

Affirmed and Opinion filed August 18,
2011.
 
In
The
Fourteenth
Court of Appeals

NO. 14-10-00329-CR

Mario Alvaro
Palomo, Appellant 
v.
The State of
Texas, Appellee 

On Appeal from
the 183rd District Court
Harris County, Texas
Trial Court
Cause No. 1179682

 
OPINION
A jury convicted appellant Mario Alvaro Palomo of one
count of murder and assessed punishment at life imprisonment and a $10,000
fine.  Appellant challenges his conviction in three issues, arguing that (1)
the evidence was insufficient to convict him of murder, (2) the trial court
erred by admitting evidence of an extraneous offense during punishment without
first making a threshold determination of admissibility, and (3) the State
failed to prove the extraneous offense beyond a reasonable doubt.  We affirm.
Background
            Appellant
was living in an apartment at the White House Apartments with several other
people, including Humberto Torres and Julio Rodriguez.  On August 15, 2008,
Ricardo Perez spent the night in the apartment as appellant’s guest.  That
night, Rodriguez overheard appellant threaten to kill Perez because Perez tried
to enter appellant’s room.  
            During the
morning of August 16, 2008, Perez again attempted to enter appellant’s room
while appellant was sleeping.  Later that day, the residents of the apartment
and Perez began drinking beer.  On the patio, police later found over one
hundred empty cans of beer, which had been consumed that day.  At some point
during the day, Torres and appellant tried to rally others to fight some
Salvadorian neighbors.  Perez refused to fight.  According to Rodriguez, this
upset appellant because he thought Perez “was pushing us Mexicans off to one
side.”  Eventually, everyone calmed down, and nobody wanted to fight.
            At about 7:00 p.m.
or 7:30 p.m., Rodriguez was standing outside the apartment when he saw
appellant call Perez behind a parking lot.  Rodriguez did not testify that he
saw the shooting, but did testify that he heard gunshots.  Torres emerged from
where Perez’s body was later found by police, and he told Rodriguez, “It was
Mario.  It was Mario.”  Torres appeared very frightened and fled the scene.  No
witness testified to seeing appellant leave the scene, but appellant’s former
roommate, Hector Chacon, testified that appellant arrived at Chacon’s apartment
at the Clarewood Garden Apartments at about 9:30 p.m. or 10:00 p.m. that
night.  Appellant asked to spend the night, and Chacon consented.  Chacon
testified that appellant appeared nervous.
            Houston Police
Department officers began to arrive at the crime scene at around 10:00 p.m.  Officer
Jennifer Coffelt was one of several officers who searched the apartment where
appellant and Torres had lived.  Inside appellant’s bedroom, police found three
boxes of ammunition—one box of 10-millimeter rounds and two boxes of
.22-caliber rounds.
            At about 3:00
a.m. the next morning, police were still at the crime scene when Torres
returned.  The clothes he wore and a wallet in his possession had blood on them,
and he was uncooperative and fearful when speaking with police.  The officers
viewed him as a suspect and placed him on hold in the city jail.  Officer
Coffelt testified, however, that she eventually became “100 percent confident
that he was not the person who had killed the complainant.”
            Later during the
morning of August 18, appellant called Rodriguez from Chacon’s apartment and
asked Rodriguez to destroy all of appellant’s papers and throw the bullets down
the toilet.  Rodriguez said he would do so, but he did not.  He testified that
he felt threatened by appellant, and he spoke with his brother, Miguel, about
the incident.  Miguel called the police and led officers to the Clarewood
Garden Apartments.
            Officer Fabian
Lee spoke with Miguel outside at the Clarewood Garden Apartments.  Miguel
spotted appellant and pointed him out, and Officer Lee and appellant made eye
contact.  As soon as they saw each other, appellant ran very quickly into a
nearby apartment.  The owner of the apartment, who Miguel knew only as “El
Merengue,” ran outside.  Merengue was scared, and he said appellant “had run in
there to hide the gun where you wash your hands.”
Appellant refused to come out of the apartment, so
police officers surrounded it, cleared out nearby apartments, and created a
perimeter.  A SWAT team arrived a few hours later, and while setting up positions
in the adjoining apartments, Officer Joel Salazar found appellant sitting in
the bathroom of an apartment that shared a wall with Merengue’s apartment. 
Appellant was covered in sheetrock powder and had insulation stuck to his
skin.  Officer Salazar observed a large hole in the wall separating the two apartments.
After appellant was taken into custody, Officer
Daniel Nunez searched Merengue’s apartment and discovered a revolver under the
sink.  The gun had a strong odor of cleaning oil, which indicated to Officer
Nunez that the gun could have been recently fired and cleaned.  Ballistics
testing later confirmed that this gun fired at least three of the bullets
recovered from the scene of the murder.[1] 
At trial, the State showed the recovered weapon to Julio Rodriguez, and he
testified that it resembled a gun appellant had shown to everyone at the
apartment when they lived together.
The jury found appellant guilty of murder and
assessed punishment at life imprisonment.  This appeal followed.
Sufficiency of the Evidence
In appellant’s first issue, he argues that the
evidence is insufficient to sustain his conviction.  When reviewing the
sufficiency of the evidence, we view all of the evidence in the light most
