### . HW79S1

(Hourt afAppeals 

### JTtf tl| Itstrtrt ofGteas at Dallas JUDGMENT JOSE REFUGIO ZAMARRON, Appeal from the Criminal District Court 

### Appellant No. 3ofDallas County, Texas. (Tr.Ct.No. F94-43180-TJ). No. 05-96-00247-CR V. Opinion delivered by Justice Roach, Justices Kinkeade and Morris THE STATE OF TEXAS, Appellee participating. 

### Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered December 2, 1997.

&£l>*-— JOHN R. ROACH JUSTICEAffirmed and Opinion Filed December 2, 1997

In The 

### (Hourt afAppeals 

### ¥\fttf Ststrtrt af ®eseas at Dallas

No. 05-96-00247-CR
JOSE REFUGIO ZAMARRON, Appellant

V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F94-43180-TJ
OPINION Before Justices Kinkeade, Morris, and Roach1 Opinion By Justice Roach 

### Ajury convicted Jose Refugio Zamarron ofmurder and assessed punishment at life 

### in prison. In four points of error, appellant complains: (i) the evidence is legally and 

### factually insufficient; (ii) the trial court allowed an improperjury argument; and (iii) the trial court improperly commented on the evidence. For the reasons set forth below, we
1JusticeJohnR. RoachsucceedsJusticeDeborahG. Hankinson, amemberoftheoriginalpanel. Justice Roachhasreviewed the briefs and record in this case.overrule all points of error and affirm the trial court's judgment.
Factual Background Larry Edwards and Clint Mott worked as security guards at Club Eternity, a downtown Dallas bar frequented by young gang members. Edwards described the bar as"real, real, real bad" and said most of its problems occurred at closing and were "gangrelated disputes." As the bar was closing at around 3:45 a.m. on June 17, 1994, Edwards noticed two of the club's patrons,Jovan Owens andHenry Castillo, arguing outside. Owens andCastillo got "nose-to-nose," and Edwards immediately got between them and shoved them apart. Edwards placed Owens against avan, and asecond security guard, ClintMott, held Castillo. Suddenly, shots were fired. Edwards sought safety, dragging Castillo as a "shield" to the front of the van. Edwards then saw a guy holding a gun, who appeared to 

### be Hispanic, running toward Industrial Boulevard. Edwards shot his weapon in the air, hoping toget the man toturn around so that he could see his face. The man did not turn, however, and Edwards was not able to identify the shooter. After the assailant fled, Edwards discovered that Owens had been shot. Owens died two hours later at Parkland Memorial Hospital. Mott's testimony was consistent with Edward's. When shots rang out, hefell tothe 

### ground. Like Edwards, Mott did not see who fired the shots, but he immediately started 

### chasing the shooter. Edwards, realizing Mottwas not armed, told Mott to stop. Mott did not see the shooter's face but could see him holding a gun as he was fleeing. When 

### Edwards fired a shot in the air and yelled for the man to stop, the man went into

-2-"overdrive." He did not know appellant and could not remember seeing him in the club that night. Gilbert Cavello, Jr. testified he and a friend, Manuel Eguia, were at the bar on the night of the shooting. Gilbertwas sixteen years old at the time. As the club was closing at about 3:45 a.m., an argument erupted inside the club between Castillo and Owens. Owens and two of his friends, and Castillo and his friends, Frank Ramirez and appellant, went outside. Gilbert, wanting to avoid trouble, headed to his car. Eguia followed after unsuccesfully trying to get Castillo to stop arguing. Once in his car, Gilbert watched as appellant went to another car and then ranback to the scene of the argument. Appellant wedged his way through the crowd, raised his right hand, and shot Owens. The crowd scattered, and appellant fled on foot toward Industrial Boulevard. A security guard gave

chase. Two other people, Noel Longoria and Vincent Santoya, got in Gilbert's car, and Gilbert drove off. As he was making a U-turn under the freeway, Gilbert saw somebody hiding under the Industrial Boulevard bridge. Eguia told Gilbert to stop and pick up "my homeboy." Eguia told the person to get in the car. At that point, Gilbert could not see 

### who the person was. The manjumped in the back seat ofthe car. As they were headed onto the freeway, Eguia, who was seated in the front seat, turned to the man and and said, "You shot the mother fucker." At that point, Gilbert realized he stopped for appellant. 

