Gilbert Chapoy v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-051-CR





GILBERT CHAPOY,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF RUNNELS COUNTY, 119TH JUDICIAL DISTRICT

NO. 3965, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING

Appellant Gilbert Chapoy appeals his conviction for murder. Tex. Penal Code Ann. § 19.02(a)(1) (West 1989). The jury found appellant guilty and assessed his punishment at sixty years' imprisonment.

Appellant advances nine points of error. Two of the points challenge the sufficiency of the evidence to sustain the conviction. Appellant also complains of the admission of an autopsy report and of evidence of extraneous matters not connected with him. In addition, appellant urges that the trial court erred in failing to submit a specific issue to the jury at the penalty stage of the trial as to a deadly weapon finding, in failing to submit charges on the lesser included offenses of simple and aggravated assault, and in failing to submit "a defensive theory" to the jury in the court's charge. Appellant further complains that the trial court failed to disqualify the prosecutor. In the last point of error, appellant claims a violation of Batson v. Kentucky, 476 U.S. 79 (1986), and includes a complaint that "the jury make-up was not racially representative" in violation of the Sixth Amendment to the United States Constitution. We will affirm the conviction.

The indictment alleged in pertinent part that on or about July 22, 1991, appellant:

did then and there intentionally and knowingly cause the death of an individual, to wit: Gilbert Cortez, by strangling the said Gilbert Cortez with a deadly weapon, to wit: a necktie, which in the manner of its use and intended use was capable of causing death and serious bodily injury.

The deceased, Gilbert Cortez, worked at a grocery store in Coleman County. On July 22, 1991, Cortez left the store in the company of an older Hispanic woman in her "mid-fifties." The woman introduced herself as Cortez's mother to fellow employees. Cortez later introduced her as his aunt. Edmund Ludlow, assistant store manager, placed Cortez's departure at 1:00 or 1:30 p.m., on July 22, 1991. Denver Louis Fulbright, another store employee, stated that Cortez and the woman left the store about 6:00 p.m. Cortez was not seen again by the store's employees. On September 6, 1991, Cortez's body was found in an abandoned refrigerator on a farm in Runnels County with a necktie pulled tight around his neck.

Jesse Cortez, father of the deceased, testified that he never saw his son alive after July 22, 1991. He revealed that his son had a tattoo "Berta" on his left arm. Jesse acknowledged that for two years or so, he lived "off and on" with Dominga Fernandez, mother of the appellant. ⁽¹⁾ He terminated that relationship in May or June of 1991. Jesse Cortez revealed that he had married Mona Green on July 20, 1991.

Linda Fernandez, sister of appellant, testified that Jesse Cortez was her "step-dad at one time"; ⁽²⁾ that he and her mother, Dominga, lived together for about four years; and that they separated in the middle of July 1991. Linda stated that on July 22, 1991, she visited Jesse Cortez at his place of employment in Coleman. He told her at that time he had gotten married a few days earlier. She testified that she told her mother about Jesse's marriage the next day, July 23, 1991. She claimed that her earlier written statement reflecting that she told her mother about the marriage on July 22, 1991, was incorrect.

Patrick Lange related that he was driving on Highway 67 into Ballinger in Runnels County on the night of July 22, 1991, about 9:00 p.m. As Lange crossed the Elm Creek bridge, he saw one man kneeling over another man. The kneeling man seemed to say "Help" or "Stop." Lange immediately reported the matter to the Ballinger Police Department.

Dolores Guebarra lived at 202 Second Street in Ballinger just off Highway 67. She knew Dominga Fernandez and was familiar with the gray four-door car that Dominga drove in July 1991. Guebarra testified that on the night of July 22, 1991, she and her husband were sitting in their yard when they heard gunshots, possibly .22 caliber gunshots. Later, she observed a car drive up to the Elm Creek bridge and saw a man come limping out from under the bridge. The injured man scuffled with a man who had gotten out of the car. The injured man was then placed in the car, which was like the one owned by Dominga Fernandez, and the car was driven off.

