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<P><SPAN STYLE="font-family: Univers" STYLE="font-size: 14pt"><CENTER></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>NUMBER 13-08-296-CR</CENTER> 

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<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>COURT OF APPEALS</CENTER> 

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<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>THIRTEENTH DISTRICT OF TEXAS</CENTER> 

</STRONG></SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>CORPUS CHRISTI</STRONG></SPAN><SPAN STYLE="font-family: Arial"> - </SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG>EDINBURG</STRONG>  </SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"></CENTER> 

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<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>                                                                                                                      </STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>STEVEN PEREZ, 						                   Appellant,</STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>v.</CENTER> 

</STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>THE STATE OF TEXAS,						           Appellee.</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>                                                                                                                      </STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>On appeal from the 117th District Court </STRONG></SPAN></P> 

 

<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>of Nueces County, Texas.</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>                                                                                                                      </STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG></STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG>MEMORANDUM OPINION</STRONG></SPAN><SPAN STYLE="font-family: Arial"><STRONG></STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial"><CENTER><STRONG>Before</STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG> Justices Rodriguez, Garza, and Vela</CENTER> 

</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>Memorandum Opinion by Justice Vela</STRONG></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="font-size: 20pt"></SPAN><SPAN STYLE="font-family: Arial"></CENTER> 

</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Appellant, Steven Perez, was indicted for the offense of murder.<A HREF="#N_1_"><SUP> (1)</SUP></A>  <EM>See</EM> Tex. Penal 

Code Ann.  19.02(b)(1), (2) (Vernon 2003).  Following a jury trial, appellant was convicted, 

and the jury assessed punishment at sixty years' imprisonment and a $10,000 fine.  In five 

issues, appellant argues that:  (1) the trial court erred by denying his request to disqualify 

a juror; (2) the trial court erred by permitting the State to impeach its own witness; (3) the 

trial court improperly admitted into evidence appellant's video taped statement; (4) the trial 

court improperly denied appellant's proposed jury charge instruction on independent 

impulse; and (5) the evidence was legally and factually insufficient to support his 

conviction.  We affirm.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><CENTER>I. Factual Background</CENTER> 

</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><EM>A. State's Evidence</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Iris Perez and appellant were married in 2001 and divorced in 2005.  At some point 

after their divorce, Iris began dating Riko Rodriguez.  On one occasion, appellant had 

called Iris on her cell phone while she and Riko were together.  Iris testified that Riko 

answered her cell phone and told appellant, "Something like quit calling, you're a bitch, or 

something like that, you've always been, you'll always be."  The next day, Riko and Iris 

were in apartment 1107 at the Windrush Apartments in Corpus Christi, where Riko was 

staying with a friend, Roy De Los Santos, Jr.  While Iris was visiting Riko in the apartment, 

Riko told her that he "was just fighting with Steve [appellant]."  At that point, Iris's friend, 

Angela Lopez, came to the apartment to pick up Iris.  As Iris was getting into Lopez's car, 

Iris saw that Riko and appellant were "fighting, hitting each other" in the parking lot.  Two 

days later, on the morning of December 2, 2006, while Riko and Iris were sleeping in Roy's 

apartment, they awoke to someone kicking the front door.  Iris looked out the window and 

saw Mike Lozano in front of the door and appellant running away.  Iris testified that Lozano 

had his arm outstretched, but she did not see him holding a gun.  Iris got on the floor, and 

Riko tried to cover her.  At this point, four shots were fired through the front door.  Riko was 

shot twice-once in the mid-chest and then once in the right thigh.  The medical examiner 

described the chest wound as a "fatal type injury" and said that the bullet went through 

Riko's heart and liver.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Iris testified that after the shooting, appellant told her he did not do the shooting and 

that he was trying to leave.  On cross-examination, Iris testified that appellant told her that 

he had fought Riko because Riko had called him a "bitch."  She also testified that she did 

not think that appellant would try to kill Riko because of her, and she did not believe that 

appellant went to Roy's apartment in order to kill Riko.  She said that before any shots 

were fired, appellant was already running away.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Roy testified that in the early morning of December 2, 2006, he was asleep in his 

bedroom when he woke up to the sound of "a kick" at the front door.  After hearing three 

shots, he went into the living room where Riko told him, "[T]hey shot me, bro, they shot 

me."</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	On cross-examination, Roy stated that Riko never said who had shot him.  However, 

Roy testified that prior to the shooting, Riko told him, "Steve said he was gonna come back 

and get him."  Roy did not know whether Riko meant appellant.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Benny Asberry, who lived in apartment 1105 at the Windrush Apartments, testified 

that on the Thursday before Riko's murder, a man "kept pacing back and forth in front of 

my window and he was yelling out" to a girl in apartment 1107.  At some point, Riko came 

outside of the apartment and had three fights with this man.  After the first fight, Asberry 

heard the man tell Riko, "'I'll fucking kill you.'"  Early in the morning of December 2, 2006, 

Asberry heard a "real loud" knock and heard someone next door say, "[W]ho is it."  After 

hearing that, Asberry heard several shots.  He testified that upon hearing the first shot, he 

looked out his window and saw "a guy wearing a red--either red or maroon shirt and he 

was running off" and that "[I]t was the same guy he got into the fight with."  He did not see 

who fired the shots.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Detective Ralph Lee testified that on January 18, 2007, he obtained a video-taped 

statement from appellant.  In this statement, appellant stated he wanted to go to the 

apartment to see if Iris was there; however, the only way he could get Lozano to go with 

him was to tell him they were going there for a robbery.  Appellant, his cousin David, and 

Lozano obtained a gun from someone and used appellant's car to go to the apartment.  

