James Edward Probst v. State

Opinion issued March 29, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00151-CR ——————————— James Edward Probst, Appellant V. The State of Texas, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1163334 MEMORANDUM OPINION A jury found appellant guilty of capital murder, and, because the State did not seek the death penalty, the trial court assessed punishment at confinement for life. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2011); Tex. Code Crim. Proc. Ann. art. 37.071 §1 (Vernon 2006). In two issues on appeal, appellant contends that (1) his recorded statement was involuntary, and (2) the evidence is legally insufficient to support his conviction. We affirm. BACKGROUND On April 14, 2008, Jesus Garcia and Cesar Alvarado Cruz drove together after work to cash their paychecks at a check-cashing store in a nearby shopping center. After getting their money, Cruz got in the driver’s seat and Garcia got in the front passenger seat. As Cruz was putting his key in the ignition and closing the door, a man came up to the car, grabbed the top of the car door, pointed a gun over the door at Cruz, and demanded his money. Garcia testified that the gunman had the lower part of his face covered with a red cloth, but Garcia was able to see tattooed lettering on his cheeks. Garcia also testified that Cruz did not move toward the victim in any way or make any move to grab the gun. Instead, the gunman started shooting at Cruz. Immediately, Garcia threw himself out of the car onto the ground, got up and started running. When Garcia stood up, the gunman shot him in the back. Through an anonymous tip, police officers developed appellant, his mother, Debbie Probst, and his girlfriend, Elizabeth “Libby” Smith, as suspects. All three were eventually arrested and charged with capital murder. After appellant was arrested, he was interrogated by Sergeant M. Ynosencio and gave a written statement. Ynosencio read appellant his rights, which he stated he understood and waived. Ynosencio did not threaten or coerce appellant into speaking with her, and appellant was given drinks and bathroom breaks as needed. Initially, appellant denied any involvement with the shooting or even being at the scene of the crime. Ynosencio then used an interrogation technique she referred to as giving the suspect “an out.” Specifically, she told appellant that there were witnesses who saw the victims “come after him” and struggle for the gun, even though, in fact, no such witnesses existed. Ynosencio testified that appellant “took the out” she offered and stated that “the guy got out [of the car] and they struggled and the guy shot himself.” Appellant said that he was attacked by both Cruz and Garcia as he attempted to get their money. Ynosencio also told appellant that Smith was “putting all the blame” on him in an effort to get appellant to provide more details about the offense. At a hearing on appellant’s motion to suppress his statement, the following exchange took place: [Prosecutor]: Now, during the course of this second statement, does the Defendant ever ask you for anything? [Ynosencio]: I think towards the middle of the conversation when I had told him that his—the female that he was with was putting all the blame on him, he wanted to get together because he wanted the whole truth to come out. [Prosecutor]: Whenever he said that he wanted to get together, what did you do? [Ynosencio]: I told him I would try to make it happen. [Prosecutor] Did you ever promise him anything in exchange for his testimony? [Ynosencio]: No. [Prosecutor]: Did you ever tell him I will arrange this only if you tell me what’s going on? [Ynosencio]: No. [Prosecutor] At any time did Mr. Probst say I will not continue to speak with you unless this is arranged? [Ynosencio]: No. [Prosecutor]: And based on the general context of Mr. Probst’s question to you, what was your feeling that his request meant? [Ynosencio]: I know he—to me, I thought he wanted the people—the other people that were involved in this to be there so that he could show us that that was—-what they were saying, blaming him. He wanted them to talk about their part, also, he wanted it all to come out in the open. [Prosecutor]: Okay. Did you feel like it was more to confront them since you had put Libby’s name out on the table? [Ynosencio]: That’s exactly what I thought it was. [Prosecutor] Did you at any point unequivocally offer him a benefit in exchange for any arrangements or anything that you could possibly have done for him? [Ynosencio]: No. At trial, Ynosencio further testified on the issue as follows: [Prosecutor]: Whenever he’s asking you about setting up the meeting, what is your understanding of what he’s wanting to do? [Ynosencio]: He wanted to confront them about what—he was like, “I wasn’t there by myself. They knew what was going on. The truth needs to be told. I’m going to tell the truth on them, too,” you know. So, I think it was more he wanted to confront them about—he was pretty much mad because they were—you know, they told on him. So, he wanted to show them that I’m going to tell the truth on you, too. [Prosecutor] If he’s going down, everybody’s going down? [Ynosencio]: Exactly. [Prosecutor]: Did you ever feel that by him asking to set up the meeting and you said you would try that he was implying that he would not talk to you unless the meeting occurred? [Ynosencio]: No, because he never said that. [Prosecutor]: Okay. And did he ever at any point indicate that he was going to stop talking, not talk if that didn’t happen? [Ynosencio]: No. [Prosecutor]: In fact, he does continue to talk? [Ynosencio]: Right, he does. Appellant’s recorded statement was subsequently admitted at trial. Elizabeth Smith, who was also charged with capital murder, testified at trial in accordance with a plea agreement that reduced her charge to aggravated robbery and capped her punishment at 25 years. Smith testified that she, appellant, and appellant’s mother, Debbie, agreed to “hit a lick,” or rob someone. They drove to a check cashing store and waited until two men came out. Appellant got out of the car and walked toward the two