Ballinger Police Officer Stephen Gray responded to a report of an altercation at the Elm Creek bridge about 9:22 p.m. on July 22, 1991. Gray found a "volley-ball sized" spot of blood on a curb near the bridge and followed blood droplets back to the bridge and down First Street. Officer Gray found some .22 caliber shells and the box in which they had apparently been. Gray obtained a specimen of the blood found, but it was later discarded without any determination of whether the blood was of human origin.

Harry Cowan testified that he owned a farm in Runnels County outside of Ballinger and described its location. On the property at the time that he purchased it was an abandoned freezer. In July 1991, Cowan noticed that a come-along and cable or chain had been wrapped around the freezer. He was on jury duty at the time and did not investigate. About September 6, 1991, he removed the come-along, opened the freezer and discovered a body. Deputy Sheriff Quentin Watkins went to the Cowan farm on September 6, 1991. He observed the body in the freezer with a necktie pulled tight around the neck.

Dr. Vincent Di Maio, Bexar County Chief Medical Examiner, performed an autopsy on the body. The left arm bore a tattoo, "Berta." The cause of death was ligature strangulation. In the doctor's opinion, the necktie was the ligature that caused the death. There was blood on the front of the clothing, indicating an injury. An examination of the body and x-rays failed to reveal any gunshot wounds. Glenn Unnasch, a fingerprint examiner with the Department of Public Safety, confirmed the identity of the body as found in the freezer or refrigerator as that of Gilbert Cortez.

Deputy Sheriff Keith Collum testified that on September 6, 1991, he executed a search warrant and seized a chain from the trunk of the 1984 Oldsmobile automobile belonging to Dominga Fernandez. Chemist Keith Roberson with the Texas Department of Public Safety testified that the seized chain and the come-along found on the freezer both had reddish-brown paint on them which tests showed could have come from the same source. Human blood found in the front and back seats of the Oldsmobile was not typed.

Kenneth Drake, general manager of the Ballinger Co-Op Gin Company, testified at the October 1992 trial that appellant had worked at the company two or three years before the trial; that Clemente Nava, a half-brother of appellant, still worked there; and that the company used "a lot of come-alongs to pull pipe together, move equipment and a number of things." Drake explained that come-alongs often broke in the hinge area "because we put too much pressure on them." He stated that his company painted the come-alongs with yellow paint so that they could be seen in the dark. When shown the come-along taken from the freezer, Drake observed that it appeared to be broken "kind of like what we normally break them"; and that while the come-along had been repainted, underneath the newer paint appeared the color his company used, at least, that was his impression when the exhibit was examined in the daylight. He could not, however, be positive the come-along was from his company.

Marcus Guerrero testified that in the summer of 1991, appellant asked him how to get rid of a body. Appellant told Guerrero that appellant had killed a "wetback," and that "they had put it in a refrigerator." Later, while seeking a hay hauling job, Guerrero and appellant drove past a farm in Runnels County described as being in the general location of the Cowan farm. At the farm there was a police car, cameras and cameramen. Guerrero's wife, who also was riding in the truck, asked what was happening. Appellant replied that he had killed a deer there. Guerrero's wife responded that there was no point in having "a cop and cameras for a deer." After discovering the hay hauling job had already been completed, the group retraced the same route. The "cop car" and cameras were still at the small farm. Guerrero's wife repeated her earlier remarks, to which appellant responded that he had killed "a special deer" there.

Sammy Joe Lopez was acquainted with appellant. While in the county jail with appellant in September 1991, Lopez asked appellant why appellant "had done it." Appellant said it was because the deceased "was messing with his mom." Appellant told Lopez that appellant's mother was "there" at the time. Lopez had been to prison three times and acknowledged that he had a number of convictions and arrests.

