Opinion
No. 05-15-00588-CR
03-10-2016
ANGIE GLORIA VASQUEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1142502-V
MEMORANDUM OPINION
Before Justices Bridges, Evans, and O'Neill
Opinion by Justice Bridges
The Hon. Michael J. O'Neill, Justice, Assigned
A jury convicted appellant Angie Gloria Vasquez of capital murder, and the trial court assessed the statutorily mandated life sentence. In her first two issues, she argues the evidence was legally insufficient to establish she was a party to capital murder under Texas Penal Code sections 7.02(a) and 7.02(b). In her third issue, she challenges the trial court's failure to instruct the jury as to an accomplice witness. And finally, she argues the trial court abused its discretion by denying a motion to suppress her confession. We affirm the trial court's judgment.
She had a previous felony conviction for unlawful delivery of cocaine.
Background
William Bailey, known as Billy, met Vickie Martinez when he worked as a bartender. The two had been friends for over a decade and ran in the same circles. Billy stayed at Vickie's apartment off and on through the years, but she knew he was "going down the wrong path" and had issues with drugs.
On August 26, 2011, Vickie had a gathering at her apartment. Danny Ayala and Albert Ayala, her cousins, were present. Vickie described the Ayala brothers as "crazy." They liked to drink and she considered them "tough guys." She knew the men had prison records.
Appellant arrived at Vickie's apartment after church that evening. Later on, appellant's daughter Nita Vasquez and Adam Ayala arrived. Nita and Adam were dating at the time. Danny and appellant were also involved in a dating relationship. Vickie considered appellant's relationship with Danny "stormy." According to testimony, everyone hung out on the back porch talking like a normal day.
Danny received a call from his son, who was in Pleasant Grove, and Danny wanted a ride to meet him. Danny asked appellant to call Billy and ask for a ride. Vickie recalled Danny saying, "Call your boyfriend, Billy. He'll do anything for you." Billy often gave appellant rides and in exchange, she provided gas money or shared drugs with him. Billy had also given rides to some of the others in the past.
Appellant borrowed Vickie's phone and texted Billy. Phone records confirmed a text was sent from Vickie's phone to Billy's phone that said, "At Vic, are you coming?" Billy arrived a few minutes later. Despite asking Billy for a ride, appellant did not leave with him. Vickie asked why, and appellant said Billy was not "taking them MF anywhere." Appellant then returned to the porch with Vickie.
Vickie saw Billy try to get out of the car, but Danny and Adam pushed him into the backseat. Then they drove off. Vickie never saw Billy again.
After the Ayala brothers left with Billy, appellant and Nita continued to have control of Vickie's phone. Nita later tried to call Billy's phone and also tried to call Danny's phone because she wanted to know what was going on. During one attempt to call Billy, someone accidentally answered his phone and she heard a lot of commotion. She recognized Danny and Albert's voices. She was unable to make out any words during the accidental pick up, but she knew at that point something was going on. She later sent a text to Danny telling them they accidentally answered Billy's phone and to get it.
Nita stayed at Vickie's apartment with appellant until about 6 a.m. and then they went to a gas station to meet Danny. Danny arrived driving Billy's black Honda, but Billy was not there. Nita got in the backseat and noticed blood on the carpet of the floorboard. Danny said they were not going to see Billy again and not to mention to anyone "what was happening."
Over the next few days, the brothers chopped the car into pieces to sell. The process of scrapping the car took place at appellant's aunt's house. Nita's friend, Geronimo, used his truck to haul the chopped parts to different locations for them to sell. Nita explained different people went at different times to sell the parts, but those involved included herself, Adam, Danny, Albert, Geronimo, and appellant. The parts they could not sell were thrown off the side of a road. After they sold most of the parts, Danny and appellant went to Louisiana. Nita stayed in Dallas.
Police started an investigation after Billy's ex-common law wife reported him missing. Officers contacted Vickie and began interviewing other individuals. Investigator Shawn Hanley interviewed appellant on November 2, 2011, which was close to the time of her arrest. She originally lied about why she asked Billy to come over that night and claimed Billy never showed up. Appellant later admitted she and Danny had planned to rough up Billy and take his car. Appellant also told officers Albert killed Billy. She claimed Albert said it was his "fuck up" and he "overkilled him." David Hernandez, the ex-husband of an Ayala sister, told officers Albert stopped by his home late in 2011 and said, "I did something bad." Albert told him he had stabbed someone.
The investigation eventually led to Running Performance, a shop specializing in Hondas and Acuras. The owner, Israel Gonzalez, provided officers information about a Honda engine sold to him by Danny, Geronimo, and a pregnant female. The engine was identified as part of Billy's car.
