Affirmed and Memorandum Opinion filed February 24, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00376-CR

                CARLOS DANIEL FERNANDEZ, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1344140

                MEMORANDUM                     OPINION

      Appellant Carlos Fernandez was charged with capital murder and convicted
of the lesser-included offense of murder. He challenges his conviction in four
issues. We conclude appellant did not preserve his challenge to an impermissibly
suggestive pretrial photographic identification. Regarding appellant’s argument
that the trial court admitted evidence of an extraneous offense contrary to Texas
Rule of Evidence 403, we hold that any error was harmless because the evidence
concerned appellant’s intent to commit capital murder and the jury did not convict
him of that offense. Appellant also attacks the admission of his confession to the
extraneous offense on the grounds that the confession was involuntarily given. We
hold the trial court did not err in admitting the confession because it was
voluntarily given, and in any event, its admission was harmless beyond a
reasonable doubt. Finally, appellant argues he was entitled to an instructed verdict
on the capital murder charge because the state failed to provide legally sufficient
evidence of intent. Any error in this regard was likewise harmless, however,
because appellant was convicted of the lesser-included offense of murder. We
therefore affirm the trial court’s judgment.

                                   BACKGROUND

      Appellant was convicted of murdering complainant Miguel Pedro Rosales
Ramos. Jesse Sanchez testified that he met the complainant one evening at a
convenience store. After the complainant purchased some food, he and Sanchez
went into an alley near the store. Three men and one woman who were armed got
out of a car nearby and asked the complainant and Sanchez for money. When the
complainant refused, a fight ensued. Sanchez testified he heard the sound of a
pistol and saw the complainant fall. The assailants then fled the scene. Sanchez
went to see a friend, who called the police. Dr. Sara Doyle, an assistant medical
examiner for the Harris County Institute of Forensic Sciences, conducted an
autopsy and testified that the complainant died from a gunshot wound to his chest.

      Appellant subsequently confessed to the crime and was charged with the
capital murder of complainant Ramos.           In his opening statement to the jury,
appellant’s trial counsel argued that appellant lacked the requisite intent to be
convicted of the offense and instead was guilty of murder.



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      To counter that argument, the State sought to introduce evidence of an
extraneous offense later committed by appellant. Outside the presence of the jury,
Antonio Chamorro testified that one evening, three people—two men and one
woman—came into his home carrying guns. Chamorro identified appellant as one
of the assailants. The assailants instructed Chamorro and his family to gather their
phones and credit cards.     They threatened to kill the family if they did not
cooperate. After the family handed over their property, the assailants left the house
through the garage.

      The female assailant—later identified as Victoria Correa, appellant’s
girlfriend—walked back into the house and asked Chamorro whether he had
handed over his ATM or debit card. He responded, “Let me see. Let me get close
so I can see it.” As Chamorro approached her, he grabbed for her gun and pulled
the trigger. Correa was hit in the upper thigh. Chamorro then closed and locked
the garage door to protect his family. Appellant came to the front door and forced
his way into the home. Chamorro grabbed for appellant’s gun, and appellant shot
him in the neck. With the gun still in appellant’s hand, Chamorro pulled it to one
side. Appellant nevertheless managed to pull the trigger and shot Chamorro five
more times. As Chamorro and appellant continued to struggle for the gun, Correa
crawled to the door and fired at Chamorro. She missed and hit the wall. The third
assailant then reentered the home, and appellant instructed him to shoot Chamorro
in the head. Rather than shoot, the third assailant used the back of a shotgun to
strike Chamorro until he let go of appellant’s gun. The three assailants then fled,
and Chamorro was eventually taken to the hospital.

      In arguing that the trial court should admit this evidence, the State pointed
out that appellant had shot Chamorro six times and instructed another individual to
shoot him in the head. The State contended these actions should be admitted to

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rebut appellant’s argument that he lacked the intent to kill the complainant.
Appellant’s trial counsel responded that the extraneous offense would show a
propensity for bad character, which Texas Rule of Evidence 404(b) was designed
to prevent. He also lodged an objection under Texas Rule of Evidence 403,
contending the prejudicial effect of the evidence substantially outweighed its
probative value.    The trial court stated it found the extraneous offense more
probative than prejudicial and admitted the evidence.          Before the jury heard
testimony regarding the extraneous offense, the court gave a limiting instruction
upon request from appellant’s trial counsel. The court said:

      You are further instructed that if there is any evidence before you in
      this case regarding the Defendant’s committing an alleged offense or
      offenses other than the offense alleged against him in the indictment
      in this case, you cannot consider such evidence for any purpose unless
      you find and believe beyond a reasonable doubt that the Defendant
      committed such other offense or offenses, if any, and even then you
      may only consider the same in determining the motive, opportunity,
      intent, preparation, plan, knowledge, identity or absence of mistake or
      accident of the Defendant, if any, in connection with the offense, if
      any, alleged against him in the indictment and for no other purpose.