favorable to the verdict and determine, based on that evidence and any
reasonable inferences from it, whether any rational fact finder could have
found the elements of the offense beyond a reasonable doubt.  Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979).  The jury is the exclusive judge
of the credibility of witnesses and the weight to be given to the evidence.  See
Isassi, 330 S.W.3d at 638.  Further, we defer to the jury‘s responsibility
to fairly resolve or reconcile conflicts in the evidence.  Id.  We draw
all reasonable inferences from the evidence in favor of the verdict.  Id.  This
standard applies to both circumstantial and direct evidence.  Id.
The evidence is clearly sufficient in this case.  The
record supports the following circumstances of appellant’s guilt: 
(1)       
he was seen with a gun resembling the murder weapon prior to the murder,
see Guevara v. State, 152 S.W.3d 45, 51 (Tex. Crim. App. 2004)
(defendant was seen shooting a gun of the same caliber as the murder weapon a
month before the murder);
(2)       
he threatened to kill Perez, see Ross v. State, 133 S.W.3d 618,
at 621 (Tex. Crim. App. 2004) (defendant threatened the complainant with
violence not long before the murder); Silva v. State, 995 S.W.2d 872,
874 (Tex. App.—Waco 1999, no pet.) (defendant threatened to kill the
complainant the night before the murder);
(3)       
he told Perez to go to the location where Perez was murdered, see
Arias v. State, No. 04-09-00571-CR, 2010 WL 5541118, at *4 (Tex. App.—San
Antonio Dec. 29, 2010, pet. ref’d) (mem. op., not designated for publication)
(defendant arranged to meet the complainant at the place where the complainant
was killed); 
(4)       
he was seen at the location of the crime shortly before the murder, see
Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996) (defendant
was seen within a few blocks of the crime scene shortly before and after the
murder);
(5)       
he possessed the murder weapon soon after the murder and had access to
the location where police discovered the weapon, see Madden v. State,
799 S.W.2d 683, 691–92 (Tex. Crim. App. 1990) (defendant sold the murder weapon
to someone else shortly after the murder; referring to this evidence as “most
damaging”);
(6)       
he attempted to conceal evidence by hiding the murder weapon, which had
been recently cleaned, and he asked his friend to destroy bullets by flushing
them down a toilet, see Guevara, 152 S.W.3d at 50 (defendant’s attempt
to conceal evidence is a circumstance of guilt); see also Hanson v. State,
55 S.W.3d 681, 690 (Tex. App.—Austin 2001, pet. ref’d) (defendant cleaned the
murder weapon after crime);
(7)       
he fled the scene of the murder by leaving his own apartment complex and
spending the night elsewhere; he ran from police immediately upon seeing them
the next day; he barricaded himself in an apartment for hours during a standoff
with police; and he tunneled through a wall in an attempt to escape capture, see
Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (defendant’s
flight from the crime scene is a circumstance of guilt); Hardesty v. State,
656 S.W.2d 73, 77–79 (Tex. Crim. App. 1983) (defendant’s attempt to avoid
police apprehension is a circumstance of guilt).
Appellant argues on appeal that “any rational juror
would believe that Humberto Torres, rather than Mario Palomo, killed the
deceased either due to the man’s refusal to fight against Salvadorians or in
order to steal his wallet or both.”  We first note that appellant relies on
facts not proven at trial to establish a robbery motive for Torres.[2]  But regardless
of whether Torres can be linked to the crime scene or participated in the
killing, the evidence linking appellant to the murder is sufficient for his
conviction.  A rational jury could have found beyond a reasonable doubt that
appellant intentionally caused the death of Perez.
Accordingly, appellant’s first issue is overruled.
Extraneous Offense Evidence Admitted
During Punishment
            In his second
issue, appellant argues that the trial court erred during punishment by
admitting evidence of an extraneous offense without making a proper threshold
determination that the State could show beyond a reasonable doubt that
appellant committed the offense.  In his third issue, appellant argues that the
State failed to prove the extraneous offense beyond a reasonable doubt.  We
hold that appellant has failed to preserve error for his first issue, but nonetheless,
the trial court conducted a proper threshold inquiry and did not abuse its
discretion in admitting the evidence.
            Section 3(a) of Article
37.07 of the Texas Code of Criminal Procedure allows the State to introduce
during punishment relevant evidence of an extraneous crime or bad act so long
as the evidence would allow a jury to conclude beyond a reasonable doubt that
the defendant committed or could be held criminally responsible for the crime
or act.  See Tex. Code Crim.
Proc. Ann. art. 37.07, § 3(a) (West 2006); Smith v. State, 227
S.W.3d 753, 759–60 & n.16 (Tex. Crim. App. 2007); Davis v. State,
315 S.W.3d 908, 913–14 (Tex. App.—Houston [14th Dist.] 2010), rev’d on other
grounds, No. PD-1400-10, — S.W.3d —, 2011 WL 1135373 (Tex. Crim. App. Mar.
30, 2011).  The trial court makes the decision on the threshold issue of
admissibility and may not admit extraneous offense evidence unless the evidence
is such that a jury could rationally find the defendant criminally responsible
for the extraneous offense.  Davis, 315 S.W.3d at 914 (citing Smith,
227 S.W.3d at 759–60).  Ultimately, the fact finder must decide whether the
extraneous offense was proven beyond a reasonable doubt.  Id.; see