Lozano and appellant kicked the front door of the apartment, and appellant then said, 

"Forget this.  Let's go."  As appellant was leaving, Lozano fired four shots through the front 

door.  While running from the scene, Lozano lost a shoe, which belonged to appellant.  

Afterwards, they returned the gun to the person who provided it to them.  Appellant denied 

that he was the shooter.  He also denied hearing someone say, "[W]ho is it" after he and 

Lozano had kicked the front door.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	Riko's father, Ricardo Rodriguez, testified that before his son's murder, Riko, 

Lozano, and appellant had joined a local boxing club.  Rodriguez testified that after Lozano 

joined the club, Lozano "built up some anger, some animosity towards" Riko.  This 

animosity continued up to the time of Riko's murder.  Rodriguez was not personally aware 

of any antagonism between appellant and Riko.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Crime-scene investigators testified that four shots came through the front door of 

apartment 1107 and that a man's size-ten shoe was found outside the apartment.  A partial 

DNA profile obtained from this shoe was consistent with a mixture from appellant and at 

least two unknown individuals. </SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><EM>B. Appellant's Evidence</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Angela Lopez knew appellant through her friend, Iris.  Lopez testified that she went 

to the Windrush Apartments to pick up Iris, who was visiting Riko.  As Lopez, Iris, and Riko 

left the apartment, appellant "was walking up."  Lopez saw "a scuffle, like wrestling" 

between Riko and appellant.  Iris and David, tried to separate them.  After the scuffle, Riko 

and appellant "went [their] way."  Lopez did not hear appellant make any threats to kill 

Riko.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Two days after Riko's murder, attorney Kenneth Botary accompanied appellant to 

the Corpus Christi Police Department where appellant told the police he was not the 

shooter.  Botary testified that appellant "knew that he was the target of the investigation 

because he had a motive and he was the only one that had a motive for this thing."  When 

defense counsel asked Botary if he recalled what that motive was, he replied:</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	An estranged relationship with his wife, but Steve [appellant] basically told 

me it wasn't really that.  He went to see his wife.  They had been separated 

on and off.  He knew that she was seeing Riko and others, and that didn't 

bother him too much, but I think he went to see his wife on this occasion and 

Riko interfered with that relationship, and I think that's what really started the 

problem.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	After Botary's testimony, defense counsel played a videotape to the jury, showing 

an interview between Detective Lee and Eric Flores.  During this interview, Flores told 

Detective Lee that he had been incarcerated with Lozano.  During that time, Lozano told 

Flores that he and "Steve" went to the apartment where Riko was staying "to rough that 

dude Riko up."  Lozano and "Steve" went to the door of the apartment, and Lozano shot 

through the door.  Afterwards, Lozano and Steve ran from the apartment, and Lozano lost 

his shoe, which belonged to Steve.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><CENTER>II. Discussion</CENTER> 

</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><EM>A. Request To Disqualify Juror</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In issue one, appellant argues the trial court erred in denying his request to 

disqualify a juror because she did not disclose during voir-dire examination that she was 

a friend of the victim's sister.  During voir-dire examination, the prosecutor asked the venire 

members if anybody either knew of or had heard about "the Riko Rodriguez family?  

There's Ricardo Rodriguez, Richard Rodriguez, the patriarch now, and his son, Riko 

Rodriguez who was killed, and then there's the grandson who is Ricky Rodriguez and they 

are involved in the Golden Gloves Boxing Club.  Is anybody familiar with that family?"  

Venire member Christina Caldera did not respond affirmatively to this question.  The 

prosecutor did not ask whether anyone knew Riko's sister, Ruby Carillo, and did not 

mention Carillo's name.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	At a recess during the guilt-innocence phase, Caldera, outside the jury's presence, 

told the trial court she knew Carillo.  The trial court asked Caldera whether she could 

continue to serve as a juror.<A HREF="#N_2_"><SUP> (2)</SUP></A>  Afterwards, defense counsel asked<A HREF="#N_3_"><SUP> (3)</SUP></A> Caldera about her relationship with Carillo.  When defense counsel finished, he asked the trial court to excuse 

Caldera as a juror and to proceed with the alternate juror.  The trial court denied the 

request, stating, "I'm going to find that she is suitable.  She has stated on the record she 

can be fair and impartial. . . ."</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Appellant argues that the trial court's denial of his request to excuse Caldera from 

the jury and to proceed with an alternate juror violated his rights under the United States 

and Texas Constitutions.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	1. <EM>Applicable Law</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	An accused in a criminal prosecution has the right to a fair trial by an impartial jury.  

U.S. Const. amend. VI; Tex. Const. art. 1,  10; <EM>Franklin v. State</EM>, 138 S.W.3d 351, 354 

(Tex. Crim. App. 2004).  Hence, "[w]hen a juror withholds material information in the voir 

dire process, the parties are denied the opportunity to exercise their challenges, thus 

hampering their selection of a disinterested and impartial jury."  <EM>Armstrong v. State</EM>, 897 

S.W.2d 361, 363 (Tex. Crim. App. 1995) (citing <EM>Salazar v. State</EM>, 562 S.W.2d 480, 482 

(Tex. Crim. App. 1978)).  However, defense counsel has an obligation to ask questions that 

are calculated to elicit information which might be said to indicate a juror's inability to be 

impartial and truthful.  <EM>Id</EM>. at 363-64 (citing <EM>Jones v. State</EM>, 596 S.W.2d 134, 137 (Tex. Crim. 