The trial court provided an identical instruction in its jury charge.

      Appellant was apprehended following the invasion of Chamorro’s home.
Detective Wallace Wyatt of the Harris County Sheriff’s Office was called to
investigate the crime. He was informed that a suspect from the home invasion was
at a hospital, had been shot, and that two other individuals had been detained.
Wyatt traveled to the hospital and identified the individuals as appellant, Correa,
and Jesus Rodriguez. Correa was receiving treatment for the gunshot wound.
Wyatt spoke with appellant briefly at the scene and then decided to transport him
to an office nearby for an interview. Appellant confessed to his role in the home
invasion.

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       Sergeant Brian Harris of the Houston Police Department’s Homicide
Division testified that a few days later, he went to speak to appellant about his role
in the death of the complainant. Appellant provided a statement in which he
confessed to shooting the complainant but stated he did not intend to kill him.

       Appellant challenged the admission of his confession to Wyatt regarding the
extraneous offense.1 In his motion to suppress, appellant stated he was intoxicated
at the time of his confession to Wyatt. At the hearing on the motion, appellant
testified that he had taken six Xanax pills at approximately 9 o’clock in the
evening. Wyatt’s interview occurred at 2:30 the following morning. Appellant
contended that he could not remember the interview. He further could not recall
receiving Miranda warnings or waiving his rights.

       Dr. Terry Rustin, an expert witness, testified on behalf of appellant at the
hearing.    Rustin stated that if taken on an empty stomach, Xanax would be
absorbed into the body in twenty to thirty minutes. He told the trial court that
Xanax has a half-life of four to six hours.2 He also testified that taking six Xanax
pills would magnify its effects. He testified that Xanax decreases a person’s
inhibitions, impairs a person’s judgment, and impairs a person’s ability to think.
Specifically, Dr. Rustin asserted that Xanax could impair a person’s ability to
make a decision to waive their Miranda rights and consider the consequences that
would follow. According to Dr. Rustin, the videotape of the interview showed that
appellant slurred his speech and was at times incoherent. He opined appellant did
not comprehend he was under arrest. Dr. Rustin testified that it appeared appellant
was intoxicated, and as a result would have difficulty understanding his Miranda


       1
         In the trial court, appellant also challenged the admission of his confession for the crime
charged, but he does not press that challenge on appeal.
       2
         Half-life means the length of time it takes for half of a drug to metabolize or leave the
system.
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warnings and thinking clearly in order to make a decision about waiving his rights.

      Detective Wyatt testified that appellant indicated he understood his Miranda
rights and waived them. He also noted appellant’s slurred speech but stated that
appellant “just seemed tired.” He admitted, however, that slurred speech is a sign
of intoxication. He further conceded appellant was “obviously impaired in some
way” and that he would not have let appellant drive a car in that condition. He
contended that appellant was not sufficiently impaired to refrain from interviewing
him. After hearing the foregoing testimony, the trial court admitted the confession.

      The jury convicted appellant of the lesser-included offense of murder and
sentenced him to life in prison. This appeal followed.

                                      ANALYSIS

I.    Appellant waived any error concerning the admission of a suggestive
      pretrial identification by failing to object on that basis at trial.
      In his first issue, appellant argues the trial court erred in denying his motion
to suppress an impermissibly suggestive pretrial photographic identification.
Appellant further contends the pretrial photographic lineup served to taint a
subsequent in-court identification.

      A pre-trial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process of law. Barley v. State, 906 S.W.2d 27, 32–33 (Tex. Crim.
App. 1995). We employ a two-step test to assess the admissibility of a pre-trial
identification and a subsequent in-court identification.      Id. at 33.    First, we
determine whether the pretrial identification procedure was impermissibly
suggestive. Id. Second, we examine whether the impermissibly suggestive
procedure created a substantial likelihood of irreparable misidentification. Id. at
33. We examine the totality of the circumstances to determine whether appellant
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has satisfied both of these requirements. Gamboa v. State, 296 S.W.3d 574, 581–
82 (Tex. Crim. App. 2009).       If the totality of the circumstances reveals no
substantial likelihood of misidentification despite a suggestive pretrial procedure,
subsequent identification testimony will be deemed “reliable,” and reliability is the
linchpin in determining the admissibility of identification testimony. Webb v.
State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988) (citing Manson v. Brathwaite,
432 U.S. 98 (1977)).