Clyde Fay, a Texas prison inmate, testified that he was returned from Illinois and placed in the same cell with appellant in November 1991. Fay did not know appellant and had not heard of the alleged offense. Appellant told Fay that he had killed a man and placed him in an icebox with a come-along. Appellant gave a reason for the killing, but Fay could not recall whether it was for money "or his mom." Fay claimed appellant indicated that his mother was involved. Later, appellant accused Fay of being a snitch and threatened "that he would do me like he done him."

Nick Mata was the only defense witness. He testified that the deceased dated and lived with Mata's married sister, Margie Galvan. Mata did not know of any problems between Margie's husband, Aldo Galvan, and the deceased. Mata did know that Aldo lived in Runnels County in July 1991.

Initially, appellant contends that the State failed to prove the murder occurred in Runnels County as alleged. Venue means the place where the case may be tried. Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App. 1980). While it must be established, venue is not a "criminative fact" and thus is not an essential element of the offense. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981); Edwards v. State, 427 S.W.2d 629, 636 (Tex. Crim. App. 1968). It is only necessary to prove venue by a preponderance of evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (West 1977); Cunningham v. State, 848 S.W.2d 898, 902 n.1 (Tex. App.--Corpus Christi 1993, pet. ref'd). Venue may be established by direct or circumstantial evidence. Edwards, 427 S.W.2d at 636; Gill v. State, 646 S.W.2d 532, 533 (Tex. App.--Houston [1st Dist.] 1982, no pet.). Article 13.07 of the Texas Code of Criminal Procedure provides: "If a person receives an injury in one county and dies in another by reason of such injury, the offender may be prosecuted in the county where the injury was received or where the death occurred, or in the county where the dead body is found." Tex. Code Crim. Proc. Ann. art. 13.07 (West 1937) (emphasis supplied). The county in which the murder victim's body is found is a proper venue for a murder trial. Boyle v. State, 820 S.W.2d 122, 140 (Tex. Crim. App. 1989), cert. denied, 112 S. Ct. 1297 (1992). In the instant case, appellant timely raised the issue of venue by a motion for an instructed verdict. Cunningham, 848 S.W.2d at 902. However, the undisputed evidence shows that the body of the deceased was found in Runnels County. Venue was sufficiently established. Point of error one is overruled.

In point of error two, appellant continues his attack upon the sufficiency of the evidence. We need not reiterate the testimony. Appellant urges that the State failed to prove that the deceased was strangled as alleged in the indictment. Dr. Di Maio testified that the cause of death was strangulation by a ligature which in the instant case was a necktie with a knot. The doctor explained that strangulation with a ligature occurs when the ligature is tightened around the neck cutting or tying off the carotid arteries which carry blood and oxygen to the brain. The person becomes unconscious within seconds and soon stops breathing. Dr. Di Maio pointed out that strangulation by a ligature does not cut off the airway, but ties off the two blood vessels. Appellant misreads the doctor's testimony in urging his contention.

A necktie is not a deadly weapon per se but can qualify as one through the manner of its use or intended use. See Tex. Penal Code Ann. § 1.07(a)(11) (West 1974); cf. Morales v. State, 792 S.W.2d 789, 790 (Tex. App.--Houston [14th Dist.] 1990, no pet.) (holding that hands and the deceased's underpants were "deadly weapons" from the manner of their use). The testimony from Dr. Di Maio was sufficient evidence from which a rational trier of fact could have found that the necktie and its knot was used as a ligature and was a deadly weapon.

While appellant was not shown to have participated in the disappearance of the deceased or been placed in the company of the deceased on or about July 22, 1991, the record contained admissions against interest. Appellant told Guerrero that he had killed a "wet-back" and asked how to dispose of a body which had been placed in a refrigerator. Later, appellant told Guerrero that he had killed a "special deer." Appellant told Fay that he had killed a man and placed him in an ice box. To Lopez, appellant confessed that he had committed the offense with which he was charged because the deceased "was messing with his mom." Cortez's body was found in a freezer.

