Jose Daniel Pena, Jr. v. State

NUMBER 13-00-331-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI-EDINBURG JOSE DANIEL PENA JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 332nd District Court of Hidalgo County, Texas. OPINION Before Chief Justice Valdez and Justices Hinojosa and Rodriguez Opinion by Chief Justice Rogelio Valdez Appellant, Jose Daniel Pena, Jr., was found guilty by a jury of capital murder and attempted capital murder. The trial court sentenced appellant to serve a term of life for capital murder, and a concurrent term of fourteen years for attempted capital murder. Appellant argues three issues: (1) the trial court erred in denying appellant=s motion to suppress; (2) the trial court erred in denying appellant=s requested jury instruction; and (3) appellant=s conviction should be reversed because the State presented factually insufficient evidence to prove appellant=s guilt under the law of parties. We affirm. Facts On June 29, 1998, appellant and Valentine Rodriguez (Valentine) stopped at a convenience store to buy gas and beer. At the store, appellant noticed a car drive up with three men inside, one of whom he recognized as having beaten up his brother. One of the three men in the car, recognized appellant, and pointed a pistol at appellant and Valentine as they were getting in the car. When the appellant and Valentine attempted to drive away the men=s car struck their car. Valentine grabbed a weapon, got out of his vehicle, and began shooting at the other car until he had emptied his weapon. The shooting left two individuals from the other car dead and one critically wounded. At trial, the trial court heard appellant=s motion to suppress outside the presence of the jury. The only person who testified at the suppression hearing was Investigator Noe Canales, an Hidalgo County criminal investigator who had been assigned to this particular capital murder case. He testified as to statements made by appellant concerning his involvement in the shootings. After the officer=s testimony, the following colloquy ensued. THE COURT: . . . I tend to feel - - the Motion to Suppress will be denied, Counsel. MR. GARZA:[1] Yes, Your Honor. THE COURT: The statement will come in. MR. CAVADA: We will object for the record. THE COURT: Yes, the objection is well taken. Anything else to be taken up outside the presence of the jury? After the motion was denied, there were no requests for findings of facts or conclusions of law. Motion to Suppress Appellant contends the trial court erred in overruling his motion to suppress because there was neither probable cause nor exigent circumstance to support his warrantless arrest. The State argues the warrantless arrest was justified because there was probable cause and exigent circumstances. A motion to suppress is reviewed by an abuse of discretion standard. Cerda v. State, 10 S.W.3d 748, 751 (Tex. App.BCorpus Christi 2000, no pet.) (citing State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)). The trial judge Ais the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.@ Ballard, 987 S.W.2d at 891 (Tex. Crim. App. 1999). Accordingly, the judge may believe or disbelieve all or any part of a witness=s testimony, even if that testimony is not controverted. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Furthermore, when the trial court fails to file findings of fact, we 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. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). If the trial judge=s decision is correct on any theory of law applicable to the case, the decision will be sustained. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The State argues the arrest occurred only after Officer Canales heard appellant=s statement. They claim that the testimony and other evidence in the case gave him probable cause to arrest appellant. After hearing the statement, the officer arrested appellant without a warrant because he believed appellant to be a flight risk due to the fact that the car used in the commission of the murders was recovered in Mexico. During the motion to suppress, the record reveals that when police authorities picked appellant up at his house, they handcuffed him before they brought him to the police station. At the police station, he was given his Miranda warnings and he gave his statement regarding his involvement in the murder at the police station. A person is Aseized@ for constitutional purposes when, in view of all the circumstances, a reasonable person would believe that he or she is not free to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980); State v. Williams, 814 S.W.2d 256, 259 (Tex. App.BAustin 1991), aff=d, 832 S.W.2d 52 (Tex. Crim. App. 1992). An Aarrest@ occurs at the moment a person=s liberty of movement is restricted or restrained. Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon Supp. 2002); Hoag v. State, 728 S.W.2d 375, 379 (Tex. Crim. App. 1987); Bell v. State, 845 S.W.2d 454, 459 (Tex. App.BAustin 1993, no pet.). The officer=s opinion that an arrest has or has not occurred is a factor to be considered, but is not determinative. Hoag, 728 S.W.2d at 378-79. Appellant argues that the trial court erred in denying the motion to suppress his statement because it was the product of an illegal search and seizure. He first argues that evidence produced at trial showed that he was arrested without a warrant and without probable cause. Appellant specifically points to testimony showing that he was Ahandcuffed@ and Adetained@ before he gave his statement. He further argues that no exception to the warrant requirement was applicable in this situation and as such his arrest was unreasonable. This Court holds, that even if appellant=s statement was the result of an unreasonable search and seizure, the taint from this alleged illegal search was sufficiently attenuated and as such the evidence is admissible. See Dowthitt v. State, 931 S.W.2d 244, 261 (Tex. Crim. App. 1996). Texas applies the four-factor attenuation test found in Brown v. Illinois, 422 U.S. 590, 603-04 (1975): A(1) whether Miranda warnings were given, (2) the temporal proximity of the arrest and the confession, (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official.@ Dowthitt, 931 S.W.2d at 261. Miranda warnings by themselves cannot attenuate the taint, but they are an important factor in determining whether the defendant gave the confession in response to the officers exploiting an illegal arrest. See Maixner v. State, 753 S.W.2d 151, 156 (Tex. Crim. App. 1988). In this case, appellant was given his Miranda warnings twice, and made a valid waiver of them before the officer took his statement. As for temporal proximity between the arrest and confession, the record establishes appellant was taken to the police station around 12:00 p.m. and his statement was taken at approximately 2:41 p.m. As such, there appears to be close temporal proximity between the time of the arrest and the time of the statement. See Wilkins v. State, 960 S.W.2d 429, 432 (Tex. App.BEastland 1998, pet. ref=d) (holding three hours was close temporal proximity between time of arrest and time of statement). Although it has been held that the shorter the time the more likely the taint of the illegal detention has not been purged, we note that temporal proximity has been held to be a more ambiguous factor than the others and, as such, does not carry as much weight as the giving of Miranda warnings. Maixner, 753 S.W.2d at 156. Recognizing the minimal importance placed in this second factor, we continue our analysis with an examination into the remaining factors. See id. In considering the third factor, we examine the record for any intervening circumstances that may have occurred between appellant=s illegal arrest and the taking of his statement. Wilkins, 960 S.W.2d at 432. Intervening circumstances are events such as taking the defendant before a magistrate, obtaining an arrest warrant, or releasing the defendant from custody. Id. Here, the record gives no indication that any intervening events occurred before appellant gave his statement. Therefore, this factor does not weigh in our attenuation analysis. Both the United States Supreme Court and the Texas Court of Criminal Appeals have emphasized the importance of the fourth factor, the purpose and flagrancy of the official misconduct. See Brown, 422 U.S. at 603-04. The clearest indication of attenuation should be required where police conduct is flagrantly abusive. Bell v. State, 724 S.W.2d 780, 789 (Tex. Crim. App. 1986). Here, the officers were investigating a lead in the case and asked appellant if he would answer some questions. At the station he was given his Miranda rights on two occasions before giving his statement to the police. He subsequently waived those Miranda rights and the record indicates no coercion involved in that waiver. The purpose of the inquiry into the four factors is to determine whether there was a causal connection between the arrest and the giving of the statement. See Wilkins, 960 S.W.2d at 433. After reviewing all four factors, we find there was no causal connection between the two. We conclude the arrest was sufficiently attenuated from appellant=s confession to purge any taint of illegality. The judge=s decision to deny the motion to suppress is based on a legal theory, attenuation of the violation. Romero, 800 S.W.2d at 543 (holding that if the trial judge=s decision is correct on any theory of law applicable to the case, the decision will be sustained). Accordingly, we find the trial court did not err in denying appellant=s motion to suppress his confession. Appellant=s first issue is overruled. Jury Instructions Pena contends in his second issue that the trial court erred in denying his requested jury instruction on illegal arrest based on article 38.23 of the code of criminal procedure. That article provides no evidence obtained by an officer or other person in violation of the constitution shall be admitted in evidence, and in any case where the evidence raises an issue on that question, the jury shall be instructed that if it believes or has a reasonable doubt that the evidence was obtained in violation of the article the jury shall disregard that evidence. Tex. Code Crim. Proc. Ann. art 38.23 (Vernon Supp. 2002). When we review alleged charge error, we determine: (1) whether error actually exists in the charge; and (2) whether any resulting harm requires reversal. Castaneda v. State, 28 S.W.3d 685, 694 (Tex. App.BCorpus Christi 2000, no pet.) Under Almanza, if appellant can show that the omission to which he timely objected at trial was erroneous, he is entitled to a reversal only if the error was harmful. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Furthermore, the Aharmless error rule of article 36.19 applies to the appellate review of errors predicated upon a disregard of the article 38.23 requirement of a jury instruction concerning evidence allegedly obtained in violation of the law.@ Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996). An appellant who seeks reversal on the basis of error in the charge must first demonstrate that error exists in the charge, and then show that the error was calculated to injure his rights or caused the denial of a fair and impartial trial. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2002). Upon review of appellant=s brief we find appellant failed to satisfy the second part of that standard. The entire analysis focuses on the first part, alleged trial court error, but fails to mention how appellant was harmed by the denial of the jury charge. Because he has failed to show the resulting harm from the alleged trial court error, appellant has failed to meet his burden. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994); Otting v. State, 8 S.W.3d 681, 689 (Tex. App.BAustin 1999, pet. ref=d, untimely filed) (AEven though a defendant preserves error by timely objection or requested instructions . . . the burden of proof lies with the defendant to persuade the reviewing court that he suffered some actual harm as a consequence of the instruction error; if he does not sustain his burden, the error will not result in the reversal of the conviction.@). Appellant=s second issue is therefore overruled. Factual Sufficiency By his third issue on appeal, appellant contends the evidence is factually insufficient to support his conviction under the law of parties. When we review a factual sufficiency of the evidence point of error, we review the evidence in support of and contrary to the trier of fact=s findings to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We consider all the evidence in the record related to appellant=s sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). However, we are not free to reweigh the evidence and set aside a jury verdict merely because we believe that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Only if the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust, will we reverse the verdict and remand for a new trial. Clewis, 922 S.W.2d at 133-34; Rosillo v. State, 953 S.W.2d 808, 813 (Tex. App. B Corpus Christi 1997, pet. ref=d). Evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement. See Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986). The court may examine the events occurring before, during, and after the commission of the offense, and may rely on the actions of the defendant which demonstrate an understanding and common design to commit the offense. Navarro v. State, 776 S.W.2d 710, 711 (Tex. App.BCorpus Christi 1989, pet ref'd.). Moreover, participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Rosillo, 953 S.W.2d at 814 (citing Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987)). Therefore, circumstantial evidence may be sufficient to show that one is a party to the offense. Id. A review of the evidence demonstrates that one could reasonably infer that there was sufficient evidence to prove that appellant was involved in the shootings, if not as the primary actor, as a party to the shooting. First, appellant admits in his statement that he was present during the shooting. Second, appellant wrote in his statement that the men killed Awere the guys who had beat up my brother.@ Third, appellant=s statement reveals that Valentine, the other person in the car with appellant, was the driver. This admission along with eyewitness testimony that the shooter was on the passenger side would allow the jury to reasonably infer that appellant fired the shots at the occupants of the other vehicle. If, however, the jury believed appellant=s claim that Valentine was the actual shooter, we note that a jury could infer that appellant was a party to a crime based on evidence of appellant=s actions after the crime had been committed tending to show appellant agreed fully with the crime. See Sarver v. State, 24 S.W.3d 448, 452 (Tex. App.BTexarkana 2000, pet. ref=d). Appellant=s statement introduced at trial shows that after the shooting he went with Valentine to Valentine=s apartment. While there, Valentine hid the murder weapon in his apartment. Then, appellant and Valentine left the apartment and picked up appellant=s brother. The three men went to a canal and sat there drinking beer. Upon examination of this evidence, we hold that this evidence would allow a reasonable juror to believe that appellant=s actions after the shootings constituted evidence that he was a party to the murder. See Burdine, 719 S.W.2d at 315. Appellant=s third and final issue presented for appeal is overruled. We affirm the judgment of the trial court. ROGELIO VALDEZ Chief Justice Do not publish. Tex. R. App. P. 47.2(b). Opinion delivered and filed this 9th day of January, 2003. [1]Both Rogelio Garza and Abel Cavada served as attorneys for the defendant.