Although David did not identify the pregnant woman, Nita testified she was about six months pregnant in August 2011. --------
Nita eventually led officers to the parts of Billy's car they did not scrap. Officers also later recovered Billy's bones from a location off Interstate 45. The exact cause of death could not be determined from the skeletonized remains and bone fragments, but the medical examiner concluded death resulted from homicidal violence.
By the end of the investigation, four people were charged with capital murder—appellant, Danny, Albert, and Adam. The State granted Nita immunity for her testimony. At the conclusion of appellant's trial, the jury was instructed it could find appellant guilty of capital murder if it determined she was a party to the murder or if she conspired to commit aggravated robbery and Billy's murder was in furtherance of the robbery and should have been anticipated. The jury received an accomplice as a matter of fact instruction regarding Nita's testimony. The jury found appellant guilty, and the trial court assessed the statutorily mandatory life sentence.
Sufficiency of the Evidence
In her first two issues, appellant argues the evidence is insufficient to support her conviction that she was a party to capital murder under Texas Penal Code sections 7.02(a) and 7.02(b) because there was no evidence she solicited, encouraged, directed, aided, or attempted to aid in Billy's death and there was no evidence Billy's murder was committed in the furtherance of a conspiracy to commit robbery or that his murder should have been anticipated. The State argues the evidence is sufficient to support conviction under either theory.
In a legal sufficiency review, we view all 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as the sole judge of witness credibility, is free to believe or disbelieve all or part of a witness's testimony. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
A person commits the offense of capital murder, as charged here, if she intentionally commits murder in the course of committing or attempting to commit robbery. TEX. PENAL CODE ANN. § 19.02(a) (2) (West 2011). The jury was instructed that it could find appellant guilty of capital murder as a party or a party-conspirator under section 7.02 of the penal code.
A person is responsible for the criminal conduct of another person 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(a)(2) (West 2011). When a party is not a "primary actor," the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). The jury may consider events occurring before, during, and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). "Since an agreement between parties to act together in a common design can seldom be proved by words, the State often must rely on the actions of the parties, shown by direct or circumstantial evidence, to establish an understanding or common design to commit the offense." Miller v. State, 83 S.W.3d 308, 314 (Tex. App.—Austin 2002, pet. ref'd). Mere presence of an accused at the scene of an offense is not alone sufficient to support a conviction under penal code section 7.02(a)(2); "however, it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant." Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g); see also Ransom, 920 S.W.2d at 302.
It is undisputed appellant sent the text message to Billy asking him to come to Vickie's apartment for a ride. She admitted the plan was for her and Danny to rough him up and take his car. Based on Danny's statement about Billy's willingness to do "anything" for appellant and calling Billy her "boyfriend," a jury could reasonably infer Danny was jealous of Billy. Given the testimony that Danny had a criminal background, was known to have a temper, and was jealous of Billy, a jury could also reasonably infer appellant knew or should have known that Billy's murder was a foreseeable result of the robbery when she texted him to come over. See, e.g., Nickerson v. State, No. 01-14-00096-CR , 2015 WL 3982025, at *7 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (evidence sufficient to support conviction for capital murder as a party because defendant helped execute the plan and should have reasonably anticipated complainant's death despite defendant running away from scene of robbery before the shooting occurred). Thus, a jury could reasonably conclude appellant's actions encouraged, aided, or attempted to aid Danny in committing murder. See TEX. PENAL CODE ANN. § 7.02(a)(2).
Further, false statements also indicate a consciousness of guilt and an attempt to cover up a crime. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). In fact, "a consciousness of guilt" may be one of the strongest indicators of guilt. Lee v. State, 866 S.W.2d 298, 302 (Tex. App.—Fort Worth 1993, pet. ref'd) (failing to call police after a shooting and instead leaving decaying body inside home showed consciousness of guilt). Appellant originally lied about why she asked Billy to come over that night, and she claimed Billy never showed up. Appellant later admitted in the interview she and Danny had planned to rough him up and take his car. Contrary to Nita's testimony, appellant said she did not notice any blood in Billy's car when Danny picked her up the next morning. Rather, she said there was a spot in the back seat that appeared to have been bleached. Appellant also denied being present when the others sold the car parts, but Nita testified appellant was present. Even if Nita lied about appellant's presence while selling parts, appellant certainly knew Billy's car was cut and sold for scrap because she admitted they went to her aunt's house to cut up the car. Further, David testified he saw car parts in a truck when appellant and Danny stopped by his house.
Finally, although flight alone cannot support a guilty verdict, it is a circumstance from which guilt can be inferred. Valdez, 623 S.W.2d at 321. After the car parts were sold, appellant chose to leave with Danny and go to Louisiana. Given that Nita stayed in Dallas, a jury could infer appellant fled with Danny because she acted as a party to Billy's murder. Thus, a reasonable jury could infer from appellant's actions after the incident that she and Danny had an understanding to commit the offense. Miller, 83 S.W.3d at 314.