The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art 38.04 (West 1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury is free to accept or reject any or all of the evidence presented by either party. Id.; Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Reconciliation of evidentiary conflicts is solely a function of the trier of fact. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Appellate review of the legal sufficiency of the evidence is limited to determining whether, in the light most favorable to the jury's verdict, a rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990). The standard of review is the same in both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991); Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990). It is not the reviewing court's duty to disregard, realign or weigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, an appellate court is not in a position to reverse the judgment on sufficiency of evidence grounds. Jackson, 443 U.S. at 319; Glass v. State, 761 S.W.2d 806, 807 (Tex. App.--Houston [1st Dist.] 1988, no pet.); see also Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Point of error two is overruled.

In point of error three, appellant complains of the admission into evidence, over objection, of the autopsy report during the testimony of Dr. Vincent Di Maio. The Bexar County Medical Examiner testified that he performed the autopsy on the body of the deceased, personally prepared the autopsy report, and he was not a member of law enforcement. Dr. Di Maio related that he worked under the direction of the Bexar County Commissioners' Court at the Forensic Science Center, and not for any law enforcement agency. He explained that when another county or jurisdiction requested an autopsy, it would be "a fee for service" at a set rate which would be paid to Bexar County. ⁽³⁾

In Cole v. State, 839 S.W.2d 798, 807 (Tex. Crim. App. 1990), the Court of Criminal Appeals held that the report of a nontestifying Department of Public Safety chemist was a matter observed by law enforcement personnel and was therefore not admissible under Rules 803(8)(B) or 803(6) as exceptions to the hearsay rule either as a public record or as a business record. Tex. R. Crim. Evid. 803(6), 803(8)(B); see also Davenport v. State, 856 S.W.2d 578 (Tex. Crim. App. 1993).

An autopsy report by a medical examiner is a public record. Tex. Code Crim. Proc. Ann. art. 49.01(1) (West Supp. 1994). Medical examiners are not generally considered "other law enforcement personnel" for purposes of exclusion under the public record hearsay exception, and thus autopsy reports are admissible under the hearsay exception for public records in view of the fact that, even though autopsy reports are partially subjective, they are generally prepared by officials with no motive to fabricate results of reports and that autopsy reports are not prepared in an adversarial context. Garcia v. State, 868 S.W.2d 337, 341-42 (Tex. Crim. App. 1993). In light of Garcia and the particular circumstances of the instant case, including the fact that the testifying witness performed the autopsy and executed the report in question, Cole and its progeny are not controlling. We conclude that the autopsy report was admissible as an exception to the hearsay rule as a public record and a business record as well. ⁽⁴⁾ Other complaints about the admission of the autopsy report are asserted on appeal, but are not properly briefed as required. See Tex. R. App. P. 74(f). Nothing is presented for review on these matters. Point of error three is overruled.

In the fourth point of error, appellant contends that the trial court abused its discretion in not disqualifying assistant district attorney Kenneth Slimp from participating in the case "after objection and request of appellant." Appellant filed a written motion to disqualify prosecutor Slimp, alleging that Slimp, while in private practice, had represented him in a prior felony case in which probation had been granted. In his brief, appellant refers us only to the motion in the transcript. We do not find that the motion was ever presented to the trial court, that a hearing was held, or that a ruling was secured. The motion did not prove itself. We have failed to find any objection as claimed by appellant. See Tex. R. App. P. 52(a). The question of prosecutorial disqualification was never presented to the trial court and nothing was preserved for review. Worthington v. State, 714 S.W.2d 461, 465 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd). The record does not contain any showing that the prosecutor received any confidential information harmful to appellant's instant case by virtue of the prosecutor's earlier representation of appellant, if that fact were true. Id.; see also Munguia v. State, 603 S.W.2d 876, 878-79 (Tex. Crim. App. 1980). Point of error four is overruled.

