Robert Cruz Lozano v. State
359 S.W.3d 790
Tex. App.2012Background
- Appellant Robert Lozano convicted of murder of his wife Virginia Lozano and sentenced to 45 years' imprisonment.
- The death occurred on July 6, 2002 in Denton; Appellant was a Denton Police detective.
- The State’s theory: Lozano shot Viki, then staged the scene to appear accidental or suicidal.
- Appellant gave a voluntary statement describing his evening and gun cleaning; later statements revealed inconsistencies and an affair with Cynthia Waters.
- The medical examiner’s autopsy was initially undetermined as to manner of death, leading to a 2004 dismissal motion by the DA; a new indictment was filed in 2008 and the trial occurred with extensive crime-scene and forensics testimony.
- The defense challenged sufficiency of the evidence, several evidentiary rulings, jury instructions, and preservation of certain hearsay/confrontation issues.
- The court affirmed the conviction, upholding the sufficiency of the combined evidence and rejecting the asserted evidentiary and instructional errors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence | Lozano argues the evidence is legally and factually insufficient | State contends combined evidence supports guilt beyond reasonable doubt | Sufficient evidence to support conviction on a murder theory |
| Exclusion of 2004 dismissal motion | Da ignores the 803(8)(C) dismissal context and Donoghue report | Court properly excluded due to trustworthiness concerns | Trial court did not abuse discretion; motion excluded |
| Former DA's testimony about Donoghue report | Hearsay impeachment via Donoghue’s alleged suicide opinion should be admitted | Donoghue’s report not produced; impeachment via Donoghue testimony improper | Exclusion of Donoghue testimony affirmed; not admissible as hearsay impeachment |
| Unanimity of jury verdict | Unanimity required as to the offense; multiple theories misstate the charge | Offense under §19.02(b)(1) and (b)(2) are alternative means of the same offense; unanimity not violated | Charge did not violate unanimity; general murder verdict proper |
| Hearsay/Confrontation preservation | Murphree testimony about witnesses’ alibis violated confrontation rules | Objections were not preserved; testimony cumulative and non-prejudicial | Preservation failed; issues six and seven overruled |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard of review for sufficiency of evidence)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (standard of review; cumulative evidence admissible)
- Leza v. State, 351 S.W.3d 344 (Tex. Crim. App. 2011) (unanimity and sufficiency principles in multi-theory charges)
- Bundy v. State, 280 S.W.3d 425 (Tex. App.—Fort Worth 2009) (unanimity where alternative means of same offense are charged)
- Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011) (unanimity in alternate-means murder cases; no error)