

 
 
 
 
 
 
 
 
MEMORANDUM OPINION
 
No. 04-10-00025-CR
 
Dario Ramiro ACEVEDO,
Appellant
 
v.
 
The STATE of
Texas,
Appellee
 
From the 216th
Judicial District Court, Kendall County, Texas
Trial Court No. 4418
Honorable N. Keith
Williams, Judge Presiding
 
Opinion by:   Steven C. Hilbig, Justice
 
Sitting:                     Catherine Stone, Chief Justice
                     Phylis
J. Speedlin, Justice
                     Steven
C. Hilbig, Justice
 
Delivered and
Filed:  March 23, 2011
 
AFFIRMED
 
Dario Ramiro Acevedo was
convicted of murdering Jefferey Donofrio and was sentenced to life in prison. 
Acevedo appeals the judgment, complaining the evidence is legally insufficient
to support the verdict, the trial court erred in allowing a witness to testify
and in admitting certain evidence, and the court had an improper ex parte
communication with a witness. 
Sufficiency of the Evidence
Acevedo argues the
evidence is legally insufficient to support the jury’s verdict that he
intentionally and knowingly caused the death of Jefferey Donofrio by shooting
him with a firearm.  In conducting a legal sufficiency review, we look at all
of 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.  Prible v. State, 175 S.W.3d 724,
730-31 (Tex. Crim. App.), cert. denied, 546 U.S. 962 (2005).  We resolve
any inconsistencies in the testimony in favor of the verdict.  Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).  We defer to the jury’s
determination of the weight to be given to contradictory testimonial evidence
because resolution of the conflict is often determined by the jurors’
evaluation of the witnesses’ credibility and demeanor.  Johnson v. State,
23 S.W.3d 1, 9 (Tex. Crim. App. 2000).  “Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.”  Hooper
v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  “Each fact need not
point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction.”  Id.  The standard of review is the same for
cases relying on either direct or circumstantial evidence.  Id.  
James Mason testified
that on March 19, 2005, he went to Cascade Caverns in Kendall County, Texas. 
The property had fallen into disrepair, and Mason was helping his friend James
Kyle make repairs and get the property operational.  Acevedo and Donofrio were
also present helping with the repairs.  Mason testified the four men went to
repair electrical wiring that led to an old trailer.  Mason had determined
electrical current was flowing to the trailer because a light inside the
trailer worked.  They wanted to cut off the power to the trailer before
attempting any repairs.  Donofrio wanted to use an ohmmeter on an electrical
junction box next to the back of the trailer, but Mason told him not to because
he feared Donofrio would receive an electrical shock.  Instead, Mason would go
into the trailer and turn on the light switch.  Kyle was to walk to a group of
electrical switches that were about 250 feet away.  They asked Acevedo to stand
about halfway between Mason and Kyle and relay information about when Kyle
flipped one of the switches and whether the light in the trailer remained on. 
As Mason walked around the trailer to go in the front door, he saw Donofrio
kneeling down by the electrical box next to the trailer and Acevedo standing
approximately six feet from Donofrio.  Mason testified that after he turned on
the light inside the trailer, he heard a loud “pop.”  He told the jury he
thought Donofrio had put the leads from the ohmmeter into the junction box and
caused an electrical short.  
Mason testified he walked
around to the back of the trailer, where he saw Donofrio walking and holding
his hand over his heart.  Donofrio told Mason to call 911, then took a few more
steps and fell down.  Mason went to help Donofrio and rolled Donofrio onto his
back.  Donofrio said “hurry,” but nothing further.  Thinking that Donofrio’s
injuries resulted from an electrical shock, Mason used his cell phone to call
911.  When 911 requested an address, Mason handed the phone to Acevedo and
asked him to talk to the operator.  Mason testified Acevedo took the phone and
closed it, terminating the connection, and walked away.  Mason testified he
