Jose Marcos Tijerino v. State

Affirmed and Memorandum Opinion filed February 26, 2008 Affirmed and Memorandum Opinion filed February 26, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-06-01012-CR _______________ JOSE MARCOS TIJERINO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 1052607 M E M O R A N D U M  O P I N I O N A jury found appellant, Jose Marcos Tijerino, guilty of murder. The trial court assessed a sentence of forty years= confinement. In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. All dispositive issues are clearly settled in law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background Shortly after 2:00 a.m. on February 29, 2004, complainant, Safari Gholamreza, was murdered following an argument in the off-site parking lot of the T-Town bar in Houston, Texas. He died as a result of five gunshot wounds to the chest and back that perforated his heart and lungs. Anovar Seljouki, Felisa Hernandez, Mark Losaya, and Jason Losaya testified at trial. Each observed various aspects of the shooting, although none of them could conclusively identify the gunman. After the shooting, the eyewitnesses saw the gunman flee in a red Mercury Cougar or Ford Thunderbird.[1] Although differing on certain details, the witnesses described the gunman as a Hispanic male with a similar complexion and build as appellant. Hernandez testified that the gunman wore a white button-down shirt with rolled-up sleeves and black Dockers, similar to a waiter=s clothing.[2] Houston police investigated the murder. They discovered complainant=s body next to a Lincoln Town Car. Officer Frank Martinez processed the Town Car. He noted the front driver=s side window had been broken, there were pry marks and other damage to the door frame and weather stripping, and the alarm sounded when he opened the door. Additionally, he discovered blood on the broken driver=s side window and the glove compartment door. Forensic analysts at the Identigene lab, a private forensic laboratory in Houston, concluded that appellant=s DNA matched the blood found on the Town Car. On March 10 and 11, 2004, ten days after the murder, Sergeant Darryl Robertson attempted to meet appellant at the Cabo restaurant, where appellant was employed. However, appellant was not at the restaurant either day, having failed to report for his scheduled work-shifts. In the course of his investigation, Sergeant Robertson discovered appellant owned a red Mercury Cougar and eventually located the car in front of appellant=s house. Irene Gonzalez, appellant=s cousin by marriage, also testified at trial. In the early morning of February 29, 2004, the night of complainant=s murder, appellant went to her house and asked her to drive him home. He complained that his car was not running properly. When Gonzalez inquired regarding appellant=s bloody appearance, he explained that he had been in a fight. Gonzalez allowed appellant to borrow her truck and agreed to take his car to the mechanic. Later that week, appellant asked her to obtain an estimate of the cost to paint the car green. Charlotte Rodriguez, appellant=s ex-girlfriend, was appellant=s alibi witness. She testified that in February of 2004, she and appellant visited the T-Town bar a number of times. She recalled that, on one occasion, after a T-Town employee asked appellant to leave, appellant punched his fist through the window of a car in the parking lot and suffered a cut to his hand. According to Rodriguez, after appellant cut himself, they exited the T-Town parking lot in a blue Ford Monte Carlo. They were accompanied by a third individual who rode with them to another bar where they stayed until after 2:00 a.m. She also testified that appellant did not participate in an argument or fight in the T-Town parking lot that night, and he did not shoot anyone. II. Legal Sufficiency In his first issue, appellant contends the evidence is legally insufficient to support his conviction for murder because the State failed to prove the gunman=s identity beyond a reasonable doubt. We disagree. A person is guilty of murder if he (1) intentionally or knowingly causes the death of another, or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Pen. Code Ann. ' 19.02 (Vernon 2003). In evaluating legal sufficiency, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury is the sole judge of the credibility of witnesses and is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We ensure only that the jury reached a rational decision and do not re-evaluate the weight and credibility of testimony. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). The State must prove beyond a reasonable doubt that the accused is the person who committed the crime charged. Smith v. State, 56 S.W.3d 739, 744 (Tex. App.CHouston [14th Dist.] 2001 pet. ref=d). Identity may be proved with direct or circumstantial evidence. Id. Proof of the accused=s identity though circumstantial evidence is not subject to a more rigorous standard than is proof by direct evidence. Id. (citing McGee v. State, 744 S.W.2d 229, 238 (Tex. Crim. App. 1989)). In evaluating sufficiency of evidence, we may not focus on a part of the evidence in isolation, but must consider all the evidence in order to recognize the significance of any single piece. See Clayton v. State, 235 S.W.3d 772, 779 (Tex. Crim. App. 2007). Appellant contends the evidence is legally insufficient because (1) the State=s witnesses were not credible, (2) the State=s physical evidence did not connect him to complainant=s murder, and (3) the State=s evidence of appellant=s guilty mind amounts to only a suspicion of guilt. However, after considering the combined and cumulative force of the evidence, we conclude there is legally sufficient evidence to sustain appellant=s conviction. A. Witness Testimony