                                MEMORANDUM OPINION
                                        No. 04-10-00025-CR

                                     Dario Ramiro ACEVEDO,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                    From the 216th Judicial District Court, Kendall County, Texas
                                       Trial Court No. 4418
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:      Steven C. Hilbig, Justice

Sitting:         Catherine Stone, Chief Justice
                 Phylis J. Speedlin, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: March 23, 2011

AFFIRMED

           Dario Ramiro Acevedo was convicted of murdering Jefferey Donofrio and was sentenced

to life in prison. Acevedo appeals the judgment, complaining the evidence is legally insufficient

to support the verdict, the trial court erred in allowing a witness to testify and in admitting certain

evidence, and the court had an improper ex parte communication with a witness.
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                                 SUFFICIENCY OF THE EVIDENCE

         Acevedo argues the evidence is legally insufficient to support the jury’s verdict that he

intentionally and knowingly caused the death of Jefferey Donofrio by shooting him with a

firearm. In conducting a legal sufficiency review, we look at all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724,

730-31 (Tex. Crim. App.), cert. denied, 546 U.S. 962 (2005). We resolve any inconsistencies in

the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).    We defer to the jury’s determination of the weight to be given to contradictory

testimonial evidence because resolution of the conflict is often determined by the jurors’

evaluation of the witnesses’ credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 9 (Tex.

Crim. App. 2000). “Circumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “Each fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.” Id. The standard of review

is the same for cases relying on either direct or circumstantial evidence. Id.

         James Mason testified that on March 19, 2005, he went to Cascade Caverns in Kendall

County, Texas. The property had fallen into disrepair, and Mason was helping his friend James

Kyle make repairs and get the property operational. Acevedo and Donofrio were also present

helping with the repairs. Mason testified the four men went to repair electrical wiring that led to

an old trailer. Mason had determined electrical current was flowing to the trailer because a light

inside the trailer worked. They wanted to cut off the power to the trailer before attempting any



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repairs. Donofrio wanted to use an ohmmeter on an electrical junction box next to the back of

the trailer, but Mason told him not to because he feared Donofrio would receive an electrical

shock. Instead, Mason would go into the trailer and turn on the light switch. Kyle was to walk

to a group of electrical switches that were about 250 feet away. They asked Acevedo to stand

about halfway between Mason and Kyle and relay information about when Kyle flipped one of

the switches and whether the light in the trailer remained on. As Mason walked around the

trailer to go in the front door, he saw Donofrio kneeling down by the electrical box next to the

trailer and Acevedo standing approximately six feet from Donofrio. Mason testified that after he

turned on the light inside the trailer, he heard a loud “pop.” He told the jury he thought Donofrio

had put the leads from the ohmmeter into the junction box and caused an electrical short.

       Mason testified he walked around to the back of the trailer, where he saw Donofrio

walking and holding his hand over his heart. Donofrio told Mason to call 911, then took a few

more steps and fell down. Mason went to help Donofrio and rolled Donofrio onto his back.

Donofrio said “hurry,” but nothing further. Thinking that Donofrio’s injuries resulted from an

electrical shock, Mason used his cell phone to call 911. When 911 requested an address, Mason

handed the phone to Acevedo and asked him to talk to the operator. Mason testified Acevedo

took the phone and closed it, terminating the connection, and walked away. Mason testified he

reestablished a connection with 911, gave the address, and told Acevedo to go open the front

gate on the property. According to Mason, Acevedo did not appear in a big hurry to open the

gate and was walking “nonchalantly.” When Acevedo returned, he told the group that he “didn’t

mean it” and “it was an accident.” Mason testified it was at this time he realized Acevedo had a

gun and they told Acevedo to “get rid of the gun.” Mason testified Acevedo reached inside the




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right pocket of his vest, removed a handgun, and tossed it a few feet away. Mason told the jury

that Acevedo had told him earlier in the day that he liked guns and “was good with” them.