reestablished a connection with 911, gave the address, and told Acevedo to go
open the front gate on the property.  According to Mason, Acevedo did not
appear in a big hurry to open the gate and was walking “nonchalantly.”  When
Acevedo returned, he told the group that he “didn’t mean it” and “it was an accident.” 
Mason testified it was at this time he realized Acevedo had a gun and they told
Acevedo to “get rid of the gun.”  Mason testified Acevedo reached inside the
right pocket of his vest, removed a handgun, and tossed it a few feet away.  Mason
told the jury that Acevedo had told him earlier in the day that he liked guns
and “was good with” them.  
Kelly Beardsley testified
that her sister had owned Cascade Caverns jointly with Kyle.  Her sister died
in early March 2005, and Beardsley testified she went to the property to help
Kyle straighten out the business.  Just before the shooting, Beardsley saw the
group of men inspecting the wiring near the trailer.  She heard a “pop” and ran
out to see what had occurred.  She saw Donofrio laying on the ground with Kyle
kneeling over him.  Mason was standing nearby using the telephone to call 911,
and Acevedo was standing a few feet away.  Beardsley heard Kyle ask Acevedo to
open the front gate.  She testified Acevedo was “shuffling” toward the gate and
she thought he should have been moving faster.  She also testified Acevedo was
“fidgeting around a lot” as if he were trying to hide something.  When Acevedo
returned, he told the group, “I didn’t mean to shoot him.  It was an
accident.”  Kyle asked Acevedo if he had a gun, and Acevedo responded, “Yeah,
but I didn’t mean to do it. . . .  I was just messing around with it.”  
Kathy Rider testified she
was a Kendall County deputy sheriff on March 19, 2005, when she responded to a
call at Cascade Caverns.  When she arrived, she saw two men standing over a man
who was lying on the ground, and saw a fourth man sitting a few feet away.  She
learned Acevedo was the man sitting on the ground.  She testified Acevedo was
sitting on his hands and looked as if he were going to faint or vomit.  Rider
spoke with Mason, retrieved the handgun, and placed Acevedo in a patrol car. 
She testified the handgun had four live rounds and one spent round when she
took possession of it.  Ron Crumley, a firearm and toolmark examiner with the
Texas Department of Public Safety crime lab, testified he examined and
performed several tests on the weapon, which he described as a .38 special
caliber Smith & Wesson revolver, Model 40.  Crumley first determined the
weapon was functioning properly and had not been damaged. Crumley testified he
then sought to determine whether the gun would discharge if it were jarred or
dropped.  To simulate dropping the weapon to the ground, Crumley used a rubber
mallet to strike the gun at various places, including the hammer, while the
weapon was loaded with primed cartridge cases.[1] 
He used a microscope to inspect the surface of the primer and determined that
the hammer did not strike the primer during the tests.  Crumley also tested the
weapon to determine how much force was required to pull the trigger and cause
the gun to fire.  He told the jury that a person would need to pull the trigger
with at least eleven and three-quarters pounds of force to fire the weapon. 
Crumley explained that the weapon was also equipped with a grip safety on the
back of the grip.  According to Crumley, the weapon would not fire unless the
grip safety was depressed while pulling on the trigger with at least eleven and
three-quarters pounds of force.  Crumley testified that he could not envision a
scenario where the weapon would fire if dropped because firing the weapon
requires pressure in two different directions — the backward pull on the
trigger coupled with a forward pushing on the grip safety.
Finally, the State
presented evidence that gunshot primer residue tests conducted on Acevedo’s
hands failed to disclose any evidence that Acevedo fired a weapon.  However,
the State’s expert also testified that gunshot primer residue could be removed
from hands by rubbing them together or by rubbing them against clothing.  Tests
