Opinion
No. 14-04-00287-CR
Opinion filed November 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 978,955. Affirmed.
OPINION
Appellant, John Paul Martinez, was convicted by a jury of capital murder. Because the State did not seek the death penalty, the trial court assessed his sentence at incarceration for life in the Texas Department of Criminal Justice, Institutional Division. In his sole issue on appeal, appellant contends the trial court erred in refusing his requested instruction on the lesser included offense of felony murder. We affirm.
BACKGROUND
Gene Bautista was second-in-command of a street gang known as the Latin Kings. Cecil Duke, who met Bautista through a mutual friend, bought cocaine, ecstasy, and marijuana from Bautista, and sold it for him as well. Duke was not a member of the Latin Kings, but was being watched and evaluated for possible membership in the gang. Bautista asked Duke if he "would be willing to pull a lick," i.e., a robbery, of four kilos of cocaine, with a street value of $13,000 to $15,000. Less than a week later, Duke saw Bautista at the trailer where Bautista was staying. Bautista was receiving a tattoo from appellant. They discussed the robbery Bautista had mentioned to Duke earlier. Appellant said the people they were going to rob were his cousins. Appellant further explained that they were going rob them "physically," i.e., overpower and manhandle. Bautista decided that they would take guns and tie up the victims. However, by the end of the evening, the plan had evolved such that appellant was going to kill them because if their father found out, he would come after appellant. Duke did not believe appellant was going to kill them because "[h]e just ran his mouth too much." On November 25, 2002, Bautista called Duke asking if he was ready to commit the robbery. When Duke arrived at the trailer, Bautista and appellant were there. A 9 millimeter pistol and a sawed-off shotgun were on a table. Bautista said they were going to take guns. After calling the complainant, Armando "Speedy" Gonzalez, Jr., from his cell phone, appellant stated that they needed to kill some time because Speedy was not going to be at home for a while. They went to a nude bar where appellant's girlfriend, Vicki Morton, was a dancer. They left the bar after about 45 minutes when Bautista said they needed to collect some money. When they arrived at Speedy's house, appellant became nervous because there was a red pickup truck in the driveway that he did not recognize. Appellant called Speedy's father, Armando Gonzalez, Sr., from his cell phone and asked him if he wanted a tattoo. Gonzalez was in Shreveport, Louisiana. The purpose of the phone call was to determine if Gonzalez was at the house. Appellant then called Speedy and told him they wanted to buy drugs. Speedy did not want them to come to the house and asked them to meet him at a Jack-In-The-Box. When they arrived at the Jack-In-The-Box, however, they saw a Houston Police Department officer eating inside. They decided to meet at a nearby apartment complex. When they arrived, appellant, armed with the 9 millimeter pistol, approached Speedy's car, got in the passenger side, and closed the door while Duke and Bautista remained in their car. Duke heard a pop that sounded like a gunshot. The driver's side door of Speedy's car opened, and Speedy and appellant were on the ground fighting. Appellant then put the gun to Speedy's head. Bautista got out of the car with the shotgun and told Duke to follow them. Duke saw Bautista hit Speedy in the head with the shotgun. Bautista and Speedy got in the back seat of Speedy's car and appellant got in the driver's seat. Duke followed them in the other car. When they got to Speedy's house, Bautista and appellant ordered Speedy to get on the floor in the living room. Bautista brought Speedy's brother, Vincent Ortega, out from the bedroom and ordered him to be quiet and lay down on the floor. Speedy was then moved into the hallway. Bautista asked Speedy where the money and drugs were. Speedy said they were under the couch in the living room. Duke retrieved 3,500 ecstacy pills, one pound of marijuana, four ounces of cocaine, and $1,800 in cash. Appellant then got some duct tape from the kitchen. Appellant used the duct tape to bind Speedy first. Speedy pleaded with appellant not to kill him, but appellant ordered Speedy "to shut up, take it like a man." Appellant taped Speedy's legs and hands and "he taped from [Speedy's] neck to his forehead." Appellant then taped up Vincent. Duke could hear Vincent "trying to gulp for air." At this time, Speedy was not moving. Appellant repeatedly kicked Vincent, who was still struggling, in the head: "[appellant] was kicking him like he was trying to kick a football." Every time appellant kicked, Vincent's head hit the door jam. Blood started "to shoot" from tape around Vincent's forehead. Duke heard