Donahoe, Andrew James v. State

• Court: Court of Appeals of Texas
• Decided: June 1, 2006
• Docket: 14-05-00377-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 1, 2006

 Affirmed and Memorandum Opinion filed June 1, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00377-CR

ANDREW JAMES DONAHOE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 979,628

M E M O R A N D U M  O P I N I O N

Challenging his conviction for murder, appellant Andrew James Donahoe asserts the evidence is factually insufficient to support his conviction and that the trial court reversibly erred in various evidentiary rulings.  We affirm.

I.  Factual and Procedural Background

On January 31, 2004, around 4:00 a.m., Joanna Garcia drove to the Denver Harbor home of Manuela AManny@ Longoria.  Manny shared the home with her husband, Eddie Garcia.  On her way there, Joanna saw appellant, known as APork Chop@, and two of his companions,  Dennis (known as ABlack@), and Mike Vasquez.  The three were at Dennis=s house, located around the corner from Manny=s house.  Joanna also saw her estranged common-law husband and the complainant, Jesus Aguilar, walking alone near Manny=s house.   Joanna wanted to avoid Jesus so she drove around for a short time until he had left the area.  Joanna then returned to Manny=s house, parked her truck, and went inside.

Vasquez testified that appellant left Dennis=s house for a short time, and returned very irate, saying that Jesus had punched him in the face when he walked over to Manny=s house.  Vasquez testified that appellant left Dennis=s home about ten minutes later and went in the direction of Manny=s house.  Shortly thereafter, Dennis told Vasquez to leave because he was scared that appellant might cause trouble.

Joanna testified that Jesus arrived at Manny=s house about thirty minutes after she did.  Joanna told Manny not to open the door.  When Jesus continued to pound on the door for several minutes, Inez, Manny=s friend, opened the door and told Jesus that Joanna did not want to speak to him.  Jesus lingered for a short period and then walked away from the house.  Vasquez testified that as he headed home, he saw appellant, who was standing at the intersection of Boyles and San Angelo, look toward a parked truck and say, Abitch, you want to steel me?@  Vasquez saw appellant reach into his pocket, grab a gun, and shoot at the parked truck a few times. Then Vasquez realized that appellant had been shooting at Jesus, who was standing on the right side of the truck. It appeared to Vasquez that the gun had jammed, and he heard Jesus plead with appellant,  APork don=t kill me.@  Appellant moved closer to Jesus and fired the gun again.  Petrified, Vasquez took off running down another street toward his home. 

Meanwhile, Joanna, hearing the gunshots, told Manny to call the police. Laura Guajardo, who lived nearby, testified that the gunshots awakened her.  When Guajardo  looked outside her window around 5:00 a.m.  she saw  Jesus, who was behind a truck across the street, run across the street, stumble, and fall into a ditch.  Guajardo testified that Jesus appeared to be holding his leg.  Jesus knocked on the door to an apartment in front of Guajardo=s, but received no answer.  Guajardo watched as appellant followed Jesus down the street.  She then heard more gunshots, and a few minutes later appellant returned and looked around as if to make sure no one had seen him.

Lidia Garcia, Joanna=s mother, who also lived nearby, testified that she woke up early on the morning of the shooting.  She heard distant gunshots.  Lidia testified that she fell asleep, and then woke up to more gunshots that appeared to be closer to her home.  Lidia opened the door to her house and saw Jesus at the corner pleading, AHelp me, please; help me, please.@  Lidia went outside and asked Jesus what happened.  Jesus responded that APork Chop@ shot him.  Jesus tried to turn around but fell on his face.  Lidia called 911.

Officer Ron Plotter of the Houston Police Department was dispatched to the scene  at 5:14 a.m.  Officer Plotter testified that he found Jesus on the ground.  Jesus, suffering from eight gunshot wounds, appeared to be in critical condition but he managed to say that APork Chop@ had shot him at two separate times and locations. Jesus was transported to Ben Taub General Hospital and died shortly after arrival.