performed on the victim’s clothing also failed to reveal any gunshot pattern
residue, indicating the weapon was probably more than four feet from the victim
when the shot was fired.  Dr. Kimberly Molina, a Bexar County Deputy Medical
Examiner, testified that Donofrio died from a single gunshot wound that entered
his back and exited his chest.  The path of the bullet was slightly upward. 
The spent slug was not recovered.
Acevedo contends the
evidence is legally insufficient because the State failed to prove the shooting
was anything other than an accident.  We disagree.  Although there is no direct
evidence of how the shooting occurred, Acevedo made statements admitting he
shot the victim.  The jury was free to disregard Acevedo’s assertion it was an
accident in light of the firearm expert’s opinion that the gun would not have
discharged as a result of being jarred or dropped and his testimony that a
person would have to apply pressure in two different directions to operate the
weapon.  The jury reasonably could have inferred the shooting was intentional
from the evidence that Acevedo put the gun away inside his vest after the
“accident,” the testimony that he terminated the 911 call when the operator was
asking for the address, and from the evidence that Acevedo lacked any sense of
urgency when he went to open the gate for emergency responders.  Viewing the
evidence in the light most favorable to the jury’s verdict, a rational jury
could have found all the elements of the offense beyond a reasonable doubt. 
Testimony of Ernie Lobello
Acevedo argues the trial
court erred when it allowed Ernie Lobello, an investigator with the district
attorney’s office, to testify in violation of Rule 614 of the Texas Rules of
Evidence and the trial court’s standing discovery order.  
During the
cross-examination of Dr. Molina, Acevedo placed into evidence a photograph of
Lobello pointing to a spot on a tree.  Acevedo questioned Dr. Molina
extensively about the path the bullet traveled through the victim’s body and
the various possible positions of the victim’s torso when shot.  Acevedo sought
to establish that the slightly upward path the bullet travelled through the
victim’s body, coupled with a bullet strike high on a tree, would indicate the
weapon was fired when it was near or on the ground.  If shown, this would
support Acevedo’s contention the shooting was an accident, possibly resulting
from a dropped weapon.
Dr. Molina was the last
witness to testify before the court recessed for lunch.  After the break, the
State called Lobello to testify about the picture.  Acevedo objected on the
grounds that Lobello had been present during Dr. Molina’s testimony and Lobello
had not been included on the State’s witness list.
During a hearing held
outside the presence of the jury, Lobello testified he had been in the
courtroom listening to the testimony, but that the prosecutor had told him to
leave the courtroom about the time Acevedo began to question Dr. Molina about
the photograph.  Lobello stated he did not hear the testimony.  Lobello
testified that during the lunch break the prosecutor asked him if he was
pointing to a bullet hole in the tree, and he told her it was not a bullet
hole.  Lobello testified he made a similar comment to the trial judge during
the break.  Lobello told the court the prosecutor did not discuss Dr. Molina’s
testimony with him and had never told him he would be a witness at the trial.  Finally,
Lobello testified he did not recognize any member of the jury.
The prosecutor told the
trial court she had never intended to call Lobello as a witness and stipulated
his name did not appear on the witness list.  She stated she had not seen the
photograph previously and proposed to limit Lobello’s testimony to the fact the
defect in the tree was not a bullet hole.  The court overruled Acevedo’s
objections.  After ascertaining that none of the jurors was familiar with or
knew Lobello, the trial court allowed him to testify. 
Lobello testified that he
was working as a deputy sheriff for Kendall County when the picture was taken. 
He testified the picture was taken several days after the shooting when the
Kendall County Sheriff’s Office executed a search warrant on the property. 