### Angry, he began "cussing out" Eguia. Gilbert said appellant had agun in his lap and was "sweating real hard." Eguia said something to appellant, and appellant laughed.

-3-Castillo, the man who was originally arguing with Owens, then pulled up and told Gilbert to follow him. Gilbert followed Castillo to Castillo's house. Everyone got out and "started likecelebrating." Gilbert wanted to leave, and did about ten minutes later. Before Gilbert left, however, Castillo threatened to kill anyone who talked about what had happened. Gilbert hadnever seen appellant before the night of the shooting. He had no further contact with this group after that night. Eguia, Castillo, and Longoria also testified at trial. None, however, could identify the person who shot Owens. Eguia, who was fifteen years old at the time, said he was standing on the ledge ofGilbert's carwhen the shots were fired. He said he did not see anyone's hand go upnor did he see the flash of a gun. Equia also denied seeing a gun in the car but said he noticed a gun laying on the trunk ofRamirez's car at Castillo's house. Two months after the shooting, however, Eguia gave police a statement. In the statement, 

### Eguia said: "I saw [appellant] lean into Frank's car, called out to him, he ignored me, and keptwalking. Isaw himwalk overtoward Jovan and Henry, and Iheard some shots. Isaw him run toward Industrial." Attrial, Eguia denied the statement. Eguia also denied having Gilbert pick up appellant and denied hearing any threats made atCastillo's house. Castillo said he got into an argument with Owens as he was leaving the club, and a 

### security guard grabbed him. A crowd gathered around them. Although he heard the 

### gunshots, he did not see who fired them. He did not see agun and did not recall making 

### any threats regarding the shooting. Likewise, he said he did notrememberwho was at his house that nightbecause hewas drunkand did notremember shaking appellant's hand and

-4-congratulating him. Castillo said he did not really know appellant but had been acquainted with him for about one year. Longoria said he had been drinking heavily before the shooting. He said he was in Gilbert's car when the argument erupted. Everyone got out of the car and headed in that direction. He heard gunshots and jumped back into the car and left. He saw someone fleeing thescene butcould notidentify him norcould heidentify theperson thatwas picked upunder theIndustrial bridge. Hetestified that hedid notknow appellant and did notsee him at the scene of the shooting. Detective K.W. Beck interviewed Gilbert, Equia, Castillo, and Longoria as part of his investigation. Hetestified heinterviewed Eguia twice. In the first interview, Eguia said he knew what happened but was afraid he would be killed if he told. In the second interview, Beck said Eguia gave him the statement implicating appellant. 

### The police recovered two .25-caliber cartridge casings atthe scene. Although they searched under the Industrial Boulevard bridge, they did not locate a gun. Dr. Joseph 

### Guileyardo, Dallas County chiefdeputy medical examiner, testified that Owens was hit by two bullets: one went though Owens's heart and the other pierced his liver and intestines. Either wound was fatal. Toxicology results showed no illegal drugs or alcohol in Owens's body. Sufficiency of the Evidence 

### In his first and second points oferror, appellantcomplains the evidence is legally and 

### factually insufficient to support his conviction. When reviewing achallenge to the legal

-5-sufficiency of the evidence, weview the evidence in the light mostfavorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309 (1979); Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993), cert, denied, 511 U.S. 1100 (1994). This standard leaves to the fact finder the responsibility to resolve conflicts in testimony, toweigh theevidence, and to draw reasonable inferences from basic toultimate facts. SeeDumas v. State, 812S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd). The fact finder is the exclusivejudge of thewitnesses' credibility and theweight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert, denied, 474 U.S. 865 (1985); Dumas, 812 S.W.2d at 615. Thus, thefact finder is free to accept orreject any or allevidence presented 

### by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). When conducting afactual sufficiency review, we examine the fact finder's weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Weconsider all the evidence, butwe do not view itin the light most favorable to the verdict. Id. at 129. 

