Teodoro Velasquez-Anariba v. State

Affirmed and Memorandum Opinion filed February 19, 2008 Affirmed and Memorandum Opinion filed February 19, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00292-CR ____________ TEODORO VELASQUEZ-ANARIBA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1023872 M EM O R A N D U M  O P I N I O N Teodoro Velasquez-Anariba appeals his conviction for capital murder and raises four issues. Appellant asserts that: (1) the evidence was legally insufficient to support the conviction; (2) the evidence was factually insufficient to support the conviction; (3) the trial court erred by denying his motion to suppress custodial statements; and (4) the trial court erred by denying his requested submission of aggravated assault as a lesser included offense. We affirm. Background At 11:33 a.m. on March 17, 2005, HPD Officer Klaus received a call from the manager of the Azalea Place Apartments in Houston reporting that a maintenance man had discovered a bloody mattress and the body of a man beneath it. After securing the scene, Officer Klaus contacted homicide investigators. The investigators discovered a trail of blood between the dumpster and an apartment rented to appellant; once inside the apartment, they discovered blood spatters and a box-spring missing a mattress. Investigators also found a wallet belonging to Isidro Perez on the kitchen counter. The wallet contained a paystub but no money. Appellant=s neighbor testified that she saw appellant and another man carrying the mattress out of the apartment the preceding evening, March 16, around midnight. The mattress appeared to be heavy and she thought she saw a body in it. The lead investigator, Detective Chavez, learned that the apartment had been rented to appellant, making him a person of interest in the case. The victim was identified as Perez. On the same morning that Perez=s body was recovered, a Border Patrol agent detained appellant in New Orleans because he had no identification to confirm citizenship. After appellant was fingerprinted, the agent determined that there was an open deportation warrant for him. He also noted blood on appellant=s pants and shoes, which appellant claimed was from a cut finger. Appellant was taken into custody based on the deportation warrant. Detective Chavez learned in Houston that appellant was in custody in New Orleans. He called immigration officials and asked them to bring appellant to Houston to facilitate the investigation of Perez=s murder. Appellant arrived in Houston on March 25, 2005, and was questioned, at which time he denied any involvement in Perez=s murder or robbery. After DNA testing of the blood found on appellant=s shoes and clothing confirmed it was Perez=s, appellant confessed to his involvement in the murder. Appellant said in his confession that he and his brother-in-law, Noe, were drinking at a local restaurant when they met Perez. After drinking together for a few hours, they agreed to obtain additional beer and return to appellant=s apartment to continue drinking. When they returned to the apartment complex, Noe and Perez went upstairs to the apartment while appellant stayed downstairs to urinate. Appellant said that when he went up to the apartment he heard Perez accuse Noe of Ahiding women.@ When Noe told him there were no women, Perez allegedly slapped him. Noe responded by grabbing a hammer and striking Perez Aabout three times.@ Noe then instructed appellant to kill Perez. Appellant responded by grabbing a pair of scissors and stabbing Perez several times in the chest. Before moving the body in the mattress, Noe removed Perez=s wallet; Noe and appellant then split the $180 it contained. Afterwards, they called a taxi and went to the Greyhound bus station. Appellant bought a ticket to New Orleans. Perez=s autopsy revealed five skull fractures consistent with a hammer strike and five stab wounds to the chest and abdomen consistent with the use of scissors. Expert testimony indicated Perez was alive during the stabbing, but could not definitively establish which occurred first B the stabbing or the hammer strikes. The cause of Perez=s death was determined to be both the stabbing and the hammer strikes. Analysis 1. Legal and Factual Sufficiency of the Evidence to Support the Capital Murder Conviction Appellant=s first and second issues assert that the evidence was not legally or factually sufficient to prove he formed the necessary intent to rob Perez before the commission of the murder. A person commits the offense of capital murder when he intentionally or knowingly causes the death of an individual and the murder is committed in the course of committing or attempting to commit a robbery. Tex. Penal Code Ann. ' 19.03(a)(2) (Vernon Supp. 2007). For murder to qualify as a capital murder, the killer=s intent to rob must be formed before or at the time of the murder. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). Proof of a robbery committed as an afterthought and unrelated to the murder will not provide sufficient evidence of capital murder. Id. The State carries its burden when it proffers evidence from which a rational jury could conclude beyond a reasonable doubt that the defendant formed the requisite intent before or during the commission of the murder. Id. The jury may infer the requisite intent from the conduct of the defendant. Id. This is true even when the element of appropriation occurs after the murder. Russo v. State, 228 S.W.3d 779, 793 (Tex. App.CAustin 2007, pet. ref=d) Appellant challenges the legal sufficiency supporting his conviction, contending there is insufficient evidence to find the requisite intent to commit robbery. He contends that the robbery was merely incidental to the murder B the result of an argument gone bad B and that the intent to rob Perez was formed after the murder. In reviewing legal sufficiency, we view all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). This is a highly deferential standard, as it is Athe responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh evidence, and to draw inferences from basic facts to ultimate conclusions.@ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Appellant=s sufficiency challenge focuses the analysis on whether the jury was entitled to infer an intent to commit robbery. Guidance on this issue is provided in Cooper v. State, 67 S.W.3d 221, 222 (Tex. Crim. App. 2002). In Cooper, the defendant was convicted of robbery based on evidence he struck his uncle repeatedly and then drove off in the uncle=s truck. Id. at 222. The defendant argued that there was insufficient evidence to establish a nexus between the assault and the theft. Id. at 222-23. The court of appeals reversed the robbery conviction, holding that there was insufficient evidence to establish a nexus between the assault and the theft given the lack of evidence regarding financial difficulty or prior coveting of the truck. Cooper, 29 S.W.3d 901, 904 (Tex. App.CBeaumont 2000), rev=d, 67 S.W.2d 221 (Tex. Crim. App. 2002). The Texas Court of Criminal Appeals disagreed, holding that a natural inference of the nexus arises when an assault is followed immediately by a theft. Cooper, 67 S.W.3d at 224 (citing McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989)). This teaching applies with equal force here. Cooper explains that the required nexus between murder and robbery in a finding of capital murder is the same as the required nexus between assault and theft in a finding of robbery. Id. at 223. A robbery occurring immediately after a murder establishes an inference that the murder was meant to facilitate the robbery. McGee, 774 S.W.2d at 234; see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (intent can be inferred from the acts, words, and conduct of the accused); Cooper, 67 S.W.3d at 224 . There is clear evidence of a robbery immediately following Perez=s murder. This evidence gives rise to an inference that the murder was meant to facilitate the robbery. This inference is reinforced by the evidence of appellant=s financial difficulties. Police found a notice of lock-out in his apartment, and the apartment manager testified that appellant was behind in his rent. This evidence establishes a motive for the robbery of $180 from Perez, which Noe and appellant split immediately after killing Perez. See Russo v. State, 228 S.W.3d 779, 794 (Tex. App.CAustin 2007, pet. ref=d) (motive is not a necessary element, but evidence of motive can be used to prove guilt). This evidence is legally sufficient for a rational jury to find every element of the charged offense beyond a reasonable doubt. Appellant cannot change this conclusion merely by positing a different theory of the murder. See Cooper, 67 S.W.3d at 223-24 (rational jury could disregard the defendant=s theory that he was hearing voices and thought his uncle was hitting a child); Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992) (jury was not required to believe defendant=s claim that he killed the victim because victim was looking at him in a lustful manner, and was free to believe that the motive was, at least in part, to rob the victim); see also Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (jurors are the exclusive judges of facts, the credibility of witnesses, and the weight to give their testimony). We overrule appellant=s first issue. In reviewing factual sufficiency, we view all the evidence in a neutral light both for and against the finding, and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury=s determination; or if the proof of guilt, while adequate if taken alone, is greatly outweighed by contrary proof. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005). Appellant does not contest his role in the murder, evidence of which is overwhelming even without his confession. He merely contends in his second issue that the evidence is factually insufficient to establish the murder was committed in furtherance of the robbery. However, the evidence is clear that appellant was a party to the murder, that he immediately participated in taking Perez=s money, and that he was suffering from financial difficulties at the time of the offense. We conclude, therefore, that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust, and that the great preponderance of the evidence does not weigh against the verdict. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Appellant=s second issue is overruled. 2. Denial of Motion to Suppress We review a trial court=s ruling on a motion to suppress evidence for abuse of discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005), cert. denied, 127 S.Ct. 145 (2006); State v. Callaghan, 222 S.W.3d 610, 612 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d). If supported by the record, a trial court=s ruling on the motion to suppress will not be overturned. Callaghan, 222 S.W.3d at 612; Hill v. State, 902 S.W.2d 57, 59 (Tex. App.CHouston [1st Dist.] 1995 pet. ref=d). At a suppression hearing, the trial judge is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Callaghan, 222 S.W.3d at 612; Hill, 902 S.W.2d at 59. We defer to the trial court=s determination of historical facts that depend on credibility. Callaghan, 222 S.W.3d at 612; Hill, 902 S.W.2d at 59. When reviewing a trial court=s ruling on a mixed question of law and fact, we review the trial court=s application of the law to the facts of the case de novo. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). When the State seeks to justify the arrest of an individual based upon an arrest warrant, it must produce that warrant and its supporting affidavit for inspection in the trial court. Etheridge v. State, 903 S.W.2d 1, 19 (Tex. Crim. App. 1994). AThis requirement is imposed so that the trial court may inspect the documents and determine whether probable cause existed and ensure that the arrestee=s rights have been fully protected.@ Garrett v. State, 791 S.W.2d 137, 140 (Tex. Crim. App. 1990). If the State cannot produce these documents, it may proffer testimony from the magistrate, an officer, or another witness familiar with the warrant. Garrett, 791 S.W.2d at 140; Dorsey v. State, 964 S.W.2d 701, 704 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). This insures that the trial court had a sufficient opportunity to ascertain that the rights of the accused are protected, and to inquire into the basis of the warrant made. Garrett, 791 S.W.2d at 141. Appellant was detained by a Border Patrol officer in New Orleans for an outstanding deportation warrant. Appellant later was transferred to the Houston INS office to put him in closer proximity to Texas authorities investigating Perez=s murder. During his detention he was interviewed on at least two occasions, the second of which produced a full confession. At appellant=s suppression hearing, the circumstances surrounding his first and second interview were discussed at length. Both Detective Chavez and appellant took the stand and were subjected to extensive cross-examination. Appellant=s attorney brought to the court=s attention that Detective Chavez had not seen the deportation warrant himself; the attorney implied that the arrest and detention might not have been legal. On cross-examination, appellant admitted he was aware of the outstanding warrant and not surprised when he was arrested on the bus in New Orleans. The trial court noted that it was not within the State=s authority to release appellant because he was in federal custody. After hearing this testimony and considering the circumstances, the trial court denied suppression of the statements and other relevant materials discussed at the hearing. At the time of this ruling, the warrant had not been admitted into evidence and no witnesses with personal knowledge of the warrant had been proffered in support of the warrant that resulted in appellant=s detention at the INS facility. The court then adjourned for 30 minutes. Thirty minutes after the suppression hearing ended, and before the trial began, the State produced a copy of the INS arrest warrant for appellant that was Asigned and acknowledged by the defendant, on the back, on September 3, 2004.@ The warrant was marked as State=s Exhibit No. 130. The State requested that the warrant be received into evidence for purposes of the suppression hearing, and appellant=s attorney responded: AJudge, for the record, I know you=ve already ruled on the motion, but I have no objection to its admission.