      Failure to object at trial to the identification procedure, however, constitutes
waiver. Perry v. State, 703 S.W.2d 668, 671 (Tex. Crim. App. 1986) (“[W]e find
and hold that the failure of the appellant to complain or object in the trial court
about the out of court identification procedure or the in court identifications
constituted a procedural default under our law, and, by failing to complain or
object, for purposes of appeal, he waived the error.”); Degarmo v. State, 922
S.W.2d 256, 268 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).

      We have searched the record and found no motion to suppress the pretrial
identification on the ground that the procedure used was impermissibly suggestive.
At the identification hearing, Sanchez testified that he talked to the police the day
after the complainant was killed. Sanchez initially said he had not been shown any
photographs, but the State showed Sanchez Exhibit 102, and he recognized his
signature. In the exhibit, Sanchez identified appellant as the person who shot the
complainant. Sanchez was unable to identify appellant at the hearing, however, as
he stated too much time had passed.

      Appellant’s trial counsel argued that given Sanchez’s inability to recall his
pretrial identification of appellant, it was unreliable and should not be admitted.
The trial court ruled that it would admit Sanchez’s pretrial identification. When
the State formally offered the identification exhibit into evidence and sought to

                                          7
publish it to the jury, appellant’s counsel merely “renew[ed] the same objections as
before.”     He did not assert the identification procedure was impermissibly
suggestive. Because appellant failed to complain in the trial court that the pretrial
identification procedure was impermissible suggestive, we conclude he did not
preserve that complaint as a ground for appeal. See Perry, 703 S.W.2d at 671.

         Even if counsel had objected on suggestiveness grounds below, having
reviewed the exhibit and the surrounding circumstances in the record, we hold that
the trial court would not have erred in concluding that appellant failed to show that
the identification procedure was impermissibly suggestive.                 See Barley, 906
S.W.2d at 32–33. Moreover, given that appellant confessed to the charged offense
and identity was not an issue at trial, appellant has failed to show that any error in
admitting the pretrial identification was harmful.

         Appellant further contends that Sanchez’s in-court identification was
likewise tainted by the allegedly impermissibly suggestive pretrial identification
procedure. But the record reveals Sanchez was unable to identify appellant as the
killer during the hearing and before the jury.              Thus, there was no in-court
identification, much less a tainted one. Accordingly, we overrule appellant’s first
issue.

II.      Any error in admitting evidence of an extraneous offense to show intent
         is harmless because the jury did not convict appellant of capital murder.
         In his second issue, appellant argues the trial court erred in admitting
evidence of an extraneous offense because its probative value was substantially
outweighed by its danger of unfair prejudice.3             Under our rules of evidence,
relevant evidence is generally admissible. See Tex. R. Evid. 402; Erazo v. State,


         3
         Although appellant also objected to the admission of the extraneous offense under Rule
404(b) at trial, he does not address Rule 404(b) on appeal.
                                              8
144 S.W.3d 487, 499 (Tex. Crim. App. 2004). Evidence is relevant if it has any
tendency to make the existence of any fact of consequence to the determination of
the action more or less probable than it would be without the evidence. Tex. R.
Evid. 401; Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.—Houston [14th
Dist.] 2007, pet. ref’d).

      Relevant evidence may be excluded by the trial court under Rule 403,
however, if its probative value is substantially outweighed by the danger of unfair
prejudice from its admission. Tex. R. Evid. 403. There is a presumption that
relevant evidence is more probative than prejudicial. Andrade, 246 S.W.3d at 227.
The opponent of the evidence has the burden to demonstrate that its prejudicial
effect substantially outweighs its probative value.       Montgomery v. State, 810
S.W.2d 372, 377 (Tex. Crim. App. 1990). If the opponent of the evidence lodges
an objection based on Rule 403, the trial court must weigh the probative value of
the evidence against the potential for unfair prejudice. Andrade, 246 S.W.3d at
227. The criteria to be used in ruling on the objection include the following: (1)
the probative value of the evidence; (2) the potential the evidence has to impress
the jury in an irrational but nevertheless indelible way; (3) the time needed to
develop the evidence; and (4) the proponent’s need for the evidence to prove a fact
of consequence. Id. at 228.

