Alonzo v. State

Full title: QUINTIN LEE ALONZO, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 26, 2004

Nos. 05-03-00234-CR, 05-03-00235-CR, 05-03-00654-CR (Tex. App. Jul. 26, 2004)

Opinion

Nos. 05-03-00234-CR, 05-03-00235-CR, 05-03-00654-CR

Opinion Filed July 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F01-74559-HL, F01-74561-HL, and F01-74583-HL. Affirmed.

Before Justices MOSELEY, FITZGERALD, and LANG.

MEMORANDUM OPINION

JIM MOSELEY, Justice.

A jury convicted Quintin Lee Alonzo of murder and aggravated assault. The jury assessed punishment at fifteen years' confinement and a $5,000 fine in each aggravated assault case, and life confinement with a $10,000 fine in the murder case. Alonzo appeals. In eight points of error, Alonzo contends (1) that the evidence is legally and factually insufficient to support the convictions for murder and aggravated assault; (2) that he had ineffective assistance of counsel; (3) that the trial court erred in failing to respond to a jury note; and (4) that the prosecutor made an impermissible jury argument. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We overrule Alonzo's eight points of error and affirm the trial court's judgments.

Legal and Factual Sufficiency

In his first and second points of errors, Alonzo contends the evidence is legally and factually insufficient to support the murder and aggravated assault convictions. Specifically, Alonzo contends the evidence is legally and factually insufficient to prove his identity as the shooter in each case.

1. Standards of Review

When reviewing the legal sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether record evidence could reasonably support a finding of guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see also Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim. App. 1995). In determining the factual sufficiency of the evidence, we must determine whether, considering all the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 11, 2004 WL 840227, at *7 (Tex.Crim.App. Apr. 21, 2004). There are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand Id. The jury is in the best position to determine the credibility of witnesses and the weight to give their testimony. We may not substantially intrude on the jury's role as the sole judge of the weight and credibility given to witnesses' testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Furthermore, although there may be some conflicting testimony, reconciling those conflicts is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001).

2. Applicable Law

A person commits aggravate assault if he intentionally, knowingly, or recklessly causes bodily injury to another and either: (1) uses or exhibits a deadly weapon during commission of the assault, or (2) causes serious bodily injury to another. See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon 2003). "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. See Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon 2003). A person commits murder if he intentionally or knowingly causes the death of an individual or 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(b)(1), (2) (Vernon 2003).

3. Application of Law to Fact

There is evidence in the record that Israel and Cynthia Martinez threw a large going-away party for their son, Santos, at their home in Dallas, to celebrate Santos's enlistment into the United States Marine Corps. In addition to those invited to the party, many uninvited individuals attended, including members of rival gangs. Around midnight an altercation ensued between Santos and Alonzo. Israel escorted Alonzo out, then pushed him after Alonzo attempted to throw a bottle into the party. Alonzo took out a gun and began to shoot towards Israel. Santos, Cynthia, and Israel were all shot. Santos died because of his injuries. Cynthia and Israel identified Alonzo as person who shot them and their son in a photo lineup and at trial. Another witness, Rosie Sanchez, picked Alonzo out of a photo lineup as the shooter. Lastly, a forensic specialist testified all three bullets came from the same gun. After considering all the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that Alonzo committed murder and aggravated assault. See Jackson, 443 U.S. at 319. Alonzo points to the following evidence in support of his argument that the evidence is factually insufficient to support his convictions. Specifically, the defense presented testimony of a female who attended the party with Alonzo. She testified she was with him when she heard gunshots and that he could not have been the shooter. Another acquaintance testified he observed three shooters, none of which resembled Alonzo. However, reviewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding Alonzo guilty beyond a reasonable doubt. Zuniga, slip op. at 11, 2004 WL 840227, at *7. We cannot say that the evidence of guilt considered by itself is too weak to support the finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See id. We need not further detail relevant evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim. App. 2003). Accordingly, we conclude the evidence is legally and factually sufficient. We overrule Alonzo's first two points of error.

Ineffective Assistance of Counsel

In his third, fourth, fifth and sixth points of error, Alonzo contends he was not afforded effective assistance of counsel. Specifically, he argues that his attorney failed to object to: (a) alleged hearsay that Alonzo had been bragging about committing the offenses; (b) prior arrest and gang affiliation testimony; and (c) an argument regarding transferred intent. Alonzo also argues his attorney was ineffective based on the cumulative effect of three complaints set out above. In assessing the effectiveness of counsel, we determine whether (1) counsel's performance was deficient, and if so, (2) whether there is a reasonable probability the results would have been different but for counsel's deficient performance. Strickland v. Washington, 446 U.S. 668, 687 (1984). Alonzo has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Here, the record is silent as to why trial counsel decided not to object to statements made at trial. Defense counsel's failure to object could be sound trial strategy and a reasonable decision under the circumstances of this case. See Strickland, 466 U.S. at 689. The record therefore does not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 814. Nor has Alonzo demonstrated that he was prejudiced by trial counsel's actions. Without a sufficient record, there is no way Alonzo can establish on this direct appeal whether the results of this case would have been different but for trial counsel's decision not to object to the statements mentioned above. Accordingly, we overrule Alonzo's third, fourth, fifth and sixth points of error.

