Saul Carrion Reyes v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00165-CR
SAUL CARRION REYES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 34079CR
MEMORANDUM OPINION
A jury found Saul Carrion Reyes guilty of murder and assessed his punishment,
enhanced by a prior felony conviction, at life imprisonment and a $10,000 fine. This
appeal ensued. We will affirm.
MOTION FOR INSTRUCTED VERDICT
We begin with Reyes’s third issue in which he contends that the trial court erred
in denying his motion for an instructed verdict.
A challenge to the denial of a motion for instructed verdict is actually a challenge
to the sufficiency of the evidence. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App.
1990). The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, No. AP-76,020, --- S.W.3d ---, ---, 2011 WL 4347044, at *16 (Tex. Crim. App.
Sept. 14, 2011).
The Court of Criminal Appeals has also explained that our review of “all of the
evidence” includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326. Further,
direct and circumstantial evidence are treated equally: “Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it
is well established that the factfinder is entitled to judge the credibility of witnesses and
Reyes v. State Page 2
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
As limited by the indictment, a person commits the offense of 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. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West 2011).
The evidence viewed in the light most favorable to the verdict is as follows. On
April 9, 2009, Reyes, also known as “Louie,” was at a bar in Ferris, Texas, where he had
a verbal confrontation with a member of the Scorpions Motorcycle Club. A physical
altercation later ensued outside the bar, which left Reyes bleeding and his brother’s
windshield shattered. After the fight, Reyes was angry and upset and told a friend, “[I]t
ain’t over. . . . [T]hey’ll get theirs.”
On April 10, Reyes called Christy Holmes between 9:30 and 10:00 p.m. to talk
about the fight at the bar. He told her that he and the Scorpions “got into it” at the bar
and that “if he ever seen the Scorpions he would run them off the road.” Reyes also
spoke with Clint Shaw that night at about 10:30 or 11:00 p.m. outside the store located
next to the bar where the altercation had occurred. Reyes seemed upset. He told Shaw
that the Scorpions had hit him with a pistol and kicked him out. He also said, “[T]hey
think they run that bar but they don’t. Don’t worry, I got something for them.” Reyes
then showed Shaw a gun. A man on a motorcycle then passed them, presumably
headed toward the Scorpions’ clubhouse. Reyes then said he had to go and quickly left
the parking lot headed in the same direction as the motorcycle.
Reyes v. State Page 3
At about 8:00 a.m. the next morning, Henry Duran was on his way back home
from town when he saw a motorcycle laying over in the yard of a residence. He said it
“didn’t look right,” so he stopped. When he got out of his vehicle, he saw a body.
Duran called for an ambulance and checked for a pulse, but there was no pulse, and the
body was “[r]eal cold.” Duran then knocked on the door of the residence. The people
inside did not know that the body was in their yard. Duran thought the body looked
like Mike who lived down the street from him. The body was later identified as
Michael Wayne Owensby. Duran was aware that Owensby was a member of the
Scorpions Motorcycle Club.1 He was wearing a Scorpions vest and belt when he died.
Police initially worked the scene as a motorcycle accident. Owensby was dressed
in several layers and there was very little blood, but when the medical examiner
disrobed him, she found the gunshot wound to the neck that had killed him. She
estimated the time of death at being within the twelve to twenty-four hours before the
autopsy but said it could have been less. The case was referred to the Ellis County
Sheriff’s Department.
Reyes was developed as a suspect after investigators learned of the altercation
between him and members of the Scorpions. An investigator confirmed that a call had
been made on April 10 at 9:36 p.m. from Reyes’s phone to the phone Christy Holmes
used. Investigators located Reyes’s abandoned vehicle in Mesquite, but there was no
1Owensby’s girlfriend testified that he was a member of the Dallas chapter of the Scorpions
Motorcycle Club, not the Ferris chapter with whom Reyes had fought.
Reyes v. State Page 4
evidence found in the vehicle regarding this case. An investigator also interviewed
Amanda Garcia, who worked at another bar near Ferris.
