Opinion
No. 05-09-01485-CR
Opinion Filed April 18, 2011. DO NOT PUBLISH TEX. R. APP. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0830404-N.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
A jury convicted appellant Eric Christopher Hodges of capital murder, and the trial court sentenced him to life in prison. He raises the following issues on appeal: (1) whether the trial court abused its discretion by denying his motion to suppress; (2) whether the evidence is sufficient to support his conviction; (3) whether the trial court abused its discretion by denying a motion for mistrial after the State referred to him as a "monster" during closing argument; and (4) whether the trial court erred by denying his request to include the lesser-included offense of aggravated assault in the jury charge. We affirm the trial court's judgment.
Background
On April 13, 2008, appellant called the Yellow Cab Company because he needed a ride to obtain drugs and get a "fix." He did not have money to pay the fare and admitted he never intended to pay for the ride. Rather, he took a loaded revolver with him and intended to rob the driver. When Lois Ivory arrived in her cab and picked appellant up, appellant directed her to an area where he knew he could buy drugs. He intentionally directed her to take many turns on several streets so she would get confused as to her location and not be able to follow him after he robbed her. After stopping in a Grand Prairie neighborhood, Ivory requested payment. Appellant refused and instead pulled the gun on her and demanded money. She said she did not have any because she had just started her shift. She reached for the gun and struggled to gain control of it. According to appellant's confession, he regained control of the gun and pulled off a single shot into her right temple, which killed her. At trial, appellant claimed the shooting was accidental, the gun misfired, and he was unsure who pulled the trigger. After the shooting, appellant left the cab without taking any money. As he started walking down the street, Roselva Reyes, who was a passenger in a passing truck, noticed appellant. She later identified him in a police line up as the man she saw leave the cab. The cab remained parked in front of Reyes's relatives' house. The police were later contacted, and they discovered Ivory's body slumped over the front seat with blood dripping down her face and accumulating in her lap. Officers identified her from documents inside her cab. The Yellow Cab Company provided information regarding Ivory's route on April 13, and the information led them to appellant's address. Officer Jason Kennedy, a Dallas Police officer and U.S. Marshal, went to appellant's home, but he was not there. Officer Kennedy later received information indicating appellant was in Alvarado, Texas. On April 15, 2008, members of the Dallas/Fort Worth Fugitive Apprehension Strike Team apprehended appellant in a shed on the back of some property in Alvaredo. They arrested him and took him to the Grand Prairie police department for further questioning. Detective Enrique Oseguera read appellant his rights. Appellant said he understood them and volunteered to talk because it was "pretty plain and simple what happened." Appellant then provided a detailed account of the murder. He also provided details matching the information Reyes told the police and details matching the evidence found at the crime scene. The jury convicted appellant of capital murder, and the trial court sentenced him to life in prison. This appeal followed.Motion to Suppress
Appellant asserts the trial court abused its discretion by failing to suppress his videotaped interrogation because he was under the influence of drugs and sleep deprived. Thus, his confession was involuntary. The State responds he knowingly waived his rights. A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). This standard gives almost total deference to a trial court's determination of historical facts and applies a de novo review of the trial court's application of the law to those facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. Randolph, 152 S.W.3d at 769. An accused must give his confession voluntarily before it can be used against him at trial. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). When a confession is challenged on the basis that it was not voluntarily made, the State must prove by a preponderance of evidence that the accused gave it voluntarily. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). Voluntariness is determined considering the totality of the circumstances. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997) (en banc). A confession is rendered involuntary when the accused makes it while under the influence of an intoxicating substance only if his "intoxication renders him incapable to make an independent, informed choice of free will. . . ." Nichols v. State, 754 S.W.2d 185, 190 (Tex. Crim. App. 1988), overruled on other grounds by Harris v. State, 784 S.W.2d 5 (Tex. Crim. App. 1989) (en banc). Intoxication alone will not render a confession involuntary. Id. at 191. Further, lack of sleep is but one factor to consider in determining whether a confession was involuntary. See, e.g., Barney v. State, 698 S.W.2d 114, 121 (Tex. Crim. App. 1985) (en banc) (holding that lack of sleep for sixteen hours did not, by itself, render a confession involuntary when there was no evidence officers "deprived" him of sleep or that he requested sleep before his confession); Whitmire v. State, 183 S.W.3d 522, 528 