       Kelly Beardsley testified that her sister had owned Cascade Caverns jointly with Kyle.

Her sister died in early March 2005, and Beardsley testified she went to the property to help Kyle

straighten out the business. Just before the shooting, Beardsley saw the group of men inspecting

the wiring near the trailer. She heard a “pop” and ran out to see what had occurred. She saw

Donofrio laying on the ground with Kyle kneeling over him. Mason was standing nearby using

the telephone to call 911, and Acevedo was standing a few feet away. Beardsley heard Kyle ask

Acevedo to open the front gate. She testified Acevedo was “shuffling” toward the gate and she

thought he should have been moving faster. She also testified Acevedo was “fidgeting around a

lot” as if he were trying to hide something. When Acevedo returned, he told the group, “I didn’t

mean to shoot him. It was an accident.” Kyle asked Acevedo if he had a gun, and Acevedo

responded, “Yeah, but I didn’t mean to do it. . . . I was just messing around with it.”

       Kathy Rider testified she was a Kendall County deputy sheriff on March 19, 2005, when

she responded to a call at Cascade Caverns. When she arrived, she saw two men standing over a

man who was lying on the ground, and saw a fourth man sitting a few feet away. She learned

Acevedo was the man sitting on the ground. She testified Acevedo was sitting on his hands and

looked as if he were going to faint or vomit. Rider spoke with Mason, retrieved the handgun,

and placed Acevedo in a patrol car. She testified the handgun had four live rounds and one spent

round when she took possession of it. Ron Crumley, a firearm and toolmark examiner with the

Texas Department of Public Safety crime lab, testified he examined and performed several tests

on the weapon, which he described as a .38 special caliber Smith & Wesson revolver, Model 40.

Crumley first determined the weapon was functioning properly and had not been damaged.



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Crumley testified he then sought to determine whether the gun would discharge if it were jarred

or dropped. To simulate dropping the weapon to the ground, Crumley used a rubber mallet to

strike the gun at various places, including the hammer, while the weapon was loaded with

primed cartridge cases. 1          He used a microscope to inspect the surface of the primer and

determined that the hammer did not strike the primer during the tests. Crumley also tested the

weapon to determine how much force was required to pull the trigger and cause the gun to fire.

He told the jury that a person would need to pull the trigger with at least eleven and three-

quarters pounds of force to fire the weapon. Crumley explained that the weapon was also

equipped with a grip safety on the back of the grip. According to Crumley, the weapon would

not fire unless the grip safety was depressed while pulling on the trigger with at least eleven and

three-quarters pounds of force. Crumley testified that he could not envision a scenario where the

weapon would fire if dropped because firing the weapon requires pressure in two different

directions — the backward pull on the trigger coupled with a forward pushing on the grip safety.

           Finally, the State presented evidence that gunshot primer residue tests conducted on

Acevedo’s hands failed to disclose any evidence that Acevedo fired a weapon. However, the

State’s expert also testified that gunshot primer residue could be removed from hands by rubbing

them together or by rubbing them against clothing. Tests performed on the victim’s clothing also

failed to reveal any gunshot pattern residue, indicating the weapon was probably more than four

feet from the victim when the shot was fired. Dr. Kimberly Molina, a Bexar County Deputy

Medical Examiner, testified that Donofrio died from a single gunshot wound that entered his

back and exited his chest. The path of the bullet was slightly upward. The spent slug was not

recovered.



1
    Crumley described the primed cartridge cases as cartridges without powder or bullets.

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       Acevedo contends the evidence is legally insufficient because the State failed to prove

the shooting was anything other than an accident. We disagree. Although there is no direct

evidence of how the shooting occurred, Acevedo made statements admitting he shot the victim.

