                           NO. 12-95-00127-CR

                  IN THE COURT OF APPEALS
          TWELFTH COURT OF APPEALS DISTRICT
                              TYLER, TEXAS

                                           § APPEAL FROM THE SEVENTH
RAUL RAMOS, JR.
APPELLANT
                                            § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                         § SMITH COUNTY, TEXAS
APPELLEE




                                      PER CURIAM

  Appellant,Ran!W »-.*<*<**-**"***=°^f^ TI
^ confinement and aS.0,000 fine. Appe„an«raisestoepoints oferror on appeal. We-
affirm.
                                           Facts




 17 1994 in Wilks Park in Tyler, Texas. Garcia was amember ofthe Tyler Nortenos, aHispanic
                        fc A iw The record reflected that there had been recent internal
 gang whose leader was the Appellant. The record
                                »ambers of the gang. Appellant had testified at the trial of a
 conflicts and divisiveness among members ot tne gang PP

 tnemheroftheNortenos. This hadcensedhostilny —,-«f.—-J»**<*^
 toward AppeUartt. There was also extensive testimony regardtng anine nnihmeter gnn that
                                               1                                       1.409
r
        m«) in the Grady mnrder, and there were claims at Appellant's trial that possession ofthat
    ^Latense issne between Appellant and Garcia. Appellant's own testimony established that
    ^ emillimetergun "belongedto the gang" and was used by various Nortenos.
    a" OnOctober 16, 1994, the evening ofthe murder, Appellant went to the home ofGareta's
     •,ftiend Ida Sanchez ("Sanchez''), three times, demanding to see Garcia and inquiring aboutthe
    6" Sanchez testified that she told Appellant each time that the gun had been there bn, was no
    L- in ft* house, and that Garcia was not home bu, was out with Appellant's brother Roman
    ,.M00Sie" Ramos Leal ("Moosie"). She testified mat she feared for Garcia after Appellant left.
          Later in the evening ofOctober 16,1994, Appellant was with fellow gang members Ctremo
    Mdran0 ("Medrano"), Felipe or Phillip Barrera ("Barrera"), "Moosie," and Garcia at W.Iks Park.
    BothMoosie andMedrano confirmedthatthey werepresent a,Wilks Parkwith Appellant mat mght.
    TheyeachtestifiedmatAppeilantdemandedthe nine millimeter gunfrom Garciaandbecame hoshle
    with Garciawhen he failed to produoe it. Appellant men pulled ashotgun on Garcia and shothtm.
    Bod, Medrano and Moos.e testified that they saw Appellant shoo. Garcia "at least twrce." They
    stated that Garcia attempted to run after the initial shot and that, at Barrera's urging, Appellant
    p^suedOarciathrough the parkand shot him againashe attemptedto run away. Afterthe shooting,
    the men fled the soene. Medrano stated that they drove back to the house where Appellant was
     staying with his sister, Esther "Nena" Leal, and Maria Alvarez.
            Alvarez testified as ahostile witness. She confirmed that, at the time ofGarcia's murder,
     Appeilant had been staying a, the same house with Leal and her. She stated that Appellant came
     home with Medrano and Moosie on the night ofme murder, and that all three ofthe men told her
     tha, Appeliant had killed Garcia. She also testified that Appellant left Tyler in Leal's car the day
     after Garcia's body was found and drove to California. She admitted tha. she was afraid .0 come
     back from Minnesota to testify because she was afraid of Appellant.
            Officer John Brown, aTyler pol.ee officer, testified as to aprevious sworn statement grven
     byAlvarez inwhich she had also statedthatLeal told hertha, Appellanthad confessed to murdenng
     Garcia In the statement, Alvarez recalled mat Appellant had said the dispute was over me gnn used
     inthe Grady murder. She also described the shirt that Garciawas wearing the nigh, he was ktlled.
            Appellant's sister, Leal, alsotestified, statingthat she and Alvarezhad been subpoenaed from
  • esota to appear as witnesses in this case. She was established by the prosecution as ahostile
  . D(,„ The State introduced a sworn statement by Leal. In the statement, Leal maintained that
    ellant had come home the night ofthe murder "scared, said all he could hear was [Garcia]
    aming, said they went to Wilks Park, that he demanded the nine millimeter from [Garcia]." Leal
also told police that Appellant had said Garcia had refused to return the gun and that it was the one
used in the Grady murder. According to Leal's sworn statement, Appellant told her that he shot
Garcia, and that he chased him and shot him again. She also told police that "[Appellant] told me
that he would kill anyone that talked about the shooting of[Garcia]." She also acknowledged that
she was paid by Crimestoppers for her information and that she had believed that her identity would
be kept confidential. Evidence was presented that Leal knew Appellant had taken her new car to
California and did not disclose his identity tothe authorities, who filed a stolen vehicle report onher
behalf. At trial, Leal recanted her statement to police that Appellant had confessed to herthat he
had killed Garcia.
        Officer Rob Hayes, a Tyler policeman working in the Gang Violent Crimes investigations
division, stated that Appellant was the leader of the Nortenos gang and that they were the most
violent gang in Tyler. Daniel Tiner, a former cellmate of Appellant, testified that Appellant had
bragged to him about killing Garcia. He relayed many details about the alleged murder that were
consistent with police reports orthe testimony ofother witnesses, including Appellant's dispute with
Garcia about the nine millimeter gunandthe other missing merchandise. Tiner also testified that
Appellant had stated that he would shoot witnesses who testified against him when he was released
from jail.
                                       Legal Sufficiency