appellant yell, "I told you not to f____ with me. I told y'all. Y'all didn't know who you were f____ing with." Duke believed this was a vendetta or retaliation. Vincent had stopped struggling, but appellant stomped on him a couple of times to make sure he was dead. Bautista and appellant put Vincent in the bathtub and turned on the hot water. In addition to taking the drugs, the money, a DVD player, some DVDs, and a chrome .380 pistol, they also took the telephones because of the caller ID. Duke and appellant took the red pickup truck, which belonged to Vincent. They returned to the trailer where they split the money and drugs among themselves, and left the pickup truck at an apartment complex across the street. They took off all of their clothes and Bautista bleached them and then either threw them away or burned them. Speedy's father and Vincent's stepfather, Armando Gonzalez, Sr., arrived home around 5:30 p.m. on November 27, 2002, from his job in Shreveport. Gonzalez found the door was open. When he walked in the house, he saw Speedy laying face down in the hallway. Speedy's hands and feet were bound with duct tape, while duct tape was wrapped completely around his head covering his eyes, nose, and mouth. When Gonzalez discovered the phones had been pulled out, he called 911 from the cell phone in his truck. He did not know Vincent's body was in the bathtub and waited outside for the police. The police found Vincent face down in the bathtub with his hands and feet bound with duct tape and his entire face — from above his eyes down to his chin — covered with duct tape. The faucet in the tub was still running and there were footprints on Vincent's back. With regard to Speedy, the autopsy report states:There is red duct tape over the head including the face from just above the eyebrows at the mid upper portion of the forehead to the anterior aspect of the chin below the lower lip covering the entire face within this area. The free end is visible anteriorly at about the mid portion. The tape is looped around six times, approximately, over the head and face and posteriorly there is a loop to the back of the neck. The loop is slightly loose and the other wrappings are tight.The medical examiner further testified the duct tape left an imprint on Speedy's face, suggesting that the binding was sufficiently tight to occlude the oral and nasal airways. The cause of death was asphyxia due to compression and suffocation. With regard to Vincent, the medical examiner testified there was a laceration over the left eye, contusions on the left side of the head, and contusions over the rib cage and back consistent with being stomped on. The cause of Vincent's death was asphyxia due to suffocation and blunt head trauma. The abrasions and contusions were sustained before death.
LESSER-INCLUDED OFFENSE
In his sole issue on appeal, appellant contends the trial court erred in refusing to give a requested instruction on felony murder. Appellant complains that the trial court's refusal to give a lesser-included instruction on felony murder resulted in his being given an automatic life sentence for capital murder, precluding a punishment hearing to which he would have been entitled if he had been convicted of murder. Appellant argues, therefore, there is some harm because while a conviction for capital murder requires him to serve 40 years before he is eligible for parole, under a conviction for murder, he would be eligible for parole in 30 years for a life sentence. "In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense." TEX. CODE CRIM. PROD. ANN. art. 37.08 (Vernon 1981). Article 37.09 of the Texas Code of Criminal Procedure provides for an instruction of a lesser included offense under the following circumstances: An offense is a lesser included offense if:(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 (Vernon 1981). Texas courts employ a two-prong test in determining whether an instruction on a lesser included offense must be given. Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App. 2003). Whether the instruction is requested by the defendant or the state, both prongs must be satisfied. Id.; Arevalo v. State, 943 S.W.2d 887, 890 (Tex.Crim.App. 1997). First, the court determines whether the lesser offense is a lesser-included offense of the offense charged as set forth in article 37.09. Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998). Second, the court determines if there is some evidence which would permit a rational jury to find that, if guilty, the defendant is guilty only of the lesser offense. Id. In other words, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser offense. Threadgill v. State, 146 S.W.3d 654, 665 (Tex.Crim.App. 2004). Felony murder is a lesser-included offense of capital murder. Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App. 2005). The only difference between felony murder and capital murder is the culpable mental state. Id. While capital murder requires an intentional cause of death, culpable mental state in felony murder is supplied by the mental state accompanying the underlying felony. Id. (citations omitted). Thus, the first prong here is satisfied. With respect to the second prong, there are two ways in which the evidence may indicate a defendant is guilty only of the lesser offense. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). First, there may be evidence which refutes or negates other evidence establishing the greater offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996). Second, a defendant may be shown to be guilty of the lesser offense if the evidence presented is subject to different interpretations. Id. The reviewing court must consider all the evidence introduced at trial, whether produced by the state or the defendant. Penry v. State, 903 S.W.2d 715, 755 (Tex.Crim.App. 1995). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App. 1999). The evidence must establish the lesser included offense as a "valid, rational alternative to the charged offense." Arevalo, 943 S.W.2d at 889. At issue here is whether the evidence demonstrates appellant had the intent only to rob Speedy, not the intent to kill him. See Salinas, 163 S.W.3d at 742. Appellant contends that the testimony of two witnesses is subject to two interpretations. The first witness is Connie Park, who is assigned to the Homicide Division of the Houston Police Department. Appellant asserts that while Park believed that killing Speedy and Vincent was intentional, she conceded that the possibility existed that the duct tape was placed around their heads by someone "who didn't know what they were doing," intending to restrain them, not to kill them. Park testified on cross-examination:
Q. Sure. Because the whole point of the duct tape is a [sic] restrain them, restrict the movements, and to put it around their face to keep them from talking or yelling; am I correct, Officer?A. Correct, and not breathing.
Q. Well, I mean, if the person doesn't know what they're doing, but the objective is if he keeps them from talking —A. Correct. * * *
Q. They go rob somebody and then they leave, right? That's kind of the genuine pattern, you put duct tape on the person, secure their hands and their mouth and then you leave after you rob?* * * A. Not — not covering their whole face, though.
Q. All right. But I'm saying, the person didn't know what they were doing, put the duct tape on the person —A. Sure, you can say that.
Q. — to keep them from talking or yelling out. Am I correct, ma'am?A. Sure, you can say that.
Q. These men were not executed, pistols, gut put the back [sic] of the head and shot? You didn't see that?A. No gunshot wounds. On redirect examination, Park testified:
Q. One quick question. Looking at all of the evidence, I'm talking about every person you talked to, and every piece of physical evidence that you looked at, using all of the — all of your experience and training, did you — did you come to any other conclusion but this was an intentional killing or somehow just some botched up, trying to keep somebody quiet?A. This was very intentional. On recross-examination, Park further testified:
Q. . . . I'm saying that the prosecutor just asked you a question. You have to speculate on the intention, don't you?A. Correct.
Q. All right. So you said it was intentional. That's your guess?A. It's not my guess. It's from the evidence that was found at the location. * * *
Q. And the question I am asking, again, when the prosecutor said — he gave you two alternatives. You are not saying that this could have been botched, because you said they were restraining the people, right? We'll agree with that, right?A. Yes, sir.
Q. And my point is, that you, with your experience, you know if you want to kill them, just kill them. Right?A. Sure. Q. That wasn't done here, right? A. They were killed.
Q. I'm saying with a weapon, shot. These men were not shot in the back of the head, executed Houston-style, were they?A. The duct tape were weapons [sic].
Q. Officer, but the point is, you don't know yourself if the application of that duct tape was what — that that was an intentional act or it was a botched act by the people who didn't know what they were doing? Don't know that, Officer, do you?A. No, I don't. The second witness, whose testimony appellant claims raises the felony murder instruction, is Vicky Morton, his girl friend at the time of the offense. Morton testified on direct examination that appellant did not kill anyone, but he was at the scene:
A. The news came on and [appellant] jumped up and said, I might be on the news.* * *
Q. Do you remember asking him if he had killed anybody?A. Yes, I do. I remember now. It's been a long time. Q. What did he say when you asked him that? A. He said, no, but he was there. Q. What else did he say?
