Michael Lozano v. State ( 2010 )

NUMBER 13-08-00180-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL LOZANO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION 1
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Michael Lozano appeals from his conviction for the offense of murder.
See TEX . PENAL CODE ANN . § 19.02 (Vernon 2003). The jury found Lozano guilty of the
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As this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite them
here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See T EX .
R. A PP . P. 47.4.
murder of Riko Rodriguez and assessed punishment, enhanced by a prior conviction for
robbery, at seventy-five years' confinement and a $10,000 fine. By eight issues, which we
characterize as four, Lozano complains of the following: (1) trial court error when the trial
court permitted the jury to take notes without following mandatory provisions set out by the
Texas Court of Criminal Appeals and when it did not charge the jury on the lesser-included
offense of manslaughter; (2) prosecutorial misconduct; (3) charge error which resulted in
less than a unanimous verdict; and (4) ineffective assistance of counsel.2 We affirm.
I. DISCUSSION
A. Trial Court Error
By his first issue, Lozano complains that the trial court erred when it permitted the
jury to take notes without following the provisions outlined in Price v. State. See 887
S.W.2d 949, 954-55 (Tex. Crim. App. 1994) (en banc). He also claims error when the trial
court did not charge the jury on the lesser-included offense of manslaughter. However, to
preserve such complaints, a timely objection must be made and, in the instance of the
lesser-included offense challenge, a request for its inclusion in the charge must also be
made. See TEX . R. APP. P. 33.1(a)(1); Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim.
2
Throughout his brief, Lozano uses language that suggests he is attem pting to bring an issue
challenging the sufficiency of the evidence. Lozano does not, however, support his contentions with clear and
concise argum ents or with appropriate citations to the record. T EX . R. A PP . P. 38.1(i); Rhoades v. State, 934
S.W .2d 113, 119 (Tex. Crim . App. 1996) ("It is incum bent upon counsel to cite specific legal authority and to
provide legal argum ent based upon that authority."). For exam ple, Lozano describes one issue, which he later
labels as two, as follows: "The jury verdict was against the great weight and preponderance of the evidence
based upon the facts of the case and based on the jury verdict which found the defendant guilty of two
contradictory m ethods of com m itting m urder." Lozano's discussion of this issue throughout his brief
addresses only charge error and unanim ity of the verdict, not the sufficiency of the evidence. Also, in a
com bined discussion of five of his eight listed issues, Lozano contends that "[t]he evidence is not factually nor
[sic] legally sufficient to support the jury's verdict." He provides basic propositions of law for reviewing
sufficiency challenges—legal sufficiency in this section and factual sufficiency in an earlier, unrelated section.
See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); W atson v. State, 204 S.W .3d 404,
417 (Tex. Crim . App. 2006) (factual sufficiency); Jackson v. State, 17 S.W .3d 664, 668-69 (Tex. Crim . App.
2000) (legal sufficiency). Again, however, Lozano provides no legal argum ent relevant to a sufficiency issue
that applies the applicable law to the facts of the case. Therefore, we conclude that this contention is
inadequately briefed. See T EX . R. A PP . P. 38.1(i); Tufele v. State, 130 S.W .3d 267, 271 (Tex. App.–Houston
[14th Dist.] 2002, pet. ref'd).
2
Ohio App. 2007) ("It is clear that the defense may not claim error successfully on appeal due to
the omission of a lesser[-]included offense if the defense refrained from requesting one.
Likewise, any error in the improper submission of a lesser[-]included instruction is waived
if the defense fails to object to the instruction.") (quoting 43 GEORGE E. DIX & ROBERT O.
DAW SON , Criminal Practice and Procedure § 36.50 at 202 (Supp. 2006)); Shannon v. State,
942 S.W.2d 591, 596 (Tex. Crim. App. 1996) (concluding that a challenge to jury
note-taking was not preserved for review where no objection was made); see also
Cervantes v. State, No. 13-03-394-CR, 2004 Tex. App. LEXIS 7442, at **7-8 (Tex.
App.–Corpus Christi Aug. 19, 2004, pet. ref'd) (mem. op., not designated for publication)
(same). Lozano concedes he did not object to the trial court's alleged failure to fully
comply with the cautionary steps listed in Price. And Lozano neither requested an
instruction on the lesser-included offense of manslaughter nor objected to the charge.
Thus, we conclude that the trial court did not err here. We overrule Lozano's first issue.