@ The trial court then admitted State=s Exhibit No. 130 into evidence; it is part of the record before this Court. Appellant does not dispute that State=s Exhibit No. 130 is a copy of a valid warrant, and that the INS had the authority to apprehend and detain appellant at its INS facility. Appellant nonetheless argues that the ruling denying the suppression of appellant=s statements was an abuse of discretion because the trial court did not have a copy of the federal warrant before it when it made the initial ruling. We need not address whether the State has any obligation to prove the validity of an accused=s detention in a federal facility, and we need not review the admissibility of appellant=s custodial statements under the Attenuation Doctrine.[1] In an abundance of caution, the State procured a copy of the warrant. This copy was admitted as part of the record for the suppression hearing.[2] This supplementation was permissible. Montalvo v. State, 846 S.W.2d 133, 135-138 (Tex. App.CAustin 1993, no pet.) (trial court can re-open a suppression hearing and consider new evidence; decision to do so is in the sound discretion of the court) (citing Cain v. State, 666 S.W.2d 109, 111 (Tex. Crim. App. 1984)); see also Ex Parte King, 134 S.W.3d 500, 503 (Tex. App.CAustin 2004, pet. ref=d) (a suppression order in a non-final ruling may be revisited during the case=s pendency); Gilbert v. State, 874 S.W.2d 290, 292-93 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (unlike the prohibition against reopening the evidence of a cause once argument has been concluded, a suppression hearing may be reopened whenever the administration of justice would be served). The decisions to have a pretrial hearing or to make a determination at trial fall within the trial court=s sound discretion; accordingly, the trial court may reconsider its decisions or permit additional argument or evidence as it chooses. See Montalvo, 846 S.W.2d at 137-38. The trial court acted well within its discretion in admitting additional evidence in connection with the suppression hearing, and in doing so it negated any basis for appellant=s complaint regarding the earlier absence of the warrant. Appellant=s third issue is overruled. 3. Refusal to Submit Aggravated Assault as a Lesser Included Offense Appellant=s fourth issue asserts that the trial court erred by denying his request for an instruction on the lesser included offense of aggravated assault. To determine whether a lesser included offense may be submitted to a jury, (1) the lesser offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that would permit a jury to rationally find that if appellant is guilty, he is guilty only of the lesser offense. Hall v. State, 225 S.W.3d 524, 526 (Tex. Crim. App. 2007); Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004). The first prong of this test is met because aggravated assault based upon intentionally, knowingly or recklessly causing serious bodily injury is a recognized lesser included offense of capital murder. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000); Jackson v. State, 992 S.W.2d 469, 475 (Tex. Crim. App. 1999). However, appellant cannot satisfy the second prong. Appellant was not entitled to an instruction of the lesser included offense of aggravated assault if the evidence shows him to have been at least guilty of homicide. Jackson, 992 S.W.2d at 475. Appellant admits his brother-in-law asked him to kill Perez. Dr. Morna Gonsulin, the medical examiner, testified that Perez was still alive when appellant stabbed him, and that the stab wounds inflicted by appellant were a cause of Perez=s death. She testified that both the head wounds and the stab wounds were independently sufficient to cause Perez=s death, and that both caused his death. Appellant=s suggestion that his intentional stabbing of Perez was not the actual cause of Perez=s death thus is defeated by the medical testimony offered at trial. Likewise, appellant=s claimed uncertainty about whether Perez was alive does not change the conclusion in light of Dr. Gonsulin=s testimony that the injuries were inflicted on a living person. Appellant=s fourth issue is overruled. Conclusion The judgment of the trial court is affirmed. /s/ William J. Boyce Justice Judgment rendered and Memorandum Opinion filed February 19, 2008. Panel consists of Chief Justice Hedges, and Justices Anderson and Boyce. Do not publish C Tex. R. App. P. 47.2(b). [1] See Weems v. State, 167 S.W.3d 350, 358-64 (Tex. App.CHouston [14th Dist.] 2005 pet. ref=d) (providing a full description of the Attenuation Doctrine and its applicability to evidence garnered when existence of a warrant is not proved). [2] Appellant does not challenge the validity of the warrant produced for the trial court, a copy of which was given to him when the State offered it into evidence.