A. He said — I said, how? I asked him, well, how did they die? And he replied, execution style, or something like that.Q. Did you ask him if he killed them? A. Yes. Q. Did he say anything to you? A. No. He said, no. I'm not too sure about this. * * *
Q. Do you remember telling [Sergeant Kennedy] that when you asked [appellant] if he killed them, he didn't say anything to you?A. [Appellant] never told me he killed anybody. On cross-examination, Morton testified:
Q. In fact, all that was told to you was that [appellant] was there. He said — he told you he was there?A. Yes.
Q. Okay. And you asked [appellant] something to the effect of how they died, and he said they were killed execution style. He didn't —A. Yeah.
Q. — he didn't say, "I killed them execution style," did he?A. No, he didn't. Appellant argues his comment to Morton, i.e., that he did not kill anyone, but he was there, is subject to two interpretations. Appellant states one interpretation, as argued by the prosecutor at trial, is that he denied any involvement in the crime, but was merely present at the crime scene. Appellant contends his comment, when considered with Park's (purported) concession that duct tape is used to restrain people, and her testimony that whether a person who wraps another in duct tape intends to kill the victim or whether the killing is just a "botched" job is subject to speculation, can be interpreted as he was there, he put duct tape over the victim, but he did not think he killed anyone, i.e., he did not intend to kill anyone. Appellant points out there was no testimony that he knew, as they left the Gonzalez house, that either Speedy or Vincent was dead. Also, Duke did not testify about any post-crime comments by appellant indicating his awareness that the victims were dead. Appellant asserts his comment to Morton that he was there, but did not kill anyone is consistent with his not having intended to kill Speedy and Vincent, not knowing he had killed them, and having taped the victims' head while erroneously believing they would be able to breath through the tape. While appellant acknowledged his presence at the scene and observed the killings were "execution style," he denied participating in killing Speedy or Vincent or engaging in any conduct that caused their deaths. The State argues such evidence does not show or tend to show either a lack of intent to kill or appellant's commission of an act clearly dangerous to human life during the course of a commission or flight from a felony. We agree. Instead, appellant's comment that he did not kill Speedy or Vincent cannot be viewed as anything but a denial of having committed any act having resulted in their deaths. A defendant is not entitled to an instruction on a lesser-included offense where the evidence indicates that appellant was not guilty of any offense. Eldred v. State, 578 S.W.2d 721, 723-24 (Tex.Crim.App. 1979); Williams v. State, 575 S.W.2d 30, 33 (Tex.Crim.App. 1979); Gillum v. State, 792 S.W.2d 745, 748 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). With respect to Park's response, "Sure, you can say that," to trial counsel's hypothetical questions that duct tape can be used to restrain a victim or prevent a victim from yelling out and conclusion that the duct tape was used by a person who "didn't know" what he was doing, such testimony is not evidence entitling appellant to a lesser-included offense instruction on felony murder. The fact that a witness agrees that anything is possible does not constitute evidence for purposes of a lesser included offense. Massey v. State, 933 S.W.2d 141, 155 (Tex.Crim.App. 1996); see also Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App. 1994) ("[T]here must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted."). Moreover, we must review the entire record, rather than just "plucking certain evidence from the record and examining it in a vacuum." Enriquez v. State, 21 S.W.3d 277, 278 (Tex.Crim.App. 2000). Park also testified emphatically that it was not her "guess" that the killings were intentional and the duct tape was used as a weapon. Because a rational jury could not have found appellant guilty of only felony murder and not of capital murder, it was not error for the trial court to refuse to give a lesser-included offense instruction on felony murder. Consequently, appellant's sole issue is overruled. Accordingly, the judgment of the trial court is affirmed.