also Mitchell v. State, 931 S.W.2d 950, 953–54 (Tex. Crim. App. 1996)
(plurality opinion).  We review a trial court’s decision to admit extraneous
offense evidence during punishment for an abuse of discretion.  Mitchell,
931 S.W.2d at at 953.
A.   
Appellant did not preserve error regarding the adequacy of the
trial court’s threshold inquiry.
Before punishment,
appellant objected to the introduction of extraneous offense evidence related
to an uncharged murder by arguing that (1) the evidence would be prejudicial,
(2) the jury would not be able to follow the court’s instruction to only
consider the evidence if the jury found appellant criminally responsible beyond
a reasonable doubt, and (3) the State would not be able to present enough
evidence to put the issue in front of the jury.  At no point did appellant
complain to the trial court that it had not conducted a proper threshold
inquiry into the admissibility of the evidence.  On appeal, however, appellant
now argues that the trial court erred by admitting the evidence without making
a threshold determination that the State could show beyond a reasonable doubt
that appellant committed the extraneous offense.  He argues that he is entitled
to a new punishment hearing because “the Court failed to make this threshold
determination of admissibility for any of the extraneous offenses in this
case.”
Appellant’s argument on appeal does not comport with
his objection and arguments at trial, and thus, appellant has failed to
preserve error on the issue of whether the court admitted the evidence without
holding a proper threshold inquiry.  See Tex. R. App. 33.1(a) (requiring a specific objection to
preserve error for appellate review); Guevara v. State, 97 S.W.3d 579,
583 (Tex. Crim. App. 2003) (holding that the appellant failed to preserve error
because the objection at trial did not comport with the complaint raised on
appeal).[3] 
Accordingly, appellant’s second issue is waived.
B.    
The trial court conducted a proper threshold inquiry.
Regardless of
appellant’s failure to preserve error, we hold that the trial court conducted a
proper threshold inquiry.  Appellant argues that the trial court “clearly [did]
not understand the obligation to make a threshold inquiry into the proof,” and
the State “did not tell the Court what the testimony would entail or describe
any evidence it intended to offer in order for the Court to make the
appropriate threshold inquiry.”
The record, however, contradicts appellant’s
assertions.  When appellant requested a hearing outside the presence of the
jury to make an objection before the punishment phase of the trial, the court
excused the jury and specifically explained, “State, why don’t you tell me what
it is that you plan on putting on, who you’re putting on, what they’re going to
testify to, all that.”  The State then proceeded to make an offer of proof:
The State:      We
have an extraneous murder.  It was actually committed before this murder.  I
have—let me count.  I have two first responders.  I have a CSU unit who
recovers bullets.  The bullets recovered in the case in chief is another box of
bullets that tie to this scene.  So, I’m recalling that CSU.  I have the CSU
from the scene of the second—of this murder, the punishment murder.  I have two
investigators that actually did two murder squads in this murder.  And so, I
have two investigators.  I have the [ballistics expert who testified during
guilt-innocence].  I have the ME who did the autopsy.  And I also have a
ballistics examiner from the Sheriff’s Office. . . .  I also have—he was
arrested with the murder weapon at some point.  And so, I have the arresting
officers from when he was arrested with the murder weapon.
The Court:     Okay. 
Good.  Let me just ask you a few questions.  Is—first of all, what’s the date
of that previous murder?  If this was August 16th, 2008—
The State:      This
happened on October 20th, 2007.
The Court:     Okay. 
And you said he was arrested with the murder weapon?
The State:      On
December 30th of 2007.
The Court:     December
30th, 2007.  Ok  And is that—that’s a different firearm than what was presented
in this case, obviously?
The State:      Yes,
your Honor.
The Court:     Okay. 
So, he was arrested—was he arrested on December 30th of 2007?
The State:      He
was arrested for public intoxication on December 30th, 2007.  They recovered
the weapon.  At the time they did not link the weapon at that time.
…
The Court:     Now,
the Court is just curious.  What kind of gun was it that he was found in
possession of?
The State:      In
this case it was a 10-millimeter Glock.  The bullets—this is how we link him,
Judge.  First of all, the murder happened within the same block as where the
SWAT stand-off happened.  The victim in this case was shot multiple times just
as the victim in the case in chief.  The shell casings at the scene come back
to the gun that was with Mr. Palomo, as well as the bullets found in his room
during the other murder also tie back to the shell casings.
The Court:     Which
is one of the boxes of ammunition that you introduced in this trial?  . . .
The State:      It
was one of the boxes in the picture, but we haven’t actually introduced the
box.
The Court:     Okay. 
Well, [appellant’s trial counsel], I’m going to—again, I’m going to deny your
objection.
The trial court also said it would instruct the jury
that the State had to prove an extraneous offense beyond a reasonable doubt and
“then basically it’s in [the jury’s] hands.”  Although the trial court never explicitly
ruled that a rational jury could find beyond a reasonable doubt from this
evidence that appellant was criminally responsible for the extraneous murder,
