No. 05-06-01363-CR.
Opinion Filed February 20, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F04-34892-UL.
Before Justices O'NEILL, RICHTER, and LANG. Opinion By Justice O'NEILL.
MICHAEL J. O'NEILL, JUSTICE.
A jury convicted appellant Diallo Rodrieguez Daniels for murder and sentenced him to life imprisonment. In eight issues, he contends the evidence is legally and factually insufficient to support a conviction, and the State misused peremptory challenges in violation of Batson, improperly argued outside the record, and made improper arguments during summation. He also asserts the trial court erred in denying his motion for mistrial when the State introduced an extraneous offense, erred in denying his motion to dismiss for violating his right to a speedy trial, and erred in denying a sub rosa request to present polygraph evidence. We affirm.
Factual Background
Decedent Ruperto Escobar lived in a trailer park in Irving, Texas. On March 26, 2004, Nettie Dupreey, a neighbor, saw Escobar leave in a red Cadillac around 4 p.m., but did not see the driver because the car windows were tinted. The car returned approximately fifteen minutes later, and Escobar and the driver of the red Cadillac went into Escobar's trailer. Antonio Reyes, the son of Escobar's next door neighbor, noticed the driver of the Cadillac was visibly upset and yelling at Escobar before they went inside the trailer. Within minutes of the men entering the trailer, witnesses heard two gunshots and then saw an African American male walk from the trailer and leave in the red Cadillac. Reyes wrote down the license plate number of the Cadillac, while his wife called 9-1-1. He then went to the trailer and yelled inside, but no one answered. When the police interviewed him, he described the driver as a dark complected male, clean-cut, and average build. He was unable to positively identify anyone in a photo lineup. Christian Saldana, Reyes' nephew who lived next door to Escobar, saw a red Cadillac pull up behind Reyes' truck. He was inside when he heard two gunshots. However, while looking out the kitchen window, he saw a man leaving Escobar's and stuffing something down his waistband. He later identified the man from a police lineup as appellant. He also identified appellant in court as the person he saw leaving the trailer. Nettie Dupreey also saw the red Cadillac return, and Escobar and another man go into the trailer. She heard two gunshots and observed appellant calmly leave the scene. She later identified appellant from a photo lineup. Irving Police Officer Charles Van Deren received a dispatch at approximately 4:50 p.m. on March 26, 2004 for a "Priority 2," which means shots fired. When he arrived, several people told him they heard two gunshots from the trailer and saw a black man run and leave in a red car. When Officer Van Deren entered the trailer, he saw Escobar leaning over the table with two gunshot wounds to the back of his head. Officer Steven Hazard collected physical evidence from the crime scene, which included two bullets and shell casings, a blunt, small amounts of marijuana, cigarettes, and a lighter. He also removed the kitchen table, which later revealed one latent print matching appellant's left index finger. Officer Boyce Wyatt received the license plate number of the red Cadillac and ran the information. He learned the car was registered to a Gail Johnson. The address on file for her was incorrect, but police located her new address at the Casa Valley apartments in Irving. Crystal Brasfield worked as the property manager at Casa Valley. She assisted the officers in the investigation by confirming Johnson's residence at the complex and providing her rental agreement. On Johnson's rental agreement, she listed a second occupant by the name of Andre Lewis. Brasfield said she knew Lewis because he came into the office quite often, and he drove a red Cadillac. She identified the Cadillac from pictures and also identified appellant from a photo lineup and in court as the man she knew as Andre Lewis. She also stated she never saw anyone other than appellant driving the Cadillac. When officers located the Cadillac, they removed some areas to test for fingerprints and bloodstains. After testing, appellant's fingerprints were the only ones conclusively found inside the car. Christopher and Michael Danchik lived by Johnson and appellant in Casa Valley. On March 26, 2004 around 4 p.m., Christopher saw appellant, and he appeared very angry and was "visibly shaking." Michael also observed him "drive off fast" in his Cadillac. They also identified appellant as the man they knew as Andre Lewis. Officer Wyatt obtained Andre Lewis's Texas driver's license and a photograph. He included the photograph in a lineup he showed Crystal Brasfield; however, she said the man she knew as Andre was not in the lineup. Officer Wyatt then used the information from appellant's rental agreement, which included a Colorado identification. When he contacted Colorado authorities, he received information about "Andre" and a photograph. He showed Brasfield a second lineup with the new picture, and she identified appellant. The officers then learned appellant's real identity was Diallo Rodrieguez Daniels. During the investigation, the officers contacted the real Andre Lewis and quickly eliminated him as a suspect. They also learned that on March 18, 2004, Escobar and Damion Zachary were arrested for selling marijuana. Another person told officers he believed Zachary had killed Escobar in retaliation for what Zachary perceived was a set up orchestrated by Escobar. Officers contacted Zachary, but eliminated him as a suspect. Appellant was arrested and charged with murder. A jury found him guilty and sentenced him to life in prison. This appeal followed. Sufficiency of the Evidence
