No. 01-02-00498-CR
Opinion issued June 12, 2003 Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 869064
Panel consists of Justices TAFT, JENNINGS, and HANKS.
MEMORANDUM OPINION
Following a bench trial, the trial court found appellant, Patrick Allen Palacios, guilty of capital murder and sentenced him to confinement for life. In three points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction and that the trial court erred in not inquiring into an alleged conflict between appellant and his trial counsel. We affirm. Facts and Procedural Background
On the night of February 14, 2001, the complainant, Bertha Molano, was killed in her house at 1434 Reid Street in Houston, Texas. Molano's daughter, Josephine Cantu, lived next door, and Molano's sister, Delores Pavlicek, lived two houses away. Cantu and Pavlicek testified that, beginning at about 3:00 or 3:30 p.m. that day, they saw Molano drinking beer on her front porch with two friends from the neighborhood, Filomeno Solis and Carlos Rebollar. Sometime after 3:00 p.m., Cantu and her children took some Valentine's gifts to Molano's house and gave them to Molano. At about 4:00 p.m., appellant, who also lived in the neighborhood, walked up to Molano's porch and began drinking also. Solis testified that appellant was "hitting on" Molano and was trying to get her to tell Solis and Rebollar to leave so that appellant and Molano could be alone. Molano rejected appellant's advances and told him that she already had a boyfriend and "didn't want nothing to do with another man." Solis and Rebollar subsequently left Molano's house at about 6:30 p.m., leaving Molano alone with appellant. Cantu testified that, at about 6:45 p.m., as Cantu and her family were leaving their house to eat dinner at a restaurant, Cantu knocked on the front door of Molano's house to see if Molano wanted them to bring her something to eat. Cantu noticed that the lights in the house were turned off and that the curtains were drawn. Molano answered Cantu's knock and came to the front door, and Cantu noticed that her mother, who was wearing an orange shirt, seemed "quiet" and "nervous." Molano told Cantu that nothing was wrong and that she did not want anything to eat. When Cantu and her family returned from the restaurant at about 8:15 p.m., Cantu took three of her children to Molano's house to take a bath. The lights in the house were still off, and when Cantu knocked on the front door, she received no answer. Cantu subsequently tried to telephone Molano, but Molano did not answer the phone. Pavlicek testified that, when she locked the gate on her fence at about 9:30 p.m., she noticed that the lights in Molano's house were off. When Pavlicek unlocked her gate at about 4:45 a.m. the next morning, she saw appellant pushing a baby stroller in Molano's driveway. Pavlicek saw that appellant had some things in the stroller, including a VCR, an iron, and Valentine's gifts. Pavlicek recognized the items as belonging to Molano. She also noted that appellant was wearing the same orange shirt that she had seen Molano wearing the day before, and appellant was attempting to cover the items in the stroller with a white t-shirt similar to the one that she had seen appellant wearing the day before. When Pavlicek rattled the chain on her gate, appellant turned, saw her, and then walked down the driveway and down the street, pushing the stroller. David Sanchez testified that, at about 5:30 a.m. on February 15, 2001, while he was working as a Houston Police Officer, he received a dispatch to the location of a pay telephone and found appellant calling 9-1-1. Appellant, who still had the baby stroller and its contents with him, told Sanchez that he had seen "a dead woman" down the street and offered to show Sanchez where she was. Sanchez placed the stroller and its contents in the trunk of his patrol car and drove appellant the short distance to Molano's house. When they arrived, Sanchez found the front door of Molano's house locked, and he called for backup. Josie Cantu testified that, when she saw Officer Sanchez's patrol car parked in front of her house, with appellant inside, she was concerned that something had happened to Molano because she saw that appellant was wearing Molano's shirt. Cantu later identified the stroller and the other items in the trunk of Officer Sanchez's car as belonging to Molano. Houston Police Officer D.C. Richardson testified that he received a dispatch to 1434 Reid to assist Officer Sanchez. When he arrived, Richardson found that the front and back doors of Molano's house were locked. Richardson found an open window with a torn screen and a chair positioned under the window, and he climbed through the window and searched the house. In a bedroom, Richardson found Molano deceased. Richardson then left the house, and Officer Sanchez notified the Houston Police Department Homicide Division. Houston Police Sergeant R. G. Parish of the Homicide Division testified that he was assigned to investigate Molano's murder. Parish