The jury was free to disregard Acevedo’s assertion it was an accident in light of the firearm

expert’s opinion that the gun would not have discharged as a result of being jarred or dropped

and his testimony that a person would have to apply pressure in two different directions to

operate the weapon. The jury reasonably could have inferred the shooting was intentional from

the evidence that Acevedo put the gun away inside his vest after the “accident,” the testimony

that he terminated the 911 call when the operator was asking for the address, and from the

evidence that Acevedo lacked any sense of urgency when he went to open the gate for

emergency responders. Viewing the evidence in the light most favorable to the jury’s verdict, a

rational jury could have found all the elements of the offense beyond a reasonable doubt.

                                 TESTIMONY OF ERNIE LOBELLO

       Acevedo argues the trial court erred when it allowed Ernie Lobello, an investigator with

the district attorney’s office, to testify in violation of Rule 614 of the Texas Rules of Evidence

and the trial court’s standing discovery order.

       During the cross-examination of Dr. Molina, Acevedo placed into evidence a photograph

of Lobello pointing to a spot on a tree. Acevedo questioned Dr. Molina extensively about the

path the bullet traveled through the victim’s body and the various possible positions of the

victim’s torso when shot. Acevedo sought to establish that the slightly upward path the bullet

travelled through the victim’s body, coupled with a bullet strike high on a tree, would indicate

the weapon was fired when it was near or on the ground.           If shown, this would support

Acevedo’s contention the shooting was an accident, possibly resulting from a dropped weapon.



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        Dr. Molina was the last witness to testify before the court recessed for lunch. After the

break, the State called Lobello to testify about the picture. Acevedo objected on the grounds that

Lobello had been present during Dr. Molina’s testimony and Lobello had not been included on

the State’s witness list.

        During a hearing held outside the presence of the jury, Lobello testified he had been in

the courtroom listening to the testimony, but that the prosecutor had told him to leave the

courtroom about the time Acevedo began to question Dr. Molina about the photograph. Lobello

stated he did not hear the testimony. Lobello testified that during the lunch break the prosecutor

asked him if he was pointing to a bullet hole in the tree, and he told her it was not a bullet hole.

Lobello testified he made a similar comment to the trial judge during the break. Lobello told the

court the prosecutor did not discuss Dr. Molina’s testimony with him and had never told him he

would be a witness at the trial. Finally, Lobello testified he did not recognize any member of the

jury.

        The prosecutor told the trial court she had never intended to call Lobello as a witness and

stipulated his name did not appear on the witness list.         She stated she had not seen the

photograph previously and proposed to limit Lobello’s testimony to the fact the defect in the tree

was not a bullet hole. The court overruled Acevedo’s objections. After ascertaining that none of

the jurors was familiar with or knew Lobello, the trial court allowed him to testify.

        Lobello testified that he was working as a deputy sheriff for Kendall County when the

picture was taken. He testified the picture was taken several days after the shooting when the

Kendall County Sheriff’s Office executed a search warrant on the property. Lobello testified he

was looking for a bullet, but that he did not find any evidence that a bullet struck the tree in the




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photograph. He told the jury he was pointing to a “defect” in the tree, but that it was not a bullet

hole.

                                       Violation of Rule 614

        At the beginning of the trial, the court ordered the witnesses excluded from the courtroom

pursuant to rule 614 of the Texas Rules of Evidence. That rule permits the trial court to exclude

witnesses from the courtroom in order to prevent them from hearing the testimony of other

witnesses. See TEX. R. EVID. 614. The trial court has considerable discretion in deciding how to

proceed when the rule is violated. See Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App.

1996)(holding decision to allow witness testimony when rule violated reviewed for abuse of

discretion), cert. denied, 522 U.S. 827 (1997); Leache v. State, 22 Tex. Ct. App. 279, 3 S.W.

539, 541 (1886)(holding that “where ‘the rule’ is invoked as to witnesses, the mode and manner

of its enforcement is confided largely to the discretion of the court, and the exercise of that

discretion will not be revised except in the clearest cases of abuse”). In deciding whether the

trial court abused its discretion, the reviewing court should determine if the witness’s presence

during the other testimony prejudiced the defendant. Bell, 938 S.W.2d at 50. Factors to consider

include whether the testifying witness actually heard the testimony of the other witness and

whether the testifying witness’s testimony “contradicted the testimony of a witness from the

opposing side or corroborated testimony of a witness he had conferred with or heard.” Id.