App. 1980), <EM>overruled on other grounds by Sneed v. State</EM>, 670 S.W.2d 262, 267 n.7 (Tex. 

Crim. App. 1984)).  "Unless defense counsel asks such questions, the material information 

which a juror fails to disclose is not really 'withheld.'"  <EM>Id</EM>. at 364.  Counsel's questions must 

be specific, not broad.  <EM>Gonzales v. State</EM>, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999); 

<EM>Armstrong</EM>, 897 S.W.2d at 363-64 (holding no error when counsel did not ask questions 

that would reveal juror's close friendship with prosecutor).  The court of criminal appeals 

has "consistently held there is no error where counsel has not met that obligation."  

<EM>Gonzales</EM>, 3 S.W.3d at 917; <EM>Armstrong</EM>, 897 S.W.2d at 363-64; <EM>Brandon v. State</EM>, 599 

S.W.2d 567, 577 (Tex. Crim. App. 1979) (holding no error when counsel failed to ask 

follow-up questions after potential juror stated he was acquainted with victim). </SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	2. <EM>Analysis</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In this case, Caldera testified outside the jury's presence that during voir-dire 

examination, she did not know that Carillo was Riko's sister.  She did not realize that Carillo 

was Riko's sister until she saw Carillo in the courtroom.  During general voir dire, defense 

counsel did not ask the venire members whether any of them knew Riko's sister, Ruby 

Carillo.  Thus, defense counsel did not ask the questions needed to elicit the desired 

information.<A HREF="#N_4_"><SUP> (4)</SUP></A>  Appellant has not demonstrated that Caldera "withheld" information as 

contemplated by Texas case law because defense counsel did not ask questions during 

voir dire that were calculated to reveal impartiality regarding whether the venire members 

knew Riko's sister.  <EM>See Gonzales</EM>, 3 S.W.3d at 917-18.  Because defense counsel did not 

ask specific questions to bring out information that may indicate a juror's impartiality, 

Caldera did not withhold information that would constitute misconduct warranting a 

reversal.  <EM>See id</EM>.  Therefore, the trial court did not err in refusing to disqualify Caldera.  

Issue one is overruled.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><EM>B. State's Impeachment of Iris Perez</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In his second issue, appellant argues the trial court erred in allowing the State to 

improperly impeach its own witness, Iris Perez.  During the guilt-innocence phase, Iris 

testified on direct-examination that she remembered what she had told Detective Lee 

during her telephone conversation with him.<A HREF="#N_5_"><SUP> (5)</SUP></A>  However, when the prosecutor asked her if, 

during this telephone conversation, she had told Detective Lee "that the whole thing was 

[appellant's] fault?", she replied, "I don't think I said that."  When the prosecutor asked the 

trial court to allow her to publish the audiotape of this telephone conversation, defense 

counsel objected as follows:</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	I believe that what the prosecutor wants to do is covered by Rule 613 and 

what needs to happen is the witness needs to have an opportunity to review 

the previous statement and then ask whether or not now the witness recalls 

making that statement or not, so if the prosecutor--.  </SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	At this point, the trial court overruled the objection and admitted the audiotape into 

evidence.  The prosecutor played the tape to the jury.  We interpret appellant's issue as 

a challenge that the prosecutor did not lay the proper predicate to impeach Iris with a prior 

inconsistent statement.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	1. <EM>Standard of Review</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	We review the trial court's ruling regarding the admissibility of evidence under an 

abuse of discretion standard.  <EM>Cameron v. State</EM>, 241 S.W.3d 15, 19 (Tex. Crim. App. 

2007).  "In other words, as long as the trial court's decision was within the zone of 

reasonable disagreement and was correct under any theory of law applicable to the case, 

it must be upheld."  <EM>Winegarner v. State</EM>, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	2. <EM>Applicable Law</EM> </SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	"Impeachment of a witness means adducing proof that such witness is unworthy of 

belief or credit."  <EM>Willingham v. State</EM>, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995).  Rule 

607 states that "[t]he credibility of a witness may be attacked by any party, including the 

party calling the witness."  Tex. R. Evid. 607.  A prior inconsistent statement may be 

admitted under rule 613.  <EM>See</EM> Tex. R. Evid. 613(a); <EM>In re A.B</EM>., 133 S.W.3d 869, 874 (Tex. 

App.-Dallas 2004, no pet.).  However, under the Texas Rules of Evidence, the use of 

extrinsic evidence of a prior inconsistent statement "is contingent upon the witness's 

response when confronted with the alleged inconsistent statement."  <EM>Clark v. State</EM>, 881 

S.W.2d 682, 695 n.11 (Tex. Crim. App. 1994); Tex. R. Evid. 613(a) (stating that extrinsic 

evidence of an inconsistent statement is not admissible if the witness unequivocally admits 

having made the statement).  Under former rule of criminal evidence 612(a), which was 

identical to the present rule 613(a),<A HREF="#N_6_"><SUP> (6)</SUP></A> the court of criminal appeals stated the predicate to 

the admission of the inconsistent statement:</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	The proper predicate for impeachment by prior inconsistent statement 

requires that the witness first be asked if he made the contradictory 

statement at a certain place and time, and to a certain person.  If the witness 

denies making the contradictory statement, it can then be proved by the prior 

inconsistent statement.  If the witness admits the prior inconsistent 

statement, however, the prior statement is not admissible.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial"><EM>McGary v. State</EM>, 750 S.W.2d 782, 786 (Tex. Crim. App. 1988) (internal citations omitted) 

(internal quotation marks omitted).</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Here, even though the prosecutor did not specifically ask Iris if she had made the 

contradictory statement at a certain place and time, when asked if she would like to hear 

the telephone call between her and Detective Lee, she testified that she remembered what 

she had told him during her telephone conversation with him.<A HREF="#N_7_"><SUP> (7)</SUP></A>  And, crucially, she <SPAN STYLE="text-decoration: underline">denied 

</SPAN>having made the statement.  Moreover, a review of the record reveals that Iris equivocated 

about making the prior inconsistent statement to Detective Lee.  Thus, the State laid the 

proper predicate in accordance with rule 613(a), for impeachment by extrinsic evidence.  