the State’s proffer and the court’s questions show that the court indeed held a
threshold inquiry prior to admitting the extraneous offense evidence.  See Arzaga
v. State, 86 S.W.3d 767, 781 (Tex. App.—El Paso 2002, no pet.) (holding
that the State’s oral proffer was sufficient for the trial court to make the
threshold determination; explaining that a “trial court may determine whether
there is sufficient evidence through an oral or written proffer of evidence,
motions, pretrial hearings, and the trial, including any bench conferences”); Mann
v. State, 13 S.W.3d 89, 94–95 (Tex. App.—Austin 2000) (holding that a
proper threshold inquiry consisted of an oral proffer from the State, and no
evidentiary hearing was required), aff’d 58 S.W.3d 132 (Tex. Crim. App.
2001); Welch v. State, 993 S.W.2d 690, 697 (Tex. App.—San Antonio 1999, no
pet.) (holding that a proper threshold inquiry consisted of a written proffer
from the State); see also Jackson v. State, 65 S.W.3d 317, 321 (Tex.
App.—Waco 2001, no pet.) (holding that the trial court impliedly determined
that the jury could reasonably find beyond a reasonable doubt that the
defendant committed the extraneous offense because the trial court admitted the
evidence); cf. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App.
1998) (presuming that a trial court performed a required Rule 403 balancing
test when the record showed that the court obtained the necessary information
to make the determination and subsequently overruled the defendant’s objection
to the admission of the evidence).
Appellant’s second issue is overruled.
C.    The trial
court did not abuse its discretion in admitting the evidence.
Appellant’s third issue is as follows: “Did the State
fail to prove the extraneous offenses beyond a reasonable doubt?”  Although
appellant references the actual testimony of witnesses during the punishment
phase of the trial, he cites no cases that suggest we should perform any type
of evidence-sufficiency review for extraneous offenses alleged during
punishment.  In a recent unpublished opinion from this court, we construed an
argument identical to appellant’s as a challenge to the sufficiency of the
evidence supporting the extraneous offense.  See Ulloa v. State, No.
14-10-00161-CR, 2011 WL 2462193, at *3 (Tex. App.—Houston [14th Dist.] June 21,
2011, no pet.) (mem. op., not designated for publication).  We then noted that
courts of appeals generally do not review the sufficiency of the evidence
supporting an extraneous offense presented during punishment.  Id.; see
also 43A George E. Dix & John M.
Schmolesky, Texas Practice Series: Criminal Practice and Procedure §
51.36 (3d ed. 2011) (“Generally, the courts of appeals have refused to conduct
evidence review of juries’ possible conclusions that the State proved
[unadjudicated prior] offenses by the required proof of beyond a reasonable
doubt.”).
Rather, courts of appeals have construed such
evidence-sufficiency challenges as challenges to the admission of the evidence
under an abuse of discretion standard.  See Malpica v. State, 108 S.W.3d
374, 378–79 (Tex. App.—Tyler 2003, pet. ref’d) (“[T]he only review possible of
the sufficiency of the proof of an extraneous offense introduced at the punishment
stage is a review under an abuse of discretion standard of the trial judge’s
threshold ruling on admissibility.”); Thompson v. State, 4 S.W.3d 884,
886 (Tex. App.—Houston [1st Dist.] 1999, pet ref’d) (“[W]e do not review the
sufficiency of the evidence of an extraneous offense to support the jury’s
assessment of punishment.  We construe appellant’s complaint as a challenge to
the admission of the extraneous offense evidence.”); see also Wilson v.
State, 15 S.W.3d 544, 548–49 (Tex. App.—Dallas 1999, pet. ref’d) (holding
that factual sufficiency review does not apply for reviewing evidence of an
unadjudicated extraneous offense partly because “review of extraneous offenses
at punishment concerns only an evidentiary issue”).
One of the reasons for not reviewing the sufficiency
of the evidence to support extraneous offenses raised during punishment is
because there is no actual finding by the jury that the defendant committed the
extraneous offense.  See Thompson, 4 S.W.3d at 886.  We cannot determine
whether the jury found beyond a reasonable doubt that appellant was criminally
responsible for the extraneous offense; nor can we determine if any such
finding even affected the jury’s determination of punishment.  See id.
Accordingly, we review the trial court’s decision to
admit the evidence for an abuse of discretion.  Reviewing the transcript of the
threshold inquiry discussed above, we conclude that the trial court did not
abuse its discretion when it implicitly ruled that a rational jury could find
appellant criminally responsible for the extraneous murder beyond a reasonable
doubt.  The State intended to introduce evidence that (1) appellant possessed the
murder weapon when he was arrested two months after the murder, (2) shell
casings from the type of bullets found in appellant’s bedroom were found at the
murder scene, and the shells had similar toolmarkings, (3) the victim was
killed near the Clarewood Garden Apartments, and (4) the victim was shot in a
manner consistent with the killing of Perez—at close range and with multiple
bullets.  It is not outside the zone of reasonable disagreement to conclude
that evidence of the foregoing assertions, along with some of the evidence
adduced during the guilt/innocence part of the trial, would allow a rational
jury to find beyond a reasonable doubt that appellant committed the extraneous
murder.
Appellant’s third issue is overruled.  Having
overruled all of appellant’s issues, we affirm the trial court’s judgment.
 