In his fifth point of error, appellant claims that the trial court erred in refusing to submit, upon request, at the penalty stage of the trial a special issue as to whether a deadly weapon was used as alleged. At the guilt stage of the trial, the jury returned the following verdict:

We, the jury, find the defendant guilty of the offense of murder a felony of the first degree by intentionally or knowingly causing the death of Gilbert Cortez by strangling the said Gilbert Cortez with a deadly weapon, to-wit: a necktie, which in the manner of its use and intended use was capable of causing death or serious bodily injury, as charged in the indictment.

The jury verdict constituted an affirmative finding of the use of a deadly weapon. Tex. Code Crim. Proc. Ann. art. 42.12, § 3(a)(2) (West 19 ); Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). There was no error in the trial court's refusal to submit a special issue on the use of a deadly weapon at the penalty stage of trial. Point of error five is overruled.

In the sixth point of error, appellant claims that the trial court "failed to exclude inadmissible evidence offered by Lange and Guebarra over objection as same was not connected to defendant or any issue in the case." There was no objection to Patrick Lange's testimony when it was offered, despite appellant's assertion to the contrary. ⁽⁵⁾ In fact, a photograph, State's Exhibit Two, was sponsored by Lange. When the exhibit was offered, appellant's counsel expressly stated; "No objection." No error as to Lange's testimony has been preserved for review. Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103(a)(1); Drew v. State, 743 S.W.2d 379, 389 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986 (1988).

The bulk of Mrs. Guebarra's testimony was presented before appellant objected on the grounds now asserted on appeal. The objection was not timely. There was no motion to strike and no request for the jury to be instructed to disregard. In the case of oral testimony, as here, the objection must precede the witness's answer or answers in order to be timely. See Guzman v. State, 521 S.W.2d 267, 269 (Tex. Crim. App. 1975). To preserve error in the admission of evidence, Rule 103(a)(1) requires a timely and specific objection and a timely motion to strike. Tex. R. Crim. Evid. 103(a)(1); 1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Guide To The Texas Rules of Evidence: Civil and Criminal § 103.2 at 18 (Tex. Practice 2d Ed. 1993).

As to the balance of Mrs. Guebarra's testimony, after appellant's objection was overruled, appellant has not shown how his substantial rights have been affected ⁽⁶⁾ or how the trial court abused its discretion in admitting the testimony. See Tex. R. App. P. 74(f).

The trial court has broad discretion in determining the admissibility of evidence and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. See Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991), cert. denied, 114 S. Ct. 101 (1993). Questions of relevancy should be left largely to the sound discretion of the trial court, relying on its own observations and experience. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 19 ), cert. denied, 114 S. Ct. 445 (1993); McKee v. State, 855 S.W.2d 89, 91 (Tex. App.--Houston [14th Dist.] 1993, no pet.). If it can be argued that the trial court abused its discretion in admitting the balance of Mrs. Guebarra's testimony after the objection, we conclude that the error was harmless error beyond a reasonable doubt. Tex. R. App. P. 81(b)(2); Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989). Point of error six is overruled.

In point of error seven, appellant complains that the trial court "erred in failing to give requested issues on simple assault and aggravated assault based on evidence admitted from Lange and Guebarra over objection." In order to determine whether a charge on a lesser included offense is required, we must apply a two-pronged test. Dowden v. State, 758 S.W.2d 264, 268 (Tex. Crim. App. 1988); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981); see also Tex. Code Crim. Proc. Ann. art. 37.09 (West 1981). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser included offense. Ross v. State, 861 S.W.2d 870, 876 (Tex. Crim. App. 1992); Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992); Royster, 622 S.W.2d at 446. As to this second requirement of the so-called Royster test, there must exist in the record evidence that would permit a jury to rationally find the defendant guilty of the lesser offense. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).

