Steve Lopez v. State ( 1999 )

No. 04-97-00855-CR

Steve LOPEZ, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 97-CR-3917 Honorable Pat Priest, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: January 27, 1999

AFFIRMED

Steve Lopez appeals from his conviction of murder. Following a trial to a jury, punishment was assessed at ninety-nine years imprisonment plus a $5000 fine. On appeal, Lopez complains about an evidentiary ruling and the trial court's failure to charge the jury on the defense of alibi.⁽¹⁾ Finding no error, we affirm the trial court's judgment.

Discussion

Lopez was indicted and tried for the murder of Jesse Watkins. The strength of the State's case was established by the testimony of two witnesses, Angela Stewart and Jesus Vargas. On the morning of May 8, 1996, Lopez, Stewart, Vargas, and Rudy Lopez went to Stewart's apartment where they found Watkins asleep in a chair in the living room. Stewart testified she left the living room area when she heard three or four gun shots fired. She ran back into the living room and saw Lopez fire three additional gun shots at Watkins. Vargas' testimony also placed Lopez at the crime scene with gun shots being fired. Vargas, who remained outside Stewart's apartment while the others went in, overheard Lopez tell Rudy that he was going to shoot Watkins. Rudy then suggested to Vargas that they leave. Heeding this advice, Vargas began to leave when he heard three gun shots fired. He then ran from the scene. The jury also learned that on the day of the murder Lopez confided in Virginia Nunez, a friend of his mother, that he had shot Watkins. Medical evidence established that Watkins died from seven gunshot wounds.

In his first point of error, Lopez contends the trial court improperly allowed Nunez to testify about the conversation she had with Lopez on the day of the murder. Lopez argues that Nunez's testimony was inadmissible hearsay pursuant to the Texas Rules of Evidence. We disagree. The incriminating statements about which Nunez testified were admissions from Lopez. Admissions of a party are not hearsay. Tex. Crim. Evid. 801(e)(2)(A) (Vernon Pamp. 1998); Barcenes v. State, 940 S.W.2d 739, 748-49 (Tex. App.--San Antonio 1997, pet. ref'd). Point of error number one is overruled.

Lopez next complains the trial court erred in refusing to charge the jury on the defensive issue of alibi. In support of this claim, Lopez relies upon testimony from his girlfriend and his sister that Lopez was at his sister's house at the time of the murder. Lopez's claim fails in light of the Court of Criminal Appeals' recent pronouncement on this issue in Giesberg v. State, No. 069-97, 1998 WL 670415 (Tex. Crim. App. Sept. 30, 1998). There, the court concluded that the defensive issue of alibi does not warrant a separate jury instruction because it "constitutes no more than a negation of an essential element of the State's burden of proof; specifically, that [the defendant] committed the offense at the alleged time and location." Id. at * 2. The court's conclusion was also supported by the observation that the Legislature has not made alibi a defense or an affirmative defense. Id. Thus, in accordance with Giesberg, we find that the trial court's failure to charge the jury on the defensive issue of alibi was not error. Point of error number two is overruled.

We grant counsel's motion to withdraw, and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

1. Lopez's court-appointed attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which she asserted that there are no meritorious issues to raise on appeal. Lopez, exercising his right to file a pro se brief, brings forward these points of error.

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