Considering the evidence in the light most favorable to the verdict, a reasonable jury could have found appellant guilty of capital murder as a party under section 7.02(a)(2) because she acted with intent to promote or assist the commission of the offense by soliciting, encouraging, aiding, or attempting to aid Danny to commit capital murder. We overrule her first issue. Because the evidence was legally sufficient to support her conviction under section 7.02(a), we need not address her second issue in which she argues the evidence was legally insufficient to support a conviction under section 7.02(b). TEX. R. APP. P. 47.1; see Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (when a trial court's charge authorizes jury to convict on several different theories of liability, guilty verdict will be upheld if evidence sufficient on any one of the theories).
Accomplice Instruction
In her third issue, appellant complains the trial court abused its discretion by failing to include an accomplice as a matter of law instruction in the jury charge. Although the trial court instructed the jury to consider Nita's possible involvement as an accomplice as a matter of fact, appellant argues the evidence shows Nita was equally as culpable and could have been charged with capital murder; therefore, the jury charge should have included an accomplice as a matter of law instruction. The State responds Nita's testimony did not establish she was an accomplice as a matter of law; therefore, the trial court did not abuse its discretion by not including such an instruction. In the alternative, the State argues any error was harmless.
A trial judge has no duty to instruct the jury that a witness is an accomplice witness as a matter of law unless there exists no doubt that the witness is an accomplice. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). To be considered an accomplice witness, the witness's participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged. Id. A witness is not an accomplice witness merely because she knew of the offense and did not disclose it, or even if she concealed it. Id. In addition, the witness's mere presence at the scene of the crime does not render that witness an accomplice witness. Id. If the evidence presented by the parties is conflicting and it remains unclear whether the witness is an accomplice, the trial judge should allow the jury to decide whether the inculpatory witness is an accomplice as a matter of fact under instructions defining the term "accomplice." Id.
Assuming without deciding that Nita was an accomplice witness as a matter of law, appellant is entitled to a reversal of her conviction only if she can show egregious harm from the failure to include the instruction in the charge. Id. at 504. Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). Such is not the case here.
The jury heard appellant's confession to police in which she admitted texting Billy and asking him to come to Vickie's apartment so she and Danny could rough him up and rob him. Vickie testified about the type of men the Ayala brothers were and that appellant's relationship with Danny was "stormy." Vickie testified to Danny's jealousy towards Billy and that Danny said, "Call your boyfriend, Billy. He'll do anything for you." Appellant then texted Billy and he arrived shortly thereafter.
Appellant admitted she went with the men to her aunt's house where the Ayalas cut the car into pieces to sell. Even if appellant did not go with the group to sell the parts, David testified that on one occasion appellant was with Danny when car parts were in the back of a truck. Thus, appellant clearly had knowledge of what happened to Billy's car after he was killed. The jury heard appellant's lies to the police about the incident. Appellant also admitted she went with Danny to Louisiana after the incident. Accordingly, the non-accomplice testimony is not "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Herron, 86 S.W.3d at 632. Appellant has failed to show egregious harm. Her third issue is overruled.
Denial of Motion to Suppress
In her fourth issue, appellant argues the trial court abused its discretion by denying her motion to suppress because her confession to officers was involuntary. She asserts she was induced into making an involuntary confession during her initial interview when an officer said, "But instead you['re] going to lie in the middle of a murder investigation and you're going to catch a capital murder case because of it. Ok, and you don't need that, do you? No ma'am you don't. And you don't have too."
In a hearing outside the presence of the jury, the State introduced State's exhibits 101, 102, and 103. The videos were three different police interviews with appellant. Defense counsel objected to all three exhibits, and the trial court overruled the objections. When the State moved to admit the exhibits during trial, defense counsel again objected and asked for a running objection. The trial court granted the running objection.
The parties agreed some portions of the interviews were hard to hear so before the defense rested, defense counsel introduced defendant's exhibit 1, which were wav files of the three interviews previously introduced by the State and admitted. The State did not object, and the trial court admitted defendant's exhibit 1 "for all purposes."
When a defendant offers a confession into evidence before the jury and the trial court admits it, the defendant waives any objection to the admission of her confession. See Soliz v. State, 432 S.W.3d 895, 903 (Tex. Crim. App. 2014); Decker v. State, 717 S.W.2d 903, 908 (Tex. Crim. App. 1986). The wav file offered by the defense included the previously objected-to statement by appellant. However, defense counsel did not re-urge the objection or offer the exhibit for a limited purpose. Rather, counsel offered its admission for all purposes, and in doing so, she waived her objection to the confession. Id. We overrule her fourth issue.
Conclusion
The judgment of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47
150588F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1142502-V.
Opinion delivered by Justice Bridges. Justices Evans and O'Neill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered March 10, 2016.