Quesada v. State

Full title: ERIC QUESADA A/K/A ERICK QUESADA, Appellant, v. THE STATE OF TEXAS…

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Feb 8, 2006

No. 4-04-00438-CR (Tex. App. Feb. 8, 2006)

Opinion

No. 4-04-00438-CR

Delivered and Filed: February 8, 2006. DO NOT PUBLISH.

Appeal from the 186th Judicial District, Bexar County, Texas, Trial Court No. 1998-CR-6354, Honorable Fred Shannon, Judge Presiding. Affirmed.

Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Rebecca SIMMONS, Justice.

MEMORANDUM OPINION

Opinion by: REBECCA SIMMONS, Justice.

Appellant Eric Quesada was charged with the murder of Michael Newhouse and the attempted capital murder of Benjamin Poehlman. The jury found Quesada guilty and sentenced him to seventy-five years and fifty years, respectively, in the Institutional Division of the Texas Department of Criminal Justice. Quesada appeals his conviction based on the improper admission of the State's evidence, insufficient evidence supporting his conviction and the failure to transfer venue. We affirm the trial court.

Factual Background

On June 27, 1998, eighteen year old Michael Newhouse was traveling north on IH-35 in Live Oak, Bexar County, Texas, along with girlfriend Shauna Hilburn and friends Benjamin Poehlman and Isaac Cardenas. Herman Hernandez, in a small, dark colored vehicle, pulled next to Newhouse's vehicle and shots were fired hitting Newhouse's vehicle eight times, fatally striking Newhouse and paralyzing Poehlman. Kathleen Wuest was traveling directly behind Newhouse and described Hernandez' front passenger as having a medium build and dark hair. Testimony of Poehlman and Cardenas corroborated her description. Hilburn testified that as Hernandez' vehicle passed, she made eye contact with the front seat passenger, whom she identified as Quesada. She also identified Jesus Cruz as the back seat passenger. Hilburn further explained that Newhouse and Quesada were friends before a feud caused Newhouse to avoid Quesada. Testimony at trial included statements by Wuest describing a "little mini machine gun" coming out of the right rear passenger side window. This was supported by the testimony of Cardenas and Poehlman, both sitting in the rear seat, who testified to hearing two different types of gunfire, one very rapid, potentially an automatic firearm, and the other a single shot firearm. Both Cardenas and Poehlman described the firearm coming from the back window as looking like a Tec-9. Approximately eleven shell casings were recovered from the scene. Further witness statements provided officers with a license plate number registered to Herman Hernandez. San Antonio Police Department (SAPD) officers went to Hernandez' residence where a dark colored Nissan, bearing the same license plate number, was parked. After several individuals left the residence in the vehicle in question, the officers effected a felony stop of the vehicle and identified Hernandez as the driver and Quesada as the front seat passenger. Additionally, a spent shell casing, lodged between the spoiler and the roof of the trunk, was recovered. Before an arrest warrant for Quesada could be obtained, however, Quesada fled to Mexico. After several years fighting extradition, Quesada was eventually tried and convicted on one count of murder and one count of attempted capital murder.

Admissibility of Shell Casing and Photograph of Defendant

Quesada alleges the trial court improperly admitted shell casings retrieved from his residence, prior to the charged offense, in violation of Rules of Evidence 401, 402, 403 and 404(b). Quesada also complains a redacted photograph of himself holding a firearm was admitted in evidence in violation of Rules of Evidence 403 and 404(b). The trial court denied Quesada's motion to suppress the shell casings and the photograph. The evidence regarding the shell casings included spent shell casings gathered from Quesada's residence months before the crime was committed. On March 9, 1998, three months prior to the murder, an unrelated chain of events led school officials at McCollum High School in San Antonio, Texas to alert SAPD officers to photographs found in the possession of student Herman Hernandez. Two of the photographs showed a tattoo-covered Quesada brandishing a handgun. Officer Martin Toubin and Quesada's probation officer, Kurt Goslin, requested and received consent from Quesada's mother to search Quesada's bedroom for possible firearms. Although no firearms were located, Officer Toubin collected 57 spent shell casings from Quesada's bedroom. During trial, Edard Love, Jr., a firearm and tool mark examiner with Bexar County testified that 54 of the 57 shell casings recovered from Quesada's bedroom, as well as the bullet recovered from the body of Newhouse, the bullet retrieved from Newhouse's vehicle, the shell casing recovered from Herman Hernandez's vehicle, and nine of the shell casings collected at the crime scene were all fired from the same Smith Wesson Series 9 mm semiautomatic pistol. Two of the remaining shell casings found at the crime scene were fired from a different weapon, potentially a Tec-9 or an AA Arms firearm. Additionally, during trial, the State offered a redacted version of one of the photographs showing Quesada from the waist up, with no visible tattoos or gang related signs, holding a firearm in his right hand. The admission of the spent shell casings found in Quesada's bedroom and the redacted photograph form the basis for Quesada's evidentiary objections.