arrived at Molano's house at about 6:40 a.m. and spoke with appellant and the officers at the scene. Appellant told Parish that, as he was walking on Reid Street to go to work that morning, a man appellant knew as "Joe Vela" told appellant that he had killed a lady "down the street," and appellant had gone into Molano's house to verify that she was dead. Appellant also told Parish that he had slept at his sister's house the night before. Upon Parish's request, appellant agreed to give a written statement and was transported to the police department. Sergeant Parish testified that he noticed the torn window screen and chair. No fingerprints matching appellant's were obtained from the area around the window. Inside the house, Parish found Molano's body on a bed in a front bedroom of the house, lying nude, on her back, with a pillow covering her face. A mop handle had been inserted into Molano's vagina and had pierced through her body. Houston Police Sergeant C. E. Elliot of the Homicide Division testified that he took a written statement from appellant at the police station that morning. In his written statement, appellant stated that he had not been to Molano's house for "three or four months" and that, on the evening of February 14, 2001, he ate dinner with his mother and then went to his nephew's house, where he spent the night. In his written statement, appellant claimed that, the next morning, as he was pushing his nephew's stroller to a friend's house, a friend of appellant's named "Joe Villa [sic]" came up to him on the street and told appellant that he had killed his girlfriend, Molano. Appellant stated that, as he continued pushing the stroller, he went to Molano's house and found the front door open. Appellant stated that he went inside, found Molano's body, and then left and called 9-1-1. Sergeant Elliot testified that, because appellant had been in Molano's house and had possibly contaminated the crime scene, Elliot asked appellant to provide some "elimination" evidence, including fingerprints and hair samples. Appellant consented and provided the evidence requested. While this evidence was being collected, Elliot was informed by another police officer that appellant was wearing Molano's shirt. Elliot then requested, and appellant provided, the clothes that appellant was wearing as potential evidence. Houston Police Officer T. Miller of the Homicide Division testified that he was assigned to assist in the investigation of Molano's murder. Miller interviewed appellant's mother, brother-in-law, and nephew and obtained information which was "not consistent" with appellant's oral statements and his written statement concerning his whereabouts on the previous evening and how he had obtained the baby stroller. Officer Miller and another homicide investigator, Houston Police Sergeant J. R. Swain, then interviewed appellant at the police station. Appellant informed Miller that "Joe Vela" had a prior criminal conviction, but Miller was unable to locate any criminal records concerning a person matching the name and description of "Joe Vela" given by appellant. Swain testified that, while Miller was out of the room, appellant admitted to Swain that he had been drinking at Molano's house the previous evening but had left at about 8:00 p.m. with Solis and Rebollar. Appellant told Swain that he then met "Joe Vela" at a convenience store at about 9:00 p.m., and "Vela" gave the baby stroller and its contents to appellant to keep for him until "Vela" returned. When "Vela" did not return to the store, appellant pushed the stroller to his nephew's house, but his nephew was not home. Appellant told Swain that he then returned to the convenience store, hid the stroller and its contents behind a dumpster, and went to sleep under a bridge. Appellant returned to the store in the morning, retrieved the stroller, and met "Joe Vela" as he was walking along Reid Street. Appellant told Swain that "Vela" then told appellant he had killed Molano. When Officer Miller returned to the interview room, he noticed what appeared to be blood on appellant's fingernails. When questioned about the blood, appellant explained that the blood could have come from places where he had scratched himself, and appellant showed Miller scratches on his left forearm, left thigh, and left cheek. Upon Miller's request, appellant consented to give swab samples of the blood to the police. Officer Miller and Sergeant Swain then drove appellant to a house where appellant told them "Joe Vela" lived with his mother. When they arrived, the officers found an abandoned house, and, after talking with some neighbors, the officers determined that no one had lived in the house for about six months. Appellant then told the officers that "Joe Vela" would sometimes "hang out" at another location, near some railroad tracks. When the officers took appellant to that location, no one was there, and the officers then took appellant back to the police station. Officer Miller testified that he subsequently confronted