. HW79S1

(Hourt af Appeals

JTtftl| Itstrtrt of Gteas at Dallas

JUDGMENT

JOSE REFUGIO ZAMARRON, Appeal from the Criminal District Court

Appellant No. 3of Dallas 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

JUSTICE
Affirmed and Opinion Filed December 2, 1997

In The

(Hourt af Appeals

¥\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 of murder 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 improper jury argument; and (iii) the

trial court improperly commented on the evidence. For the reasons set forth below, we

1Justice John R. Roach succeeds Justice Deborah G. Hankinson, amember of the original panel. Justice Roach has reviewed

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

and Castillo got "nose-to-nose," and Edwards immediately got between them and shoved

them apart. Edwards placed Owens against a van, and a second security guard, Clint Mott,

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 to get the man to turn 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, he fell to the

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

chasing the shooter. Edwards, realizing Mott was 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

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"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. Gilbert was 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 ran back 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 man jumped 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 a gun in his lap and was

"sweating real hard." Eguia said something to appellant, and appellant laughed.

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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 like celebrating." 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 had never 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 of Gilbert's car when the shots were fired. He said he did not see

anyone's hand go up nor 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 of Ramirez'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

kept walking. Isaw him walk over toward Jovan and Henry, and I heard 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 at Castillo'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 a gun and did not recall making

any threats regarding the shooting. Likewise, he said he did not remember who was at his

house that night because he was drunk and did not remember shaking appellant's hand and

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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 the scene but could not identify him nor could he identify the person thatwas picked

up under the Industrial bridge. He testified that he did not know 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. He testified he interviewed 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 at the scene. Although they

searched under the Industrial Boulevard bridge, they did not locate a gun. Dr. Joseph

Guileyardo, Dallas County chief deputy 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 of error, appellant complains the evidence is legally and

factually insufficient to support his conviction. When reviewing a challenge to the legal

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sufficiency of the evidence, we view the evidence in the light most favorable 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, to weigh the evidence, and to draw reasonable inferences from basic to ultimate

facts. SeeDumas v. State, 812 S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd). The

fact finder is the exclusive judge of the witnesses' credibility and the weight 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, the fact finder is free to accept or reject any or allevidence presented

by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

When conducting a factual 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). We consider

all the evidence, but we do not view it in the light most favorable to the verdict. Id. at 129.

When performing our review, we must be "appropriately deferential" so as to avoid

substituting our judgment for the fact finder's judgment. Id. at 133. We set aside a fact

finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Id.

To obtain a conviction for murder, the State had to prove appellant intentionally or

knowingly caused the death of Owens. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon
1994). In his first and second points of error, appellant complains the evidence is legally

and factually insufficient to establish his identity as the gunman. Specifically, he complains

that the only evidence linking him to the murder is the "dubious" testimony of Gilbert.

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 of the gun. . . and then

[Owens] got shot." He then watched appellant flee and picked him up minutes later hiding

under the Industrial Boulevard bridge. At the time, appellant had a gun 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 about Gilbert's credibility, we do not sit as athirteenth juror nor do we substitute

our judgment for that of the jury when analyzing the factual sufficiency of the evidence.

Rather, we must give due deference to the jury's assessment of the witnesses' credibility and

its resolution ofan evidentiary conflicts. After reviewing the record in this case, we cannot

conclude the evidence produced by the State was 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 of the evidence so as to be clearly wrong and unjust. See id.
Because the judgment 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

error by allowing the State, during closing argument at the guilt-innocence phase of the 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

yourself where is the proof, where is the evidence that he is not

telling you the truth.

Aprosecutor violates a defendant's rights if he comments on the defendant's failure

to testify. Angel v. State, 627 S.W.2d 424, 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 of the argument, viewed from the

jury's perspective, "must be manifestly intended or of such acharacter that the jury would

necessarily and naturally take it as a comment on the accused's failure to testify." Patrick

v. State, 906 S.W.2d 481, 490 (Tex. Crim. App. 1995), cert, denied, 116 S. Ct. 1323 (1996),

citingBanks v. State, 643 S.W.2d 129, 134-35 (Tex. Crim. App. 1982), cert, denied, 464 U.S.

904 (1983). Amere illusion to the defendant's failure to testify does not violate his rights.

Aremark that calls attention to the absence of evidence which only the defendant could

supply will result in reversal; however, if the language can reasonably be construed to refer

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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 at the scene, Gilbert was

the only one to testify that appellant shot Owens. Thus, appellant asserts that because only

appellant and Gilbert knew whether appellant shot Owens, the prosecutor's "call for

[a]ppellant to show proof that Gilbert was lying was a direct call for him to testify, as the

[a]ppellant was, from the testimony, the only other person who knew whether he committed

murder." We disagree. The State's argument did not draw the jury's attention to the

absence of evidence that only appellant could produce. 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 of Detective Beck, the chief investigator on the case.

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

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

speculation. The trial court responded, "Well, we are dealing with an experienced officer.

I will 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 of evidence, the judge shall not

discuss or comment upon the weight ofthe same orits bearing

in the case, but shall simply decide whether or not it is
admissible; 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 pursuant to 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. Assuming the comment was error, we agree with the reasoning in Moore

v. State, 907 S.W.2d 918 (Tex. App.-Hosuton [1st Dist.] 1995. pet. refd), and conclude

appellant forfeited his right by not objecting. In Moore, the court held that the article 38.05

prohibition falls within that category of rights, as defined by Marin v. State, 851 S.W.2d 275,

279 (Tex. Crim. App. 1993), which are forfeitable by inaction. Because appellant failed to

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

point of error.

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We affirm the trial court's judgment.

_^l-o

JOHN R. ROACH

JUSTICE

Do Not Publish

Tex. R. App. P. 90

960247F.U05

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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