<EM>See</EM> Tex. R. Evid. 613(a); <EM>McGary</EM>, 750 S.W.2d at 786.  Accordingly, we conclude the trial 

court did not abuse its discretion by admitting the audiotape into evidence.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	3. <EM>Inadmissible Testimony</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	By this same issue, appellant argues the prosecutor elicited inadmissible testimony 

from Iris.  During Iris's direct-examination at the guilt-innocence phase, the prosecutor 

asked Iris on three occasions whether she thought appellant should go to prison.  Defense 

counsel neither objected to these questions nor to Iris's responses to them.  Appellant 

argues that whether Iris thought he should go to prison "was an inadmissible area" and that 

the purpose for the questioning "was to put before the jury an out of court statement that 

Iris believed [appellant] should go to prison."</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	"To preserve error, a complaining party must make a timely and specific request, 

objection, or motion and obtain an express or implied ruling on that request, objection, or 

motion."  <EM>Lopez v. State</EM>, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008) (citing <EM>Gauder v. 

State</EM>, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003)).  Further, "an objection must be made 

each time inadmissible evidence is offered unless the complaining party obtains a running 

objection or obtains a ruling on his complaint in a hearing outside the presence of the jury."  

<EM>Id</EM>.  Here, an objection was not made to the complained-of questions, and counsel did not 

request a running objection nor did he obtain a ruling on his complaint in a hearing outside 

the jury's presence.  Consequently, appellant has failed to preserve this argument for 

review.  <EM>See id</EM>.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	4. <EM>Whether the Audio Tape Contained Inadmissible Evidence</EM></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	By this same issue, appellant argues the audio tape contained inadmissible 

evidence.  Although counsel initially objected to the audio tape on the basis the State did 

not lay a proper predicate, he did not object that the tape contained inadmissible evidence.  

Counsel did not request a running objection and did not obtain a ruling on his complaint 

in a hearing outside the jury's presence.  Further, counsel did not object, either before the 

audio tape was played to the jury or during the playing of the audio tape, that it contained 

inadmissible evidence.  We conclude that appellant did not preserve this argument for our 

review.  <EM>See</EM> <EM>Lopez, </EM>253 S.W.3d at 684.  Issue two is overruled.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">C. <EM>Admission of Appellant's Statement</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In his third issue, appellant argues the trial court erred by admitting into evidence 

the statement which he gave after his arrest.  On January 18, 2007, appellant gave the 

police a video taped statement.  Defense counsel filed a pre-trial motion to suppress the 

statement, and after a pre-trial hearing, the trial court denied the motion.  These actions 

alone would have preserved the suppression issue for review without further objection by 

appellant during the trial.  At trial, however, when the State offered the video taped 

statement into evidence, defense counsel stated, "I don't think I have an objection, Your 

Honor."  The trial court admitted the video taped statement into evidence, and it was played 

before the jury.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	<A NAME="sp_999_2"></A><A NAME="SDU_2"></A>The court of criminal appeals has held in similar situations that the <A NAME="SR;961"></A><A NAME="SearchTerm"></A>suppression 

issue was not preserved for review.  <EM>See Swain v. State</EM>, 181 S.W.3d 359, 368 (Tex. Crim. 

App. 2005) (stating that when State offered exhibits into evidence during trial, and 

appellant affirmatively stated he had no objection, the affirmative acceptance of this 

previously challenged evidence waived any error in its admission); <EM>see also Moody v. 

State</EM>, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); <EM>Dean v. State</EM>, 749 S.W.2d 80, 82-83 

(Tex. Crim. App. 1988); <EM>Harris v. State</EM>, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983); 

<EM>McGrew v. State</EM>, 523 S.W.2d 679, 680-81 (Tex. Crim. App. 1975).  When evidence is 

offered during trial and defense counsel affirmatively represents that he has "no objection" 

to the evidence, any error in the admission of the evidence is waived even if the error had 

been previously preserved by a <A NAME="SR;1052"></A>suppression motion and adverse ruling.  <EM>Moody</EM>, 827 

S.W.2d at 889; <EM>Dean</EM>, 749 S.W.2d at 82-83; <EM>Harris</EM>, 656 S.W.2d at 484; <EM>McGrew</EM>, 523 

S.W.2d at 680-81.  Because counsel affirmatively stated that he had no objection to the 

introduction of the statement, we hold that the complaint is not preserved with respect to 

the admission of that evidence.  Issue three is overruled.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">D. <EM>Omitted Jury Instruction</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In his fourth issue, appellant argues the trial court erred in refusing to charge the jury 

on the defensive theory of independent impulse.  At the conclusion of the trial, defense 

counsel asked the trial court to instruct the jury on the defensive theory of independent 

impulse.  The trial court denied the requested instruction.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In addressing this issue, we first determine whether there was error in the charge.  