B. Prosecutorial Misconduct
Lozano contends, in his second issue, that he was denied his right to choose an
unbiased jury that would follow statutory law because, during voir dire, the prosecutor
asked questions of prospective jurors regarding their ability to consider the maximum range
of punishment without inquiring about their ability to consider the minimum range of
punishment. Lozano acknowledges that he did not object to this line of questioning.
Therefore, error by the State, if any, was not preserved. See TEX . R. APP. P. 33.1(a); Penry
v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (en banc) (per curiam) (concluding
that a prosecutorial misconduct complaint was not preserved for review due to appellant's
failure to object at the earliest possible moment); see also Halprin v. State, 170 S.W.3d
111, 119 (Tex. Crim. App. 2005) (determining that failure to object results in failure to
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preserve a complaint regarding an improper commitment question). We overrule Lozano's
second issue.
C. Jury Unanimity
In issue three, Lozano complains that the jury charge allowed him to be convicted
on less than a unanimous jury verdict because it was submitted on a general jury verdict
form and not on separate jury verdict forms for the two methods of committing the murder,
as charged in the indictment. See Luna v. State, 268 S.W.3d 594, 601 (Tex. Crim. App.
2008) (citing Ngo v. State, 175 S.W.3d 738, 745-46 (Tex. Crim. App. 2005) (en banc)).
Specifically, he argues that he was deprived of his constitutional right to a unanimous jury
verdict because the jury had the following multiple options to choose from in deciding
whether he committed murder: (1) shooting Rodriguez; (2) intending to cause serious
bodily injury to Rodriguez and committing an act clearly dangerous to human life; (3)
promoting or assisting the commission of the offense by Steven Ray Perez; or (4)
encouraging, directing, aiding, or attempting to aid Perez in one of the two manners of
murder under the law of parties. Lozano also appears to raise charge error on the basis
that he could not be found guilty of what he describes as two contradictory methods or
manners of committing murder.
When addressing a claim of jury charge error, an appellate court must first
determine whether error actually exists in the charge. Druery v. State, 225 S.W.3d 491,
504 (Tex. Crim. App. 2007); Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)
(en banc); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc). Only
when there is jury charge error do we determine if the error caused sufficient harm to
warrant reversal. Hutch, 922 S.W.2d at 170-71; Almanza, 686 S.W.2d at 171.
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The indictment in this case contained the following two separate paragraphs within
a single count:
Count 1, Paragraph 1
MICHAEL LOZANO, defendant,
on or about DECEMBER 2, 2006, in Nueces County, Texas, did then and
there intentionally and knowingly cause the death of an individual, RIKO
RODRIGUEZ, by shooting [sic] with a firearm,
Count 1, Paragraph 2
MICHAEL LOZANO, defendant,
on or about DECEMBER 2, 2006, IN Nueces County, Texas, did then and
there with the intent to cause serious bodily injury to an individual, RIKO
RODRIGUEZ, do the act of shooting him with a firearm; that this act was
clearly dangerous to human life; and that this act caused the death of RIKO
RODRIGUEZ[.]
It is clear that the indictment alleged alternative theories of committing the same offense.
The jury charge set out that Lozano "stands charged by indictment with the offense
of MURDER." In its charge, the trial court instructed the jury that the "law provides that 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." Moreover, the sixth
application paragraph of the trial court's charge tracked the language of the indictment,
presenting it in the disjunctive as follows:
Now, if you find from the evidence beyond a reasonable doubt that on
or about December 2, 2006, in Nueces County, Texas, the defendant,
MICHAEL LOZANO, did then and there intentionally or knowingly cause the
death of an individual, Riko Rodriguez, by shooting him with a firearm;
OR
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Now, if you find from the evidence beyond a reasonable doubt that on
or about December 2, 2006, in Nueces County, Texas, the defendant,
MICHAEL LOZANO[,] did then and there, with the intent to cause serious
bodily injury to an individual, Riko Rodriguez, do the act of shooting him with
a firearm; that this act was clearly dangerous to human life; and that this act
caused the death of Riko Rodriguez, then you will find the defendant guilty
of murder, as charged in the indictment.
The jury returned a general verdict finding Lozano "guilty of MURDER, as alleged in the
indictment." (Emphasis in original.)
In reviewing a disjunctive jury charge, we first determine whether the application
paragraphs contain different criminal acts or whether they merely instruct as to different
means of committing a single offense. Holford v. State, 177 S.W.3d 454, 461 (Tex.
