Opinion
NUMBER 13-14-00733-CR
03-09-2017
JUAN JOSE LOPEZ JR., Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 111th District Court of Webb County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Valdez
A jury found appellant Juan Jose Lopez Jr. guilty of the offenses of murder, aggravated kidnapping, and engaging in organized criminal activity. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West, Westlaw through 2015 R.S.) (murder); Id. § 20.04 (aggravated kidnapping); Id. § 71.02 (engaging in organized criminal activity). The trial court sentenced Lopez to fifteen years in prison for the murder; seventeen years for aggravated kidnapping; and ten years for engaging in organized criminal activity. By three issues, Lopez contends: (1) the evidence is legally insufficient to support his conviction for murder; (2) the jury charge contains a reversible error; and (3) the trial court erred in denying his motion to suppress on the basis that he lacked standing to contest a police search of the house where the offenses occurred under the Fourth Amendment to the United States Constitution. We affirm.
I. BACKGROUND
The evidence at trial showed the following. Based on an anonymous tip, a police officer discovered the lifeless body of Ricardo Vasquez (decedent) inside a residence known to law enforcement as a hub for illicit drug activity in Laredo, Texas. The decedent was lying face up on a mattress; his mouth was gagged and his hands were tightly bound together by an extension cord. Next to the decedent's body was a blood-stained 2x4 board. After discovering the decedent's body, several investigators canvassed the neighborhood for leads.
This case is before the Court on transfer from the Fourth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).
Through various leads, investigators interviewed two individuals: Raul Alegria and Candelario Hernandez. Based on these interviews, investigators learned that a man nicknamed "Pantera" directed a group of men to torture and kill the decedent after the decedent refused to help rescue Pantera's nephew, who had been kidnapped by drug cartel members and held for ransom in Mexico. Investigators learned from Hernandez that the decedent momentarily broke free from his captors and that Hernandez struck him with a 2x4. Investigators also learned that Pantera slashed the decedent's throat, stating "this is probably what they're doing to my nephew in Mexico right now."
Investigators also interviewed Lopez the day after the murder. During the interview, Lopez stated that he did not know the decedent and knew nothing about what happened to him. However, DNA testing showed that the decedent's blood was on Lopez's shoes and clothing, and imprints from shoes worn by Lopez were found at the scene of the murder.
According to the medical examiner who performed the decedent's autopsy, the decedent was likely tortured before being killed because lacerations, bruises, and blunt-force trauma appeared on various parts of his body. The medical examiner testified that the cause of the decedent's death was due to a combination of: (1) blunt force trauma—consistent with being hit by a 2x4 board; and (2) a deep laceration on the decedent's neck, which cut through two jugular veins. On cross examination, however, the medical examiner clarified that blunt force trauma, by itself, probably would not have caused the decedent's death without the laceration on the decedent's neck.
A weapon capable of causing the laceration on decedent's neck was never found at the scene of the murder.
After hearing this evidence, the jury found Lopez guilty as a party to murder, aggravated kidnaping, and engaging in organized criminal activity. This appeal followed.
II. LEGAL SUFFICIENCY
By his first issue, Lopez contends that the evidence is legally insufficient to convict him as a party to murder.
A. Applicable Law and Standard of Review
A person commits murder if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1). A person is criminally responsible for the conduct of another if, acting "with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." TEX. PENAL CODE ANN. § 7.02 (West, Westlaw through 2015 R.S.). To determine whether an individual is a party to an offense, the jury may look to events occurring before, during, and after the commission of the offense. See Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). The jury may also rely on circumstantial evidence in determining whether an individual is a party. Id. However, mere presence of a person at the scene of a crime, without more, is insufficient to support a conviction as a party to that crime. Id.
In conducting our legal sufficiency review, we view the evidence in the light most favorable to the jury's verdict and ask whether any rational trier of fact could have found beyond a reasonable doubt that Lopez was a party to the decedent's murder. See id. at 185 (citing Jackson v. Virginia, 443 U.S. 307 (1979)). We measure sufficiency of the evidence by the elements of murder as defined by the "hypothetically correct" jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
B. Analysis
Lopez argues that the evidence is legally insufficient because the evidence was less than convincing that he personally struck the decedent with the blood-stained 2x4 found at the scene of the murder. To support this argument, Lopez points out that Hernandez admitted to striking the decedent with a 2x4, and the DNA evidence linking him to the 2x4 was exceedingly weak. However, because Lopez was tried as a party to murder, a hypothetically correct jury charge authorized the jury to convict Lopez, regardless of whether he personally struck the decedent with the 2x4, if the evidence showed that he solicited, encouraged, directed, aided, or attempted to aid the co-defendants with the intent to promote or assist in the commission of the murder. See TEX. PENAL CODE ANN. § 7.02(a)(2).