Appellant challenges the legal and factual sufficiency of the evidence to support his conviction because the only evidence linking him to the crime is one fingerprint and a vehicle registered to his girlfriend, while another individual actually had motive to commit murder. The State contends, in addition to the physical evidence, witness testimony further links appellant to the crime, and the jury was free to believe this evidence over appellant's version of events. We agree with the State. The standard of review for legal and factual sufficiency of the evidence is well established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App. 2005). When reviewing the factual sufficiency of the evidence, we look at all of the evidence in a neutral light and determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006). We will reverse a jury's verdict only if the record clearly shows a different result is required to prevent a manifest injustice. Id. at 417; Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000). Under either standard, the fact finder is the sole judge of witness credibility and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson, 23 S.W.3d at 7 (factual sufficiency review). Appellant's arguments against the legal and factual sufficiency of the evidence are unpersuasive. By alleging the only evidence the State had to convict him was the vehicle registered to his girlfriend and one fingerprint, he minimizes the eye witness testimony and the jury's role to determine witness credibility and weigh contrary evidence. Appellant challenges Nettie Dupeey's identification because she lived two trailers from the decedent and was "a very excitable witness." Nothing in the record implies she had an obstructed view of decedent's trailer or that she had poor eyesight. Although Antonio Reyes was closer to the scene than Dupeey and could not positively identity appellant, his failure to make a positive identification in no way diminishes her observations. Additionally, appellant does not explain, and the record does not show, how her alleged excitability affected the reliability of her pretrial identification or trial testimony. In any event, it was within the jury's role to assess her credibility and either accept or reject her testimony. Goodrich v. State, 156 S.W.3d 141, 146 (Tex.App.-Dallas 2005, pet. ref'd). Based on this testimony alone, the evidence is sufficient to support the conviction. See Walker v. State, 180 S.W.3d 829, 832 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (conviction may be based on testimony of one eyewitness). In addition to her identification, the jury also heard testimony from Christian Saldana in which he positively identified appellant as the man leaving in the red Cadillac. Although he may have shown some hesitation at trial, this again goes to credibility, which was within the province of the jury. Goodrich, 156 S.W.3d at 146. Appellant further alleges the State never established appellant's motive for the killing; however, Damion Zachary clearly had motive based on the March 18, 2006 arrest. Officers investigated Zachary's possible involvement in the murder and determined he was not a suspect. No witnesses recognized or identified him in any photo lineup, and neither his fingerprints nor his DNA were found at the crime scene or in the Cadillac. Thus, the jury was free to conclude Zachary's possible motive for the murder did not outweigh the evidence of appellant's guilt. And despite appellant's contrary argument, the State was not required to establish his motive for the murder. See generally Zuliani v. State, 903 S.W.2d 812, 826-27 (Tex.App.-Austin 1995, pet. ref'd) ("Motive is not an essential element of a criminal offense and need not be proved to establish the commission of the offense."). Finally, appellant contends the evidence is insufficient because the murder weapon was never recovered from him. He claims this further supports his theory that Zachary was the real killer. We disagree. The State was not required to provide the murder weapon to establish guilt beyond a reasonable doubt. See, e.g., Harmon v. State, 167 S.W.3d 610, 614 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (holding a rational jury could have found appellant guilty of aggravated robbery without DNA evidence, fingerprint evidence, or evidence of the gun). Based on eye witness testimony, appellant's affirmative link to the red Cadillac observed leaving the murder scene, and appellant's fingerprint at the crime scene, we conclude the evidence is both legally and factually sufficient to support his conviction. Appellant's second and third issues are overruled. Voir Dire