Garcia testified that she had met Reyes through her brother. Late on the night of
April 11, she saw Reyes at the bar where she worked. Reyes came over to talk to her.
She testified about the conversation as follows:
Q. All right. Tell the jury how the conversation changed, what Louie
said to you.
A. Okay. We were sitting there talking and he started telling me
about Thursday night, that he was at Wild Bill’s and my brother had
walked into the bar with a beer in his hand and someone had told him I
think he couldn’t walk in with a beer and asked him to throw it out.
He went outside. Louie told me that he was called over to speak to
one of the Scorpions. He went and sat next to him on a barstool and that
guy told him that -- that he knew that Louie ran dope from the bar and
that he did it, too. And that it was kind of like his territory for selling
drugs. And that he didn’t appreciate Louie coming in and, you know,
doing it also.
And he knew that he was doing it because every time Louie was
there he would constantly see people coming in and out. And Louie just
kind of told him, you know, well, what are you going to do about it? I
don’t know exactly what happened after that. I remember him telling me
that he went outside and called some people. He told me his -- later on in
the night -- that his brothers, Albert and Manuel, showed up and a friend
and that they were out -- all outside I guess standing waiting for them.
The Scorpions were looking out through a, I don’t know, a window
or something. It’s like a wooden part of the bar. They were just standing
out there and he told me that they came outside. And all I remember that
he told me that they had a gun. One of them had a gun and that he -- they
swung it at his head, hit him in his -- or they missed the first time and
swung again, hit him in the back of the head and also broke one of his
brothers’ windshields. And then I guess they left and --
Q. Did he seem upset or mad about that?
A. Yes. He told me he was upset because they had a gun and they
didn’t use it.
Reyes v. State Page 5
Q. That make a lot of sense to you?
A. No.
Q. Okay. All right. What else did he say?
A. Well, he told me that -- he asked me if I had heard about this
Scorpion getting killed and I told him yes. And he said that he -- that the
cops were blaming him for it and that he was angry because the
investigators went over to his house and were questioning his family and
taking pictures of rooms in his house. And that they were just bugging
his family and he was angry.
Q. Was he upset about that?
A. He was upset. And he told me that he -- that they were blaming
him for this murder and that -- and then he just kind of got quiet. And
then he looked at me and said, well, yeah, I did it. And I said you did
what? And he said, I shot that guy.
Garcia stated that she had no idea why Reyes would tell her these things.
Reyes argues that, based on this evidence, the State has not proved the case
beyond a reasonable doubt. He states in his brief, “We have the death of an individual,
a person allegedly with motive, and no link other than the Appellant being in the same
general vicinity and a questionable alleged confession given to a person with bias and
motive to lie.” Reyes argues that Baugh v. State, 776 S.W.2d 583 (Tex. Crim. App. 1989),
and King v. State, 638 S.W.2d 903 (Tex. Crim. App. 1982), support his argument;
however, these cases are distinguishable and were decided before the Court of Criminal
Appeals discarded the alternative reasonable hypothesis construct. Reyes also argues
that neither an accused’s presence at, nor flight from, the scene of a crime is sufficient
alone to support a guilty verdict. We agree with that general proposition, see, e.g., Sosa
v. State, 177 S.W.3d 227, 230 (Tex. App.—Houston [1st Dist.] 2005, no pet.); however,
Reyes v. State Page 6
there is more evidence to support Reyes’s conviction for murder than his mere presence
and/or flight from the scene of the crime.
Here, Shaw testified that Reyes had made threats against the Scorpions, had
shown him a revolver, and had hurriedly left to follow a motorcyclist the night of the
murder. There was also testimony that the murder victim was wearing a Scorpions vest
and belt when he was shot through the neck while riding his motorcycle a short
distance from the location where Shaw had encountered Reyes on the night of the
murder. Finally, Garcia testified that Reyes had confessed to her.