Appellant first contends the jury could not have found him guilty beyond a reasonable doubt because the witnesses provided varying descriptions of the gunman, the events surrounding the shooting, and the gunman=s vehicle. In addition, appellant argues that his alibi witness was not rebutted or effectively impeached. We disagree 1. Description of the Gunman Although none of the eyewitnesses could identify appellant, their descriptions of the gunman=s physical appearance and clothing were consistent with appellant=s appearance and the clothing typically worn by a person in his employment. Felisa Hernandez, the only witness who observed the actual shooting, testified that the gunman was a male who appeared to be Hispanic, bald, light complected, medium height, stocky, and of similar build to appellant. She testified that the gunman was dressed like a waiter, in black Docker pants and a white button-down shirt with the sleeves rolled-up. Sergeant Robertson testified appellant was employed at the Cabo restaurant. Although differing in the exact details of dress and hair style, Anovar Seljouki, Mark Losaya, and Jason Losaya=s descriptions generally corroborated Hernandez=s more detailed description. Anovar Seljouki observed a man with a gun, whom he believed was Hispanic, flee the scene of complainant=s murder. Mark and Jason Losaya saw a man with light complexion, short hair, and a medium build, flee the scene. Mark said the gunman wore a white t-shirt, while Jason thought the gunman was wearing a red or white t-shirt. Jason also thought the gunman was likely Hispanic. The jury is free to believe one witness and disbelieve another, or believe a portion of a witness=s testimony while disbelieving another portion. See Jones, 984 S.W.2d at 257. The jury could have believed the consistent portions of the eyewitnesses= testimony while disbelieving incongruous portions. Although various descriptions of the gunman do not necessarily militate to the conclusion that appellant was the gunman, the witnesses described a gunman who was similar to appellant in complexion, build, and likely clothing. These descriptions support the jury=s verdict. 2. The Gunman=s Vehicle Appellant further contends the eyewitnesses= testimony regarding the gunman=s vehicle did not establish that they actually observed appellant=s vehicle. Appellant notes the witnesses presented varying descriptions of the fleeing vehicle. He argues that his vehicle was equipped with a spoiler that the eyewitnesses would have described if they had seen his vehicle. Notwithstanding appellant=s contentions, the jury could have concluded the eyewitnesses observed appellant=s vehicle fleeing the scene. All four eyewitnesses described the gunman=s vehicle as a red or maroon Mercury Cougar.[3] Sergeant Robertson testified that appellant owned a red Mercury Cougar and that he discovered appellant=s Cougar outside of appellant=s house. Additionally, Irene Gonzalez and Charlotte Rodriguez testified that appellant drove a red or burgundy Mercury Cougar. Photographs of appellant=s vehicle were introduced into evidence. There was no inconsistency in the eyewitnesses= description of the gunman=s vehicle. Therefore, the jury could have concluded that the witnesses observed appellant=s vehicle fleeing the scene of complainant=s murder, despite the fact that witnesses did not specifically describe a spoiler on his vehicle.[4] 3. Alibi Witness Appellant further contends the evidence is legally insufficient because the State did not rebut or effectively impeach his alibi witness. He argues Charlotte Rodriguez=s testimony provided an alternative reason for the presence of appellant=s blood at the crime scene and established appellant=s presence at another location when complainant was murdered. Rodriguez testified that during February 2004, she accompanied appellant to the T-Town bar a number of times. She recalled one incident when appellant was asked to leave the bar. As they walked toward their car, appellant punched and broke the window of another car in the parking lot, cutting his hand. They left in a blue Ford Monte Carlo and drove to another bar, where they stayed until after 2:00 a.m. She never observed appellant argue with, or shoot, anybody in the T-Town parking lot that night. However, Rodriguez could not remember the exact date of this incidentConly that it occurred during February 2004. Additionally, although Rodriguez might have explained why appellant=s blood was on the broken car window, she failed to explain the presence of appellant=s blood on the glove compartment door of the Town Car. The jury was in the best position to assess the credibility and demeanor of the witnesses, and the jury was free to disbelieve appellant=s exculpatory explanations. See Jones, 984 S.W.2d at 257. B Physical Evidence Appellant further contends (1) the State never found or offered the murder weapon, and the handgun he possessed at the time of his arrest was not the murder weapon, and (2) the State offered no physical evidence connecting him to complainant=s murder. 1. Murder Weapon Appellant first argues the State failed to prove the identity of the gunman beyond a reasonable doubt because the State neither recovered nor produced the murder weapon at trial. Additionally, appellant notes the gun he possessed when he was arrested could not have been the murder weapon. However, the State need not offer a murder weapon into evidence to establish the essential elements of murder. Tex. Pen. Code Ann. ' 19.02; See Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. 1982); see also Victor v. State, 874 S.W.2d 748, 751 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (holding it is not necessary for the State to introduce a weapon into evidence to meet its burden of proof regarding a charge of aggravated robbery). The jury could have found the essential elements of murder despite the State=s failure to produce the murder weapon. 