appellant with some of the "inconsistencies" in appellant's various oral statements and his written statement. Initially, appellant insisted that "Joe Vela" had murdered Molano. However, when Officer Miller told appellant that he wanted "the truth," appellant responded, "All right, I did it." The officers then obtained two recorded statements from appellant. In his recorded statements, appellant confessed to killing Molano after he became angry with her when she belittled him during consensual sexual intercourse. Appellant stated that he killed Molano by strangling her and then tried to make it appear as though Molano's house had been burglarized. The investigating police officers subsequently obtained an arrest warrant and arrested appellant. Harris County Assistant Medical Examiner Dr. Patricia Moore testified that she investigated the murder scene and performed the autopsy on Molano's body. Moore saw medical evidence indicating that Molano's death was caused by asphyxiation. Moore noted abrasions on Molano's neck, head, and chest consistent with Molano having been strangled or suffocated. From the fractured vertebrae she observed in Molano's neck, Moore concluded that a significant amount of force was applied to Molano's neck when she was strangled. In Moore's opinion, Molano's death was caused by asphyxiation secondary to manual strangulation or suffocation. Moore did not observe any indications that Molano was raped. Due to a lack of hemorrhaging in Molano's vaginal area, Moore concluded that Molano was impaled with the mop handle postmortem. Moore also observed photographs of marks on appellant's left arm, right hand, neck, and left leg and identified the marks as consistent with fingernail marks. Houston Police Department Crime Laboratory Specialist Joseph Chu, called as a witness by appellant, testified that DNA samples taken from the wound on appellant's left arm were consistent with scrapings taken from underneath Molano's fingernails. Chu also identified semen samples obtained from blankets found in Molano's bedroom as having originated from two different contributors other than appellant. Sufficiency of the Evidence
In his first and second points of error, appellant argues that the evidence was legally and factually insufficient to support his conviction for capital murder because "the murder was the product of sudden rage, and did not happen during the course of burglary or aggravated sexual assault" as charged by the State. In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556 (Tex.Crim.App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the jury. Id. Under the factual sufficiency standard, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. Accordingly, we will reverse the fact finder's determination only if a manifest injustice has occurred. Id. In conducting this analysis, we may disagree with the fact finder's determination, even if probative evidence supports the verdict, but we must avoid substituting our judgment for that of the fact finder. Id. A person commits the offense of capital murder if he intentionally causes the death of an individual "in the course of committing or attempting to commit" a burglary or aggravated sexual assault. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003). A person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent and causes serious bodily injury or attempts to cause the death of the victim or another person during the same criminal episode. See Tex. Pen. Code Ann. §§ 22.021(a)(1)(A)(i), (a)(2)(A)(i) (Vernon 2003). A person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation not then open to the public with the intent to commit a felony, theft, or an assault. See Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). Viewed in the light most favorable to the trial court's verdict, the evidence showed that, during the afternoon and evening of February 14, 2001, Molano rebuffed appellant's sexual advances toward her. Sometime later that night or early the following morning, appellant had sexual intercourse with Molano and killed her. The medical evidence presented was sufficient for a fact finder to conclude that appellant's conduct was not consensual, given the scratch wounds to appellant and the brutal nature of the wounds to Molano. From this evidence, the fact finder could have reasonably concluded that appellant killed Molano while attempting to have sexual intercourse with her against her will. On the morning after Molano's murder, appellant was seen wearing Molano's shirt and attempting to leave her residence with a baby stroller and other items taken from inside Molano's house. At Molano's house, investigating officers found an open window with a torn screen and a chair positioned below the window. In his recorded statements, appellant admitted that he had taken the items from Molano's house, albeit in an attempt to "fake" a burglary. From this evidence, the fact finder could have reasonably concluded that appellant entered Molano's house without her consent and