Reyes states that Garcia was biased and had a motive to lie, but the jury is the
exclusive judge of the facts, the credibility of the witnesses, and the weight to be given
to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston
[1st Dist.] 2003, pet. ref’d). As the reviewing court, we “should not substantially intrude
upon the jury’s role as the sole judge of the weight and credibility of witness
testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Here, by
finding Reyes guilty, the jury obviously relied on the State’s evidence and the
reasonable inferences therefrom and rejected Reyes’s argument. Viewing all the
evidence in the light most favorable to the verdict, we conclude that a rational trier of
fact could have found Reyes committed the offense of murder beyond a reasonable
doubt. We overrule Reyes’s third issue.
EXCUSAL OF JUROR/REPLACEMENT WITH ALTERNATE
In his first issue, Reyes contends that the trial court erred in releasing Juror No.
10 during the trial and allowing the trial to proceed.
Reyes v. State Page 7
Before the attorneys were given time to exercise their peremptory challenges, the
trial court indicated that they would be selecting two alternate jurors in addition to the
jury. Each side was then allotted ten peremptory challenges and an additional
“challenge of alternate.” The State exercised all ten of its peremptory challenges and
the “challenge of alternate.” The defense exercised its ten peremptory strikes but not its
“challenge of alternate.” The jury was then seated, and the trial court announced the
first and second alternate and told them that they needed to maintain their order. The
jury was sworn by the trial court before the reading of the indictment and entry of
Reyes’s plea.
After the fourth witness had testified, the trial court informed the attorneys that
Juror No. 10 felt like she could not continue because of back pain. The juror stated on
the record, “I’m sorry. I’ve been trying, but I’m trying to get in every comfortable
position I can, and it’s just -- it’s killing me.” The trial court gave the juror another chair
to sit in and attempted to continue the trial, but after a short time, the juror stated, “No,
it’s not going to work.” The following exchange then occurred:
THE COURT: All right. We’ve tried it with another chair or more
comfortable chair and [Juror No. 10] reports that she’s not going to be able
to continue. I’m going to -- and you don’t have any foreseeable idea of
when you might be able to continue, I suppose?
THE JUROR: It usually takes about three or four days to get out.
THE COURT: Takes about three or four days. All right. So I’m
going to declare the juror disabled and order the first alternate to take her
place. Anything else you guys want to put on the record?
[DEFENSE COUNSEL]: Your Honor, for the record, [Juror No. 10],
I’m in great sympathy with you. I have to object, Your Honor, to the
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Court’s ruling allowing [Juror No. 10] to be released. I have no doubt
about the legitimacy of her pain. However, it compromises the jury that
we worked pretty diligently to select. I believe that I’m required and
should object and request that the Court reconsider so that the original
jury be allowed to proceed.
THE COURT: All right.
[PROSECUTOR]: Your Honor, may I ask [Juror No. 10] a question?
THE COURT: Yes.
[PROSECUTOR]: [Juror No. 10], do you feel like the amount of
pain that you’re having will make it hard for you to listen to the evidence,
that you’ll be distracted by your pain and not able to pay attention to the
evidence and fully give your attention to these matters?
THE JUROR: Yes. It’s making me nauseated and everything the
pain is so bad in my back.
THE COURT: All right. Well, beyond that, I think it’s more a
physical thing that the juror is unable to continue. Holding this jury
together for another three or four days with the possibility that this juror
may recover will just cause additional problems with other jurors and
other possibilities of other problems with jurors’ families. And the Court
so rules the juror is disabled and excused.
Reyes first complains that the trial court erred because the record does not reflect
that the alternate juror was ever properly sworn. But Rule 44.2(c)(2) of the rules of
appellate procedure mandates that unless it was disputed in the trial court, or unless
the record affirmatively shows the contrary, we must presume that the jury was
properly impaneled and sworn. TEX. R. APP. P. 44.2(c)(2); see Osteen v. State, 642 S.W.2d
169, 171 (Tex. Crim. App. 1982). Here, Reyes did not object in the trial court that the
alternate juror was not properly sworn. Furthermore, nothing in the record
affirmatively shows that the alternate jurors were not sworn in with the rest of the jury.