      In reviewing an argument that the trial court erred in admitting evidence
under Rule 403, we apply Texas Rule of Appellate Procedure 44.2(b), which
provides that an appellate court must disregard non-constitutional error that does
not affect substantial rights. Tex. R. App. P. 44.2(b); Reese v. State, 33 S.W.3d
238, 243 (Tex. Crim. App. 2000). Under that rule, an appellate court may not
reverse for non-constitutional error if the court has fair assurance that the error did
not have a substantial and injurious effect or influence in determining the jury’s

                                          9
verdict. See Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004). When
determining the likelihood that the error adversely affected the jury’s verdict, we
consider the entire record. Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App.
2014). This includes testimony, physical evidence, jury instructions, the State’s
theories and any defensive theories, closing arguments, and voir dire, if applicable.
Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). Important factors
include the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in
the case, whether the State emphasized the error, and whether overwhelming
evidence of guilt was present. Schmutz, 440 S.W.3d at 39.

      Assuming without deciding that the trial court erred in admitting evidence of
the extraneous offense, we hold the record of appellant’s trial provides fair
assurance that the error did not have a substantial and injurious effect or influence
in determining the jury’s verdict. Garcia, 126 S.W.3d at 927. Appellant had
confessed to shooting complainant Ramos. The State’s purpose for introducing the
extraneous-offense evidence was to demonstrate appellant’s intent to kill the
complainant in order to convince the jury to convict appellant of capital murder.
As noted above, the trial court provided a limiting instruction before the
extraneous-offense evidence was introduced and included the instruction in its jury
charge, limiting the jury’s consideration of the evidence only to the charge in the
indictment—capital murder. In closing arguments, the State argued the extraneous
offense showed appellant’s intent to murder the complainant and told the jury to
consider the extraneous offense for that purpose, not to “get you angry.” By
contrast, appellant’s trial counsel argued the extraneous offense was irrelevant in
determining what occurred on the night of the complainant’s murder. He argued
appellant did not “conscious[ly] desire to cause the death of Pedro Ramos.” As a


                                         10
result, appellant’s counsel argued appellant should be convicted of murder, not
capital murder.

       Appellant’s argument was ultimately successful, as the jury convicted
appellant of the lesser-included offense of murder. Thus, “this jury was manifestly
able to consider the probative evidence and separate it from marginally relevant
evidence because it did . . . convict[] appellant of the lesser-included offense” of
murder. See Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007) (holding
error harmless in trial court’s admission of prejudicial evidence because the jury
acquitted one of the defendants and convicted appellant of a lesser-included
offense). Accordingly, we hold any error in admitting evidence of the extraneous
offense was harmless, and we overrule appellant’s second issue.

III.   The trial court did not abuse its discretion in admitting appellant’s
       statement concerning the extraneous offense over his voluntariness
       objection.
       In his third issue, appellant contends the trial court erred in admitting his
confession because his intoxication made the statement involuntary. As explained
above, appellant gave two confessions to the police. One confession concerned the
extraneous offense for which appellant was initially apprehended. Appellant’s
confession to the offense charged here occurred several days later. Although
appellant’s brief refers to Exhibit 53, the confession for the crime charged, the
record establishes that appellant only objected on voluntariness grounds to the
admission of Exhibit 70, the confession concerning the extraneous offense. In fact,
appellant testified he was not intoxicated at the time he confessed to Harris for the
crime charged. We therefore address the trial court’s admission of Exhibit 70,
appellant’s statement concerning the extraneous offense.




                                         11
      Article 38.21 of the Texas Code of Criminal Procedure provides that a
statement of an accused may be used as evidence against him if it appears that the
statement was freely and voluntarily made. Tex. Crim. Proc. Code Ann. art. 38.21
(West 2005). The voluntariness of a statement is assessed by considering the
totality of the circumstances under which the statement was obtained. Creager v.
State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). Of principal concern are the
characteristics of the accused and the details of the interrogation. Davis v. State,
313 S.W.3d 317, 337 (Tex. Crim. App. 2010). Although relevant, evidence of
intoxication does not necessarily render a statement involuntary. Jones v. State,
944 S.W.2d 642, 651 (Tex. Crim. App. 1996). When the record reflects evidence
that the accused used narcotics, medications, or other mind-altering agents, the
question becomes whether those intoxicants prevented the accused from making an
informed and independent decision to waive rights. Id.