Lobello testified he was looking for a bullet, but that he did not find any
evidence that a bullet struck the tree in the photograph.  He told the jury he
was pointing to a “defect” in the tree, but that it was not a bullet hole. 
Violation
of Rule 614
           At the beginning of the trial, the
court ordered the witnesses excluded from the courtroom pursuant to rule 614 of
the Texas Rules of Evidence.  That rule permits the trial court to exclude
witnesses from the courtroom in order to prevent them from hearing the
testimony of other witnesses.  See Tex.
R. Evid. 614.  The trial court has considerable discretion in deciding
how to proceed when the rule is violated.  See Bell v. State, 938 S.W.2d
35, 50 (Tex. Crim. App. 1996)(holding decision to allow witness testimony when
rule violated reviewed for abuse of discretion), cert. denied, 522 U.S.
827 (1997); Leache v. State, 22 Tex. Ct. App. 279, 3 S.W. 539, 541
(1886)(holding that “where ‘the rule’ is invoked as
to witnesses, the mode and manner of its enforcement is confided largely to the
discretion of the court, and the exercise of that discretion will not be
revised except in the clearest cases of abuse”).  In deciding whether
the trial court abused its discretion, the reviewing court should determine if
the witness’s presence during the other testimony prejudiced the defendant.  Bell,
938 S.W.2d at 50.  Factors to consider include whether the testifying witness
actually heard the testimony of the other witness and whether the testifying
witness’s testimony “contradicted the testimony of a witness from the opposing
side or corroborated testimony of a witness he had conferred with or heard.”  Id.
           Lobello testified he did not hear Dr.
Molina’s testimony about the photograph.  Moreover, no witness, other than
Lobello, testified about the defect in the tree, and thus Lobello’s testimony
did not directly contradict or corroborate any other witness’s testimony.  We
cannot say the trial court abused its discretion in allowing Lobello to
testify.
Violation of Discovery Order
           Acevedo also contends the trial court
should not have allowed Lobello to testify because the State violated the
court’s discovery order by not including Lobello on its witness list.  We
review the trial court’s decision to permit the witness to testify for abuse of
discretion.  Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App.
1992).  Factors we consider include whether the prosecutor acted in bad faith
and whether the defendant reasonably could have anticipated the witness’s
testimony.  Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993),
cert. denied, 512 U.S. 1246 (1994).
           Once again, we cannot conclude the
trial court abused its discretion.  The prosecutor stated she had not intended
to call Lobello as a witness.[2] 
She represented to the court that she had not seen the photograph before the
defense introduced it into evidence, and when that happened, she realized
Lobello’s testimony might be needed and instructed him to leave the courtroom. 
Although Acevedo told the court the photograph was obtained from the district
attorney’s file, he did not expressly dispute the prosecutor’s statements. 
Acevedo argues the prosecutor’s conduct amounted to negligence, but does not
argue the conduct amounts to bad faith.  Nor does the record reflect the
prosecutor acted in bad faith in failing to include Lobello on its witness
list.  Moreover, Acevedo reasonably could have anticipated the State would seek
to call Lobello as a witness once the defense implied that the photograph
showed Lobello pointing to a bullet hole in the tree.  Acevedo’s point of error
regarding violation of the discovery order is overruled.[3]
Ex Parte Communication
           Acevedo complains of an improper ex
parte communication between Lobello and the trial court when Lobello commented
to the judge during the lunch break that the defect in the tree was not a
bullet hole.  The entire record regarding the communication is as follows:
Q. [by Defense]  Since that testimony
[referring to Dr. Molina’s testimony], have you had a chance to look at that
picture and review it with anybody else?
 
