William Marshall Storey v. The State of Texas--Appeal from Criminal District Court No. 3 of Tarrant County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 02-06-00403-CR

Case Date: 10/04/2007

Plaintiff: Deanna De Leon

Defendant: The State of Texas--Appeal from 63rd Judicial District Court of Val Verde County

Preview:Deanna De Leon v. The State of Texas--Appeal from
63rd Judicial District Court of Val Verde County
MEMORANDUM OPINION
No. 04-04-00883-CR
Deanna DE LEON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 9435
Honorable Thomas F. Lee, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: February 1, 2006
AFFIRMED
A jury found defendant, Deanna De Leon, guilty of murder and assessed a punishment of forty years imprisonment.
Defendant complains of her conviction in five issues on appeal. We affirm.
LEGAL SUFFICIENCY
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In her first issue, defendant asserts the evidence is legally insufficient to support a finding that she intentionally and
knowingly caused the death of the victim and intended to cause serious bodily injury to the victim by committing an
act clearly dangerous to human life. //
We review the legal sufficiency of the evidence under the appropriate standard of review. See Jackson v. Virginia, 443
U.S. 307, 319 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same). The
standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184
(Tex. Crim. App. 1999).
The defendant and Valdemar Esquivel, the victim, were parents of one minor child and had an on-again, off-again,
turbulent relationship. On the night of the murder, defendant was drinking at the Seventh Street Pub and later went to
another bar, Doc Holliday s (Doc s), where the victim had been playing pool. The bartender at Doc s testified that
when defendant arrived she was pointing her finger in the victim s face and told him you re going with me, whether
you like it or not. A bar patron, Cesar Garza, testified defendant came up to the victim and hit him in the face with her
hand, at which time the victim did not retaliate, but tried to avoid defendant. Garza also testified defendant and the
victim were arguing and defendant told the victim multiple times in Spanish, You son of a bitch, you wanted to make
fun of me or disrespect me, I ll kill you first. Defendant and the victim left the bar together in a cab.
Defendant testified that when she and the victim arrived home she went to change clothes and he started cooking. She
testified that she sat down at the kitchen table with her baby on her lap and she and the victim began arguing.
Defendant testified the victim shut off the stove and went over to defendant and started beating [her] and beat [her]
head into the wall. Defendant said that as she went to call 911, the victim pulled the phone out of the wall. According
to defendant, she walked outside and after a short period came back inside and the victim started beating her and
pulling her hair, at which time she reached into the sink looking for something to hit him with. Defendant grabbed a
knife and stabbed the victim.
Officer Jenigan, who had been to the house on multiple occasions, was one of the officers at the scene. As to
defendant s claim that the victim had beat her head into the wall, Jenigan testified that he did not observe any white
powdery substance consistent with sheetrock on defendant or at the house. Officer Jenigan testified that approximately
one year prior to the murder, he responded to a domestic abuse call and had observed and photographed the same hole
that defendant claimed occurred on the night of the killing. When Officer Jenigan entered the residence the night of the
murder, he saw the victim on the couch with blood on his nose and mouth.
Doctor Natarjan testified that the death of the victim was the result of a stab wound to the left side of the chest. He
testified he found no defensive wounds on the victim, but found a cigarette clutched in the victim s right hand. Doctor
Natarjan also testified that, If an individual has been in an altercation or fight, it is unusual to find things still left in
their hands like a cigarette. The doctor further stated that he found no blood on the victim s hands and it is unlikely
that an ordinarily healthy individual who received an injury, such as a stab wound, would not react to it by putting his
hands toward the injury.
Officer Adauto testified that she bagged defendant s hands to preserve the evidence and defendant attempted to pull
off the bags. Adauto also instructed defendant several times not to wash her hands, but defendant did so despite the
officer s instructions. In rebuttal to defendant s claim that she was holding the baby at the time the victim attacked her,
Adauto testified that she checked the baby completely from head to toe and found no sign of any injury to him or any
blood on him.
Officers Garcia, Jenigan, and Adauto testified that defendant told them the victim got what he deserved. When
defendant was informed that the victim was dead, she showed no remorse and shed no tears.
There was conflicting testimony as to whether defendant or the victim was the abuser. Although the evidence
regarding the events leading up to the stabbing is conflicting, it was the jury s prerogative to draw reasonable
inferences from the evidence, and to judge the credibility of the witnesses and the weight to be given their testimony.
See Jones v. State, 944 S.W.2d 642, 647-49 (Tex. Crim. App. 1996). After a review of the record, we hold the
evidence is legally sufficient to support the jury s verdict.
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DETECTIVE S EXPERT TESTIMONY
In her second issue, defendant asserts the trial court erred in permitting a detective to testify as a blood spatter expert.