        Lobello testified he did not hear Dr. Molina’s testimony about the photograph.

Moreover, no witness, other than Lobello, testified about the defect in the tree, and thus

Lobello’s testimony did not directly contradict or corroborate any other witness’s testimony. We

cannot say the trial court abused its discretion in allowing Lobello to testify.




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                                         Violation of Discovery Order

         Acevedo also contends the trial court should not have allowed Lobello to testify because

the State violated the court’s discovery order by not including Lobello on its witness list. We

review the trial court’s decision to permit the witness to testify for abuse of discretion. Nobles v.

State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992). Factors we consider include whether the

prosecutor acted in bad faith and whether the defendant reasonably could have anticipated the

witness’s testimony. Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993), cert. denied,

512 U.S. 1246 (1994).

         Once again, we cannot conclude the trial court abused its discretion. The prosecutor

stated she had not intended to call Lobello as a witness. 2 She represented to the court that she

had not seen the photograph before the defense introduced it into evidence, and when that

happened, she realized Lobello’s testimony might be needed and instructed him to leave the

courtroom. Although Acevedo told the court the photograph was obtained from the district

attorney’s file, he did not expressly dispute the prosecutor’s statements. Acevedo argues the

prosecutor’s conduct amounted to negligence, but does not argue the conduct amounts to bad

faith. Nor does the record reflect the prosecutor acted in bad faith in failing to include Lobello

on its witness list. Moreover, Acevedo reasonably could have anticipated the State would seek

to call Lobello as a witness once the defense implied that the photograph showed Lobello

pointing to a bullet hole in the tree. Acevedo’s point of error regarding violation of the discovery

order is overruled. 3




2
  This was the second time this case has been tried. Lobello was not called as a witness in the first trial.
3
  Acevedo also complains the State failed to establish a proper predicate for Lobello’s opinion that the defect on the
tree was not caused by a bullet. However, Acevedo did not object to the testimony on this ground at trial, and
therefore failed to preserve any error on this point. See TEX. R. APP. P. 33.1.

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                                    EX PARTE COMMUNICATION

        Acevedo complains of an improper ex parte communication between Lobello and the trial

court when Lobello commented to the judge during the lunch break that the defect in the tree was

not a bullet hole. The entire record regarding the communication is as follows:

        Q. [by Defense] Since that testimony [referring to Dr. Molina’s testimony], have
        you had a chance to look at that picture and review it with anybody else?

        A. [Lobello] On the break for lunch, I spoke to [the prosecutor] about it.

        Q. And did you speak with [the judge] about it also?

        A. I made a comment to him.

        Q. And what was your comment to the judge about?

        A. I – and I can’t remember verbatim, but I think something to the effect that it
        wasn’t a bullet. There wasn’t any bullet hole.

The record does not contain the trial court’s response, if any, to Lobello’s ex parte comment.

Acevedo argues that “due to the unprofessional behavior of the trial court, he was forever denied

his right to a fair and impartial trial,” and suggests the ex parte communication influenced the

trial court’s decision to permit Lobello to testify.

        Nothing in the record supports the assertion that Lobello’s comment to the judge

influenced the court’s decision to allow Lobello to testify. And, as discussed above, the trial

court did not abuse its discretion in allowing the testimony. Acevedo cites Abdygapparova v.

State, 243 S.W.3d 191 (Tex. App. – San Antonio 2007, pet. ref’d), to support his contention that

he was denied his right to a fair and impartial trial. However, Abdygapparova offers him little

support. In Abdygapparova, the trial court engaged in ex parte communications by exchanging

numerous notes with the prosecutor during voir dire, some concerning the conduct of the voir

dire and a procedural issue on which the trial court had ruled. 243 S.W.3d at 206-07. This court



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held that the notes, coupled with some of the trial court’s rulings, indicated the court abandoned

its role as an impartial judge, which “infected the integrity of the trial process.” Id. at 210. A

single instance of a witness making an unfortunate ex parte comment to the trial judge, where the

record does not reflect whether the trial court admonished or chastised the witness, in no way

suggests the court abandoned its role as an impartial judge. We overrule the point of error.