To determine the necessity of a lesser included offense instruction, consideration of all the evidence at trial is required. Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1989) (op. on rehearing); Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). The issue of a lesser included offense can be raised from any evidentiary source, even if weak or contradicted. Gold v. State, 736 S.W.2d 685, 688 (Tex. Crim. App. 1987); see also Saunders v. State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992). It has been held, however, that isolated facts cannot be taken out of context in the record in order to justify a submission of a lesser included offense instruction. Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993); Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986). The necessity of the charge must be determined upon a case-by-case basis after considering all of the evidence. Dowden, 758 S.W.2d at 269.

We need not determine if the first prong of the Royster test has been met. ⁽⁷⁾ This is so because there is no evidence in the record permitting a rational jury to conclude that if appellant is guilty, he is guilty only of the lesser offenses of aggravated assault or simple assault. Appellant relies upon the testimony of Lange and Guebarra to justify the submission of the lesser offenses. Their testimony did not connect appellant to the actions they described. Adding the balance of the evidence, the second prong of the Royster test was not met. The trial court did not err in failing to respond to appellant's requested charges. Point of error seven is overruled.

Appellant's eighth point of error contends that the trial court "erred in failing to give requested issue submitting a defensive issue that was raised by evidence that Defendant may have plotted to dispose of body and thus had a part in such illegal act thus committing separate offenses which would permit alternative to aggravated murder." Appellant's motion for new trial was overruled by operation of law. Tex. R. App. P. 31(e). Appellant directs our attention to one page in his new trial motion where he complains of the trial court's failure "to submit an alternate theory of defense of obstruction of justice." The entire argument presented in appellant's brief reads:

This failure to submit requested defensive theory of Defendant's involvement in Runnels County with Cortez's body and the deep freeze was particularly aggravated by the Court's denial of separate issues on affirmative weapon finding, and lesser included offenses, and when taken together, Defendant was denied Constitutional guarantees of the 5th, 8th, and 14th amendments.

A page by page examination of the record reveals a request for an instruction on "obstruction of justice," but we have been unable to determine from the record or the appellate brief just what instruction appellant felt he was entitled to under the evidence presented. The authorities cited are not in point. The briefing requirements have not been met. See Tex. R. App. P. 74(d), (f). Nothing is presented for review. Point of error eight is overruled.

Lastly, appellant complains that the jury make-up was not racially representative and was not a fair cross-section of the community thus violating his rights under the federal constitution. Appellant cites Batson v. Kentucky, 476 U.S. 79 (1986); Taylor v. Louisiana, 419 U.S. 522 (1975); and Holland v. Illinois, 493 U.S. 474 (1990). Appellant refers to this ninth point of error as a "two-prong objection." Appellant's point of error is multifarious and normally presents nothing for review. Adkins v. State, 764 S.W.2d 782, 785 (Tex. Crim. App. 1988); Cuevas v. State, 742 S.W.2d 331, 335 n.4 (Tex. Crim. App. 1987), cert. denied, 485 U.S. 1015 (1988); Miranda v. State, 813 S.W.2d 724, 740 (Tex. App.--San Antonio 1991, pet. ref'd). By combining more than one legal theory in a single point of error, an appellant risks rejection on the ground that nothing is presented for review. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 2816 (1991). Where, however, separate references to the record regarding each contention are made, a multifarious point of error may be required to be reviewed. Armstrong v. State, 845 S.W.2d 909, 910 (Tex. Crim. App. 1993); see also Imo v. State, 822 S.W.2d 635 (Tex. Crim. App. 1991); Davis v. State, 817 S.W.2d 345 (Tex. Crim. App. 1991). In any event, we shall attempt to untangle appellant's point of error. Sterling, 800 S.W.2d at 521.

The Sixth Amendment to the United States Constitution entitles every defendant to object to a venire that is not designed to represent a fair cross-section of the community. Holland, 493 U.S. at 477. To establish a prima facie violation of the Sixth Amendment's fair cross-section requirement, a defendant must demonstrate that: (1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in the venire from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation is due to the systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364 (1979).