<EM>Almanza v. State</EM>, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh'g).  If so, "the 

next step is to make an evidentiary review . . . as well as a review of any other part of the 

record as a whole which may illuminate the actual, not just theoretical, harm to the 

accused."  <EM>Id</EM>.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	1. <EM>Applicable Law</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	The concept of "independent impulse" embraces the theory that an accused, though 

he or she was admittedly intent on some wrongful conduct, nevertheless did not 

contemplate the extent of criminal conduct actually engaged in by his or her "fellows, and 

thus cannot be held vicariously responsible for their conduct."  <EM>Mayfield v. State</EM>, 716 

S.W.2d 509, 513 (Tex. Crim. App. 1986), <EM>overruled by Solomon v. State</EM>, 49 S.W.3d 356 

(Tex. Crim. App. 2001).  However, the court of criminal appeals has held that defendants 

are not entitled to instructions on defensive theories not enumerated in the Texas Penal 

Code, such as a defensive charge on <A NAME="SR;7399"></A>independent <A NAME="SR;7400"></A>impulse.  <EM>Walters v. State</EM>, 247 S.W.3d 

204, 210 (Tex. Crim. App. 2007); <EM>Solomon, </EM>49 S.W.3d at 368.  An instruction on 

<A NAME="SR;7455"></A>independent <A NAME="SR;7456"></A>impulse is merely a negation of elements in the State's case; therefore, its 

inclusion would be superfluous and, in fact, would be an impermissible comment on the 

weight of the evidence.  <EM>See Solomon</EM>, 49 S.W.3d at 368.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	2. <EM>Analysis</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In <EM>Solomon</EM>, the court of criminal appeals held that a defendant charged with 

conspiracy liability under section 7.02(b) of the Texas Penal Code was not entitled to an 

independent-impulse instruction if the charge tracked the language of section 7.02(b).  

<EM>Solomon</EM>, 49 S.W.3d at 368.  Here, appellant was not charged with conspiracy liability 

under section 7.02(b), but the trial court gave instructions tracking the statutory language 

of Texas Penal Code sections 7.01(a) and 7.02(a)(2).  Both of these sections relate to the 

law of parties.  <A NAME="SR;7534"></A><A NAME="SR;7535"></A><A NAME="sp_999_13"></A><A NAME="SDU_13"></A><A NAME="citeas((Cite as: 2008 WL 4053005, *13 (Tex.App.-Fort Worth))"></A>Appellant's proposed defensive issue would simply negate the law of parties 

element of the State's case and is inconsistent with current Texas law.  <EM>See Solomon</EM>, 49 

S.W.3d at 368.  Because the jury charge tracked the language of sections 7.01(a) and 

7.02(a)(2) and because the defense of <A NAME="SR;7686"></A>independent <A NAME="SR;7687"></A>impulse is not found in the penal code, 

we hold that the trial court did not err by refusing to include the instruction.  <EM>See</EM> <EM>Walters, 

</EM>247 S.W.3d at 210; <EM>Solomon</EM>, 49 S.W.3d at 368.<A HREF="#N_8_"><SUP> (8)</SUP></A>  The fourth issue is overruled.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">E. <EM>Sufficiency of the Evidence</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In his fifth issue, appellant challenges the legal and factual sufficiency of the 

evidence to support his conviction.  In reviewing the legal sufficiency of the evidence to 

support a conviction, we view all the evidence in the light most favorable to the verdict in 

order to determine whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.  <EM>Jackson v. Virginia</EM>, 443 U.S. 307, 319 

(1979); <EM>Hampton v. State</EM>, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).  This standard 

gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, 

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate 

facts.  <EM>Jackson</EM>, 443 U.S. at 319.  The trier of fact is the sole judge of the weight and 

credibility of the evidence.  Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); 

<EM>Margraves v. State</EM>, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).  Thus, when performing 

a legal-sufficiency review, we may not re-evaluate the weight and credibility of the evidence 

and substitute our judgment for that of the fact-finder.  <EM>Dewberry v. State</EM>, 4 S.W.3d 735, 

740 (Tex. Crim. App. 1999).  We must resolve any inconsistencies in the evidence in favor 

of the judgment.  <EM>Curry v. State</EM>, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In reviewing a <A NAME="SR;6872"></A>factual <A NAME="SR;6873"></A>sufficiency claim, we review the evidence in a neutral light 

rather than the light most favorable to the verdict.  <EM>Neal v. State</EM>, 256 S.W.3d 264, 275 

(Tex. Crim. App. 2008); <EM>Roberts v. State</EM>, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) 

(citing <EM>Johnson v. State</EM>, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000)).  <A NAME="F029292016332868"></A>Evidence is factually 

insufficient if the evidence supporting the verdict is so weak that the verdict seems clearly 

wrong and manifestly unjust, or if the supporting evidence is outweighed by the great 

weight and preponderance of the contrary evidence so as to render the verdict clearly 

wrong and manifestly unjust.  <EM>Neal</EM>, 256 S.W.3d at 275; <EM>Roberts</EM>, 220 S.W.3d at 524 (citing 

<EM>Watson v. State</EM>, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)).<A NAME="F030302016332868"></A>  We do not reverse for 

factual insufficiency if the greater weight and preponderance of the evidence actually 

favors conviction.  <EM>Neal</EM>, 256 S.W.3d at 275; <EM>Roberts</EM>, 220 S.W.3d at 524 (citing <EM>Watson</EM>, 

204 S.W.3d at 417).</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	1. <EM>Murder and the Law of Parties</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	A person commits murder if he or she "intentionally or knowingly causes the death 

of an individual" or "intends to cause serious bodily injury and commits an act clearly 

dangerous to human life that causes the death of an individual[.]"  Tex. Penal Code Ann. 