The jury heard testimony from a forensic scientist that Lopez could not be excluded as one of three or more contributors of DNA found on the blood-stained 2x4. The forensic scientist now disavows this conclusion based on a letter written to the parties during the pendency of this appeal. In light of the contents of this letter, which the State acknowledges, we do not consider the forensic scientist's testimony regarding DNA testing on the 2x4 for any purpose relevant to Lopez's issues on appeal. However, we deny Lopez's motion to supplement the clerk's record to include the post-trial letter because it was not before the trial court or the jury at the time of trial. See TEX. R. APP. P. 34.5(c)(1) (permitting supplementation of an appellate record with material that has been omitted from the appellate record); but see Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (observing that although rule 34.5(c)(1) permits supplementation of an appellate record with material that has been omitted from the appellate record, the rule cannot be used to create a new appellate record); Hutchinson v. State, 86 S.W.3d 636, 637 (Tex. Crim. App. 2002) (same).
Here, although Lopez told investigators that he did not know the decedent and knew nothing about what happened, the physical evidence contradicted Lopez's statements; specifically, the decedent's blood was on Lopez's shoes and clothing, and imprints from shoes worn by Lopez were found at the scene of the murder. Viewing this evidence in the light most favorable to the verdict, a rational jury could have inferred that Lopez was one of the men who Pantera directed to torture and kill the decedent and that Lopez was not merely present for the crime but also assisted. See Jackson, 443 U.S. at 326; see also Clayton v. State, 235 S.W.3d 772, 779-80 (Tex. Crim. App. 2007) (finding legally sufficient evidence to support the defendant's murder conviction where, among other things, the defendant's bloody handprints were found at the crime scene); King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (same, where the decedent 's blood was found on the defendant's sandals); Pena v. State, 441 S.W.3d 635, 641 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (same, where the physical evidence contradicted the defendant's statements to police, providing the jury a reason to doubt the defensive theory and infer the defendant's guilt). We overrule Lopez's first issue.
III. JURY CHARGE
By his second issue, Lopez contends that the trial court erred in refusing to instruct the jury to acquit him of murder if Pantera caused the decedent's death by slashing his throat. Specifically, Lopez requested the following jury instruction, which the trial court denied:
[I]f you find from the evidence, that [Pantera] caused the death of [the decedent] by causing a deep laceration to his neck with a sharp instrument, you shall acquit [Lopez] of the charge of murder as alleged in Count I of the indictment.Lopez asserts that he was entitled to this instruction because the medical examiner testified on cross examination that blunt force trauma, by itself, probably would not have caused the decedent's death without the deep laceration to his neck.
We review a trial court's decision not to submit an instruction in the jury charge for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). A trial court does not abuse its discretion in refusing to submit a requested instruction if the instruction itself imparts to the jury an incorrect statement of the law. See Notias v. State, 491 S.W.3d 371, 374-75 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
The instruction requested by Lopez imparted to the jury an incorrect statement of the law as applied to this case. The reason is that Lopez was tried as a party to murder. Under the law of parties, Lopez was criminally responsible for the decedent's murder even if a co-defendant inflicted the death blow. See TEX. PENAL CODE ANN. § 7.01(a) (providing that a person is "criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both"). The requested instruction was incorrect because it nullified application of the law of parties—that is, it excluded a basis for criminal responsibility on which the jury was legally authorized to convict. Id. Accordingly, we hold that the trial court did not abuse its discretion when it denied Lopez's request to instruct the jury to acquit him of murder if the decedent died due to Pantera slashing his throat. We overrule Lopez's second issue.
Lopez cites Hill v. State to support his argument that the trial court erred in denying his requested instruction. 585 S.W.2d 713, 714 (Tex. Crim. App. 1979). In Hill, the trial court denied the defendant's request to instruct the jury regarding whether the decedent died from natural causes rather than from being choked and beaten to death by the defendant. Id. The court of criminal appeals held that the defendant was entitled to this instruction regarding the cause of death because an affirmative finding that the decedent died of natural causes would preclude a finding that the defendant was guilty of murder. Id. Hill is distinguishable. The requested instruction in Hill was a defensive issue, which, if true, negated the causation element of murder. Id. In contrast, the requested instruction in this case raises an issue, which, even if true, does not negate the causation element of murder. The reason is that the jury was authorized to convict Lopez as a party to murder even if a co-defendant inflicted the death blow. See TEX. PENAL CODE ANN. § 7.01(a).
