2nd Court of Appeals affirms conviction of former police detective
The 2nd Court of Appeals in Fort Worth has affirmed the 2009 murder conviction of former Denton police detective Robert "Bobby" Lozano.
Lozano, 47, was sentenced to 45 years in prison for the shooting death of his wife, Virginia "Viki" Lozano, and has been incarcerated while waiting for his appeal decision.
He must serve half the sentence before becoming eligible for parole.
His attorney, Gary Udashen, said Friday that he would appeal the case to the Texas Court of Criminal Appeals.
"I have not had time yet to read the opinion, so I can't comment on it," Udashen said. "But we definitely will appeal farther."
Members of the Denton County District Attorney's Office were happy with the ruling.
"We are thrilled that the Court of Appeals has affirmed Bobby Lozano's conviction for murdering his wife, Viki," spokeswoman Jamie Beck said. "Of course, it is the outcome we expected - we just had to wait quite a while to get it."
Bobby Lozano was having an affair with a female police detective in July 2004 when his wife died in their bed of a gunshot wound to the chest.
The paramour testified during his trial that she had ended the relationship after months of his postponing a promised divorce.
Several witnesses testified that Lozano would never have sought divorce from his wife of 18 years because of her family wealth and his taste for expensive living and the Montecito home they lived in with her mother.
Viki Lozano's mother, Anna Farish, testified in his defense, and he continued to live with her until his conviction.
Bobby Lozano told police that on July 6, 2002, he planned to clean his Glock before the couple's planned excursion to the shooting range with their 11-month-old boy the next day. He said he laid out the cleaning equipment, then decided to visit a tanning salon. When he returned half an hour later, he said, he found his wife dead and believed she had decided to clean the gun for him and had accidentally shot herself.
Lozano was indicted the following December, but two years later, then-District Attorney Bruce Isaacks dropped the indictment, swearing in an affidavit that two medical examiners had decided that Viki Lozano committed suicide.
In 2009, three weeks after an investigative article about the case appeared in the Denton Record-Chronicle, District Attorney Paul Johnson took the case back to another grand jury and Lozano was again indicted for murder.
Evidence at the trial showed that neither the Tarrant County pathologist who performed the autopsy nor a Chicago medical examiner who reviewed the autopsy report had determined that suicide was the manner of death, as the affidavit stated.
Judge Bruce McFarling refused to allow the defense to let jurors know about that affidavit, saying there was an issue of trustworthiness in the sworn statement. Later, a special prosecutor looked into a charge of lying under oath against Isaacks, but later said he believed that Isaacks had been misled by a staff lawyer who didn't want to prosecute the case.
The 56-page opinion addressed seven issues that Udashen brought up in the appeal.
The first two issues asserted that the evidence was not legally or factually sufficient for the jury to have convicted Lozano. Circumstantial evidence is as valuable as direct evidence in considering whether someone is guilty of a crime, according to the opinion. The inferences the jury made after hearing the evidence were reasonable.
"We defer to the jury's determinations of credibility and may not substitute our judgment for that of the factfinder," the opinion stated.
"We agree with the State that Appellant had the motive and opportunity, that his inconsistent statements and implausible explanations indicate guilt, and that additional evidence supports the jury's finding of guilt."
The second two points of appeal asserted that Judge McFarling erred by excluding from evidence a certified copy of Isaacks' motion to dismiss the first indictment.
"The trial court was understandably concerned that [the Chicago medical examiner's] report could not be produced and that the missing or non-existent report formed the basis for the dismissal motion and Isaacks' proposed testimony," according to the opinion.
The appeals court overruled those issues.
The fifth issue asserted that there were two charges against Lozano - one of intentionally causing his wife's death and the other of committing an act clearly dangerous to human life with the intent to cause serious bodily injury. The judge should have included in the written instructions to the jury that the decision would have to be unanimous for each of the charges but the instructions appeared only once in the jury charge, the appeal contended.
The court ruled that the two were not separate offenses but different methods of committing the same offense. It overruled those issues of appeal.
In the sixth and seventh issues, the appeal contended that McFarling allowed "backdoor hearsay" in testimony by Texas Ranger Tracy Murphree. The judge allowed Murphree to testify that after an investigation, without mentioning what eyewitnesses told him, he ruled the girlfriend out as a potential suspect in the murder.
The court ruled that Murphree was allowed this testimony and it was not hearsay, and that the appellant lawyer did not object to the right part of the testimony, so even had there been error it was too late to bring it up in an appeal.
DONNA FIELDER can be reached at 940-566-6885. Her e-mail address is firstname.lastname@example.org.