Expert testimony is admissible only after the trial court is satisfied that (1) the expert is qualified by knowledge, skill,
experience, training, or education; (2) the subject of the testimony is appropriate for expert testimony; and (3) the
testimony will assist the trier of fact in deciding the case. Tex. R. Evid. 702; see also Alvarado v. State, 912 S.W.2d
199, 215-16 (Tex. Crim. App. 1995). The special knowledge that qualifies a witness to give an expert opinion may be
derived from specialized education, practical experience, a study of technical works, or a varying combination of these
things. Tex. R. Evid. 702; Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995). Whether a witness offered as
an expert possesses the required qualifications is a question that rests largely within the trial court s discretion, and the
decision to admit or exclude the testimony will not be disturbed absent a clear abuse of discretion. Penry, 903 S.W.2d
at 762.
Here, the detective testified he has received a substantial amount of training as a detective and his duties as a detective
are to receive and process evidence and to process crime scenes. He also testified that he received training in the area
of blood stains and blood spatter patterns, he has taught classes on intermediate crime scene investigations, and he has
served as an expert witness in other cases. Additionally, he testified he has participated in different studies to interpret
how a pattern of blood reaches a particular surface and he explained the three types of blood spatter patterns. Based on
the detective s background and experience, the trial court could have reasonably concluded he was qualified to testify
as an expert on the blood stains and patterns found at the crime scene. Accordingly, we cannot say the trial court
abused its discretion in allowing the detective to testify as an expert.
JURY INSTRUCTION
In her third issue, defendant complains the trial court erred by failing to sua sponte instruct the jury pursuant to article
38.23 of the Texas Code of Criminal Procedure. Defendant contends the instruction was necessary because her
confession was not voluntary and her waiver of rights was not valid. However, defendant did not request a jury
instruction based on her claim that the confession was not voluntary or that her waiver was not valid; therefore, she has
waived the issue on appeal. Tex. R. App. P. 33.1; Kelly v. State, 669 S.W.2d 720, 726 (Tex. Crim. App. 1984) (noting
that failure to request an article 38.23 instruction waives error).
FAILURE TO INSTRUCT ON DEFENSE OF THIRD PERSON
Defendant next contends the trial court erred by refusing her request for an instruction on defense of a third person.
Defendant claims she is entitled to this instruction because she testified that she was scared he was going to kill me or
my baby, and in her confession, which was read to the jury, she stated, I was only protecting myself and my son.
Defendant also claims she is entitled to the instruction because in her confession she told the victim, while the victim
was hitting her, I got the baby, to which he responded, I don t give a shit about the baby.
We need not address whether the trial court erred in failing to give a requested instruction on defense of a third person
because the error, if any, was harmless. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). To be
entitled to an instruction on defense of a third person a defendant must first establish that she would be justified...in
using force or deadly force to protect [herself] against the unlawful force or unlawful deadly force [she] reasonably
believes to be threatening the third person [she] seeks to protect. Tex. Pen. Code Ann. 9.33 (Vernon 2003). Here, the
trial court instructed the jury on self-defense; however, the jury found defendant guilty of murder. A jury verdict of
guilty is an implicit finding rejecting the defendant s self-defense theory. Saxton v. State, 804 S.W.2d 910, 914 (Tex.
Crim. App. 1991). [A] negative finding by the jury on the question of self-defense precludes the possibility that
[defendant] was justified in using deadly force to defend a third person. Hernandez v. State, 914 S.W.2d 218, 224 (Tex.
App. El Paso 1996, pet. ref d). Therefore, we conclude that any error in failing to charge the jury on defense of a third
person was harmless.
FAILURE TO INSTRUCT ON EXTRANEOUS OFFENSES
In her last issue, defendant asserts the trial court erred by failing, during the punishment phase, to sua sponte instruct
the jury that it must find defendant committed any extraneous offenses beyond a reasonable doubt. Before evidence of
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extraneous misconduct may be considered in assessing punishment, the misconduct must be proved beyond a
reasonable doubt. Huizar v. State, 12 S.W.3d 479, 483-84 (Tex. Crim. App. 2000). Defendant correctly points out that
a trial court is required to sua sponte instruct the jury on this burden of proof at the punishment phase. Id. The standard
for determining harm in cases such as this is whether the trial court s error resulted in egregious harm, which is
assessed by reviewing the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant
information revealed by the record. Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002); Huizar, 12 S.W.3d at
483-84.
Here, defendant does not specify what extraneous offenses required an instruction. Additionally, her only showing of
harm is a conclusory statement that defendant was denied a fair and impartial trial. After reviewing the record as a
whole, we cannot conclude that defendant was denied a fair and impartial trial.
CONCLUSION
We overrule defendant s issues on appeal and affirm the trial court s judgment.
Sandee Bryan Marion, Justice
DO NOT PUBLISH
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