Ricky Ricardo Gallegos v. State
Opinion
Appellant
Appellee
Before QUINN, REAVIS, and CAMPBELL, JJ.
Appellant Ricky Ricardo Gallegos appeals his conviction of conspiracy to commit murder and his sentence of life imprisonment. He argues that 1) hearsay testimony was admitted in violation of the confrontation clause, 2) the evidence was factually insufficient to sustain his conviction, and 3) the trial court abused its discretion in admitting certain photographs during the punishment phase of the trial. We affirm the judgment of the trial court.
On February 24, 2003, five men who were members or friends of members of a gang known as the Texas Syndicate met at an apartment to discuss discipline to be applied to Richard Preciado (also known as Ballou) for problems related to his drug dealings. One of the five men was appellant. The group decided at that meeting to kill Preciado. Late that same evening, Preciado died at his home from multiple stab wounds.
In his first issue, appellant complains that Sergeant Kevin Dockery was allowed to testify to statements made by various co-conspirators in violation of the confrontation clause of the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution. We overrule the issue.
First, in objecting below, appellant said nothing about the constitutional rights he now invokes. He simply objected on the grounds of hearsay, contending that the proposed testimony was not admissible under the hearsay exception involving statements by co-conspirators. Given that his objections below do not comport with those uttered on appeal, the latter were not preserved. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
Moreover, the trial court did not overrule the objection to which appellant refers us. When the trial court ruled after considering extensive argument by the litigants, it sustained the complaint. Accordingly, appellant's issue, had it been preserved, is moot.
Appellant complains in his second issue that the evidence is factually insufficient to sustain his conviction. We overrule the issue.
The standard by which we review factual sufficiency challenges is well established. We refer the parties to Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2001) for explanation of it.
In support of his contention, appellant points to inconsistencies in the statements Dockery claimed were made to him by appellant and his co-conspirators and the testimony of appellant at trial, as well as testimony that appellant was at another location at the time of the alleged meeting at which the decision was made to kill the victim. There was also evidence that many of the witnesses were drunk or high at the time of events about which they testified or that they had other reasons to lie. In fact, appellant gives a detailed recitation of numerous discrepancies and inconsistencies in the evidence which he claims undermine confidence in the jury's determination.
A person commits a criminal conspiracy if, with intent that a felony be committed, he agrees with one or more persons that they or one or more of them engage in conduct constituting the felony and he or one or more of them performs an overt act in furtherance of the agreement. Tex. Pen. Code Ann. §15.02(a) (Vernon 2003). There was evidence that 1) appellant was seen at the victim's house on the day he was killed, 2) he had attended a meeting at which the killing of the victim was discussed, 3) he admitted to a woman friend that he had killed the victim over a drug deal, and 4) he told a fellow prison inmate that he had killed the victim. This evidence, if believed, was more than sufficient to sustain the conviction. Furthermore, contradictions or conflicts in it do not render it non-probative; instead, they simply affect its weight or the witness' credibility. Jimenez v. State, 67 S.W.3d 493, 505 (Tex. App.-Corpus Christi 2002, pet. ref'd). And, while the credibility of many of the State's witnesses was called into question, the credibility of the defense witnesses was also challenged. Thus, it became the obligation of the jury to resolve the conflicts and credibility issues, and the jury was free to believe or disbelieve none, some or all of any particular witness' testimony. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). So, in light of the entire record, we cannot say that the great weight of the evidence renders the verdict unjust or that the sum of the evidence makes weak that evidence supporting the conviction.
In his final issue, appellant contests the trial court's admission during the punishment phase of 15 pre-autopsy photographs of the victim. We overrule the issue.
Appellant objected on the ground that the photographs were more prejudicial than probative. (1) See Tex. R. Evid. 403. Whether the trial court erred in overruling such an objection depends upon whether it abused its discretion, i.e. whether the decision fell outside the zone of reasonable disagreement. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003), cert. denied, __ U.S. __, 125 S.Ct. 39, 160 L.Ed.2d 35 (2004); Wyatt v. State, 23 S.W.3d 18, 29 (Tex. Crim. App. 2000).
Next, a photograph is generally admissible if verbal testimony about the matter depicted in the photos is admissible. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004).
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