### When performing our review, we must be "appropriately deferential" so as to avoid substituting ourjudgment for the fact finder's judgment. Id. at 133. We set aside afact 

### finding only ifit is so contrary to the overwhelming weight ofthe evidence as to be clearly wrong and unjust. Id. To obtain a conviction for murder, theState had to prove appellant intentionally or 

### knowingly caused the death of Owens. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon1994). In his first and second points of error, appellant complains the evidence is legally and factually insufficient toestablish his identity as the gunman. Specifically, hecomplains that the only evidence linking him to the murder is the "dubious" testimony ofGilbert. Gilbert testified that he saw appellant go up to a car, return to the scene of the 

### argument, raise his arm, and shoot Owens in the body. Although Gilbert acknowledged he did not see the gun, he testified that he saw the "gunshot

- the fire ofthe gun. . . and then 

### [Owens] got shot." He then watched appellantflee and picked him up minutes laterhiding under theIndustrial Boulevardbridge. At the time, appellant had agun and was "sweating 

### real hard." After appellant got in the car, Eguia turned to him and said, "You shot the mother fucker." Reviewing the evidence in the light most favorable to the verdict, we 

### conclude a rational jury could conclude beyond a reasonable doubt that appellant intentionally or knowingly caused Owens's death. Likewise, we conclude the evidence is factually sufficient. Although appellant 

### complains aboutGilbert's credibility, we do notsitas athirteenthjurornordowe substitute 

### ourjudgment for that ofthejury when analyzing the factual sufficiency ofthe evidence. Rather, we mustgive due deference to thejury's assessmentofthewitnesses' credibility and its resolution ofanevidentiary conflicts. After reviewing therecord in this case, we cannot 

### conclude the evidence producedby the Statewas so uncertain, inconsistent, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. See Scott, 934 

### S.W.2d 396, 398 (Tex. App.-Dallas 1996, no pet.). Nor can we conclude the verdict is 

## against the great weight ofthe evidence so as to be clearly wrong and unjust. See id.Because thejudgment is supported by legally and factually sufficient evidence, we overrule the first and second points of error. Improper jury argument 

### In his third point oferror, appellant complains the trial court committed reversible


### errorbyallowing the State, during closingargument atthe guilt-innocence phase ofthe trial, to improperly comment on his failure to testify. The alleged improper argument was as

follows: There is truth in what Gilbert Cavello is telling you, if you will see it, ifyou will listen to it. And ifyou think there is not, ask yourselfwhere is the proof, where is the evidence that he is not telling you the truth. 

### Aprosecutorviolates adefendant's rights ifhe comments on the defendant's failure 

### to testify. Angelv. State, 627 S.W.2d424, 426 (Tex. Crim. App. 1982); Carillo v. State, 821 S.W.2d 697, 699 (Tex. App.-Dallas 1991), pet. refd, 826 S.W.2d 955 (Tex. Crim. App. 

### 1992). To violate the defendant's rights, the language ofthe argument, viewed from the 

### jury's perspective, "mustbe manifestly intended or ofsuch acharacter that thejurywould necessarily and naturally take it as acomment on the accused's failure to testify." Patrick v. State, 906 S.W.2d481, 490 (Tex. Crim. App. 1995), cert, denied, 116S. Ct. 1323 (1996), 

## citingBanksv. State, 643 S.W.2d 129, 134-35 (Tex. Crim. App. 1982),cert,denied,464U.S. 904 (1983). Amere illusion to the defendant's failure to testify does notviolate his rights. Aremark that calls attention to the absence ofevidence which only the defendant could 

## supplywillresultinreversal; however, ifthelanguagecanreasonablybe construedto refer

-8-to the defendant's failure to produce evidence other than his own testimony, the comment is not improper. Id. 