IV. STANDING
By his third issue, Lopez contends that the trial court erred in denying his motion to suppress on the basis that he lacked standing under the Fourth Amendment to contest a search of the house where the decedent was murdered.
A. Pertinent Facts
The trial court held a pretrial suppression hearing to determine whether Lopez had standing under the Fourth Amendment to challenge the search of the house where the murder occurred. At the hearing, Lopez presented no evidence other than his own testimony that a co-defendant, who he believed owned the house, gave him permission to sleep on a mattress inside the house every night for the purpose of selling drugs out of the house. Lopez further testified that he had been living there for over a year prior to his arrest. On cross examination by the State, Lopez denied that he had been living at his mother-in-law's house at the time of the murder.
After hearing Lopez's testimony, the trial court found that he lacked standing under the Fourth Amendment to contest the search of the house. Lopez did not request findings of fact from the trial court on the issue of standing, and no findings appear in the record before us.
B. Standard of Review
We generally review the issue of standing to contest a search de novo. See Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006). However, at a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of witnesses. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). As the trier of fact, the trial court may "believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted." Id. On appeal, we must afford almost total deference to the trial court's determination of a witness's credibility. Id. at 856. Consequently, when the issue of standing turns on the credibility of a witness, we must afford almost total deference to the trial court's determination. See id.
Where, as here, a trial court denies a defendant's motion to suppress without entering findings of fact, we must view the evidence "in the light most favorable to the trial court's ruling" and "assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006).
C. Applicable Law
A defendant has standing to contest a government search under the Fourth Amendment only if he had a legitimate expectation of privacy in the place that the government searched. Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002). A defendant bears the burden to demonstrate a legitimate expectation of privacy in the place searched. Id. To meet this burden, the defendant must establish (1) a subjective expectation of privacy in the place searched that (2) society is prepared to recognize as reasonable. Id.
Courts consider several factors to determine whether a given claim of privacy is objectively reasonable: (1) whether the defendant had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. See Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002).
As a general rule, a guest who is allowed to stay overnight by the home's host has a legitimate expectation of privacy—i.e., standing to contest a search under the Fourth Amendment. See Minnesota v. Olson, 495 U.S. 91, 96-100 (1990) (concluding that privacy in the place where we sleep is an interest that society is willing to recognize as reasonable); see also Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002) (observing that defendant had a legitimate expectation of privacy in the apartment pursuant to Olson after he began spending the night).
D. Analysis
Here, the burden was on Lopez to establish a legitimate expectation of privacy in the house where the murder occurred. See Granados, 85 S.W.3d at 222-23. Lopez attempted to meet this burden by relying solely on his own testimony that he slept on a mattress in the house every night for over a year with permission from someone who he believed owned the house. We see two possible theories as to why the trial court determined that Lopez did not have a legitimate expectation of privacy: (1) the trial court found Lopez to be a credible witness but concluded that the facts established by his testimony did not meet the test for standing; or (2) the trial court did not find Lopez to be a credible witness and therefore disbelieved the facts established by his testimony.
If believed, Lopez's testimony—that he slept in the house every night for over a year with permission from someone who he believed owned the house—would give him a legitimate expectation of privacy under Fourth Amendment precedent. See Olson, 495 U.S. at 96-100; Granados, 85 S.W.3d at 222-23. Because the trial court ruled that Lopez did not have a legitimate expectation of privacy, we must assume that the trial court ruled the way it did because it impliedly found that Lopez lacked sufficient credibility to be believed. See Montanez, 195 S.W.3d at 106; see also Ross, 32 S.W.3d at 855. We must also afford almost total deference to the trial court because its ruling turned solely on Lopez's credibility as a witness. See Montanez, 195 S.W.3d at 106. Affording almost total deference to the trial court's ruling, we cannot conclude that the trial court erred in finding that Lopez lacked standing—particularly because Lopez offered no other evidence to substantiate his testimony and because the State clearly disputed Lopez's claim that he lived at the house where the murder occurred rather than at his mother-in-law's house. See Ross, 32 S.W.3d at 855; see also Rios v. State, No. 04-08-00003-CR, 2009 WL 1406249, at *6-7 (Tex. App.—San Antonio May 20, 2009, no pet.) (mem. op., not designated for publication). We overrule Lopez's third issue.
Lopez also argues that the police officers who entered the house lacked probable cause to believe that an offense was occurring inside the house because it was based on an unreliable tip from an anonymous caller. However, because we have already concluded that the trial court did not err in finding that Lopez lacked standing, we need not address this argument. See TEX. R. APP. P. 47.1; see also Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (observing that defendant must first establish standing before he may challenge the legality of the search on Fourth Amendment grounds).
V. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 9th day of March, 2017.