                                ADMISSIBILITY OF PHOTOGRAPH

       Acevedo next complains the trial court erred in admitting a photograph that showed

Donofrio on the ground at the crime scene. Acevedo objected to admission of the photograph on

the ground that its “inflammatory nature” outweighed its probative value and because it showed

the victim after emergency personnel had administered medical aid. See TEX. R. EVID. 403

(relevant evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice).

       We review the trial court’s decision to admit a photograph for abuse of discretion.

Prible, 175 S.W.3d at 734. In determining whether the probative value of photographs is

substantially outweighed by the danger of unfair prejudice, the court may consider a variety of

factors, including: “the number of exhibits offered, their gruesomeness, their detail, their size,

whether they are in color or black-and-white, whether they are close-up, whether the body

depicted is clothed or naked, the availability of other means of proof, and other circumstances

unique to the individual case.” Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009),

cert. denied, 130 S. Ct. 3411 (2010). Even autopsy photographs are generally admissible unless

they depict mutilation of the victim caused by the autopsy. Id. A photograph is also “generally

admissible if verbal testimony about the matters depicted in the photograph is also admissible.”

Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). The color photograph admitted



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in this case shows Donofrio in the lower left part of the photograph. It is not a close-up of the

victim, and if any medical procedures had been performed on the body, they are not readily

visible in the photograph. Some blood is visible on the victim’s clothing and his chest is bared.

However, most of the photograph shows the trailer, the area around the trailer, and the electrical

box that was the center of the victim’s attention before his death. We cannot conclude the trial

court abused its discretion in admitting the photograph into evidence. The photograph is not

gruesome, does not show a close-up of any injury, and merely depicts the victim in relation to his

surroundings. The probative value of the photograph was not substantially outweighed by any

prejudicial effect.

                                   REQUEST FOR ATTORNEY

        Lastly, Acevedo argues the trial court erred by allowing Kelly Beardsley to testify, over

his objection, that Acevedo asked Kyle to hire him an attorney. Beardsley testified that after

Acevedo admitted shooting Donofrio and while they were waiting for emergency responders to

arrive, Acevedo asked Kyle, “Could you please hire me an attorney?” Beardsley testified she

said to Acevedo, “You want an attorney and Jeff’s here on his last breath?” Beardsley testified

Acevedo did not respond, and no further evidence was presented on this issue.

        Acevedo argues Beardsley’s testimony violated his rights under the Fifth and Sixth

Amendments to the United States Constitution. Acevedo argues that “an assertion of an attorney

raises an implication of guilt,” citing Cooper v. State, 961 S.W.2d 222, 227 (Tex. App.—

Houston [1st Dist.] 1997, pet. ref’d), and Rezac v. State, 722 S.W.2d 32, 33 (Tex. App.—Dallas

1986), rev’d on other grounds, 782 S.W.2d 869 (Tex. Crim. App. 1990). However, in both

Cooper and Rezac, the defendant invoked his constitutional rights during custodial interrogation.

The right to counsel under the Fifth Amendment is limited to custodial interrogation. Griffith v.



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State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001). “[T]here is no Fifth Amendment right to

counsel if there is no interrogation.” Id. The right to counsel under the Sixth Amendment does

not attach until adversary judicial proceedings have been initiated. Id. (quoting Kirby v. Illinois,

406 U.S. 682 (1972)). As there had been no arrest or custodial interrogation, and no adversary

judicial proceedings had been initiated when Acevedo made his request, his constitutional rights

were not violated by admission of the evidence, and we overrule the point of error.

       The judgment of the trial court is affirmed.


                                                  Steven C. Hilbig, Justice


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