                                                                                    
                                                                        /s/        Sharon
McCally
                                                                                    Justice
 
 
 
Panel consists of Justices Anderson,
Seymore, and McCally.
Publish
— Tex. R. App. P. 47.2(b).




[1]
All of the other recovered bullets contained insufficient markings for an
identification.  That is, the revolver found by Officer Nunez could not be
excluded as firing those bullets.


[2]
Appellant argues, “The bloody wallet found on Humberto surely belonged to the
deceased.”  There is no evidence in the record regarding ownership of the
wallet.  Further, appellant’s theory on appeal regarding access to the murder
weapon directly contradicts his own testimony at trial.  Appellant argues that
Torres “clearly had access to the gun in Mr. Palomo’s room” and that Torres and
appellant had “equal access to the gun.”  At trial, however, appellant
testified that the gun did not belong to him, and he saw it only when a
stranger tried to sell it to him on the day after the murder.


[3]
See also Sauceda v. State, No. 14-980741-CR, 2000 WL 19209, at *2 (Tex.
App.—Houston [14th Dist.] Jan. 13, 2000, no pet.) (mem. op., not designated for
publication).  In Sauceda, the defendant requested that the trial court
hold a hearing outside the presence of the jury to determine whether the State
“has proved any extraneous offense beyond a reasonable doubt.”  Id. at
*3.  We reasoned that the request was not specific enough to complain on appeal
about the trial court’s failure to conduct a threshold inquiry.  Id. 
Similar reasoning applies here.  Appellant’s objection did not allow the trial
court to take further action to cure any alleged deficiency in the court’s
threshold inquiry.  See Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.
App. 2004) (discussing the reasons for requiring specific objections).