      We review for abuse of discretion a trial court’s ruling on a motion to
suppress a confession as involuntary. Delao v. State, 235 S.W.3d 235, 238–39
(Tex. Crim. App. 2007). The trial court is the sole trier of fact and judge of the
credibility of the witnesses and the evidence presented at the hearing on the
motion. Id. at 239. A trial judge’s decision on the admissibility of evidence will
not be reversed if it is within the zone of reasonable disagreement. Tillman v.
State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We must uphold the trial
court’s ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex.
Crim. App. 2002).

      The improper admission of an involuntary confession is subject to harmless
error analysis. Ex parte Fierro, 934 S.W.2d 370, 374 (Tex. Crim. App. 1996).
Admission of an involuntary confession offends the Due Process Clause of the

                                        12
Fourteenth Amendment. Arizona v. Fulminante, 499 U.S. 279, 303 (1991). Before
a federal constitutional error can be held harmless, the court must be able to
declare a belief that it did not contribute to the conviction and is harmless beyond a
reasonable doubt. Zuliani v. State, 903 S.W.2d 812, 824 (Tex. App.—Austin 1995,
pet. ref’d).

       In Leza v. State, the defendant contended that he was under the influence of
heroin during his confession. 351 S.W.3d 344, 351 (Tex. Crim. App. 2011). The
defendant presented an expert who corroborated his assertion. Id. The expert
testified that the defendant’s capacity to pay attention and make an informed
decision was impaired. Id. While acknowledging that heroin use is a relevant
factor in determining whether a person knowingly and intelligently waived their
Miranda rights, the Court of Criminal Appeals concluded that the trial court was
not obliged to credit the expert’s testimony over the testimony of the interrogating
officers, who asserted that the defendant was awake and alert, appeared to
understand the warnings and the questions propounded to him, and was coherent
and appropriate in his responses. Id.

       Likewise, in this case, the trial court did not abuse its discretion in admitting
appellant’s confession because the trial court was entitled to credit the testimony of
Detective Wyatt over that of Dr. Rustin, appellant’s expert. As noted above, Wyatt
testified that appellant indicated he understood his rights and waived them. Wyatt
also stated that appellant was not impaired to the extent that interviewing appellant
was improper.

       Moreover, we hold that the admission of appellant’s confession to the
extraneous offense is harmless beyond a reasonable doubt.               Appellant had
confessed to shooting the complainant, and appellant’s trial counsel urged the jury
to convict appellant of murder, not capital murder. The State offered appellant’s

                                          13
confession to the extraneous offense to rebut appellant’s argument that he lacked
the requisite intent for capital murder. As discussed above, however, the State was
unsuccessful and the jury convicted appellant of the lesser-included offense of
murder.    We therefore conclude that the admission of the extraneous-offense
evidence did not contribute to appellant’s conviction, and we overrule appellant’s
third issue.

IV.    The trial court’s denial of appellant’s motion for instructed verdict is
       harmless.
       In his fourth issue, appellant contends the trial court erred in overruling his
motion for an instructed verdict on the charge of capital murder because the State
failed to prove his intent. A challenge to the trial court’s ruling on a motion for
instructed verdict is in actuality a challenge to the sufficiency of the evidence to
support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App.
1990). We review evidentiary sufficiency challenges under the standard set forth
in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010). The reviewing court must consider the evidence
in the light most favorable to the verdict and determine whether a rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Anderson v. State, 416 S.W.3d 884, 888 (Tex.
Crim. App. 2013).

       Any error in failing to grant a directed verdict on a particular offense is
harmless beyond a reasonable doubt when the jury did not find the defendant guilty
of that offense. Jones v. State, 850 S.W.2d 236, 239 (Tex. App.—Fort Worth
1993, no pet.) (holding trial court’s denial of instructed verdict on charged offense
was harmless beyond a reasonable doubt because appellant was effectively
acquitted of the offense when the jury convicted him of a lesser-included offense);


                                          14
see also Sutton v. State, 35 S.W.3d 737, 739–40 (Tex. App.—Houston [1st Dist.]
2000, pet dism’d). The jury apparently agreed with appellant’s argument that the
State failed to prove beyond a reasonable doubt that he had the requisite intent to
commit capital murder, and instead found him guilty of the lesser-included offense
of murder. Accordingly, we hold the trial court’s failure to grant a directed verdict
on capital murder did not contribute to appellant’s conviction and is harmless
beyond a reasonable doubt. We thus overrule appellant’s fourth issue.

                                      CONCLUSION

      Having overruled appellant’s issues, we affirm the trial court’s judgment.



                                /s/    J. Brett Busby
                                       Justice


Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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