A. Standard of Review

We review a trial court's ruling on a motion to suppress under an abuse of discretion standard, and will not disturb the decision unless its rulings are "arbitrary and unreasonable," and "without reference to any guiding rules and principles." Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990); Breeding v. State, 809 S.W.2d 661, 663 (Tex.App.-Amarillo 1991, pet. ref'd). As long as the trial court's ruling is within the "zone of reasonable disagreement," there is no abuse of discretion. See Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App. 1996).

B. Analysis

1. Texas Rules of Evidence 401 402 Quesada first argues that the shell casings retrieved from his residence are not relevant based on the lack of a sufficient link to the charged offense. A piece of evidence is relevant if it tends to make "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. Evidence tending to affect the probability of the truthfulness or falsity of a fact at issue is logically relevant. Montgomery, 810 S.W.2d at 376. Rule 402 further requires all relevant evidence be admissible, unless the opponent of the evidence demonstrates that the evidence should be excluded due to a constitutional, statutory or other evidentiary provision. Tex. R. Evid. 402. A reasonable connection clearly exists between the firearm used to expend 54 of the shell casings from Quesada's bedroom and the firearm used to expend not only nine of the shell casings found at the scene of the crime, but also the shell casing retrieved from the vehicle used during the commission of the crime and the bullets retrieved from Newhouse's body and vehicle. The shell casings in question are directly linked to both the murder weapon and to Quesada by their presence in his bedroom and are therefore logically relevant to the factual issues in dispute. Because Quesada was indicted for, inter alia, the offense of murder, the State's indictment required proof that Quesada intentionally or knowingly caused the death of Newhouse with a firearm. The shell casings amount to circumstantial evidence of that fact, specifically a connection between Quesada and not just a weapon, but the murder weapon. Because the shell casings were relevant to prove essential elements of the charged offense, we cannot say the trial court's decision to admit such evidence pursuant to Rules 401 and 402 falls outside the zone of reasonable disagreement. 2. Texas Rule of Evidence 403 Quesada next argues both the shell casings and the redacted photograph of himself holding a firearm should have been excluded under Rule 403. Tex. R. Evid. 403. Rule 403 presumes the admissibility of all relevant evidence and permits a trial court to exclude this evidence only when the probative value is substantially outweighed by the unfair prejudice. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). Mozon sets forth a four-prong test to determine the disparity between the prejudice of admitting the evidence and its probative value:

(1) how compellingly the evidence makes a fact of consequence more or less probable;

(2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way;