 19.02(b)(1), (2) (Vernon 2003).  Intent can be inferred from the defendant's acts, words, 

and conduct.  <EM>Patrick v. State,</EM> 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); <EM>Lee v. State,</EM> 

964 S.W.2d 3, 8 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd).</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Appellant argues the evidence is both legally and factually insufficient to support the 

verdict "because there was no proof [appellant] knew of Lozano's intent to murder [Riko] 

or helped him in that regard."  However, under the law of parties, as stated in the jury 

charge, "[a] person is criminally responsible as a party to an offense if the offense is 

committed by his own conduct, by the conduct of another for which he is criminally 

responsible, or by both."  Tex. Penal Code Ann.  7.01(a) (Vernon 2003); <EM>Frank v. State</EM>, 

183 S.W.3d 63, 72 (Tex. App.-Fort Worth 2005, pet ref'd).  "A person is criminally 

responsible for an offense committed by the conduct of another if, acting with intent to 

promote or assist the commission of the offense, he solicits, encourages, directs, aids, or 

attempts to aid the other person to commit the offense." <EM> Id.</EM>  7.02(a)(2); <EM>Frank, </EM>183 

S.W.3d at 72.  "Each party to an offense may be charged with commission of the offense."  

Tex. Penal Code Ann<EM>. </EM> 7.01(b) (Vernon 2003).  "Evidence is sufficient to convict under 

the law of parties where the defendant is physically present at the commission of the 

offense and encourages its commission by words or other agreement."  <EM>Ransom v. State</EM>, 

920 S.W.2d 288, 302 (Tex. Crim. App. 1995).  In determining whether a defendant 

participated in an offense as a party, the fact finder may examine the events occurring 

before, during, and after the offense's commission and may rely on the defendant's actions 

that show an understanding and common design to commit the offense.  <EM>Id.</EM>  </SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	While the presence of the defendant at the scene of an offense is not alone 

sufficient to support a conviction, it is a circumstance tending to prove guilt, which, 

combined with other facts, may suffice to show that the defendant was a participant.  

<EM>Beardsley v. State</EM>, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987).  Further, participation in 

an enterprise may be inferred from circumstances and need not be shown by direct 

evidence.  <EM>Id</EM>. at 684.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	2. <EM>Analysis</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	<EM><A HREF="https://web2.westlaw.com/KCNotes/default.wl?vr=2.0&serialnum=2009604149&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rlti=1&rs=WLW7.02&eq=search&n=2&db=TX-CS&fn=_top&sv=Split&rp=%2fKCNotes%2fdefault.wl&cfid=1&rlt=CLID_QRYRLT342"></A><A HREF="https://web2.westlaw.com/KCNotes/default.wl?vr=2.0&serialnum=2009604149&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rlti=1&rs=WLW7.02&eq=search&n=2&db=TX-CS&fn=_top&sv=Split&rp=%2fKCNotes%2fdefault.wl&cfid=1&rlt=CLID_QRYRLT342"></A><A NAME="B52009604149"></A><A HREF="  "></A><A></A><A></A><A></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial"><EM></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></A></SPAN></EM></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">A rational jury could have determined the following from the evidence:  Riko was 

seeing appellant's ex-wife, Iris, and when appellant called Iris's cell phone, Riko called him 

a "bitch."  Shortly after Riko called appellant "a bitch," they fought each other.  Two days 

later, Riko and Iris were at Roy's apartment.  That morning, Roy's neighbor, Asberry, heard 

a "real loud" knock followed by someone saying, "[W]ho is it."  Asberry then heard several 

shots.  Moments before Riko was shot, Iris saw Lozano in front of the apartment door and 

appellant running away.  After the shooting, Detective Lee obtained a video-taped 

statement from appellant in which appellant stated he wanted to go to the apartment to see 

if Iris was there; however, the only way he could get Lozano to go with him was to tell him 

they were going there for a robbery.  Appellant, his cousin David, and Lozano got a gun 

from someone and then used appellant's car to go to the apartment.  Lozano and appellant 

kicked the front door to Roy's apartment, and then appellant said, "Forget this.  Let's go."  

As appellant was leaving, Lozano fired four shots through the front door.  They fled the 

scene, and Lozano lost a shoe, which belonged to appellant.  Afterwards, they returned 

the gun to the person who provided it to them.  A partial DNA profile obtained from the 

shoe that came off of Lozano's foot was consistent with a mixture from appellant and at 

least two unknown individuals.  While Lozano was in the county jail, he told Flores that he 

and "Steve" went to the apartment where Riko was staying "to rough that dude Riko up."</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	The controverting evidence showed that:  (1) no one saw who fired the shots 

through the front door; (2) Iris did not hear Riko say "[W]ho is it" in response to the knock 

at the front door; (3) after the shooting, appellant told Iris he did not do the shooting and 

that he was trying to leave; (4) Riko never told Roy who had shot him; (5) in his statement 

to Defective Lee, appellant denied having anything to do with the shooting; (6) appellant 

did not hear anyone say "[W]ho is it" after he and Lozano kicked the front door: (7) Riko's 

father was not personally aware of any antagonism between appellant and Riko; (8) Angela 