        Because Appellant's second and third points of error challenge the legal and factual
sufficency ofthe evidence, we will address those points first. In Appellant's second point of error,
he argues that the verdict ofthe jury was based upon legally insufficient evidence. In reviewing the
legal sufficiency of the evidence, we must view the evidence in the light most favorable to the
prosecution and determine whether any rational trier of factcouldhave found the essential elements
ofthe crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); see also Geesa v. State, 820 S.W.2d 154, 155-161 (Tex. Cr. App. 1991). After

                                                  3

                                                                                                 1.413

                                                                                                          i


                                                                                                              !
     . all 0fthe evidence, we will resolve all conflicts and reasonable inferences in favor ofthe
   T .Hears vState, 895 S.W.2d 456,458-59 (Tex. App. -Tyler 1995, no pet.). This siandard
X V£rdtJ,obomd,rec,mdcircums,mtiaievidcncecases,«^eraw5Mte,711 S.W.2d240,245
     ' m0 APP 1986), and places mil responsibility on the trier of fact to weigh the evidence, to
    ^ive conflicts in me testimony, and to draw reasonable inferences from basic to ultimate facte.
  "'"J ckson 443 USat 319, 99 S.Ct. at 2789. In conducting this review, the appellate court,s no,
  1 evaluate me weightand credibility ofthe evidence bu, to ac, oniy to ensure the juty reacheda
* ra,ional decision. Muniz v. State, 851 S.W.2d238,246 (Tex. Cr. App. 1993), cert, denied, 510 U.S.
  .37 114 SCt 116 126 L.Ed.2d 82 (1993). Ifmere is evidence to establish the defendant's grit
  bey„„dareasonable doubt, and mejury beiieves the evidence, the appellate court canno, reverse the
     juugmentonancvidencepoint.^earev.5^,895S.W.2da,459,dtingS„»v.SMte,864S.W.2d
     687 691 (Tex. App. -Houston [14th Dist] 1993, pet. refd).
            The essential elements of murder, as charged in the indictment, are that Appellant
     totentionally and knowingly caused the death of Carlos Garcia, by shooting him with adeadly
     weapon and mathe did intend to cause serious bodily injury to Garciaby committing an ae, clearly
     da„gerous.ohumanlifema,causedGareia'sdeaua. Tte.PEN.CoreAm | 19.02(b)(Vernon 1994
     andSupp 1997). Although Appellant does no. specifically state which elements ofmurder that he
     chaUenges, it appears fiom his argumen,tha, he contests the prooftha,he was me perpetrator ofthe
     offense. Throughout the trial, Appellarr. sough, to establish ma, Medrano was "me shooter" who
     had killed Garcia, and tet Appellan, was awitness rather than aparticipant mthe shooting.
              We have reviewed «he evidence presented at trial aod conclude tha, i, was sufficient to allow
      arational trier of fact to find Una. Appellant did murder Garcia as charged. Medrano and Mooste
      boti, testified mat Appellant became hostile with Garcia on the nigh, offire murder while the men
      were at Wilks Park. He demanded tine nine millimeter guar from Garcia, who claimed Art ,t was a.
      Moosie's house. When Garcia could no, produce me gun, Appellan, sho, him with a12-gauge
      shotgun. Medical testimony was consistent with the eyewitness claims ,hrt, after Garcia was shot
      once hetanandwasshotagaininmeback. The men men left Garcia in tihe park and fled me scene.
      Medrano testified mat they drove back to me house where Appellant was staying with hts steter,
      Leal and Alvarez. Leal ,old police that Appellant confessed that he had committed me enme.
                                                                                              1 A.
       stated that the other men told her that Appellant committed the offense. Medrano testified
Alvarez s>w^u
  iAppellant told him to hide the shotgun and he did so in the backyard adjacent to Appellant s
^kyard. The evidence established thatthe Appellant left Tyler within afew days ofthe murder
^d drove his sister's new car to California, where he was arrested on an outstanding warrant for
Garcia's murder. After he returned, he bragged to his cellmate about committing the murder.
Appellant cites contradictory testimony in his briefon appeal. However, our duty is not to act as
anotherjuror. The jury alone possesses the right to weigh testimony, resolve credibility disputes,
E select the evidence it cares to believe. Nelson v. State, 905 S.W.2d 63, 64 (Tex. App. -
Amarillo 1995, no pet.); Skillern v. State, 890 S.W.2d 849, 879 (Tex. App. -Austin 1994, no pet.).
Moreover should inconsistent or contradictory testimony exist, we assume that the discrepancies
were resolved in favor ofthe verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Cr. App. 1988).
       We conclude that the evidence is legally sufficient to support the charged offense.
Appellant's second point of error is overruled.