In his first issue, appellant claims the trial court abused its discretion in overruling his Batson objection. He claims the State used race to strike jurors No. 17 and 21. The State responds appellant failed to prove its race-neutral reasons for striking the jurors were a pretext for discrimination. In reviewing a Batson claim, we must determine whether the trial court's findings were clearly erroneous by examining the evidence in the light most favorable to the trial court's ruling. Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996). A trial court's ruling which is supported by the record is not clearly erroneous. See generally Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App. 1992). A reversal is mandated only if a review of the voir dire record, the State's explanations, the composition of the jury panel, and appellant's rebuttal and impeachment evidence result in a definite and firm conviction that the trial court erred. Id. Under Batson, the opponent of a peremptory challenge must first make a prima facie case of racial discrimination. Batson v. Kentucky, 476 U.S. 79, 84 (1986). The burden then shifts to the proponent of the strike to provide a race-neutral explanation for the strike. Purkett v. Elem, 514 U.S. 765, 767 (1995). This second step does not demand an explanation that is persuasive or even plausible. Id. Instead, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. Id. at 766-67; Contreras v. State, 56 S.W.3d 274, 278 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). If the State articulates a race-neutral explanation, the defendant is given an opportunity to respond since the defendant has the ultimate burden of proving purposeful discrimination. Contreras, 56 S.W.3d at 278. Finally, the trial judge must determine whether the defendant met that burden. Id. Appellant requested a Batson hearing in which he claimed the State improperly struck juror numbers 17 and 21, both female African Americans, when he did not notice "anything particularly challengeable" about them. The State responded it struck number 17 because her son was killed while in police custody. Because this was a murder case, it did not want her thinking about her son during trial. Her other son had been convicted of drug possession and when asked on a questionnaire if she thought the criminal justice system treated all citizens fairly, she stated "can't answer." Based on this information, the State felt she would have some bias. The State struck juror number 21 because she marked rehabilitation as her number one priority on her questionnaire. Her mother had also been no billed for a past murder, and the State did not want her thinking about that during trial. Further, she was untruthful about her own criminal past and the extent of her mother's involvement in other crimes; therefore, the State felt her untruthfulness showed a possible bias. Under these facts, we need not determine whether appellant made a prima facie case of discrimination because that issue became moot when the State offered its explanations. Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App. 1996). After reviewing the record under the proper standards, appellant failed to meet his burden of rebutting the race-neutral reasons articulated by the State. In fact, appellant did not cross-examine the prosecutor to invalidate any of the grounds it raised for striking the jurors. See, e.g., Pondexter, 942 S.W.2d at 581. After the State provided its race-neutral explanations, the trial court asked "[a]nything further?" and appellant's attorney responded "[n]othing further from the defense, Judge." By failing to challenge any of the State's race-neutral reasons for striking the jurors, appellant did not meet his burden of showing the State's explanations were pretextual. As a result, we find the court's ruling was not clearly erroneous. We overrule appellant's first issue. Jury Arguments
In his fourth issue, appellant claims the trial court erred in overruling an objection when the State argued outside the record during the guilt/innocence phase of trial. Specifically, the State argued the following: And don't you know, ladies and gentlemen, we talked about during voir dire who controls what evidence is left at the scene of the crime? The defendant. Who controls whether or not he's there with his hands up when the police get there? Do you really think that in my example, you know, I killed someone, am I going to stick around to be caught, to have the weapon on me? No. You do exactly what the defendant did. He gets out of town. Leaves. Doesn't have — The defense objected there was no evidence appellant left town, and it was argument outside the record. The trial court sustained the objection and instructed the jury to disregard the statement. It denied appellant's motion for mistrial. In his brief, appellant argues the trial court erred in overruling his objection to the State's improper argument. He cites authority for the boundaries of proper jury argument and for harmful error. The record, however, establishes the trial court sustained his objection and instructed the jury to disregard. Therefore, the only issue appellant can raise on appeal is whether the trial court improperly denied his motion for mistrial. However, appellant has not briefed this issue. We are not required to address the merits of an inadequately briefed issue. Tex. R. App. P. 38.1(h); Cavender v. State, 42 S.W.3d 294, 296 (Tex.App.