Barrera v. State

ADRIAN BARRERA, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-13-00349-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

January 21, 2016

On appeal from the 138th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides

Appellant Adrian Barrera appeals his conviction for murder, a first-degree felony, and corresponding sentence of twenty-five years' imprisonment. See TEX. PENAL CODE ANN. § 19.02(b). By eight issues, which we re-order and treat as six issues, Barrera asserts that: (1) the evidence is insufficient to prove that he acted intentionally; (2) the jury charge was erroneous; (3) the trial court erred by not allowing his expert witness to testify; (4) his Sixth Amendment right to an impartial jury was denied because the voir dire panel was improperly informed on the range of punishment; (5) the State committed error during the punishment phase of trial by commenting on his right to remain silent during the guilt-innocence phase of trial; and (6) the trial court erred by not sua sponte recusing itself from this case. We affirm.

I. BACKGROUND

On November 12, 2011, Harlingen police officers were dispatched to a shooting on Knox Avenue. Upon their arrival, officers discovered twenty-seven-year-old Ramiro Barron II's body lying "motionless" and "unresponsive" on the curb of the street. Barron was later pronounced dead at Valley Baptist Medical Center. Forensic pathologist, Elizabeth Miller, M.D., conducted an autopsy and found two gunshot entrance and exit wounds on Barron's body. Dr. Miller further testified that Barron had another wound on his body from a "grazed gunshot." Dr. Miller opined that Barron died from a gunshot wound to the abdomen.

At the scene, police recovered three .40 caliber shell casings. Additionally, police received information that a Chevrolet pickup with a "tool box in the bed" and "aftermarket fog lights on the front" of the vehicle was involved in the shooting. Utilizing traffic cameras in the area, police identified and located a vehicle matching the description at twenty-six-year-old Barrera's residence in Rio Hondo. Harlingen police later obtained a search warrant of Barrera's residence and seized, among other things, a .40 caliber handgun and a Bursa 9-millimeter handgun with two magazines from Barrera's bedroom.

Jesus Hernandez testified that earlier in the day on November 12, 2011, Hernandez and Aurora Garcia, his girlfriend at the time, had been at Garcia's house when Barron stopped to visit. Barron and Garcia were cousins. Hernandez admitted to possessing a 9-millimeter handgun that day, a handgun, which, according to Hernandez belonged to Barrera, his longtime friend. At the Garcia home, Hernandez showed the handgun to Barron, who handled the gun, but never returned it to Hernandez. According to Hernandez, Barron simply took the 9-millimeter handgun and walked out of the Garcia house to an unknown location. Hernandez testified that after that incident, he called Barrera asking Barrera to give him and Garcia a ride back to Hernandez's house. Barrera agreed. Hernandez testified that when Barrera drove up, Jesus Collazo was seated in the front passenger seat of the pickup and that he and Garcia entered the pickup and sat in the rear passenger seats.

Once inside of the truck, Hernandez told Barrera about Barron taking the 9-millimeter pistol, which made Barrera "visibly angry." Hernandez stated that at that point, Barrera demanded that Garcia tell him where he could find her cousin, Barron. After Garcia, who was fourteen years-old at the time, told Barrera where to find Barron, Barrera drove to the Rangerville-area of Harlingen and circled the area for "about 30 to 40 minutes" looking for Barron. Hernandez testified that Barrera eventually found Barron walking down Knox Street, and he confirmed Barron's identity through Garcia. Barrera then pulled up his truck near Barron and lowered his window. According to Hernandez, Barrera asked Barron to help him find his friend's house, but Barron began to walk away. Barrera then pointed the .40-caliber pistol at Barron and demanded that Barron return his 9-millimeter pistol. At that moment, Barron grabbed the 9-millimeter pistol and handedit back to Barrera, who remained seated in the driver's seat of his truck. After receiving the 9-millimeter pistol, Barrera demanded that Barron "get the fuck away" from his truck, but Barron did not move, so Barrera then asked Barron "[didn't] I tell you to get the fuck away from the truck, bitch [?]" Hernandez recalled that at that point, Barron pleaded with Barrera, stating "please don't shoot me, man." Hernandez testified that after Barron's plea to Barrera, Barrera fired one shot at Barron causing Barron to grunt and drop to the street pavement. According to Hernandez, Barrera then fired two more shots before driving away from the scene.

Hernandez testified that as the four drove away from the scene of the shooting, Barrera threatened Collazo, Garcia, and Hernandez and instructed the three of them not to say anything about what had happened to Barron. After receiving Barrera's threats, Hernandez described himself as "scared" and not knowing what to do after witnessing Barrera shoot Barron. "I just froze. I was scared," Hernandez testified. Later that night, the group split up and left to their respective homes. Hernandez denied that he had any knowledge that Barrera was going to shoot Barron, but also admitted that he did not alert the police about the shooting. Hernandez also admitted that when he was initially questioned by police about this incident, he lied to them because he was "scared for [his] life" because Barrera had not yet been arrested for the incident. Finally, Hernandez testified that he was arrested for murder in this case, spent one year in jail, but after he pleaded guilty to another unrelated charge, the murder charge was dismissed.

In her testimony, Garcia, who was sixteen years old at the time of trial, recounted substantially similar events to those testified to by Hernandez. She stated, however, that she did not know that Hernandez possessed the 9-millimeter pistol that day or that Barronhad taken the pistol from Hernandez until after she and Hernandez were inside of Barrera's truck and Hernandez told Barrera about it being taken away from him. Garcia recalled that Barrera demanded that she tell him where to find her cousin, Barron, or "he was going to kill me and my family." Garcia testified that she did not know why Barrera shot Barron because Barron had returned the pistol to Barrera. She also testified that Barron never threatened Barrera, and she observed that Barron was "scared for his life" because "he had a gun pointed to his head" despite the fact that he had returned Barrera's gun. Like Hernandez, Garcia admitted she had lied to the police during initial questioning because she was scared. Finally, Garcia was also charged with murder related to this case, but the charge was dropped.

Collazo admitted that he was a passenger in Barrera's truck at the time of the shooting, along with Barrera, Hernandez, and Garcia. Collazo also testified that he heard Hernandez accuse Barron of stealing Barrera's handgun. Collazo recalled that Barrera located Barron on the street, Barron returned Barrera's 9-millimeter pistol upon Barrera's demand, and then Barron pleaded with Barrera to not kill him. Collazo testified that Barron was walking away from the truck when Barrera fired a shot at him. Collazo labeled the shooting as a "rage shooting" because Barrera was "angry." Like the other passengers, Collazo stated that he was charged with murder, but the charge was dismissed.

The jury ultimately found Barrera guilty of Barron's murder and sentenced him to twenty-five years' imprisonment with the Texas Department of Criminal Justice's Institutional Division. This appeal followed.

II. SUFFICIENCY CHALLENGE

By his fourth issue, which we address first, Barrera contends that the evidence is insufficient to establish that he acted intentionally because the basis for this finding is opinion testimony offered by Garcia and Collazo.

A. Standard of Review and Applicable Law

In reviewing sufficiency of evidence to support a conviction, we 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 factfinder could have found the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in the light most favorable to the verdict, we defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilty is warranted by the cumulative force of all incriminating evidence. Winfrey, 393 S.W.3d at 768.

The elements of the offense are measured as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories ofliability, and adequately describes the particular offense for which the defendant was tried. Id. Under a hypothetically correct jury charge, Barrera is guilty of murder if he intentionally or knowingly caused...