                                     Factual Sufficiency

I Appellant asserts in his third point of error that the jury's verdict is so contrary to the
overwhelming weight ofthe evidence as to be clearly wrong, unjust and factually insufficient. In
conducting afactual sufficiency review, this Court must view all the evidence impartially and set
aside the verdict only ifit is so contrary to the overwhelming weight ofthe evidence as to be clearly
wrong and unjust. Clewis, 922 S.W.2d 126,135 (Tex. Cr. App. 1996). We must view the evidence
"without the prism ofin the light most favorable to the prosecution'... and set aside the verdict ifit
1S so contrary to the overwhelming weight ofthe evidence as to be clearly wrong and unjust." Id.
 at 129. These fact findings must be upheld ifthere is more than ascintilla of evidence in support
 as the verdict. Pratt v. State, 907 S.W.2d 38,46-47 (Tex. App. -Dallas 1995, no pet.). The Clewis
 court also held, however, that afactual sufficiency review must be appropriately deferential so as to
 avoid an appellate court's substituting its judgment for that ofthe jury. Schexnider v. State, 943
 S.W.2d 194, 201 (Tex. App. -Beaumont 1997, no pet.) citing Clewis, 922 S.W.2d at 133.
        Our review of the record reveals that Appellant presented evidence contrary to that ofthe
 State. Several friends and family members testified that Medrano was the known possessor ofthe
I weapons at issue and that he had been seen with them on numerous occasions. Medrano
   Vnowledged having used the shotgun, claiming that he did so only once in self-defense during a
;drive-by shooting at Appellant's house. Christina Iglesias testified that Leal and Alvarez were not
  thome the night ofthe shooting; therefore, Appellant could not have confessed to them that he had
 •ust killed Garcia. Also, in court, Leal recanted her earlier statements and testified that she had been
 coerced by the police to testify as to Appellant's confession.
        Witnesses who claimed to be familiar with Tinertestified that he had a poor reputation for
 truthfulness. Appellant's half-brother, Sammie Leal, also testified, maintaining that there was
 hostility between Moosie and Appellant because ofAppellant's testimony in the Grady murder trial
 and that Moosie and Garcia were very close. Martin Rodriguez, amember ofrival gang, the Eastside
 Locos, testified that he had seen Medrano with the nine millimeter gun. He also claimed that his
 brother had been shot by Medrano, although he did acknowledge on cross-examination thathe had
 never given such a statement to the police.
        Appellant also took the stand onhis own behalf. He acknowledged that he was a Norteno
 and he testified that there had been great hostility toward him since he had testified at the Grady
 murder trial. He denied prior testimony that he and Garcia had stolen property and had hidden it at
 Sanchez's house. Appellant acknowledged having had possession of the nine millimeter gun and
the shotgun inthe past but denied that either weapon belonged to him. He testified that he had in
 fact been with the other four men at Wilks Park the night of October 16, 1994, and into the early
hours of October 17,1994. Appellant stated that hehad picked up Medrano, who was walking that
evening with the shotgun under his jacket, and that he drove all of the men in his car. Appellant
testified that, immediately upon arriving at thepark andgetting outof the car, Garcia pulled the nine
millimeter gun and began yelling at him for "messing up" by testifying inthe Grady murder trial.
Appellant stated Medrano shot Garcia with the shotgun before Garcia could shoot Appellant, and
that it was Medrano who hadpursued Garcia and fired additional shots. Appellant also testified that
Leal was notat home when they arrived there after the shooting, thus refuting the claim that he had
arrived upset immediately after the murder and confessed to committing it.
        The factual sufficiency review process begins with the assumption that the evidence is legally
sufficient underthe Jackson test. Clewis, 922 S.W.2d at 134. The appellate court then considers