Response to Jury Note

In his seventh point of error, Alonzo contends the trial court erred in failing to respond to a jury note. During deliberations, the jury sent out a note stating:

We are in disagreement about the newspaper article (Israel's interview), any testimony about Rosie, photos of the crime scene.

An arrow points to an additional note stating:

Rosie's testimony about whether she did see the shooter.

In response, the judge instructed the jury in writing as follows:

In connection with the above request, you are instructed that the jury is not entitled to have a general re-reading of any witness' testimony. In that regard, you are instructed that our statutes provides that "in the trial of a criminal case in a Court of Record, if the jury disagrees as to the statement of any witness, they may, upon applying to the Court, have read to them that part of such witness' testimony on the particular point in dispute and no other."

Under the above-quoted statute, you are charged that the jury is not entitled to have any testimony re-read to them unless they first disagree or have a dispute with reference to testimony, and it must be stated in writing that the jury have disagreed or are in dispute, and still the jury is not entitled to have any testimony reproduced unless they state in writing the point or points upon which they have disagreed, and then the jury would be entitled only to have read to them the point or points upon which they have disagreed, and no other.

If you are in dispute upon any point or points of evidence, if you will so state in writing that you are in dispute and further state in writing the point or points in dispute so they may be located in the evidence, then the Court will have the Reporter read back only the testimony on the point or points in dispute, as best as can be obtained from the record.

In this connection, you are further instructed that the Reporter will be required to read all of the testimony of the witness or witnesses involved, in order to pick out the point or points upon which you state that you have disputed, and it will take the Court Reporter sufficient time to read the testimony which will be required of her and select the testimony on the point or points in dispute.

The jury did not sent out another note in response to the trial court's instruction. Alonzo contends that the trial court abused its discretion by refusing to read Rosie's disputed testimony. Under article 36.28 of the Texas Code of Criminal Procedure, the jury must disagree as to the statement of any witness before the testimony may be read back. Tex.Crim. Proc. Code Ann. art. 36.28 (Vernon 1981). Where the jury requests evidence during deliberations, the trial court must determine whether that request is in compliance with the article. Robinson v. State, 888 S.W.2d 473, 480 (Tex.Crim.App. 1994). The manner in which the trial court determines whether there is a factual dispute between the jurors is left to his sound discretion. Id. The record indicates the trial court deemed the jury's request as too general. The court's instructions were proper under article 36.28; he instructed the jury to state in writing the particular point or points on which they were in dispute so the evidence could be located. The jury could have responded with a subsequent note, but did not. Looking at the note in the record and the trial court's response, we cannot say that the trial court abused its discretion and Alonzo has failed to prove otherwise. We overrule Alonzo's seventh point of error.

Impermissible Jury Argument

During closing argument the prosecutor made the following statement:

Detective Berry told you that he showed them a photo lineup of Lecho Escamelia, of this defendant, of Frank Hernandez and other people that was rumored to be shooting out there. You think about it. You've got high school students out there. You've got people throwing gang signs: Ledbetter, Vagos, Westside. Does that explain, maybe, why those people won't identify anybody? Does that kind of explain why none of them would pick anybody out of a lineup?

The trial court sustained Alonzo's objection that the statement was a misstatement of the facts, and instructed the jury to disregard the statement. The trial court denied Alonzo's motion for mistrial. In his eighth point of error, Alonzo contends the trial court erred in denying his motion for mistrial. We review the denial of a motion for mistrial for abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim App. 1999). To require mistrial, improper argument must be "extreme or manifestly improper or inject new and harmful facts into evidence." Kinnamon v. State, 791 S.W.2d 84, 89 (Tex.Crim. App. 1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App. 1994). Kinnamon suggested that an instruction to disregard can cure the two types of egregiously improper argument cited, and in fact did cure an improper argument that injected new facts into the case. Id; See Hawkins, 135 S.W.3d at 78-79. Under the circumstances, the trial court was reasonable in believing that its instruction to disregard was effective and that Alonzo suffered no prejudice from prosecutor's improper remark. We conclude that the trial court did not abuse its discretion in denying the request for a mistrial. Thus, we overrule Alonzo's eighth point of error. Having overruled each of Alonzo's eight points of error, we affirm the trial court's judgments.