Opinion issued February 25, 2014




                                   In The

                           Court of Appeals
                                   For The

                       First District of Texas
                         ————————————
                           NO. 01-12-00567-CR
                        ———————————
                     HECTOR SANCHEZ, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 434th District Court
                        Fort Bend County, Texas
                  Trial Court Case No. 10-DCR-54852
               MEMORANDUM OPINION ON REHEARING 1

      A jury convicted appellant Hector Sanchez of murder and sentenced him to

forty-five years in prison. See TEX. PENAL CODE. ANN. § 19.02 (West 2011). In two

issues, he argues that the evidence was legally insufficient to support his

conviction and that the State wrongfully withheld exculpatory evidence. We

affirm.

                                   Background

      Late one night in 2009, Hector Sanchez was standing outside his home with

several members of his family. The complainant, Donovan Dozier, and his friend

Sedarian Harris arrived in a grey sedan. Sanchez was in the drug business, and the

two were visiting him in search of cocaine.

      Dozier left Harris in the car and walked up to Sanchez. Neither Sanchez nor

Dozier appeared agitated or upset. The two men had a short conversation, but then

Dozier backed away from Sanchez, who was pointing a gun at him.

      Dozier started walking backwards down the driveway in the direction of his

car; Sanchez followed still pointing his pistol. When Dozier reached the driver’s

side door, Harris opened it. Sanchez lowered his gun to his side, and Harris


1
      We originally issued our memorandum opinion in this appeal on January 23,
      2014. Appellant filed motions for rehearing and for en banc reconsideration.
      The panel withdraws its previous memorandum opinion, vacates the prior
      judgment, and issues this memorandum opinion and the related judgment in
      their stead.
                                         2
beckoned Dozier, “Come on, let’s go.” Dozier turned his back to Sanchez and tried

to step inside the car. Dozier had one foot in the car but his shirt was being held by

Sanchez. Dozier jerked, throwing his right arm upward. Sanchez pulled back on

Dozier, who lost his balance and stumbled. When Dozier righted himself, he

pushed Sanchez. Sanchez then shot Dozier in the face at short range.

      After a jury trial, Sanchez was convicted of murder and sentenced to forty-

five years in prison. He filed a motion for new trial in which he argued that

potentially exculpatory information had been withheld by the State. At the hearing,

the parties stipulated that neither Sanchez nor his counsel had been informed of

certain facts—that gunshot residue testing had not been performed on Dozier’s

hands and that fingernail scrapings from Dozier’s body had not been tested—until

the eve of trial. The trial court denied the motion, and this appeal followed.

                                      Analysis

I.    Sufficiency of the evidence

      In his first issue, Sanchez contends that the evidence is legally insufficient to

support his conviction because the record lacks evidence showing he intentionally

or knowingly shot Dozier.

      “In determining whether the evidence is legally sufficient to support a

conviction, a reviewing court must consider all of the evidence in the light most

favorable to the verdict and determine whether, based on that evidence and


                                          3
reasonable inferences therefrom, a rational fact finder could have found the

essential elements of the crime beyond a reasonable doubt.” Gear v. State, 340

S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,

318–19, 99 S. Ct. 2781, 2788–89 (1979)). When reviewing the evidence, an

appellate court must defer to the jury’s determinations of credibility and the weight

appropriate to different pieces of evidence. Brooks v. State, 323 S.W.3d 893, 899

(Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 319, 326, 99 S. Ct. at 2789,

2793).

      The jury was instructed on two legal theories of murder. The jury could

convict Sanchez if they found that he either “intentionally or knowingly caused the

death of Donovan Dozier by shooting him with a firearm” or “unlawfully

intend[ed] to cause serious bodily injury to Donovan Dozier, and did cause the

death of Donovan Dozier by intentionally or knowingly committing an act clearly

dangerous to human life.” See TEX. PENAL CODE. ANN. § 19.02(b) (West 2011). A

person acts intentionally when it is his conscious objective or desire to engage in

conduct or cause the result. Id. § 6.03(a). A person acts knowingly when he is

aware of the nature of his conduct or is aware that his conduct is reasonably certain

to cause the result. Id. § 6.03(b). Serious bodily injury is bodily injury that creates

a substantial risk of death or that causes death, serious permanent disfigurement, or




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protracted loss or impairment of the function of any bodily member or organ. Id. §

1.07(a)(46).