Lopez did not hear appellant make any threats to kill Riko; (9) appellant told the police he 

was not the shooter; and (10) Lozano told Flores that Lozano, not appellant, shot through 

the door.</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	<EM><A NAME="SR;2792"></A><A NAME="SR;2812"></A><A NAME="SR;2863"></A><A NAME="SR;2985"></A><A NAME="SR;2990"></A><A NAME="SR;3003"></A><A NAME="citeas((Cite as: 2002 WL 1840927, *4 (Tex.App.-San Antonio))"></A><A NAME="SR;3031"></A><A NAME="SR;3039"></A><A NAME="SR;3062"></A><A NAME="SR;3089"></A><A NAME="SR;3093"></A><A NAME="SR;3125"></A><A NAME="SR;3136"></A><A NAME="SR;3151"></A><A NAME="SR;3155"></A><A NAME="SR;3196"></A><A NAME="SR;3204"></A><A NAME="SR;3229"></A><A NAME="SR;3237"></A><A NAME="SR;3261"></A><A NAME="SR;3264"></A><A NAME="SR;3273"></A><A NAME="SR;3276"></A><A NAME="SR;3333"></A><A NAME="SR;3335"></A><A NAME="SR;3341"></A><A NAME="SR;3419"></A><A NAME="SR;3426"></A><A NAME="SR;3433"></A><A NAME="SR;3445"></A><A NAME="SR;3459"></A><A NAME="SR;3473"></A><A NAME="SR;3487"></A><A NAME="SR;3493"></A><A NAME="SR;3511"></A><A NAME="SR;3526"></A><A NAME="SR;3529"></A><A NAME="SR;3550"></A></EM>Viewing all the evidence in the light most favorable to the verdict, we conclude the 

evidence is legally sufficient for a rational jury to find appellant guilty of Riko's murder as 

a party to the crime beyond a reasonable doubt.  Furthermore, viewing the evidence 

neutrally, we conclude the evidence is not so obviously weak that the verdict seems 

"clearly wrong and manifestly unjust" or that proof of guilt is against the great weight and 

preponderance of the evidence.  <EM>See Watson</EM>, 204 S.W.3d at 414-15, 417; <EM>Johnson</EM>, 23 

S.W.3d at 11.  Accordingly, we hold the evidence is legally and factually sufficient to 

support appellant's conviction.  Issue five is overruled.</SPAN></SPAN></P> 

 

<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">III.  Conclusion</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	We affirm the trial court's judgment.<A NAME="sp_999_6"></A><A NAME="SDU_6"></A><A NAME="FN32"></A><A></SPAN><SUP></SUP></SPAN><SPAN STYLE="font-family: Arial"><SUP></SUP></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"><SUP></A><A NAME="F032322016332868"></A><A NAME="FN33"></A><A></SUP></SPAN></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SUP></SUP></SPAN><SPAN STYLE="font-family: Arial"></SPAN><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A NAME="F033332016332868"></A><A NAME="B032322016332868"></A><A></A><A NAME="B033332016332868"></A><A></A><A NAME="sp_4644_276"></A><A NAME="SDU_276"></A><A NAME="citeas((Cite as: 256 S.W.3d 264, *276)"></A><A NAME="sp_999_7"></A><A NAME="SDU_7"></A><A NAME="sp_4644_277"></A><A NAME="SDU_277"></A><A NAME="citeas((Cite as: 256 S.W.3d 264, *277)"></A></SPAN></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">							ROSE VELA	</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">							Justice</SPAN></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<BR WP="BR1"><BR WP="BR2"> 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Do not publish.</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Tex. R. App. P. 47.2(b).</SPAN></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Memorandum Opinion delivered and</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">filed this 26th day of February, 2009.</SPAN></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="font-size: 20pt" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"> 

<P><A NAME="N_1_">1. </A>The indictment alleged the offense of murder in two paragraphs as follows:</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	STEVEN PEREZ, defendant, on or about DECEMBER 2, 2006, in Nueces County, Texas, 

did then and there intentionally and knowingly cause the death of an individual, RIKO 

RODRIGUEZ, by shooting with a firearm[.]</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	STEVEN PEREZ, defendant, on or about DECEMBER 2, 2006, in Nueces County, Texas, 

did then and there with the intent to cause serious bodily injury to an individual, RIKO 

RODRIGUEZ, do the act of shooting him with a firearm; that this act was clearly dangerous 

to human life; and that this act caused the death of RIKO RODRIGUEZ. 

<P><A NAME="N_2_">2. </A>The trial court questioned juror Caldera as follows:</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	All right.  The fact that you know the sister of the victim, is that going to influence you 

in any way in this case?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Do you know her well?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I see her when--I've seen her--we work together and we've had leadership program 

and I see her once a month.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	She's in the leadership Corpus Christi program with you.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	She's employed in the same job I am.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	So you are in leadership Corpus Christi.  Okay.  Did you know anything about this 

event the death of her [sic]?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I didn't know anything.  I just know her brother passed away.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	You did not know any of the facts of [sic] before you came into this case?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">					</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Q. 	I'm going to allow--all we're looking for is fair and impartial, no preconceived ideas 

so if you have any bias or [sic] one side or the other I need to know that.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No, I don't.		 