Officer Glen West of the Homicide Division of the Houston Police Department conducted an investigation of the crime scene, which extended over approximately three blocks.  Officer West found twelve fired cartridge cases at three separate locations, along with fired bullets, blood, and clothing.  The evidence recovered at the scene and from Jesus=s body were consistent with at least two firearms being discharged, including a .40 caliber and a nine millimeter. 

Fabian Medrano testified that he had met appellant, whom he knew by the name APork,@ while in jail.  When the two met, appellant was in custody for an unrelated case.  Medrano testified that appellant had bragged to him about shooting a man in Denver Harbor.  In his discussions with Medrano, appellant claimed to have used two guns in the Denver Harbor shootingBa Glock .40 and a nine millimeter.  Appellant explained to Medrano that he had to use two firearms because the first gun ran out of bullets. 

On March 2, 2004, the officers located appellant and he gave a statement in which he admitted being involved in an altercation with Jesus on the date of the murder.  Appellant stated that Jesus punched him in the jaw.  Appellant claimed to have gone back to Dennis=s house.  Appellant, however, did not admit to shooting Jesus. 

Appellant was arrested and charged with the murder of Jesus.  A jury found him guilty as charged and assessed punishment at a fine of $10,000 and seventy-five years= confinement in the Texas Department of Criminal Justice, Institutional Division.

II.  Issues Presented  

Appellant brings five issues on appeal:

(1)     The evidence is factually insufficient to support his conviction of murder.

(2)     The trial court erred in overruling his objection to Houston Police Officer Glen West=s testimony regarding the caliber of the bullets found at the murder scene.

(3)     The trial court erred by refusing appellant=s request to introduce any impeachment evidence of the victim, despite the prosecution=s use of the victim=s dying declaration.

(4)     The trial court erred by refusing appellant=s request to cross-examine Joanna Garcia (the victim=s estranged common-law wife) about their violent relationship.

(5)     The trial court erred by refusing appellant=s request to question Joanna Garcia about her alleged affiliation with gang members.

A.      Is the evidence factually sufficient to support appellant=s conviction for murder?

Appellant contends that the evidence is factually insufficient to support his conviction for murder. A factual-sufficiency review begins with the presumption that the evidence supporting the jury=s verdict is legally sufficient.  Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).   When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  A reviewing court may find the evidence factually insufficient in two ways.  Id.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met.  Id.  at 484B85.  In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at 481B82.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).   A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. ' 19.02(b) (Vernon Supp.  2005).

Appellant contends that the verdict is against the overwhelming weight of the evidence and in support of this argument asserts that the witnesses who testified at trial presented contradictory stories.  The existence of contradictory evidence does not defeat factual sufficiency.  The jury, being the sole judge of the facts and credibility of the witnesses, could choose to believe or not believe any of the State=s witnesses, or any portion of their testimony. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App.  1974).   Further, a witness may be believed even though some of his testimony may be contradicted and part of his testimony accepted and the rest rejected. See Jackson v. State, 505 S.W.2d 916, 918 (Tex. Crim. App. 1974).   We may not substitute our judgment for that of the jury.   King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.  2000).

The evidence of appellant=s guilt is overwhelming.  Although appellant testified at trial that he did not shoot Jesus, the jury was well within its discretion to disbelieve appellant=s self-serving statements.  See Bustamonte v. State, 106 S.W.3d 738, 741 (Tex. Crim. App. 2003).   For simplicity, we do not reassert all of the testimony presented  in the factual background of this opinion, but rather focus primarily on the fact that there was an eyewitness to this crime.  Mike Vasquez testified that appellant left Dennis=s house for a short period of time, and returned very irate, and then left again about ten minutes later, heading in the direction of Manny=s house.   Shortly thereafter, Dennis told Vasquez to leave because he was scared that appellant might bring trouble.  As he headed home, Vasquez saw appellant look toward a parked truck, pull a gun from his pocket, and shoot at the parked truck a few times.  Vasquez then realized appellant was shooting at Jesus, and he heard Jesus say to appellant, who was known as APork Chop,@ APork, don=t kill me.@   Vasquez saw appellant move closer to Jesus and fire the gun again.^[1]   The testimony from a single eyewitness may be sufficient to support a conviction.   See Bowden v. State, 628 S.W.2d 782, 784‑85 (Tex. Crim.  App. 1982).  The evidence is factually sufficient to support appellant=s conviction for murder.  Accordingly, we overrule appellant=s fifth issue.        