      “Intent is most often proven through the circumstantial evidence surrounding

the crime.” Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). “A jury may infer intent from any facts that tend to prove its

existence, such as the acts, words, and conduct of the defendant.” Id. Intent to kill

may also be inferred from use of a deadly weapon, “unless it would not be

reasonable to infer that death or serious bodily injury could result from the use of

the weapon.” Id. (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App.

1996)).

      Sanchez’s brother Alex was among the family members gathered outside

Sanchez’s home the night of the shooting. He testified that Sanchez pointed his

gun at Dozier as Dozier walked backwards to his car. Sanchez lowered his gun

when the two reached Dozier’s vehicle. Dozier turned around and was partly in the

sedan when Sanchez tapped him on the shoulder. Alex testified:

      Q.       Okay, What did D [Dozier] do after Hector tapped his
               shoulder?

      A.       He turned around and he pushed him

      Q.       Did he push him with both –

      A.       With his right arm.

      Q.       With his right arm?

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      A.       Yes

      Q.       Okay. And what did Hector do?

      A.       That’s when he shot him

      Q.       Okay. Now how close was Hector to D, when Hector shot D?

      A.       More like, four feet or five feet.

      Harris also testified to what happened once Dozier and Sanchez returned to

the car. Harris opened the door for Dozier and started pleading for calm and a

quick departure: “We’re going to get out of here, we ain’t going to come back.”

Harris said:

      I’m pleading, you know, I’m saying, you know, we’re going to get out
      of here, whatever, whatever. And all of a sudden, Donovan snatches
      back, and, you know, at the same time, Hector’s pulling him, he’s still
      got him by his shirt. So, Donovan stumbles, because his foot is in the
      floor of the car. Donovan stumbles back into the street, but he didn’t
      fall. And Hector just walked him down, waited until he got squared,
      put the gun to his face and shot him.

In a further colloquy, Harris explained:

      Q.       Okay. So, Hector snatches Donovan, and then the way you
               describe it, the way you defined it, Donovan snatches back,
               meaning, he’s trying to get Hector’s hand off of –

      A.       Right.

      Q.       —Donovan’s right shoulder—

      A.       Right.

      Q.       —area. Okay. What happens immediately after that?

      A.       Ah, Donovan stumbles back into the street.

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      Q.     Does he stumble—does he fall down on his car—

      A.     —No, he didn’t fall.

      Q.     Okay.

      A.     He didn’t fall.

      Q.     Okay.

      A.     So he gets himself together, he’s standing straight up. And
             Hector, basically, just walked him down and shot him point
             blank in the face.

      When a deadly weapon is fired at close range and death results, a reasonable

factfinder can infer an intent to kill. Both Harris and Alex testified that Sanchez

shot Dozier at close range; Harris described the shot as “point blank in the face.”

Accordingly, a reasonable jury could have found beyond a reasonable doubt that

Sanchez intended to cause the death of Dozier. See Jones, 944 S.W.2d at 647

(holding that jury could infer intent to kill from, inter alia, use of a deadly weapon

and fact that “bullet struck the victim practically between the eyes”); Childs, 21

S.W.3d at 635 (affirming jury’s verdict when accomplice witness testified that

appellant pointed loaded gun at victim and witness heard two shots after running

away).

      In his brief, Sanchez relies upon multiple alleged deficiencies in Harris’s

testimony and credibility: Harris was Dozier’s friend; he received immunity from

prosecution for his testimony; he claimed to have gone to Sanchez’s home to

purchase drugs but later admitted the men had no money with them; he smoked
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marijuana the night of the shooting; and there were several discrepancies between

his trial testimony and a prior statement to the police. When the discrepancies were

brought to Harris’s attention, he responded, “I don’t remember half this stuff.” 2

      We do not agree that the asserted shortcomings of Harris as a witness require

us to find the evidence of Sanchez’s state of mind legally insufficient to sustain his

conviction. Where there are conflicts in the evidence, we must assume that the trier

of fact resolved any such conflicts in favor of the verdict. See Jackson, 443 U.S. at

326, 99 S. Ct. at 2793. Likewise, Sanchez’s arguments—that Harris’s perceptual

and cognitive capacities were compromised by marijuana use or that he was biased

as a friend of complainant and a beneficiary of prosecutorial discretion—are

contentions about Harris’s credibility and the weight to be given his testimony.