(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and

(4) the proponent's need for the evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Id. The ballistics examination directly connected the shell casings found in Quesada's residence with those retrieved from Newhouse's body. Additionally, Love testified that the firearm being held by Quesada in the redacted photograph is the same type of weapon used to extrude the shell casings at Quesada's residence, from Hernandez' vehicle and from the crime scene, as well as the bullets retrieved from Newhouse's body and vehicle. Because the contested shell casings and the photograph provide some probative value that Quesada had access to the weapon that fired the shots killing Newhouse and paralyzing Poehlman, we cannot say the trial court improperly found the evidence served to make a "fact of consequence more or less probable." State v. Mechler, 153 S.W.3d 435, 440 (Tex.Crim.App. 2005); see also Moss v. State, 75 S.W.3d 132, 141 (Tex.App.-San Antonio 2002, pet. ref'd) (admitting evidence of weapons and ammunition merely showed that defendant had access to various weapons, one of which he could have used to commit the robbery in question). We cannot say that either the casings or photograph, by themselves, amounts to evidence that would "impress the jury in some irrational but indelible way." Mechler, 153 S.W.3d at 440. The spent shell casings are simply evidence of a discharged firearm and the photograph merely shows Quesada holding a handgun, with all connections to tattoos or gang symbols removed. There is no indication that the jury was "distracted from consideration of the charged offense during the time needed to present [the contested evidence]." Id. at 441. The fact that Quesada was potentially in possession of the murder weapon is directly related to the offenses in question. Thus, irrespective of the amount of time needed to present the evidence, it cannot be said to have distracted the jury from the charged offenses. Finally, the shell casings and the photograph established a link between Quesada and his accessibility to the murder weapon. The State's case was primarily based on circumstantial evidence and therefore elevated the need for all evidence linking Quesada to the murder weapon. After evaluating the factors as outlined in Mozon, we are unable to conclude that the trial court's ruling admitting the shell casings and photograph amounted to an abuse of discretion in violation of Tex. R. Evid. 403. 3. Texas Rule of Evidence 404(b) Quesada argues that the shell casings found in his residence and the photograph of himself are evidence of other crimes, wrongs, or acts and therefore inadmissible under Rule 404(b). Tex. R. Evid. 404(b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.") We disagree. As the State points out, possession of shell casings or a firearm alone are not evidence of a crime or bad act. Alternatively, the redacted photograph does not show any illegal activity or the commission of a wrongful act on Quesada's part. More importantly, the shell casings, like the photograph of Quesada, were not admitted to prove the character of Quesada, but rather introduced to provide a connection to the murder weapon. Accordingly, the trial court did not abuse its discretion in admitting the shell casings and the redacted photograph over Quesada's Rule 404(b) objection. Quesada's points of error one through five are overruled.

Sufficiency of the evidence

A. Standard of Review In points of error six and seven, Quesada argues the evidence is legally and factually insufficient to substantiate his guilt. When reviewing the legal sufficiency of evidence, an appellate court utilizes the traditional standards of review. Jackson v. Virginia, 443 U.S. 307, 319 (1979). When reviewing legal sufficiency, this court examines whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt. Id., see also Tex. Penal Code Ann. § 2.03(d) (Vernon 2003); Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The standard of review is the same whether the evidence is direct, circumstantial, or both. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). In a factual sufficiency review, on the other hand, the appellate court views all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483-84 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Direct evidence is not required where the circumstantial evidence is sufficient. See Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986).

B. Analysis

A person commits the offense of murder if he "intentionally or knowingly causes the death of an individual" or he "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003).¹ A person commits the offense of attempted capital murder if, with the specific intent to commit the offense of murder, he does an act amounting to more than mere preparation that tends to but fails to effect the commission of the offense of murder, and this occurs in the course of committing or attempting to commit the murders of more than one person: (A) during the same criminal transaction; or (B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct. See Tex. Pen. Code Ann. §§ 15.01(a), 19.03 (Vernon 2003). Here, Quesada claims the State's circumstantial case is based upon his "bad character" and the proposition that he acted in conformity therewith. Although the evidence placing Quesada at the scene of the crime is primarily circumstantial, the jury could draw reasonable inferences from the testimony of Hilburn, Wuest, Poehlman and Cardenas that Quesada was in the front seat of Hernandez' vehicle and fired the shots that killed Newhouse and paralyzed Poehlman. Not only could Hilburn specifically provide a name to the officers, but the remaining witnesses described a heavy set Hispanic male in the front seat of the shooter's vehicle. Moreover, when the officers identified the occupants of Hernandez' vehicle shortly after the incident, Quesada was the only heavy set Hispanic male identified in the vehicle, outweighing the other individuals by almost 100 pounds. See Earls, 707 S.W.2d at 85 (noting identity of perpetrator may be proven by direct or circumstantial evidence). Furthermore, a jury could have reasonably accepted the expert's testimony that the shell casings found at the crime scene and lodged in Hernandez' vehicle, as well as the bullets recovered from Newhouse's autopsy and vehicle, matched 54 out of 57 shell casings retrieved from Quesada's bedroom and were fired from the same firearm. Additionally, the jury could have reasonably believed that the firearm Quesada was holding in the photograph was of the same make and model as the murder weapon and possibly the murder weapon itself. Even taking note of the great amount of circumstantial evidence upon which this case is based, we cannot say the jury's conclusion that Quesada committed the charged offenses is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Alternatively, considering the evidence in a neutral light, we cannot say it is too weak to support the findings of guilt beyond a reasonable doubt. Because the jury has the exclusive responsibility of reconciling conflicts in the testimony, this court will not substitute its judgment. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). As such, we overrule Quesada's points of error six and seven.