B.      Did the trial court err in overruling appellant=s objection to the police officer=s testimony regarding the caliber of the bullets found at the murder scene?

In his first issue, appellant contends that the trial court abused its discretion in allowing Officer Glen West=s testimony as to the  Acaliber of the bullets found at the murder scene.@   More specifically, appellant asserts  that the admission of Officer West=s testimony that the fired bullets, State=s Exhibits 71 and 72, Awould be a larger caliber, as a 45 or 40 type caliber weapon@ was inadmissible as expert testimony.  The State contends that appellant waived this complaint because his argument on appeal does not comport with his objection at trial. 

At trial, appellant asserted the following objection: 

 Q: Are you a firearm=s examiner?

A: No, sir, I am not.

Q: Is there any way for you to tell in your expertise what caliber these were?

A: It would only be a guess, sir.

Q: What would that guess be based on?

A: It would be a largerB

Appellant=s counsel: Your Honor, I object to the guessing.

The Court: That will be overruled.

 (emphasis added).  Because appellant did not object at trial that Officer West=s testimony was inadmissible as an expert opinion under Texas Rule of Evidence 702, appellant failed to preserve his complaint for appellate review.   See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (stating that to preserve error for appellate review, complaint on appeal must comport with objection at trial, and an objection stating one legal theory may not be used to support a different legal theory on appeal); see also Tex. R. App. P. 33.1(a) (stating that to preserve complaint for appellate review, a party, among other things, must present an objection stating the specific grounds for the ruling desired).   Accordingly, we overrule appellant=s first issue.

C.      Did the trial court err by refusing appellant=s request to introduce any impeachment evidence of the victim, despite the prosecution=s use of the victim=s dying declaration?

In his second issue, appellant contends that the trial court erred in refusing appellant=s request to introduce impeachment evidence of the victim.  At trial, appellant asked Sergeant Paul Motard:

ADid Mike Vasquez relate to you that him [sic] and [the complainant] had been in jail many times.@ 

Appellant contends that the trial court erred in sustaining the State=s objection to this question because in doing so, the trial court violated his Sixth Amendment right to confrontation through cross-examination.    Appellant, however, did not make this objection at trial nor did appellant make an offer of proof or establish what the excluded testimony would have shown.

To preserve error, there must be a timely, specific objection.  See Tex. R. App. P.  33.1.   Even constitutional error may be waived by failure to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).   A defendant waives his constitutional right to confront witnesses if he does not object at trial.  Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Thacker v. State, 999 S.W.2d 56, 61 (Tex. App.BHouston [14th Dist.] 1999, pet. ref=d); Saldivar v. State, 980 S.W.2d 475, 496 (Tex. App.BHouston [14th Dist.] 1998, pet. ref=d).  When evidence is excluded, the right to make an offer of proof or perfect a bill of exceptions is absolute.   Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App.  1999).   The record is devoid of any objection or reference to what, if anything, Officer Motard would have said in response to this question had any such objection been overruled.   In the absence of such information, any claim of error is not preserved for appellate review.  Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App.  1998). Accordingly, we overrule appellant=s second issue.

D.      Did the trial court err by refusing appellant=s request to cross-examine the victim=s estranged common-law wife about their violent relationship?

In his third issue, appellant contends that the trial court erred in refusing to admit evidence of the violent relationship between the victim and his estranged common-law wife, Joanna Garcia.  Appellant complains that the trial court erred in sustaining the State=s objections to the following questions:

AHad you everByou testified earlier that Jesus became violent. Had he ever become violent with you?@

AHad you ever had to call the police on Jesus Aguilar?@  

The trial court sustained State=s objections as to relevance.   Appellant contends that in doing so, the trial court denied his Sixth Amendment right to cross-examine a witness for bias and motive.  Appellant, however, did not make these objections at the proper time nor did he make these objections when he later made his bill of exception on this excluded testimony.^[2]  A defendant waives his constitutional right to confront witnesses if he does not make a timely, specific objection at trial.  See Holland, 802 S.W.2d at 700; Thacker, 999 S.W.2d at 61.  Because appellant did not do so, he failed to preserve this issue for appellate review.