### Appellant argues that although there were other witnesses atthe scene, Gilbert was 

### the only one to testify that appellant shotOwens. Thus, appellant asserts thatbecause only appellant and Gilbert knew whether appellant shot Owens, the prosecutor's "call for 

### [a]ppellant to show proofthat Gilbert was lying was adirect call for him to testify, as the 

### [a]ppellantwas, from the testimony, the onlyotherpersonwho knewwhetherhe committed murder." We disagree. The State's argument did not draw the jury's attention to the absence ofevidence that only appellant couldproduce. See Banks, 643 S.W.2d at 134-35. Accordingly, we overrule the third point of error.
Comment on the evidence 

### In his fourth point of error, appellant contends the trial court commented on the evidence by bolstering the credibility ofDetective Beck, the chiefinvestigator on the case. 

### During the guilt-innocence phase ofthe trial, the State asked Detective Beck the purpose 

### for handcuffing juveniles in the detention area. Appellant objected on the basis of 

### speculation. The trial courtresponded, "Well, we are dealing with an experienced officer. Iwill let him testify to what he knows." On appeal, appellant complains the commment violated article 38.05 of the Texas Code of Criminal Procedure. Article 38.05 provides: 

### In ruling upon the admissibility ofevidence, thejudge shall not discuss orcomment upon the weight ofthe same orits bearing in the case, but shall simply decide whether or not it isadmissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979). To preserve a complaint for appellate review, a party must make a timely, specific 

### objection in the trial court. Tex. R. App. P. 52(a) (former rules); See Burks v. State, 876 S.W.2d 877, 899 (Tex. Crim. App. 1994), cert, denied, 513 U.S. 1114 (1995). This general 

### rule also applies to complaints pursuantto article 38.05. See Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995), cert, denied, 116 S. Ct. 2556 (1996). In this case, appellant offered no objection once the trial court made its comments. Thus, he has waived any complaint. 

### With respect to appellant's complaint that the comment resulted in fundamental error, we disagree. Assumingthe commentwas error, we agreewiththe reasoninginMoore
v. State, 907 S.W.2d 918 (Tex. App.-Hosuton [1st Dist.] 1995. pet. refd), and conclude 

### appellantforfeitedhis rightbynotobjecting. InMoore, the courtheldthatthe article 38.05 

## prohibitionfallswithinthatcategoryofrights, as definedbyMarinv.State, 851 S.W.2d275, 279 (Tex. Crim. App. 1993), which are forfeitable by inaction. Because appellantfailed to 

### object at trial, he has forfeited any right to complain on appeal. We overrule the fourth point of error.

-10-We affirm the trial court's judgment.
_^l-o JOHN R. ROACH JUSTICE Do Not Publish Tex. R. App. P. 90 960247F.U05

•11-Fifth Court of Appeals Case Party & Attorney Address List Page: 1 Date Printed: 01/08/98 Case Number: 05-96-00247-CR Date Filed: 02/12/96 Style: Zamarron, Jose Refugio

v. Texas, The State of
APP Blake Withrow ATT 021830600 Attorney at Law 4923 West Lovers Lane Dallas, TX 75209 Phone 214/358-3935 Fax STA SueKorioth DATED OFF: 08/18/97 ATT 011681975 Assistant District Attorney Frank Crowley Courts Building 133 North Industrial Blvd., LB 40 Dallas, TX 75207 Phone 214/653-3829 Fax 215/653-3665 STA Laura Greer Urbach ATT 000790786 Assistant District Attorney Frank Crowley Courts Building 133 N. Industrial Blvd., LB 19 Dallas, TX 75207-4399 Phone 214/653-3631 Fax