Opinion
No. AP-74,451
Delivered: March 23, 2005. DO NOT PUBLISH.
On Direct Appeal in Cause Number 2002-CR-1613 from the 175th District Court of Bexar County.
KEASLER, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, HOLCOMB, and COCHRAN, JJ., joined. HERVEY, J., did not participate.
On October 9, 2002, Ramon Hernandez was convicted of the offense of capital murder. Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced Hernandez to death. Direct appeal to this Court is automatic. Hernandez raises five points of error challenging his conviction. We reject his contentions and affirm the trial court's judgment. In his first point of error, Hernandez contends the evidence is legally and factually insufficient to support the jury's verdict. Specifically, he challenges the sufficiency of the evidence to show that he had the culpable mental state to commit capital murder. In reviewing the legal sufficiency of the evidence, this Court looks 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. Hernandez was indicted for the capital murder of Rosa Rosado. The indictment alleged that Hernandez intentionally and knowingly caused Rosado's death during the course of committing or attempting to commit aggravated sexual assault, kidnapping, or robbery. The indictment also included a paragraph which alleged that Hernandez intentionally and knowingly caused Rosado's death during a different criminal transaction, but pursuant to the same scheme and course of conduct in which he knowingly and intentionally caused the deaths of Priscilla Almares and Sarah Gonzales namely, asphyxiation. If the evidence is sufficient to support one of the theories alleged in the indictment, we need not address the remaining theories. A person is guilty of capital murder if he intentionally or knowingly causes the death of an individual while committing the offense of kidnapping. A person is guilty of the offense of kidnapping if he knowingly and intentionally abducts another person. The law of parties, with which the jury was charged, provides as follows:
If in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.Patricia Hernandez testified that on March 31, 2001, she was at the movies when she phoned her mother, Rosa Rosado, at home to wake her up to go to work. Rosado worked nights and took the bus to work. When Rosado did not return home the next morning, Patricia contacted the police and the Heidi Search Center. Detective John Kellogg testified that on April 5, 2001, he and Detective Andrew Carian and another detective met with Asel Abydgapparova, who related that she was Hernandez's girlfriend and that she was pregnant with his child. She stated that she had information about a murder and the location of a body. Based on the information Abdygapparova gave the police, Hernandez was arrested and taken to the Bexar County Jail. While in jail, Hernandez asked to speak with the detectives assigned to this case. Detectives Kellogg and Carian met with Hernandez. He gave a statement, which was admitted at trial, in which he admitted his participation in the present offense. Specifically, Hernandez related in his statement that he, Abdygapparova, and Santos Minjarez were driving around town on the night of March 31, 2001, when they agreed to find a victim to rob. They spotted Rosado at a bus stop and saw her walk across the street to a pay phone located outside of a convenience store. They parked and watched Rosado talk on the pay phone for "about five, ten, or maybe fifteen minutes" before she walked back to the bus stop. Rosado stayed at the bus stop for thirty seconds and then started back across the street. Minjarez told Hernandez to pull the car up next to her quickly. Hernandez complied, and Minjarez grabbed Rosado's purse. Minjarez then pulled the woman into the car and told Hernandez to "go, go, there is a car coming." Hernandez "gunned it" and drove off. The passenger door was still open and, when Hernandez turned a corner, it slammed on Rosado's leg. He stopped at the next light so that she could pull her leg inside the car. He stopped again to let her out, but Minjarez instructed him to keep driving, so he did, without letting her out. Hernandez drove to his home, where Abdygapparova obtained some mailing tape to cover Rosado's mouth. Minjarez covered Rosado's mouth and placed a towel over her head. The group then decided to take Rosado to a motel. They attempted to get a room at one motel, but there was no vacancy. Abdygapparova went into another motel and was able to get a room. Hernandez, Minjarez, and Abdygapparova took Rosado into the motel room, and Minjarez and Abdygapparova pushed her down onto the bed. Hernandez claimed that Minjarez and Abdygapparova then began to go through Rosado's belongings and noticed an ATM card. They demanded to know the pin number, but Rosado told them she did not have one. While this was going on, Hernandez was "doing [his] rounds," making sure no one was around the motel room. Hernandez then pulled Abdygapparova into the restroom and told her not to touch anything because she was leaving fingerprints in the motel room. Abdygapparova replied that he need not worry because they could just burn everything. Hernandez heard Minjarez ripping Rosado's clothes off and left the bathroom. He saw Minjarez put on a condom and begin to rape Rosado. Hernandez went back into the bathroom. After Minjarez finished