2. Physical Evidence Connecting Appellant and Complainant Appellant further argues that the State failed to establish the essential elements of murder because it offered no physical evidence connecting appellant with complainant. Specifically, he contends that the State presented no blood, DNA, or forensic evidence connecting him with complainant, and the presence of his blood on the broken glass and glove compartment of the Town Car next to complainant=s body was insufficient to connect him with the murder. Although the presence of appellant=s blood on the broken glass and glove compartment door of the Town Car does not prove the ultimate fact at issue in this caseBthat appellant murdered complainantBwe cannot consider evidence in isolation. See Clayton, 235 S.W.3d at 779. Seljouki testified that he observed two men in the T-Town bar parking lot arguing next to a Cadillac immediately before complainant was murdered. Sergeant Robertson testified that complainant=s body was discovered next to a Lincoln Town Car, the only car near complainant=s body that bore a resemblance to a Cadillac. Additionally, the eyewitnesses observed the gunman flee in a red Mercury Cougar, the same color and model of vehicle as owned by appellant. Taken together with the other evidence presented at trial, the presence of appellant=s blood on a car next to complainant=s body supports an inference that appellant was at the scene when complainant was murdered, and thus supports the jury=s verdict. Additionally, appellant argues the State presented no evidence of temporal proximity between the breaking of the Town Car=s glass and complainant=s murder. Appellant notes that the Town Car=s alarm sounded when the police opened the driver=s door, and none of the witnesses testified that they heard the sound of breaking glass or the alarm prior to the gunshots. Appellant=s argument rests on the supposition that his burglary of the Town Car occurred some time before complainant=s murder, and therefore the eyewitness descriptions connecting him to the murder were not credible. However, as stated above, the jury is charged with determining the credibility of witnesses. Jones, 984 S.W.2d at 257. The witnesses failure to hear glass breaking or a car alarm does not necessarily discredit their testimony. Considering the evidence in the light most favorable to the verdict, the jury could have concluded that the witnesses did not hear the sound of breaking glass as it occurred, and that the car=s alarm failed to sound when the window was broken. Through its guilty verdict, the jury must have concluded that the State=s witnesses were credible. C. Circumstantial Evidence of Guilty Mind Finally, appellant contends the State=s circumstantial evidence of his guilty mind amounts to only a suspicion of guilt, and thus is insufficient to support his conviction. To provide additional support for its charge that appellant murdered complainant, the State presented evidence that purportedly demonstrated appellant=s guilty mind. Irene Gonzalez testified appellant arrived at her house on the morning of February 29, 2004, the night of complainant=s murder, and left his Mercury Cougar with her after borrowing her truck. He asked her to have the passenger door of his Cougar repaired and to obtain an estimate for repainting his car green. To explain his bloody appearance, appellant told Gonzalez he had participated in a fight earlier in the night. To show appellant attempted to avoid the places he would likely be found after the murder, the State introduced evidence that appellant failed to report for his scheduled work shifts at the Cabo restaurant on the two days the police attempted to locate him there. In addition, to account for the lack of forensic evidence in appellant=s vehicle, Sergeant Robertson testified that the vehicle=s carpeting had been removed. However, Sergeant Robertson noted that the removal of the carpeting was not inherently suspicious because the vehicle=s door was damaged which could allow water to leak into the vehicle. Appellant argues these facts do not conclusively prove he committed complainant=s murder and instead amount to only a suspicion of guilt. However, we cannot consider these facts in isolation. See Clayton, 235 S.W.3d at 779. Taken together with the other evidence presented at trial, and considered in the light most favorable to the verdict, these facts support the contention that appellant attempted to hide his connection to complainant=s murder. D. Conclusion A rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly caused the death of complainant, or that appellant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of complainant. Appellant=s first issue is overruled. III. Factual Sufficiency In his second issue, appellant claims that the evidence is factually insufficient to support his conviction for murder. To determine factual sufficiency, we view all the evidence in a neutral light and will set aside the verdict only to prevent manifest injustice. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). In conducting a factual-sufficiency review, we engage in a two prong test to determine whether there is some objective basis to find: (1) that the evidence in support of the jury=s verdict, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and unjust; and (2) in considering conflicting evidence, the jury=s verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Id. at 417. To support his factual-sufficiency challenge, appellant argues: (1) none of the witnesses identified appellant as the gunman; (2) no forensic evidence linked appellant to complainant=s murder or complainant himself; (3) the State presented no motive for appellant to murder complainant; (4) the State did not recover or present the murder weapon to the jury; (5) the State presented no evidence that appellant had, or fired, a gun at the murder scene, and the gun in appellant=s possession at the time of his arrest was not the murder weapon; and (6) the State did not rebut or effectively impeach his alibi witness. Keeping in mind that we may not look to any piece of evidence in isolation, but must consider all evidence in order to recognize the significance of any single piece of evidence, we will examine each of appellant=s contentions in turn. See Clayton, 235 S.W.3d at 779. A. Eyewitness Accounts Appellant first argues that the evidence is factually insufficient to support the jury=s verdict because none of the eyewitnesses could conclusively identify appellant as the gunman. However, although none of the eyewitnesses could positively identify the gunman, the physical descriptions each witness provided were consistent with appellant=s physical appearance. Although there were some inconsistencies, the eyewitnesses described a Hispanic male, with similar complexion and build as appellant, flee immediately after complainant was shot. Additionally, Hernandez testified that the gunman was dressed like a waiter, and Sergeant Robertson testified appellant was employed at Cabo Restaurant at the time of the murder. B. Forensic Evidence Appellant next contends the State presented no forensic evidence linking appellant to complainant=s murder or complainant himself. However, the police discovered appellant=s blood on the Lincoln Town Car parked next to complainant=s body. Such evidence demonstrates a connection between appellant and complainant=s murder. C. Motive Appellant further argues that the State presented no evidence demonstrating any motive for appellant to murder complainant. Although motive is not an element of murder, it may be a circumstance indicative of guilt. See Clayton, 235 S.W.3d at 781; Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). The State=s theory was that appellant murdered complainant after complainant attempted to stop appellant=s burglary of a Lincoln Town Car in the T-Town bar=s parking lot. The police discovered pry marks on the Town Car=s door and appellant=s blood on the broken window glass and the glove compartment door. Additionally, Sergeant Jose Mora testified complainant worked as a valet in the T-Town parking lot. Therefore, the jury could rationally infer complainant=s murder stemmed from an attempted burglary. Although circumstantial evidence of motive does not conclusively establish appellant=s guilt, the jury could have concluded that appellant attempted to burglarize the car and complainant intervened, providing appellant a motive for murder. D. Murder Weapon Additionally, appellant emphasizes that the State never recovered the murder weapon. Moreover, appellant notes the handgun in his possession at the time of his arrest could not have been the murder weapon. However, as stated above, the State was not required to produce the murder weapon to establish appellant=s guilt. See Victor, 874 S.W.2d at 751. E. Evidence Appellant Fired a Gun Appellant contends the evidence is factually insufficient to prove he possessed or fired a gun at the scene of complainant=s murder. However, the eyewitnesses described a man who matched appellant=s physical appearance who had a handgun and fled the scene in a red Mercury Cougar immediately after complainant was shot. F. Alibi Witness Finally, appellant contends the State did not present any evidence placing him at the scene of complainant=s murder, and the State failed to rebut or effectively impeach his alibi witness. However, as stated above, the jury is free to believe or disbelieve a witness=s testimony. Jones, 984 S.W.2d at 257. Although we may substitute our judgment for the jury to a limited degree when considering factual-sufficiency claims, this case does not warrant such action. The State presented physical evidence connecting appellant to the scene of complainant=s murder, and it is clear the jury did not believe appellant=s exculpatory explanations. We defer to the jury relative to the credibility of appellant=s alibi witness. G. Conclusion After reviewing the appellate record in a neutral light, we cannot conclude that the evidence is so weak that the jury=s verdict is clearly wrong and unjust, or that the cited inconsistencies render the verdict contrary to the great weight and preponderance of the evidence. We overrule appellant=s second issue. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed February 26, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Seljouki and Hernandez each testified that complainant fled in a Mercury Cougar, but Mark and Jason Losaya believed the car was a red or maroon Mercury Cougar or Ford Thunderbird. [2] Mark and Jason Losaya provided somewhat differing descriptions of the gunman=s clothingBMark Losaya testified the gunman wore a white t-shirt, while Jason Losaya testified the gunman wore a red or white t-shirt. [3] Appellant notes that Mark and Jason Losaya described the vehicle as a red or maroon Mercury Cougar or Ford Thunderbird. However, Sergeant Robertson testified, based on his personal experience, that older model Thunderbirds and Cougars, such as the car observed by the eyewitnesses and the car owned by appellant, bear the same appearance. [4] Appellant seems to argue that Seljouki asserted the gunman fled the scene of complainant=s murder in a Cadillac. However, the record citations contained in appellant=s brief are to testimony that the argument prior to complainant=s murder occurred next to a Cadillac. We can find, and appellant cites, no testimony asserting the gunman fled in a Cadillac.