killed Molano to facilitate his theft of her belongings. We hold that the evidence was legally sufficient to support the trial court's finding that appellant committed the offense of capital murder. Here, a neutral review of all the evidence, both for and against the finding, does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King, 29 S.W.3d at 556. Appellant concedes that he committed "a brutal murder." However, he contends that, rather than supporting his conviction for capital murder, as charged, the evidence proved that he had consensual sexual intercourse with Molano before strangling her and that, instead of committing an actual burglary, he attempted to "badly fake" a burglary. We disagree. As set forth above, the evidence presented at trial established, through direct and circumstantial evidence, all of the elements necessary to support appellant's conviction for capital murder under either theory charged by the State. The credibility of appellant's recorded oral statement to the investigating officers was impeached by his numerous, and admittedly false, oral statements and written statement. The trial court, as fact finder, was free to believe or disbelieve all or any parts of the statements that appellant made to the officers. Ly v. State, 908 S.W.2d 598, 602 (Tex.App.-Houston [1st Dist.] 1995, no pet.). Moreover, the State was not required to exclude all other reasonable hypotheses except appellant's guilt. See Geesa v. State, 820 S.W.2d 154, 165 (Tex.Crim.App. 1991), overruled in part on other grounds, Paulson v. State, 28 S.W.3d 570, 571 (Tex.Crim.App. 2000). We hold that the evidence was factually sufficient to support the trial court's finding that appellant committed the offense of capital murder. We overrule appellant's first and second points of error. Conflict with Trial Counsel
In his third point of error, appellant argues that the trial court erred in "failing to inquire into an obvious conflict" between appellant and his trial counsel. We note that a defendant does not have the right to his own choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself or shows adequate reason for the appointment of new counsel, he must accept the counsel appointed by the court. Garner v. State, 864 S.W.2d 92, 98 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). A trial court is under no duty to search until it finds an attorney agreeable to the defendant. Id. However, there are certain circumstances in which a defendant may, upon a proper showing, be entitled to a change of counsel. Id. A defendant must bring such a matter to the trial court's attention and must carry the burden of proving he is entitled to new counsel. Malcolm v. State, 628 S.W.2d 790, 791 (Tex. Crim App. [Panel Op.] 1982). An actual conflict of interest exists if counsel is required to make a choice between advancing his client's interest in a fair trial or advancing other interests to the detriment of his client's interest. Ex parte Morrow, 952 S.W.2d 530, 538 (Tex.Crim.App. 1997). In order for an appellant to demonstrate a violation of his right to reasonably effective assistance of counsel, based on a conflict of interest, he must show (1) that counsel was actively representing conflicting interests, and (2) that the conflict had an adverse effect on specific instances of counsel's performance. Id. When a trial court knows, or reasonably should know, that a particular conflict of interest exists, the court should initiate an inquiry. Cuyler v. Sullivan, 446 U.S. 335, 346-47, 100 S.Ct. 1708, 1717 (1980); Garner, 864 S.W.2d at 99. Here, appellant filed two virtually identical pro se motions regarding his dissatisfaction with his appointed trial counsel, alleging that, among other things, trial counsel had not met with him "in the past months" and had "taken no affirmative action to preserve and to protect" appellant's rights while appellant was incarcerated awaiting trial. Contrary to appellant's contention and, at the instigation of appellant's trial counsel, the trial court did address appellant's complaints about his trial counsel at a pre-trial hearing held on April 8, 2002. When questioned by the trial court, appellant explained that, prior to the hearing, he did not understand that the delays in his trial setting were partly a result of his trial counsel's requests for additional time to gather potentially exculpatory expert medical and DNA evidence and testimony. Upon questioning by the trial court, appellant stated that he understood that his trial counsel had been working on his behalf. The record thus indicates that appellant waived his complaints regarding any alleged conflict between appellant and his trial counsel by effectively withdrawing them before the trial court. Moreover, appellant did not subsequently re-urge or raise them again. Accordingly, appellant presents nothing for our review on this issue. Tex.R.App.P. 33.1. We overrule appellant's third point of error. Conclusion
We affirm the judgment of the trial court. Terry Jennings, Justice