raping Rosado, Hernandez left the bathroom and "did [his] rounds again." Minjarez and Hernandez then discussed getting rid of any evidence and decided to send Abdygapparova out to get "some douches and some Clorox." Minjarez then took Rosado into the restroom and "cleaned her private parts with soap and water." When Abdygapparova returned, she and Hernandez went into the restroom to discuss what to do. They heard Rosado crying and looked out to see Minjarez raping her again. When Minjarez finished, he joined Abdygapparova and Hernandez in the restroom and told them that he was ready to go. In his statement, Hernandez specifically said, "I suspected that he wanted to kill the woman [Rosado]." Minjarez stated that he had just been released from prison and wasn't about to go back. Minjarez told Hernandez all he needed from him was a shovel. Hernandez instructed Abdygapparova to go get a shovel. Minjarez and Hernandez began to remove any evidence of their crime. Hernandez then went outside to make sure no one was around. When he returned to the room, he observed Minjarez sitting on top of Rosado holding a pillow over her head. He left the room and, when he came back ten minutes later, Rosado was dead. Hernandez and Abdygapparova assisted Minjarez in dumping Rosado's body and getting rid of her belongings. Assuming that the jury believed Hernandez's version of his limited participation in Rosado's kidnapping and murder, his statement alone is enough to find the evidence legally sufficient. Hernandez kidnapped Rosado. He not only participated in her abduction, he drove the car that took her to his home, to the motel that had no vacancy, and to the motel where she was raped and killed. With respect to Rosado's death, Hernandez claims that he did not know Minjarez was going to kill Rosado and was shocked to find her dead when he returned to the motel room. However, in his statement, he relates that he suspected Minjarez was going to kill Rosado, and before her death, instructed Abdygapparova to go out and get a shovel. He witnessed Minjarez holding Rosado down on the bed with a pillow over her head and went outside to make sure that there was no one around. Although, according to his statement, he did not hold the pillow over Rosado's head, he is still responsible for her death under the law of parties. The evidence is legally sufficient to support the jury's verdict of guilt. In the same point of error, Hernandez claims that the evidence is factually insufficient to support the jury's verdict. In a factual sufficiency review, the appellate court views all the evidence without the prism of "in the light most favorable to the prosecution" and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. A verdict is clearly wrong and unjust if the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." The only evidence that Hernandez presented at trial was presented to controvert the murders of Priscilla Almares and Sarah Gonzales, not the kidnapping and murder of Rosado. Therefore, for the same reasons we find the evidence legally sufficient, we also find it factually sufficient. Hernandez's first point of error is overruled. In his second point of error, Hernandez claims that the trial court erred in denying his motion to quash the indictment. Specifically, he claims that the indictment "failed to give adequate notice to Appellant and failed to enable Appellant to plead the judgment that may [be] given upon it in bar of any prosecution for the same offense." He argues that, "where the manner and means are unknown to the Grand Jury and where four different theories of capital murder are alleged in the indictment, failure to limit or allege the constituent elements essentially distorts o[r] vacates any notice to the Appellant of what he is exactly being charged with." We have previously held adversely to Hernandez's position. Hernandez's second point of error is overruled. In his third point of error, Hernandez argues that the trial court erred in failing to suppress his oral and written statements, that the trial court erred in allowing the State to elicit testimony regarding Hernandez's written statement, and that Article 38.22 was violated when the trial court failed to make findings of fact regarding the voluntariness of his statement. Hernandez fails to apply the law to the facts in this case with respect to all three of his allegations. He simply makes bare assertions. We will not address this point of error because it is multifarious and inadequately briefed. Hernandez's third point of error is overruled. In his fourth point of error, Hernandez alleges that the trial court erred in admitting numerous photographs numbered as Exhibits 3-31, 61-80, and 207-56. He argues they should not have been admitted because they were cumulative and more prejudicial than probative. The record reflects that many of the exhibits Hernandez complains of are not photographs. Moreover, many of the exhibits he claims were improperly admitted were not admitted at all. We will consider his claim only with regard to the photographs that were admitted. Hernandez argues that they were unfairly prejudicial because they were cumulative and they showed the exposed genitalia of the victims. But he does not explain why the photographs were more prejudicial than probative. Considering that one of the underlying offenses in this case is aggravated sexual assault, the photographs were certainly probative. Without more, Hernandez's claim must fail. His fourth point of error is overruled. In his fifth point of error, Hernandez contends that he received ineffective assistance of counsel because his attorneys failed to ask the trial court's help in locating witnesses. When reviewing a claim of ineffective assistance of counsel, this Court utilizes the two-prong test set forth in Strickland v. Washington. Under the first prong of the Strickland test, Hernandez must show that counsel's performance was deficient. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Under the second prong of the Strickland test, Hernandez must show that counsel's deficient performance prejudiced him. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." In other words, Hernandez "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" In most cases, counsel's reasons for his or her actions or inactions do not appear in the record. In Thompson v. State, we explained that in order to defeat the presumption that counsel rendered effective assistance of counsel, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." However, in this case, counsel's reasons for not asking the trial court's help in locating the witnesses in question appear in the record. During the guilt or innocence phase of trial, Detective Martin Landgraf, the officer in charge of the murder investigation in this case, testified for the State. On cross-examination, defense counsel attempted to ask Landgraf whether or not he had taken statements from witnesses who identified other suspects in the case. The prosecutor objected to hearsay, and the trial court sustained the objection. Defense counsel rephrased his question, but an objection was again made and sustained. When defense counsel attempted to ask the question another way, the prosecutor asked that the jury be excused so that the matter could be discussed outside the presence of the jury. The jury was excused and a discussion of whether or not defense counsel's question was hearsay ensued. During this discussion, the issue of whether or not the witnesses in Landgraf's report were availablecame up. The following exchange occurred:
THE COURT: What about all the witnesses in his report? Have you issued subpoenas for those people?
[DEFENSE COUNSEL]: Well, Judge, we've tried to locate Tina Marie Garcia. Okay. We had the investigator late last night trying to locate her. She's a family member. She doesn't work at the same location. The address we had — we got the subpoena issued, but we don't have access. This is — Judge, it's nine years, almost nine years ago.
THE COURT: Well, is Tina the only person who talked about this type of information?
[DEFENSE COUNSEL]: Well, no Judge. There's a lot of them, but I'm —THE COURT: And?
[DEFENSE COUNSEL]: Well, I'm not — I don't want to — I'm not going to inquire into the specifics of the conversation. But at least I think I have a right to cross examine him regarding the general nature of the investigation that involved gang activity.
[THE PROSECUTOR]: Well, Judge, he doesn't get to open his own door. And, as I said, he did, in fact, attempt to elicit the hearsay and then is trying to do it back door, which is the point which I asked to approach the bench. By saying — by putting the cart before the horse, well, you had the information on gang material. I guess you got this from whoever. That's hearsay. As my partner astutely points out, the purpose of the hearsay rule is to prevent unreliable evidence from getting before the jury.
[DEFENSE COUNSEL]: Well, that's [the prosecutor]'s labeling of unreliable, Judge.
THE COURT: Apparently Tina is not the only person who may have discussed the gang issue; is that correct?[DEFENSE COUNSEL]: That's correct, Your Honor.
THE COURT: And those people you've tried to track down?[DEFENSE COUNSEL]: That's correct, Your Honor.
THE COURT: And you haven't been able to track down anybody?
[DEFENSE COUNSEL]: Well, Judge, we've got a couple of witnesses that were not related.THE COURT: How?
[DEFENSE COUNSEL]: Who are going to come forward obviously because they have been subpoenaed. But it's a situation where, I mean, trying to locate a 14-year-old who is now 23 —THE COURT: Uh-huh.
[DEFENSE COUNSEL]: You can understand the difficulty that we've had.THE COURT: I can —
[DEFENSE COUNSEL]: I mean, some of these witnesses are deceased. Some of the other witnesses are deceased because they were elderly.
THE COURT: But not all of them are deceased; is that correct?[DEFENSE COUNSEL]: Well, that's true, Judge.
THE COURT: And these persons who may have discussed whether or not there was gang activity have been — those people, their names have been available to you for a long time. And please don't tell me that I didn't give you adequate time to prepare, because I don't think you can say that.
[DEFENSE COUNSEL]: I'm not saying that, Judge. What I'm saying is the passage of time has removed a lot of these peoples' availability to the defense. The fact that we have an address that is ten years old doesn't do us a lot of good. We're trying to follow — we don't have the same resources, you know, as the State does.
THE COURT: But I think that if you had approached the Court and asked for the resources, I certainly would have provided them. Did you contact me? Did you tell me that you were having a hard time locating these people?