In any event, even if appellant had preserved error on this issue, and presuming the trial court erred in sustaining the State=s objections, any error would be harmless.  See Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (setting forth five factors to employ in a harmless error analysis when a violation of a Confrontation Clause occurs); Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991) (accepting the Van Arsdall factors for the appropriate means of evaluating harm); Gutierrez v. State, 150 S.W.3d 827, 831 (Tex. App.BHouston [14 Dist.] 2004, no pet.) (explaining application of the Van Arsdall factors).  In Shelby, the Court of Criminal Appeals adopted a three‑prong test for reviewing courts to apply when assessing harm in Confrontation Clause cases.  819 S.W.2d at 546‑47.   First, we assume that the damaging potential of the cross‑examination is fully realized. Id.  Second, with that assumption in mind, we review the error in light of the following factors: (1) the importance of the witness=s testimony in the prosecution=s case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross‑examination otherwise permitted; and (5) the overall strength of the prosecution=s case.  Id.  Finally, we must determine if the error was harmless beyond a reasonable doubt. Id.

In applying the first segment this three-part test, we assume that appellant would have been permitted to fully cross-examine Joanna and the damaging potential of the cross-examination would have been fully realized.  Next, with this assumption in mind, we weigh the five factors.  First, despite appellant=s contention, Joanna was not an important witness to the prosecution=s case.  There were several other witnesses at trial who testified as to the crime, including an eyewitness who saw appellant shoot  Jesus.  Second, the matter made the subject of appellant=s bill of reviewCi.e., that Joanna and Jesus had a violent relationshipCwas not new testimony.  Not only did Manny Longoria testify to the nature of this relationship, Joanna herself testified, during direct examination,  that she and Jesus had been through some difficult times, and, at points, Jesus had become extremely jealous and violent.  Third, Joanna=s own testimony established that her relationship with Jesus was difficult and somewhat violent.   Fourth, appellant was permitted to fully cross-examine Joanna on all other points.  Fifth, the State=s case against appellant was strong even without the excluded testimony.  The evidence was ample to establish appellant=s guilt.  Thus, it would not be difficult to conclude that any error would be harmless beyond a reasonable doubt.   See Shelby, 819 S.W.2d at 546‑47; see also Simpson v. State, 119 S.W.3d 262, 269‑71(Tex. Crim. App. 2003) (finding confrontation clause violation to be harmless error where evidence of guilt was strong and erroneously admitted statement was corroborated by other evidence adduced at trial).  Accordingly, we overrule appellant=s third issue.

E.      Did the trial court err by refusing appellant=s request to question the victim=s estranged common-law wife about her alleged affiliation with gang members?

In his fourth issue, appellant contends that the trial court erred in refusing his request to question Joanna Garcia about her alleged affiliation with gang members.  Appellant again contends that he was denied his Sixth Amendment right to confrontation through cross-examination.    Appellant, however, did not make this objection at trial nor did he make an offer of proof or establish what the excluded testimony would have shown.  Therefore, appellant has not preserved his complaint for appellate review.   See Warner, 969 S.W.2d at 2; Holland, 802 S.W.2d at 700.  We overrule appellant=s fourth issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 1, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant contends that Vasquez=s testimony was inconsistent because while Vasquez testified that he witnessed the shooting, he put the time at 2:00 a.m. or 3:00 a.m., rather than later that morning.  Again, the jury, being the sole judge of the facts and credibility of the witnesses, could choose to believe or not believe any or all of Vasquez=s testimony.  See Esquivel, 506 S.W.2d at 615.  In addition, there is sufficient testimony to show that appellant was shot twice, at separate times and locations.

^[2]  Appellant made a proper bill of exception and stated that if he would have been able to expound on this topic, he would have shown that the relationship between Joanna and Jesus was troubled, violent, and resulted in several police calls.