A. [Lobello]  On the break for lunch,
I spoke to [the prosecutor] about it.
 
Q.  And did you speak with [the judge]
about it also?
 
A.  I made a comment to him.
 
Q.  And what was your comment to the
judge about?
 
A.  I – and I can’t remember verbatim,
but I think something to the effect that it wasn’t a bullet.  There wasn’t any
bullet hole.
 
The record does not contain the trial court’s
response, if any, to Lobello’s ex parte comment. Acevedo argues that “due to
the unprofessional behavior of the trial court, he was forever denied his right
to a fair and impartial trial,” and suggests the ex parte communication
influenced the trial court’s decision to permit Lobello to testify.
Nothing in the record
supports the assertion that Lobello’s comment to the judge influenced the court’s
decision to allow Lobello to testify.  And, as discussed above, the trial court
did not abuse its discretion in allowing the testimony.  Acevedo cites Abdygapparova
v. State, 243 S.W.3d 191 (Tex. App. – San Antonio 2007, pet. ref’d), to
support his contention that he was denied his right to a fair and impartial
trial.  However, Abdygapparova offers him little support.  In Abdygapparova,
the trial court engaged in ex parte communications by exchanging numerous notes
with the prosecutor during voir dire, some concerning the conduct of the voir
dire and a procedural issue on which the trial court had ruled.  243 S.W.3d at 206-07. 
This court held that the notes, coupled with some of the trial court’s rulings,
indicated the court abandoned its role as an impartial judge, which “infected
the integrity of the trial process.”  Id. at 210.  A single instance of
a witness making an unfortunate ex parte comment to the trial judge, where the
record does not reflect whether the trial court admonished or chastised the witness,
in no way suggests the court abandoned its role as an impartial judge.  We
overrule the point of error. 
Admissibility of Photograph
           Acevedo next complains the trial court
erred in admitting a photograph that showed Donofrio on the ground at the crime
scene.  Acevedo objected to admission of the photograph on the ground that its
“inflammatory nature” outweighed its probative value and because it showed the
victim after emergency personnel had administered medical aid.  See Tex. R. Evid. 403 (relevant evidence
may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice).  
           We review the trial court’s decision to
admit a photograph for abuse of discretion.  Prible, 175 S.W.3d at 734. 
In determining whether the probative value of photographs is substantially
outweighed by the danger of unfair prejudice, the court may consider a variety
of factors, including: “the number of exhibits offered, their gruesomeness,
their detail, their size, whether they are in color or black-and-white, whether
they are close-up, whether the body depicted is clothed or naked, the
availability of other means of proof, and other circumstances unique to the
individual case.”  Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim.
App. 2009), cert. denied, 130 S. Ct. 3411 (2010).  Even autopsy
photographs are generally admissible unless they depict mutilation of the
victim caused by the autopsy.  Id.  A photograph is also “generally
admissible if verbal testimony about the matters depicted in the photograph is
also admissible.”  Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim.
App. 2004).  The color photograph admitted in this case shows Donofrio in the
lower left part of the photograph.  It is not a close-up of the victim, and if
any medical procedures had been performed on the body, they are not readily
visible in the photograph.  Some blood is visible on the victim’s clothing and
his chest is bared. However, most of the photograph shows the trailer, the area
around the trailer, and the electrical box that was the center of the victim’s
attention before his death.  We cannot conclude the trial court abused its
discretion in admitting the photograph into evidence.  The photograph is not
gruesome, does not show a close-up of any injury, and merely depicts the victim
in relation to his surroundings.  The probative value of the photograph was not
substantially outweighed by any prejudicial effect.
Request for Attorney
Lastly,
Acevedo argues the trial court erred by allowing Kelly Beardsley to testify,
over his objection, that Acevedo asked Kyle to hire him an attorney.  Beardsley
testified that after Acevedo admitted shooting Donofrio and while they were
waiting for emergency responders to arrive, Acevedo asked Kyle, “Could you
please hire me an attorney?”  Beardsley testified she said to Acevedo, “You
want an attorney and Jeff’s here on his last breath?”  Beardsley testified
Acevedo did not respond, and no further evidence was presented on this issue. 
Acevedo argues
Beardsley’s testimony violated his rights under the Fifth and Sixth Amendments
to the United States Constitution.  Acevedo argues that “an assertion of an
attorney raises an implication of guilt,” citing Cooper v. State, 961
S.W.2d 222, 227 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d), and Rezac
v. State, 722 S.W.2d 32, 33 (Tex. App.—Dallas 1986), rev’d on other
grounds, 782 S.W.2d 869 (Tex. Crim. App. 1990).  However, in both Cooper
and Rezac, the defendant invoked his constitutional rights during
custodial interrogation.  The right to counsel under the Fifth Amendment is
limited to custodial interrogation.  Griffith v. State, 55 S.W.3d 598,
603 (Tex. Crim. App. 2001).  “[T]here is no Fifth Amendment right to counsel if
there is no interrogation.”  Id.  The right to counsel under the Sixth
Amendment does not attach until adversary judicial proceedings have been
initiated.  Id. (quoting Kirby v. Illinois, 406 U.S. 682 (1972)). 
As there had been no arrest or custodial interrogation, and no adversary
judicial proceedings had been initiated when Acevedo made his request, his
constitutional rights were not violated by admission of the evidence, and we
overrule the point of error.
The judgment of the trial
court is affirmed.  
 
Steven C. Hilbig, Justice
 
 
Do Not Publish
 
 
 
 
 
 




[1]
Crumley described the primed cartridge cases as cartridges without powder or
bullets.


[2]
This was the second time this case has been tried.  Lobello was not called as a
witness in the first trial.


[3]
Acevedo also complains the State failed to establish a proper predicate for
Lobello’s opinion that the defect on the tree was not caused by a bullet. 
However, Acevedo did not object to the testimony on this ground at trial, and
therefore failed to preserve any error on this point.  See Tex. R. App. P. 33.1. 