                                                                                             1 41 3
I, fthe evidence in the record related to appellant's sufficiency challenge, not just the evidence
all 01 tnc
  hich supports the verdict. The appellate court reviews the evidence weighed by the jury which
   ds t0 prove the existence ofthe elemental fact in dispute, and compares it to the evidence which
tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Cr. App. 1996).
        However, afactual sufficiency review must be appropriately deferential so as to avoid the
appellate court's substituting its ownjudgment for that ofthe fact finder. Clewis, 922 S.W.2d at 133.
Although Appellant presents evidence showing that he did not shoot the victim, there exists other
probative evidence that he did. Due deference must be accorded to the jury regarding the weight and
credibility ofthe evidence. Id. We conclude that the jury's verdict is not manifestly unjust, shocks
the conscience, or clearly demonstrates bias. Id. at 135. Therefore, we hold that the jury's finding
that Appellant intentionally killed Garcia is not so contrary to the overwhelming weight of the
evidence as to be clearly wrong or unjust. Id. Point of error three is overruled.

                                    Exclusion Of Evidence

        In point one, Appellant contends that the trial court committed reversible error in excluding
evidence that Medrano, akey prosecution witness, had threatened Alvarez and had coerced her to
testify against Appellant. The question ofadmissibility ofevidence shall be determined by the trial
court and, absent aclear abuse ofdiscretion, the trial court's ruling will not be disturbed on appeal.
See TEX. R. Crim. Evid. 104(a); Burke v. State, 930 S.W.2d 230, 235 (Tex. App. - Houston [14
Dist] 1996, pet. refd.).
         On Friday, May 12, 1995, the State called Maria Alvarez to the stand as ahostile witness.
Our review ofthe record reveals that Alvarez was extremely uncooperative with the prosecutor and
demanded an interpreter. However, she basically understood and accommodated defense counsel
each time she was cross-examined. She nevertheless did provide testimony which was not favorable
to Appellant.
         On Monday, May 15, 1995, the State rested and the defense began its case. Alvarez was
called unexpectedly to the stand by Appellant's counsel, where she testified before the jury that
Medrano had threatened her that morning. As aState's witness, Medrano had already testified that
Appellant had murdered the decedent, while Appellant sought to show that Medrano was the actual
      Tie State objected to Alvarez's testimony on the grounds of relevance and hearsay.
    llant's counsel responded that the defense was placing Medrano's character into issue, as to
Ttherornothe was truthful, whether or not he had tha, gun, whemer or no,he killed mis Catlos
j»Z Tha, is relevan,,o whether orno. he is capable, whetherornothehas done it before, and
 hether or not, quite franjdy, he will do i, again to this witness."
" Outside tire jury's presence, me court allowed the parties to question Ers, Alvarez, ,hen
Mrfran„ regarding the issue oftire allegedtinea,. Medrano denied making any such remarks. The
c0Urt men returned to the issue of whetiter Alvarez's testimony regarding Medrano should be
atoned The State requested amotion to strike the testimony and asked for an instiuction ,o me
jury ,o disregard it. Appellant's counsel asserted tha,, "The fac, thai he is willing to intirmdrte a
witness inthe hall or threaten to kill anyone is highly relevant as to whether or not he acted at tha,
lime as ashooter. So we would submit tha, ,he instruction is not - should not be granted, tha. the
jury should be able to consider it for the defensive theory that we're going to urge." The State then
reiterated its prior motion in limine regarding the suppression of prior bad acts of me State's
witnesses, which had been granted by the court. The court advised Appellant's counsel that any
otherquestionsthatwouldviolate tine motion inlimine couldresult in afinding ofcontemptofcourt.
I.ordered Appellant's counsel to getprior ruling by the court, outside tine hearing ofIhejury, before
presenting any outer impropertestimony. The court<hen ruled tha. it would gran, tire Stete's request
and instruct the jury ,0disregard Alvarez's testimony.
        Appellant now urges tins Court to hold thrt the trial court committed reversible error by
 excluding Alvarez's testimony, and tha, i, deprived Appellan, ofhis due process rights under both
 the federal and stete constitutions. Appellant relies upon the holding in Coleman , State, 545
 SW2d S31(Tcx. Cr. App. 1977), in which <he court discusses tire motives ofaprosecution wrtness
 who testified agains, toe defendant The Coleman court held adefendant must be given great
 latitude to show any fac, una, would tend to establish ill feeling, bias, motive, or animus on me part   l