These arguments ask us to do what Texas cases uniformly declare we may not do:

sit as a “thirteenth juror” and reevaluate the weight and credibility of the evidence.

2
      Sanchez further claims: “Harris also admitted that when Appellant and
      Dozier struggled, his view was blocked because Appellant was in between
      Harris and Dozier. Therefore, he could not possibly have seen Appellant
      shoot Dozier.” However, Sanchez’s citations to the record support the
      suggestion that Sanchez was positioned between Harris and Dozier, but do
      not support the assertion that Harris could not have seen the shooting. See
      Sanchez’s Brief at 3 (citing 3 Rep. R. 161, 165). Harris agreed on cross-
      examination that Sanchez was positioned between him and Dozier. 3 Rep. R.
      165. But Harris was adamant that he could see both men. Harris testified:
      “I’m looking at it from a side angle, like straight ahead, but, like a side
      angle. I see Donovan, I see Hector.” Id. at 161. Harris confirmed: “I saw
      everything.” Id. at 162. He reiterated: “I seen everything, I seen everything.”
      Id. at 164. He again testified: “I could see everything, I seen what was going
      on.” Id. at 165.
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E.g., Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Our review “is

restricted to guarding against the rare occurrence when a factfinder does not act

rationally.” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). As a

rational jury would have been at liberty to accept the testimony of Harris and Alex

quoted above and to infer intent to kill therefrom, we overrule Sanchez’s first

issue.

II.      Failure to disclose exculpatory evidence

         In his second issue, Sanchez claims that the State failed to disclose

potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194 (1963). As was stipulated at the hearing on Sanchez’s motion for

new trial, the State did not disclose certain facts—that gunshot residue testing had

not been performed on Dozier’s hands and that fingernail scrapings from Dozier’s

body were not tested—until either the day of or the day before trial. The State

replies that Sanchez failed to preserve error because he did not raise the belated

disclosures with the trial court in a timely fashion.

         “A prosecutor has an affirmative duty to turn over material, favorable

evidence to the defense.” Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App.

1999). Reversal is required when the prosecutor fails to disclose evidence, the

evidence is favorable to the accused, and the evidence creates a probability




                                           9
sufficient to undermine confidence in the outcome of the proceeding. Thomas v.

State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992).

      “When there has been an untimely disclosure of evidence, rather than a

complete failure to disclose, the defendant must show he was prejudiced by the

tardy disclosure.” Davis v. State, 992 S.W.2d 8, 12 (Tex. App.—Houston [1st

Dist.] 1996, no pet.); accord Little, 991 S.W.2d at 866. “If a defendant received the

evidence in time to make effective use of the evidence, his conviction will not be

reversed.” Davis, 992 S.W.2d at 12; accord Little, 991 S.W.2d at 866. “A

defendant’s failure to request a continuance indicates that the tardy disclosure of

the evidence was not prejudicial.” State v. Fury, 186 S.W.3d 67, 73–74 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Davis, 992 S.W.2d at 12).

      In this case, Sanchez’s counsel learned the facts in question on either the day

of trial or the day before it. He did not request a continuance, and he did not object

to the late disclosure until he filed his motion for new trial in the aftermath of the

jury’s verdict. Rather, Sanchez cross-examined the State’s forensic pathologist at

trial about the failure to perform the testing.

      This court addressed a similar situation in Fury. During cross-examination

of the complainant, the defendant in Fury learned that pictures had been taken of

the complainant’s injuries. Id. at 74. He did not request a continuance or take

action to obtain the photographs at that time. Id. Instead, he used the failure to


                                           10
produce the photographs as a point of impeachment during cross-examination. Id.

at 70–71. It was only after the jury returned its verdict that the defendant objected,

in a motion for new trial, that the existence of the photos had not been disclosed.

Id. at 74. This court ruled that by delaying his objection, the defendant “either

waived any Brady error or failed to show that any Brady error prejudiced him.” Id.

(citing Davis, 992 S.W.2d at 12).

      Our holding here necessarily follows Fury. Since Sanchez did not move for

a continuance or otherwise raise the State’s failure to disclose until his motion for

new trial, Sanchez either waived any Brady error or failed to show that any such

error prejudiced him. Accordingly, we overrule Sanchez’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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