Debbie Firo v. State

NUMBER 13-03-122-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ___________________________________________________________________ DEBRA FIRO, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 117th District Court of Nueces County, Texas. __________________________________________________________________ MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Opinion by Justice Rodriguez Appellant, Debra Firo, was tried before a jury and convicted of murder. The jury assessed a punishment of ninety-nine years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. By one issue, appellant contends the evidence was factually insufficient to support a finding of guilt. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). We affirm. I. FACTS As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. II. FACTUAL SUFFICIENCY In her sole issue, appellant contends the evidence is factually insufficient to support a finding that she caused the death of Roxanne Hernandez. A. Standard of Review In evaluating the factual sufficiency of the evidence, this Court must complete a neutral review of all the evidence. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). Weighing all the evidence, we must then determine whether the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King, 29 S.W.3d at 563; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). However, we are not free to re-weigh the evidence and set aside a jury verdict merely because we feel a different result is more reasonable. See King, 29 S.W.3d at 563. Only when this Court determines that the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust can we set aside a verdict for factual insufficiency. Johnson, 23 S.W.3d at 7. A clearly wrong and unjust verdict is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.” Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998); Santellan v. State, 939 S.W.2d 155, 165 (Tex. Crim. App. 1997). Under Malik v. State, we determine the legal sufficiency of the evidence against a “hypothetically correct charge.” Adi v. State, 94 S.W.3d 124, 130 (Tex. App.–Corpus Christi 2002, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is being tried. Id. We also apply Malik to factual sufficiency reviews. Id. at 131. B. Elements of the Offense To prove murder under the theories alleged in the indictment, the State was required to prove appellant either (1) intentionally or knowingly caused the death of Roxanne Hernandez, or (2) intended to cause serious bodily injury to Roxanne Hernandez and committed an act clearly dangerous to human life that caused her death. Tex. Pen. Code Ann. § 19.02(b)(1)-(2) (Vernon 2003). A person acts intentionally when it is her conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a). Further, a person acts knowingly with respect to the result of her conduct when she is aware that her conduct is reasonably certain to cause the result. Id. § 6.03(b). To determine culpability, the jury is entitled to consider events that occurred before, during, and after the commission of the offense. Davila v. State, 952 S.W.2d 872, 875 (Tex. App.–Corpus Christi 1997, pet. ref’d); Henderson v. State, 825 S.W.2d 746, 749 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d). Intent may be inferred from the words, actions and conduct of appellant. Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993). The means used to cause the death may also be considered in determining intent. Semento v. State, 747 S.W.2d 415, 420 (Tex. App.–Dallas 1988, pet. ref’d). If a deadly weapon, such as a firearm, is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill. Davila, 952 S.W.2d at 875. C. The Charge The trial court’s charge submitted the allegations of the indictment’s paragraphs to the jury in the disjunctive, accurately setting out the law that was authorized by the indictment as would a hypothetically correct charge. See Malik, 953 S.W.2d at 240. The jury returned a general verdict finding appellant guilty of the offense of murder as alleged in the indictment. When a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted, the verdict will be upheld. Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992). D. Analysis Appellant contends a finding that she intentionally or knowingly killed Hernandez, or intentionally or knowingly caused her serious bodily harm, yields a result that is clearly wrong and unjust. The record shows that appellant and Hernandez had been living together for approximately three years. At trial, there was witness testimony that the two had been arguing the day prior to the shooting. In the early morning hours of March 23, 2002, Hernandez suffered a single gunshot wound to the chest and died. Appellant was alone with Hernandez in their house at the time Hernandez was shot. Throughout the police investigation that followed, appellant gave repeated false statements and conflicting versions of the events surrounding Hernandez’s death. Although appellant first claimed that two men had come into the house and killed Hernandez, she later admitted lying about the presence of the two men and told police officers that Hernandez shot herself while appellant was in another room. See Kemmerer v. State, 113 S.W.3d 513, 516 (Tex. App.–Houston [1st Dist.] 2003, no pet.) (holding evidence factually sufficient to support murder conviction in part because jury could have viewed the defendant’s changing versions of the incident as evidence of guilt); Loserth v. State, 985 S.W.2d 536, 541-42 (Tex. App.–San Antonio 1998, pet. ref’d) (holding evidence factually sufficient to support murder conviction based in part on evidence that defendant initially lied to the police as to his whereabouts on the night of the murder). Appellant later gave police yet another version of the events, stating that she was in fact in the same room as Hernandez and the two struggled over the gun just prior to the shooting. Similarly, appellant gave conflicting statements to the police regarding the location of the murder weapon and her actions after the shooting. The record shows police found the gun that caused Hernandez’s death under a bunk bed mattress in the bedroom of appellant’s house. Appellant initially told the police that after Hernandez shot herself, she picked up the gun and threw it out the front door into the yard. In a later statement, appellant stated she did not remember putting the gun under the bed mattress and thought she had thrown the gun outside. However, at trial, appellant testified that she put the gun in another room but then went back and “hid it in another place.” See Castillo v. State, 71 S.W.3d 812, 818 (Tex. App.–Amarillo 2002, pet. ref’d) (holding evidence sufficient to support murder conviction based in part on evidence that defendant hid the murder weapons after the shooting and later threw them into the lake). Other evidence supporting the guilty verdict includes testimony given by Michael Martinez, a forensic scientist, that gunshot residue was found on the right and left cuff sleeve, front pocket and armpit areas of appellant’s sweatshirt. This testimony, combined with the testimony of Detective Stimmler that appellant sat on her couch after the shooting rubbing her hands under her armpits, provides evidence that appellant was attempting to remove gunshot residue from her hands. In light of this evidence, we cannot say a finding that appellant intentionally or knowingly killed Hernandez, or intentionally or knowingly caused her serious bodily harm, is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 7. Appellant also contends that the evidence is factually insufficient to sustain a finding of guilt because it shows Hernandez’s death was the result of suicide. In support of this contention, appellant directs this Court to specific evidence presented at trial. Appellant references her first written statement to the police in which she stated that she had pulled up the shirt of Hernandez in order to determine what had happened to her. Appellant also points to testimony of Ezequiel Rodriguez that Hernandez had a history of suicide attempts and suffered from depression. Defense expert, Dr. Traci Lee Jordan, testified that depression and suicide are closely related and that if a person has made a suicide attempt in the past, it greatly increases the risk of that person actually committing suicide. Dr. Lloyd White, a forensic pathologist, testified that Hernandez’s wound was consistent with suicide, although he was unable to decide with a reasonable degree of medical certainty whether the death was a homicide or suicide. Appellant also points to testimony by a police officer that she was heard saying “[g]et up, get up,” to Hernandez as she lay lifeless on the floor. Contrary to the evidence referenced by appellant is the testimony given by three witnesses that Hernandez was neither depressed nor suicidal in the days prior to her death; that Hernandez was happy and excited because her son was being released from the Texas Youth Commission and was going to live with her; and that she had a garage apartment built at her house for him. Hernandez had also made plans to eat out with a friend the next day and then take her son shopping for new clothes. All of this evidence supports a finding that Hernandez did not commit suicide. Considering all of the evidence and giving proper deference to the verdict, we conclude that the verdict is not so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See King, 29 S.W.3d at 563; Rojas, 986 S.W.2d at 247. Therefore, appellant’s sole issue is overruled. III. CONCLUSION The judgment of the trial court is affirmed. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Opinion delivered and filed this 19th day of February, 2004.