[DEFENSE COUNSEL]: Judge, we were taking every effort that we could with the resources that the Court made available. I'm not going to say it's a dollar amount of resources; it's just the availability of the information that — you can give me ten investigators. They don't have the resources or the availability or resources to allow us to discover these people.
THE COURT: Mr. McClure, do you know where these people are today?[THE PROSECUTOR]: No, ma'am. THE COURT: Did you try to locate them?
[THE PROSECUTOR]: Honestly, I don't believe I did, because ultimately it is also true, Judge, that none of this is relevant to the fact that it is Ramon Hernandez' sperm in the anal swab. And to suggest to the jury that somebody else may have been involved with him is honestly not relevant to whether or not Ramon was involved. I mean, it certainly doesn't go to show that he was not, and —
[DEFENSE COUNSEL]: I believe that's a decision for the Court to determine what is or what is not relevant regarding the murder of these two young ladies.
THE COURT: I agree. And I'm going to rule that it is not relevant, and I'm sure that if you thought the information was relevant, then you would have done everything in your power to get those people here.
[DEFENSE COUNSEL]: Well, I would like to, just for the record, just so that we have made every effort available to us to locate these witnesses.THE COURT: But you never came —
[DEFENSE COUNSEL]: And for the Court to indicate that we haven't done that is improper, I believe.
THE COURT: But the problem is that you never came to the Court to tell me that you needed more time or that you needed resources to locate these people. Is that correct?
[DEFENSE COUNSEL]: Well, it's not a matter of resources or time. If they are not available, they are not available, Judge. I mean, if they are no longer living at the same address and we run social security numbers, date of birth, and some of that we don't have even from their report.
THE COURT: But if you had asked for that information, we would have done everything possible to get you that information, even if this officer here would have been enlisted to help you locate those people. There was adequate time to prepare. It is not relevant. It was part of the investigation, but nonetheless, none of those so called leads led anywhere. And, therefore, it is not relevant at this time, and so call the jury back in.
[THE PROSECUTOR]: I would like to add, Judge, that it appears to me that Mr. Ugarte is correct in saying they have done everything they could. And the fact of the matter is, they have been duly diligent, I would suggest, but the absence or unavailability of a witness doesn't change the fact that hearsay doesn't come in for the purpose of trying to elicit it.
THE COURT: That is accurate. And I agree with that. And I know that Mr. Ugarte and Mr. Hancock have worked very, very hard on this case. I understand that. But again, this was part of the investigation, the leads led nowhere. It is not relevant. It is hearsay. And therefore, we will not go into these matters. Anything else?Defense counsel stated on the record that he did everything he could to locate the witnesses in question. Although the trial judge scolded defense counsel several times for not asking the trial court for additional resources in locating these witnesses, it is apparent from the record that both defense counsel and the prosecutor were confident that no amount of additional resources would have located these witnesses. This being the case, Hernandez is unable to show his attorney's performance was deficient. Moreover, because the trial judge ruled the witnesses' testimony was not relevant, and therefore, inadmissible, appellant cannot show he was prejudiced by counsel's alleged deficient performance because the jury never would have heard the witnesses' testimony, even if they had been located. Hernandez also argues that counsel was ineffective because he "failed to object to questionable exhibits offered by the State, failed to object to comments on the weight of the evidence during closing argument by the State, and failed to urge specific objections or seeks [ sic] a ruling on objections made." He then gives "just one volume of the record" and lists 23 different page numbers from that volume. He does not specify the exhibits or the comments to which counsel should have objected. He fails to demonstrate that counsel's performance was deficient. Hernandez's fifth point of error is overruled. We affirm the judgment of the trial court.
Unless otherwise indicated, all references to articles refer to the Texas Code of Criminal Procedure.
Art. 37.071 § 2(g).
Id. at § 2(h).
Jackson v. Virginia, 443 U.S. 307 (1979).
Kitchens v. State, 823 S.W.2d 256, 259 (Tex.Crim.App. 1991), cert. denied, 504 U.S. 958 (1992).
Id. at § 20.03(a).
Id. at § 7.02 (b).
Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004).
Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997).
Dinkins v. State, 894 S.W.2d 330, 338-339 (Tex.Crim.App.), cert. denied, 516 U.S. 832 (1995).
Tex. R. App. 38.1; Wood v. State, 18 S.W.3d 642, 649 n. 6 (Tex.Crim.App. 2000).
Strickland v. Washington, 466 U.S. 668 (1984).
Id. at 687.
Id.
Id. at 694.
Id. at 689.
Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999), citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996).