While appellant's counsel attempted to show the number of Hispanics in the county, he offered no evidence that the underrepresentation of Blacks or Hispanics was due to the systematic exclusion of those groups in the jury selection process. Accordingly, the trial court did not err in failing to discharge the venire. See May v. State, 738 S.W.2d 261, 268-69 (Tex. Crim. App.), cert. denied, 484 U.S. 872 (1987); Rodriguez v. State, 832 S.W.2d 727, 728 (Tex. App.--Houston [1st Dist.] 1992, no pet.). Moreover, a defendant does not have a Sixth Amendment right to a petit jury representing a fair cross-section of the community. Seubert v. State, 787 S.W.2d 68, 70 (Tex. Crim. App. 1990); Weaver v. State, 823 S.W.2d 371, 372-73 (Tex. App.--Dallas 1992, pet. ref'd).

As to appellant's claim of a Batson violation of purposeful discrimination by the State's use of peremptory challenges, appellant does not tell us which prospective jurors were improperly challenged nor does he contest the reasons given for striking the venirepersons. The State contends that it struck only one Black, Owens, and only one Hispanic, Armendariz. Owens was challenged because he was the uncle of a man previously convicted and sent to prison, and who was now under indictment in an adjoining county for two new offenses. Owens himself was suspected of being involved with his nephew in drug offenses. The arrest or conviction of a venireperson's relative is a race-neutral explanation for striking that venireperson. See Munson v. State, 774 S.W.2d 778, 779-80 (Tex. App.--El Paso 1989, no pet.); Perry v. State, 770 S.W.2d 950, 952 (Tex. App.--Fort Worth 1989, no pet.); Wilson v. State, 769 S.W.2d 682, 683 (Tex. App.--Beaumont 1989, no pet.).

Armendariz was peremptorily challenged because the prosecutor, Ken Slimp, had represented Armendariz's ex-husband in a custody suit over the Armendariz children. We conclude that this was a race-neutral reason for the exercise of the challenge. The standard of review for claims that the State used peremptory strikes in a racially discriminatory manner is the "clearly-erroneous" standard. Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992); Whitsey v. State, 796 S.W.2d 707, 728 (Tex. Crim. App. 1989) (op. on rehearing). This standard accords great deference to the trial court's findings. The evidence is viewed in the light most favorable to the trial court's ruling. Whitsey, 796 S.W.2d at 721. There was no violation of the "clearly erroneous" standand. Point of error nine is overruled.

The judgment is affirmed.

John F. Onion, Jr., Justice

Before Justices Kidd, B. A. Smith and Onion^*

Affirmed

Filed: June 22, 1994

Do Not Publish

^* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1. ¹  Neither Ludlow nor Fulbright was able to identify Dominga Fernandez as the Hispanic woman with whom Gilbert Cortez left the store.

2. ²  Linda Fernandez also referred to the deceased as her "stepbrother at one time."

3. ³  Dr. Di Maio explained that he performed private autopsies at the set rate if the family of the deceased requested it. He had testified for the defense in some cases, and stated that he was not under the supervision of any district attorney or law enforcement official.

4. ⁴  We are aware that a petition for discretionary review has been granted in Aguilar v. State, 850 S.W.2d 640 (Tex. App.--San Antonio 1992, pet. granted). In light of Cole, Aguilar held that the report of a nontestifying chemist from the Bexar County Medical Examiner's office was inadmissible. We do not conclude that Aguilar calls for a different result here.

5. ⁵  Assertions in appellate briefs not supported by the record will not be accepted as fact. Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex. Crim. App. 1981); Miranda v. State, 813 S.W.2d 724, 738 (Tex. App.--San Antonio 1991, pet. ref'd).

6. ⁶  See Tex. R. Crim. Evid. 103(a)(1).

7. ⁷  Aggravated assault may be, but is not necessarily, a lesser included offense of murder. Dewberry v. State, 743 S.W.2d 260, 266 (Tex. App.--Dallas 1987), reversed on other grounds, 776 S.W.2d 589 (Tex. Crim. App. 1989); see also Dowden, 758 S.W.2d at 269.