 of awitness testifying agains, him. See Coleman, 545 S.W.2d a, 833; Gonzales , State, 929
 SW2d 546 (Tex. App. -Austin 1996, pet. refd). The court should allow "... legitimate exploration
 ofthose matters indicating the friendship or leaning ofwtinesses, and those associated wi,h .hem,

                                                                                       1423
        „nv party or issue involved." Coleman, 545 S.W.2d a, 833-34. Any fac, tending ,0 show
    'bias° ormouv
              IL, which migh,evenremotely tendto affectawitness's credibility, shouid be admitted.
       rnyman 545 S.W.2d at 834.
    *' Ruie 612(b) of the Texas Rules of Criminal Evidence recognizes the right to impeach a
         . bv proof of circumstances showing bias or interest on fee part of the witness. The
    "thing party, however, mns, showfert fee witness's attitude is suchthat he is iixely to favor
    ^aparticuirtUtigamfotreasonsun^^^^c- *—***»
    Tw 2d a, 549 Infee present case, Appeiiant attempted.0 introduce Alvarez's testimony to show
    Medrano's bias agains, him, suggesting feat the bias and il, wili stemmed from fee fac, fert
    ^lantwasti^tos^^^^                                    ^^T^T
    banc's credibility as awitoess, the evidence was admissible pursuant to Rule «K»
           to further support of his arguments of admissibility, Appellant cites Lape v. State,
    S.W.2d 949 (Tex App. -Houston [14fe Dist] 1994,pet. refd), and argues feat testimony regatdmg
    Medrano's threat is admiss.b.e under Tex. R. Cr,m. Evm 803(3) as an exception to the hearsay
    Z' However, Appellantfailed to offertinsargument,0fee trial courtindefenseofthetestimony,
    either before or after fee trial court's ruling. Appeiian, must objec, or offer argnmen, in response
    to fee State's objectionto preserve errorfor appellate reviewwhen the trialcourtexcludes evidence.
    M_ v.State,629 S.W.2d731,733-35 (Tex. Cr. App. 1981);JoHnson , State, 925 S.W.2d745,
     750 (Tex App. - Fort Worth 1996, pet. refd).
            The rules ofappeiiate procedure require that aparty present its evidence arm all arguments
     in support thereofto fee trial court to allow it an opportunity ,o make aruling. See TEX.R.APP.P.
     52(a) "Failing ,0 presen, aparticular airmen,to fee trial court and then making such argument to
     fee appeiiate courtin effect usurps fee trial court's ftmction ofruling on such arguments." JoHnson
     925 SW2da. 750, citingCruse , State, 882 S.W.2d 50,52 (Tex. App. -Houston [14feDtstJ 1994,
     no pet). Accordingiy, we conclude fert Appellan, has failed to preserve tins contention for our
     review.




     revocation, identification, or terms of declarant's will.




1
       HoWever evenifwe accept Appellant's contention fea. fee evidencewasadmissfeleto show
       rr«       the trral com. erred in exciuding Alvarez,  testimony,
    ^Ih^lyperceiveaertorwouldbeharmlessbcyondareasonaHedoubtTex^        reversa, wouid no be
bias
    luired because any ¥                                                 determine whether it
req

P
      gl(b)(2) mandates fert fee appeiiate t ouzt o^^                ^                    &
       wed to the conviction or the punishment. Harris v. State,
contn
App. 1989). we m                                                           Q       1992) M




 at 568.




                                                                                                   I 1




      affirmed.

      Opinion delivered August 29,1997-
      PaneZ consisted ofRamey, Jr., C.J., Holcomo, J., ana

                                                     NOT PUBLISHED

                                                                                       4 /I. ' I
                                                             10