App.–Houston [1st Dist.] 2005, pet. ref'd). If the disjunctive paragraphs merely inform the
jury of different means of committing a single offense, then the jury does not have to
unanimously agree on which alternative means the defendant used to commit the offense.
Id. at 462 (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (en
banc)); see also Cavazos v. State, No. 13-04-00325-CR, 2007 Tex. App. LEXIS 7174, at
**26-27 (Tex. App.–Corpus Christi Aug. 30, 2007, pet. ref'd) (mem. op., not designated for
publication) ("When alternative theories of committing the same offense are submitted to
the jury in the disjunctive, it is appropriate for the jury to return a general verdict if the
evidence is sufficient to support a finding under any of the theories submitted.").
In this case, the trial court's charge does not authorize the jury to convict Lozano of
different criminal acts. Each application paragraph defines the criminal act, i.e., causing
Rodriguez's death by shooting him. The application paragraphs at issue merely inform the
jury of different means of committing a single murder offense and not of two contradictory
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methods or manners of committing murder as Lozano suggests. See Kitchens, 823
S.W.2d at 258; Holford, 177 S.W.3d at 462-63.
Lozano also contends that the verdict may not have been unanimous because the
charge included paragraphs on the law of parties, giving the jury even more options to
chose from in deciding whether Lozano committed murder. The jury was instructed on the
law of parties, as Lozano states. However, alternate theories of party liability in the trial
court's charge are merely alternate methods or means by which an appellant may have
committed the one charged offense. Hanson v. State, 55 S.W.3d 681, 694 (Tex.
App.–Austin 2001, pet. ref'd). A general verdict form was proper. See id. at 694-95.
We conclude no charge error exists in this case. See Druery, 225 S.W.3d at 504.
The jury's general verdict did not violate the unanimous verdict requirement. See Luna,
268 S.W.3d at 601 (citing Kitchens, 823 S.W.2d at 258 (upholding a general verdict for one
offense with varying theories of commission)). We overrule Lozano's third issue.
D. Ineffective Assistance of Counsel
In his fourth issue, Lozano complains of ineffective assistance of counsel. He
specifically asserts that counsel was ineffective because he (1) did not object to the
prosecutor's voir dire questions regarding only maximum sentences and not minimum
sentences, and (2) did not request that the jury be charged on the lesser-included offense
of manslaughter.3 However, Lozano does not develop these complaints. See TEX . R. APP.
38.1(i); see also Mercado v. State, No. 13-07-00492-CR, 2009 Tex. App. LEXIS 3141, at
3
As a separate contention, Lozano asserts that he was denied counsel or that his counsel was
ineffective during the punishm ent hearing "because his counsel did not know what m urder charge the jury
found him guilty for." W e are not persuaded by this argum ent because the record does not reflect that
counsel did not know of the crim e of which Lozano was convicted. Rather, Lozano's trial counsel inform ed
the jury that he did not "know for sure upon what theory [the jury] convicted [Lozano,] and therefore it was
difficult for him to recom m end punishm ent."
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**13-14 (Tex. App.–Corpus Christi May 7, 2009, no pet.) (mem. op., not designated for
publication) (concluding that the appellant did not provide a clear and concise argument
with citation to proper authority to support his allegation of ineffective assistance).
Furthermore, allegations of ineffective assistance must be firmly rooted in the record. In
re E.M.R., 55 S.W.3d 712, 719 (Tex. App.–Corpus Christi 2001, no pet.) (en banc).
Because the record does not demonstrate counsel's reasons for his decisions regarding
his complained-of actions or his failure to act, Lozano has failed to overcome the
presumption that trial counsel's decisions were made in the exercise of sound trial strategy.
See id.; Jaynes v. State, 216 S.W.3d 839, 855 (Tex. App.–Corpus Christi 2006, no pet.);
see also Mercado, 2009 Tex. App. LEXIS at *14 (citing Lopez v. State, 838 S.W.2d 758,
759 (Tex. App.–Corpus Christi 1992, no pet.)) (holding that to forego requesting a
lesser-included-offense instruction in favor of seeking a full acquittal on the charged
offense is a reasonable trial strategy and therefore not ineffective assistance of counsel).
We overrule Lozano's fourth issue.
II. CONCLUSION
Having overruled all issues, we affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the 4th
day of February, 2010.
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