene, Deputy Burton met with the homeowner who had placed the call, and then proceeded with his partner, Deputy Rusche, to the backyard of the home. Walking through the backyard, Deputy Burton discovered the complainant, Christian Ventura Ferman, lying face down in the grass. Upon closer inspection, Deputy Burton observed blood on Ferman's shirt, and what appeared to be a bullet hole in his back. Ferman was alive, but having difficulty breathing. Deputy Burton called for emergency medical services. An ambulance arrived and took Ferman to a hospital where he later died.
As other arriving deputies began to secure and document the crime scene, they discovered bullet holes in the fence of the homeCone between the street and the backyard, and another at the rear of the yard. Deputy James Welsh was assisting Deputy Burton when he observed a passing car with several young men inside. When questioned, the young men stated that they had been a block away on Cairnleigh Drive, the street behind the house where the shooting occurred, when they heard several gunshots. Not long after that, they saw a silver Ford Expedition with its headlights off turn onto their street, and park in a driveway. One of the men recognized the Expedition as belonging to a resident of the house where it was parked. Detective Eric Clegg of the Harris County Sheriff's Office also interviewed the individuals in the car. After hearing their descriptions, Detective Clegg and Deputy Welsh went to the house on Cairnleigh to investigate. Other Harris County deputies were already at the residence. Coincidentally, the residents of the home, located almost directly behind the Dunnethead residence where Ferman had been shot, had also called 9-1-1 when the shooting occurred. A bullet had come through a window at the rear of the Cairnliegh house, striking a wall. Upon arriving at the house, and seeing the silver Expedition parked out front, Deputy Welsh touched the hood of the vehicle and noticed that it was still warm, indicating that the vehicle had been driven recently.
The occupants of the Cairnleigh house gave consent for the deputies to search the house in conjunction with their examination of the bullet hole. Deputies were unable to find the actual bullet that had broken the window and struck the wall. Detective Clegg and Deputy Welsh took turns questioning the occupants' son, Enrique Ramirez. Ramirez denied any knowledge about the shooting, as well as having driven the Expedition that night, although keys to the vehicle were later found in his possession. With the consent of Ramirez's parents, the deputies searched the Expedition and recovered two empty .45-caliber shell casings.
Ramirez told the deputies that, earlier that night, he had been down the street at his girlfriend's house. Ultimately, Ramirez admitted to having removed the missing bullet from the wall and hiding it in his room. Ramirez told the deputies where he had hidden the bullet, but denied firing a gun or being around a gun that night. At this point, Detective Clegg obtained Ramirez's consent to have his hands placed in plastic bags in order to preserve them for firearms-residue analysis. Detective Clegg also arranged for a deputy to take Ramirez to the Sheriff's Department offices for further questioning.
After spending several hours working at both houses involved in the shooting, Detective Clegg and Deputy Henry Palacios began working their way down Cairnleigh Drive, looking for more clues, and asking neighbors for information, until they reached the residence that Ramirez had indicated was his girlfriend's house. After knocking at the door, they were invited in by an older Hispanic female. As they stood in the doorway, Detective Clegg received a phone call from Sergeant James Parker of his department's homicide division. Sergeant Parker relayed that, while being questioned about the incident, Ramirez had named another individual, the appellant, as the shooter. Detective Clegg quickly conveyed this information to Deputy Palacios, who then determined that the home they had entered belonged not to Ramirez's girlfriend, but to the alleged gunman, the appellant. The Hispanic female who had answered the door brought Detective Clegg and Deputy Palacios to the appellant, who immediately surrendered. The appellant acknowledged that he knew why the deputies were there. They then handcuffed him and led him outside where they sat him down on the lawn.
Deputy Palacios obtained consent from the appellant's brother, the owner of the residence, to conduct a search. Upon searching the appellant's bedroom, Deputy Palacios discovered a loaded Kimber .45-caliber handgun in a backpack. The appellant's hands were then preserved for residue analysis. Later, deputies discovered a .22-caliber handgun, a shotgun, and over 200 rounds of ammunition for the various weapons. Deputies also recovered several .45-caliber shell casings from the street in front of the appellant's house. Crime-scene investigators recovered these items, and photographed the appellant's bedroom. The appellant was then taken to the Harris County Sheriff's Office where he made a custodial statement that was video-recorded.
Detective Clegg later learned that a third individual, Oscar Chavarria, was also involved in the shooting. After Chavarria was located, he agreed to be interviewed by investigators at the sheriff's office. Chavarria told investigators that, although he worked with Ramirez and the appellant, he did not know them well. He told the investigators that he had gone to the appellant's home after work that night to smoke marijuana with the appellant and Ramirez. He also admitted to being present in the Expedition when the shooting occurred.
Ultimately all three individuals were charged with the murder of Ferman. The appellant was tried by a jury, convicted, and sentenced to seventy-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice, and assessed a $10,000 fine. This timely appeal followed.
In four issues on appeal, Vasquez challenges his conviction and sentence contending that (1) the evidence presented during the guilt phase was factually insufficient to support the verdict; (2) the trial court failed to properly charge the jury on the State's burden of proof related to evidence of extraneous offenses and bad acts offered during the punishment phase of the trial; (3) the trial court improperly admitted evidence of extraneous offenses and bad acts during the punishment phase; and (4) he was denied the effective assistance of counsel during both the guilt and punishment phases of his trial.
In his first issue on appeal, the appellant argues that the evidence presented at trial was factually insufficient to support his conviction. Specifically, he contends that the prosecutor failed to prove the required element of intent, either to kill or cause serious bodily injury, beyond a reasonable doubt. Further, he contends that the trial evidence demonstrated that he merely intended to scare Ferman and his friends, thereby undermining the jury's verdict.
When reviewing a factual-sufficiency challenge, we view all the evidence neutrally. Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App. 2005); Newby v. State, 252 S.W.3d 431, 435 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd). We especially discuss and examine the specific evidence that the appellant contends undermines the jury's verdict. Newby, 252 S.W.3d at 435; see also Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or if the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); see also Newby, 252 S.W.3d at 435. We may disagree with the jury's conclusions; however, we must avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Newby, 252 S.W.3d at 435.
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. ' 19.02(b)(1) (Vernon 2003). A person may also commit murder by intending to cause serious bodily injury and committing an act clearly dangerous to human life that causes the death of an individual. Id. ' 19.02(b)(2) (Vernon 2003).
In the present case, the appellant argues...
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