<P><A NAME="N_3_">3. </A>Defense counsel questioned juror Caldera as follows:</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	When we did the jury selection yesterday and we asked all the people if they knew 

the victim or the victim's family, did you understand that question?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">		* * * *</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Yes, I did but I didn't know that was her brother.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Okay.  So when the name of Riko Rodriguez was discussed, you didn't know that 

your co-worker was the sister of the--</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No, I did not.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Okay.  You didn't put that connection together?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">						</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Q. 	So now you've seen his sister in the courtroom today, have you?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Yes.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	And not only are you a friend of hers but you're her co-worker?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Correct.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Is she a boss?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Does she supervise you?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No.  Just working.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Co-workers?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	We work in totally different offices.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	You have a friendly relationship with her?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Uh-huh, yes, ma'am.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Okay.  I don't know if she heard.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	She's my friend, yes.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Now, do you think that the fact that one of the jurors is a friend of the victim's sister 

might be something that a person accused of killing that individual might have an 

issue with you being on the jury that decides his guilt or innocence?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Maybe so.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">		* * * *</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	The Court: 		The question is now that everybody you've made the connection, 

okay?  Can you be a fair [sic].</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Juror Caldera: 		Yes, I can be a fair juror.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	The Court: 		You can listen to the evidence and arrive at a verdict regardless of 

that friendship?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Juror Caldera: 		Right and I believe that because I don't know what took place.  I just 

know that she's my friend and I heard her brother had passed 

away.  That's the bottom line.  I didn't know any facts.  I didn't see 

it on TV other than hearsay.  </SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	The Court: 		All right.  And one final question, when you say she's your friend, 

have you socialized with her?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Juror Caldera: 		We socialize once a month and that's last 12 months because we 

are in a leadership program and that's the only way that we would--</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	The Court: 		In other words, you socialize at the leadership program?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Juror Caldera: 		Yes.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">		* * * *</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Defense Counsel:	 What is the name?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Juror Caldera: 		Her name is Ruby Carillo.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Ruby Carillo?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Rudy Carillo.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	The Court: 		That's the name of the sister.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Defense Counsel:	You could see where she would have not have made a connection?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Do you think there would be any kind of an impact on her friendship with you if you 

were to find Mr. Perez not guilty in this case?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I don't believe so.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	And are you aware that there's an alternate juror--</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Yes.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Who was also selected in case something came up?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Yes.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	In your opinion, do you think it might be better to proceed with the alternate?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">At this point, the trial court sustained the prosecutor's objection to the question, and defense counsel 

announced that he had no further questions. 

<P><A NAME="N_4_">4. </A>We recognize that defense counsel is entitled to rely on the questions asked by the trial court and 

the prosecutor.  <EM>Armstrong v. State</EM>, 897 S.W.2d 361, 364 n.1 (Tex. Crim. App. 1995).  However, neither the 

trial court nor the prosecutor asked the venire members the necessary question, i.e., whether anyone knew 

the victim's sister.  <EM>See id</EM>.   

<P><A NAME="N_5_">5. </A>This testimony appeared in the following colloquy between Iris and the prosecutor:</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Okay.  When you started talking to Steven [appellant] again, how was that?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I was mad at him.  And he was telling me he didn't do it.  I was like blaming him.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	So you did blame him?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I mean, I--yeah.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Okay.  Did you think he should go to prison?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I don't really--maybe at that time I did.  I don't know.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	When you talked to the detective again and told him what you saw, did you think 

Steve should go to prison at that time?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I didn't feel that Steve murdered Riko and I felt that Steve, from my understanding, 

he didn't mean for none of that to happen.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	So it's your testimony today that you did not blame Steve, that it wasn't Steve's fault 

that the whole thing happened?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Not really.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Okay.  Would it help you refresh your recollection if you heard the telephone call 

between you and Detective Lee?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No.  I remember what I told him.  I remember our conversation.  </SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">		* * * *</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Okay.  So did you or did you not tell him that the whole thing was Steve's fault?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I don't think I said that.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">		* * * *</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Would it help or would it not help refresh your recollection to hear the audio 

recording of that phone call?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No.  I don't really want to hear anything.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	[D]o you think the recording would be a better example of the phone call or would 

your recollection today be a better example of the phone call?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I--I don't think I said that at all.  I mean, I think I was telling him more of that it was 

Mike.  I remember that.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	And Steve should go to prison, right?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I don't know.</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	You don't know?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	I think maybe I said if he should go, I don't think he should go for as long as Mike or 

something, like along those lines.  I don't know.  I don't remember. 

<P><A NAME="N_6_">6. </A>Current rule of evidence 613(a) states, in pertinent part, that:</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	In examining a witness concerning a prior inconsistent statement made by the witness, 

whether oral or written, and before further cross-examination concerning, or extrinsic 

evidence of, such statement may be allowed, the witness must be told the contents of such 

statement and the time and place and the person to whom it was made, and must be 

afforded an opportunity to explain or deny such statement.  If written, the writing need not be 

shown to the witness at that time, but on request the same shall be shown to opposing 

counsel.  If the witness unequivocally admits having made such statement, extrinsic evidence 

of same shall not be admitted. . . .</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">Tex. R. Evid. 613(a). 

<P><A NAME="N_7_">7. </A>Specifically, the prosecutor asked Iris Perez the following:</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Okay.  Would it help you refresh your recollection if you heard the telephone call 

between you and Detective Lee?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	No.  I remember what I told him.  I remember our conversation.  </SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	Q. 	Do you remember it?</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">	A. 	Uh-huh. 

<P><A NAME="N_8_">8. </A><EM>See also Zaragoza v. State</EM>, No. 04-01-00499-CR, 2002 WL 1840927 at *5 (Tex. App.-San Antonio 

Aug. 14, 2002, no pet.) (not designated for publication) (appellate court held trial court did not err in denying 

defendant's request for independent-impulse instruction when defendant charged as a party under sections 

7.01(a) and 7.02(a)(2)).</SPAN></SPAN></P> 

 

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