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) (holding lack of sleep alone "is simply not a factor to outweigh all others"). During the interview, appellant stated he understood his Miranda rights as explained by Detective Oseguera and initialed each warning in writing. While he admitted to being a drug addict, he never stated he was on drugs at the time of the interview. Although he may have appeared somewhat anxious at times during the interview, he answered the questions rationally and in a relatively calm manner. Therefore, nothing in the record indicates appellant confessed while under the influence of an intoxicating substance that "render[ed] him incapable to make an independent, informed choice of free will. . . ." Nichols, 754 S.W.2d at 190. Halfway through the interview (approximately sixteen minutes in), appellant stated he had not slept or eaten in two days. However, he did not request food or rest on the videotape before talking to police. Likewise, nothing on the videotape indicates the officers deprived him of food or rest. See, e.g., Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (holding a statement is involuntary only if there was official, coercive conduct of such a nature that any statement obtained was unlikely to have been the product of a free and unconstrained choice). In fact, appellant was offered a soft drink. Giving deference to the trial court's determinations of fact, the State proved by a preponderance of the evidence that appellant's confession was voluntary. Accordingly, the trial court did not err by concluding appellant knowingly, intelligently, and voluntarily waived his rights. Appellant's fifth issue is overruled.Sufficiency of the Evidence
Appellant argues the evidence is legally and factually insufficient to support his conviction for capital murder because the gun went off while struggling with the decedent, and he did not steal anything from her after the murder. The State responds appellant admitted he intended to rob Ivory and then killed her so she could not identify him. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We defer to the jury's credibility and weight determinations because it is the sole judge of the witnesses' credibility and the weight to be given their testimony. Id. at 326. To convict appellant of capital murder, the State had to prove he intentionally committed murder in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2009). A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (West 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he (1) intentionally, knowingly, or recklessly causes bodily injury; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a) (West 2003). Appellant admitted he called a cab knowing he did not have money to pay the fare and planned on robbing the driver for drug money. However, appellant argues in his brief that he has "maintained from the first interrogation that there had been a struggle over the gun and during that struggle, the gun was fired and hit the victim." When appellant testified, he said he never meant to shoot Ivory. Rather, the trigger accidentally misfired during the struggle. He said he was not even sure who pulled the trigger. However, during his videotaped interview, appellant said it was "pretty plain and simple what happened." He admitted he originally intended to rob her, but when Ivory refused to give him money, "I wasn't just going to let her go and be able to identify me. . . . I wasn't planning on doing what I did until she didn't give me the money." He admitted, "I shot her, I believe, just once." He admitted she went for the gun and they struggled, but he told Detective Oseguera, "I pulled away from her and got to where I could pull off one round." He said the struggle was over by the time the gun discharged, and he had full control of the gun. The medical examiner confirmed Ivory died from a single gun shot wound to her head. Reviewing the evidence in the light most favorable to the verdict, we conclude a reasonable trier of fact could have disbelieved appellant's testimony and found he intentionally caused the death of Ivory in the course of attempting to commit robbery. In reaching this conclusion, we reject appellant's contention the State must exclude every reasonable hypothesis raised by the evidence that tends to exculpate the accused. The Texas Court of Criminal Appeals overruled the reasonable hypothesis analytical construct in Geesa v. State, 820 S.W.2d 154, 156 (Tex. Crim. App. 1991) (en banc), overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). Appellant's first issue is overruled.Motion for Mistrial
In his third issue, appellant claims the trial court erred by denying his motion for mistrial after the State called him a "monster" during closing argument. The State responds the word was a reasonable deduction from the evidence and even if it was improper, appellant cannot establish harm. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). A mistrial is appropriate for only "highly prejudicial and incurable errors." Id. (citing Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). Proper jury argument falls within one of the following categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) in response to argument of opposing counsel, and (4) a plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). Counsel is allowed wide latitude without limitation in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). If the argument is improper, we conduct a non-constitutional error harm analysis. Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008). An error that does not affect substantial rights must be disregarded. Id. To constitute reversible error, the argument must be extreme or manifestly improper, violative of a mandatory statute, or have injected new facts, harmful to the accused, into the trial proceedings. Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997). Further, we balance the following factors: (1) the severity of the misconduct, (2) any curative measures taken, and (3) the certainty of conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Assuming without deciding that the State's reference to appellant as a "monster" was improper, we must determine if he was harmed. First, an instruction to disregard will generally cure any improper argument. See Dukes v. State, 239 S.W.3d 444, 451 (Tex. App.-Dallas 2007, pet. ref'd). Here, the trial court promptly instructed the jury to disregard the prosecutor's statement. Further, the solitary mention of the word "monster" was not an argument calculated to deprive appellant of a fair and impartial trial. See, e.g., Ponce v. State, 299 S.W.3d 167, 175 (Tex. App.-Eastland 2009, no pet.). Use of the word did not violate any statute, nor did it inject new or harmful facts into the case. Additionally, the overwhelming evidence of appellant's guilt was based on his own confession; therefore, the State's characterization of him had little, if any, affect on the jury's verdict. Considering the evidence and the instruction to disregard, we conclude the trial court did not abuse its discretion by failing to grant a mistrial. Appellant's third issue is overruled.Failure to Include Lessor-included Offense in Jury Charge
Appellant argues in his fourth issue that the trial erred by denying his request to include the lesser-included offense of aggravated assault in the jury charge. Based on the evidence that the two parties struggled, the gun went off during the struggle, he did not intend to kill her, and he did not rob her, he claims the jury should have been instructed accordingly. The State responds, based on the evidence, the court properly denied the request. We review the trial court's denial of a request to include a lesser-included offense in a jury charge for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004). We use a two-prong test to determine whether a defendant is entitled to the instruction. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005); see also Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993) (citing Royster v. State, 622 S.W.2d 444 (Tex. Crim. App. 1981) (op. on reh'g)). The first step requires the court to determine whether the lesser offense actually is a lesser-included offense of the offense charged as defined by article 37.09. Hall 158 S.W.3d at 473. Article 37.09 provides that an offense is a lesser-included offense if it meets the following requirements:(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.Tex. Code Crim. Proc. Ann. art. 37.09(1), (3) (West 2006). The second step is whether the record contains some evidence that would permit a rational jury to find the defendant is guilty only of the lesser-included offense. Hall, 158 S.W.3d at 473. In other words, there must be some evidence from which a rational jury could acquit appellant of capital murder while convicting him of the lesser-included offense of aggravated assault. In making this decision, the court evaluates the evidence in the context of the entire record, but does not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. The State does not challenge whether aggravated assault is a lesser-included offense of capital murder, but rather asserts appellant cannot meet the second prong of the Royster/Rousseau test. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000) (en banc) (recognizing aggravated assault is a lesser-included offense of murder, and therefore, of capital murder). We agree appellant cannot satisfy the second prong. A defendant does not satisfy the second prong of the Royster/Rousseau test if there is evidence he committed an offense that is a lesser-included of the charged offense but greater than the requested lesser-included offense. Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008); see Jackson v. State, 992 S.W.2d 469, 474-75 (Tex. Crim. App. 1999) (defendant charged with capital murder was not entitled to requested instruction of aggravated assault by recklessly causing serious bodily injury because evidence showed he caused not merely bodily injury but death). Stated differently, a defendant is not entitled to a jury instruction on the lesser-included offense if the evidence on which he relies raises another offense that "lies between" the requested and charged offense. Flores, 245 S.W.3d at 439. Here, the evidence established appellant was guilty at the very least of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (West 2003). He testified when he called for a cab, he never intended to pay for his fare, but rather planned to rob the driver for drug money. He took a loaded gun with him to use during the robbery. When Ivory asked for payment, appellant pulled the gun on her and demanded money. At this point, he had committed the offense of aggravated robbery. Thus, the evidence would not permit a rational jury to find appellant guilty only of the lesser-included offense. Hall, 158 S.W.3d at 473. Because there was evidence appellant committed an offense that is a lesser-included offense of capital murder but greater than the offense of aggravated assault, the trial court did not abuse its discretion in denying the requested instruction. We overrule appellant's fourth issue.