-Waco 2001, no pet.) (noting it is a waste and improper use of judicial resources to brief an appellant's case for him). We overrule appellant's fourth issue. In his sixth issue, he asserts the trial court abused its discretion in overruling his objection when the State asked the jury to consider the emotions of Escobar's father. If a jury argument exceeds the bounds of proper argument, the trial court's erroneous overruling of a defendant's objection cannot be reversible error unless, in light of the record as a whole, the argument had a substantial and injurious effect or influence on the jury's verdict. Tex. R. App. P. 44.2(b); Pope v. State, 161 S.W.3d 114, 126 (Tex.App.-Fort Worth 2004), aff'd, 207 S.W.3d 352 (Tex.Crim.App. 2006). Assuming without deciding the State exceeded the bounds of proper argument, we conclude it did not have a substantial effect or influence the verdict. As fully explained under issues two and three, the evidence of guilt was firmly established; therefore, we cannot conclude this argument persuaded the jury to return a guilty verdict. We overrule appellant's sixth issue. Introduction of Extraneous Offense
Appellant contends in his fifth issue the trial court erred in denying his motion for mistrial when the State introduced extraneous offense evidence. Christopher Danchik testified he saw appellant on the day in question, and he seemed angry and was visibly shaking. He further stated he "seemed like he was upset or on drugs." Counsel objected to the drug statement, the trial court sustained the objection, and it instructed the jury to disregard. Appellant moved for a mistrial, which the trial court denied. Evidence of an extraneous offense is inadmissible under most circumstances. See Tex. R. Evid. 404(b). Likewise, if the evidence fails to show that an offense was committed or that the accused was connected to the offense, then evidence of an extraneous offense is not established. McKay v. State, 707 S.W.2d 23, 32 (Tex.Crim.App. 1985). Generally, a prompt instruction to disregard will cure a witness's inadvertent reference to an extraneous offense. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); Wilson v. State, 90 S.W.3d 391, 395 (Tex.App.-Dallas 2002, no pet.). Unless the extraneous offense is so calculated to inflame the minds of a jury or is of such a nature as to suggest the impossibility of withdrawing the impression produced, an instruction to disregard can cure any improper impression and a mistrial is unnecessary. Wilson, 90 S.W.3d at 395. Here, Danchik's drug reference did not clearly connect appellant to any actual drug offense. While trying to explain appellant's demeanor he simply noted it "seemed" like he was upset "or on drugs." This statement was not so calculated to inflame the minds of a jury and was not of such a nature as to suggest the impossibility of withdrawing the impression produced. Id. Because the prompt instruction cured any improper impression created by Danchik's answer, the trial court did not err by denying appellant's request for a mistrial. See Ovalle, 13 S.W.3d at 783; State v. Boyd, 202 S.W.3d 393, 402 (Tex.App.-Dallas 2006, pet. ref'd) (the jury is presumed to follow the trial court's instruction to disregard absence evidence to the contrary). We overrule appellant's fifth issue. Violation of Right to Speedy Trial
In his seventh issue, appellant argues the State violated his rights to a speedy trial. Texas Rule of Appellate Procedure 38.1(h) requires a brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(h). Although appellant cites case law explaining the factors a court considers when analyzing a speedy trial violation and discusses the factors in general terms, he fails to establish how the factors apply to his case. He summarily concludes, without any citations to the record, ". . . that based on the length of delay, his assertion of his right, the reason for the delay and the prejudice resulting from the delay in prosecution the trial court erred in denying Appellant's motion to dismiss." By not addressing how his case is similar to those cited or undertaking any analysis whatsoever of the relevant factors, he has waived this issue. Tex. R. App. P. 38.1(h); Stults v. State, 23 S.W.3d 198, 209 n. 4 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). We overrule his seventh issue. Use of Polygraph Evidence
In his final issue, appellant contends the trial court abused its discretion in denying his sub rosa request to present certain polygraph evidence. Specifically, he wanted to introduce the failed polygraph examination of suspect Damion Zachary and determine whether he was asked if he shot and killed complainant. He recognizes the general rule against the use of polygraph evidence, but urges this Court to consider a possible exception because of the "real possibility that another suspect may have committed the murder." As stated years ago by the Texas Court of Criminal Appeals, "[i]t has long been the rule in this State that the results of a polygraph test are inadmissible for all purposes." Nethery v. State, 692 S.W.2d 686, 700 (Tex.Crim.App. 1985). The court recently reconfirmed the rule. Nesbit v. State, 227 S.W.3d 64, 77 n. 4 (Tex.Crim.App. 2007). Given this absolute declaration by the highest criminal court in this state and our obligation to follow it, we have no choice but to conclude the trial court acted within its discretion in excluding the polygraph evidence. Brown v. State, 92 S.W.3d 655, 659 (Tex.App.-Dallas 2002) (intermediate appellate court is bound by court of criminal appeals' holdings), aff'd, 122 S.W.3d 794 (Tex.Crim.App. 2003). We overrule appellant's final issue. Conclusion
Having overruled all of appellant's issues, we affirm the trial court's judgment.