Change of Venue

In Quesada's eighth and ninth issues, he argues the trial court erred in denying his motion to transfer venue because the publicity generated about his case was so "widespread, inflammatory, inaccurate, adverse and highly prejudicial" as to raise a substantial doubt that the defendant could receive a fair trial in Bexar County. Quesada claims the case received an extraordinary amount of publicity, including an episode of "America's Most Wanted" and articles in the local newspaper. Quesada's trial counsel re-urged the motion at the end of voir dire "based on the evidence that has been developed, particularly as it concerns responses by the prospective jurors on the jury panel in this case." The trial court denied Quesada's requests. This court will not reverse a trial court's change of venue ruling absent an abuse of discretion. Bell v. State, 938 S.W.2d 35, 46 (Tex.Crim.App. 1996). A trial court may grant a defendant's change of venue motion upon the defendant demonstrating "there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial." Tex. Code Crim. Proc. Ann. art. 31.03(a)(1), (2) (Vernon 1989). Importantly, the mere existence of media attention or other publicity does not automatically establish prejudice or require a change of venue. See Bell, 938 S.W.2d at 46 (indicating media coverage and high publicity alone are not sufficient to require a change of venue; the defendant must show that the publicity is "pervasive, prejudicial, and inflammatory"). In fact, precedent does not require jurors that are seated on the jury be totally ignorant of the facts and issues of a particular case. Id. Instead, the test is whether outside influences affecting the community's climate of opinion as to a defendant are inherently suspect. Willingham v. State, 897 S.W.2d 351, 357 (Tex.Crim.App. 1995). The evidence in support of Quesada's motion to transfer venue included one internet news report and three videotape news reports. The article stated that Quesada was charged with killing an eighteen year old and then escaping to Mexico where authorities blocked his extradition until Bexar County prosecutors promised not to seek the death penalty or life in prison. Additionally, Quesada presented the live testimony of one Bexar County resident, Earl Cobb, who felt it would be difficult for Quesada to receive a fair and impartial trial in Bexar County because the coverage was very inflammatory and presumed Quesada's guilt. Cobb, however, admitted that he did not know the facts of the case and that he could still provide Quesada with the presumption of innocence. The State presented three affidavits from Bexar County residents indicating they had neither heard nor read a significant amount of publicity about the case in question and that in their opinion, the level of publicity would not prevent Quesada from being able to receive a fair and impartial trial. At the hearing, the State called the central jury bailiff for Bexar County, who testified the county could call in excess of 200,000 jurors, if need be, during any given year and that there are in excess of a million potential jurors in Bexar County. See Bell, 938 S.W.2d at 46 (holding the trial court may use the jury selection process to measure the climate of the community). Quesada failed to show that pretrial publicity was so pervasive and prejudicial as to create a reasonable probability that an impartial jury could not be empaneled. Moreover, the voir dire process did not reveal any element of prejudice or impartiality. Based upon the record before us, the trial judge's decision was not outside of the realm of reasonableness. Penry v. State, 903 S.W.2d 715, 727 (Tex.Crim.App. 1995). We therefore overrule Quesada's points of error eight and nine.

Conclusion

The judgment of the trial court is AFFIRMED.