Reyes v. State Page 9
We will thus presume that the alternate juror was properly sworn. See TEX. R. APP. P.
44.2(c)(2).
Reyes also complains that the trial court erred in excusing Juror No. 10 and
allowing the trial to proceed because, “[b]y removing a vital part of the original twelve
jurors, the Court allowed a breach of the sanctity of the jury chosen to try this case.” We
disagree.
“[A]fter the trial of any felony case begins and a juror dies or, as determined by
the judge, becomes disabled from sitting at any time before the charge of the court is
read to the jury, the remainder of the jury shall have the power to render the verdict.”
TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2010). However, if alternate
jurors have been selected, they, in the order in which they were called, shall replace a
juror who is found to be unable or disqualified to perform his or her duties. Id. art.
33.011 (West Supp. 2010). A juror is disabled only when he or she is physically,
emotionally, or mentally impaired in some way that hinders the juror’s ability to
perform his or her duty as a juror. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App.
1999). The determination as to whether a juror is disabled is within the discretion of the
trial court. Id.
Here, Juror No. 10 stated that the pain in her back was “killing” her and making
her nauseated. She also answered affirmatively when asked whether the pain would
make it hard for her to listen to the evidence, distract her, and make her unable to pay
attention to the evidence and fully give her attention to these matters. Thus, the trial
court did not abuse its discretion in determining that Juror No. 10 was disabled.
Reyes v. State Page 10
Furthermore, once Juror No. 10 was determined to be disabled and excused, the trial
court did not err in replacing her with the first alternate and allowing the trial to
proceed. See TEX. CODE CRIM. PROC. ANN. art. 33.011. We overrule Reyes’s first issue.
ADMISSION OF EXHIBITS
In his second issue, Reyes contends that the trial court erred in overruling his
objections to the introduction of State’s Exhibits 18, 19, 20, and 21 because verification of
the accuracy and fairness of the photographs had not taken place. We review a trial
court’s ruling on the admissibility of evidence under an abuse of discretion standard.
Kelley v. State, 22 S.W.3d 642, 644 (Tex. App.—Waco 2000, pet. ref’d).
Photographs are authenticated by the testimony of any witness who has personal
knowledge that the particular items accurately represent the scene or event which the
photographs purport to portray. TEX. R. EVID. 901. There is no requirement that the
witness took the photo, saw it taken, or was present when it was taken. Hughes v. State,
878 S.W.2d 142, 155 (Tex. Crim. App. 1992) (citing DeLuna v. State, 711 S.W.2d 44, 46
(Tex. Crim. App. 1986)). Any witness who observed the object or the scene depicted in
the photograph may lay the predicate. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim.
App. 1988).
Ellis County Sheriff’s Department investigator Phillip Slaughter testified that
State’s Exhibits 18, 19, 20, and 21 were aerial photographs of the area roadways, the bar,
and the residence where Owensby’s body was found. Although he acknowledged that
he did not take the photographs, Slaughter stated that the photographs were fair and
accurate representations of the scenes that they depicted. We thus conclude that the
Reyes v. State Page 11
trial court did not abuse its discretion in overruling Reyes’s objection and admitting
State’s Exhibits 18, 19, 20, and 21. See TEX. R. EVID. 901; Hughes, 878 S.W.2d at 155.
In addition to arguing that the exhibits were not properly authenticated, Reyes
also appears to argue in his second issue that the exhibits were improperly admitted
because their probative value was outweighed by the “inflammatory” and “harmful”
nature of the photographs. However, Reyes did not make such an objection in the trial
court; therefore, his complaint has not been preserved for review. See TEX. R. APP. P.
33.1(a). We overrule Reyes’s second issue.
Having overruled all of Reyes’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 30, 2011
Do not publish
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