men. Smith did not see the shooting or hear any gunshots because her radio was turned up, but appellant soon returned to the car and said, “Drive. Go. I shot him.” Appellant never mentioned anything to Smith about Cruz grabbing the gun. Cruz died from a bullet entering his left side, puncturing arteries in his lung, and exiting his right side. Garcia was shot in the back, but survived. When Garcia returned to the car after running away from the gunman, he found Cruz slumped over in the driver’s seat of the car dead. Forensic evidence showed that Cruz’s wounds were consistent with a person who was seated with his arm outstretched toward the car door and who was shot by a person standing over him. Three spent .22 caliber casings were recovered outside the car, one spent .22 caliber casing was recovered from inside the car, and one .22 caliber bullet was recovered from inside the car. After trial, the jury was charged on both capital murder and the lesser-included offense of felony murder. The jury found appellant guilty of capital murder, and the trial court assessed punishment at confinement for life. This appeal followed. MOTION TO SUPPRESS In his first issue on appeal, appellant contends the trial court erred by denying his motion to suppress his recorded statement. Specifically, appellant argued that his statement was involuntary because Officer Ynosencio falsely promised “to arrange a meeting with [his co-conspirator] Smith.” Standard of Review The appropriate standard for reviewing a trial court’s ruling on a motion to suppress evidence is bifurcated, giving almost total deference to a trial court’s determination of historical facts and reviewing de novo the court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We “should afford the same amount of deference to [a] trial court’s rulings on ‘application of law to fact questions,’ also known as ‘mixed questions of law and fact,’ if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.” Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We conduct a de novo review when the resolution of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor. See id. In determining whether a trial court’s decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. See, e.g., Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984). However, this general rule is inapplicable when, as here, the suppression issue has been consensually re-litigated by the parties during trial on the merits. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). Applicable Law “A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion. . . .” Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). “To decide this case the court of appeals must examine the totality of the circumstances surrounding the acquisition of the statement to determine whether it was given voluntarily.” Creager v. State, 952 S.W.2d 852, 856–57 (Tex. Crim. App. 1997). “[F]or a promise to render a confession invalid under [a]rticle 38.21, the promise must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully.” Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004); see Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991), abrogated on other grounds by Graham v. State, 994 S.W.2d 651, 656 (Tex. Crim. App. 1999) (explaining that “an appellate court must look to whether the circumstances of the promises made the defendant ‘inclined to admit a crime he had not committed’”) (quoting Fisher v. State, 379 S.W.2d 900, 902 (Tex. Crim. App. 1964)). Analysis Appellant challenges the trial court’s finding that Detective Ynosencio’s statement that she would—“call the county and set up [a meeting with Smith]”—constituted a promise that tainted appellant’s subsequent confession to the charged offense. The State responds first, that the statement was not an improper promise and second, that even if Detective Ynosencio’s statement about setting up a meeting with Smith was a promise, it neither induced appellant to confess nor depended upon his confession. Even assuming that Detective Ynosencio’s statement was a promise, we agree with the State that there is no evidence that the promise induced appellant to confess or depended upon his confession. The court of criminal appeals has held that an “‘if-then’ relationship [is] required to establish [such] a promise.” Chambers v. State, 866 S.W.2d 9, 20–21 (Tex. Crim. App. 1993) (quoting Freeman v. State, 723 S.W.2d 727, 731 (Tex. Crim. App. 1986)). “[T]here must be some indication that the police “induce[d] appellant to confess by implicitly or explicitly suggesting a ‘deal, bargain, agreement, exchange, or contingency.’” Id. (quoting Freeman, 723 S.W.2d at 731). In other words, it is a promise made in exchange for a confession that is prohibited, not some free-standing promise untied to the decision to confess. See Renfro v. State, 958 S.W.2d 880, 884 (Tex. App.—Texarkana 1997, pet. ref’d) (finding no indication that promise of drug treatment was given in exchange for a confession). The evidence in this case does not show an “if-then” relationship. There is no evidence that Officer Ynosencio induced appellant to confess by implicitly or explicitly suggesting a “deal, bargain, agreement, exchange, or contingency.” See Chambers, 866 S.W.2d at 20–21 (quoting Freeman, 723 S.W.2d at 731). The evidence simply does not support a conclusion that Ynosencio’s free-standing promise rose to the level of an “unequivocal conditional agreement.” See Renfro, 958 S.W.2d at 884 (quoting Chambers, 866 S.W.2d at 20). Ynosencio’s statement was not so positive that it tainted appellant’s confession. See Chambers, 866 S.W.2d at 20–21; Renfro, 958 S.W.2d at 884. This specific statement lacked the persuasive impact needed to show that it would probably induce appellant to make an untruthful statement. Compare Creager, 952 S.W.2d at 856 (holding officer’s promise that he would try to obtain charitable help for defendant’s wife and mother was not sufficient inducement to confess to heinous crime); Jacobs, 787 S.W.2d at 400 (concluding that promise to defendant that he would be allowed to see girlfriend was not sufficient inducement that it would likely cause him to confess); Smith v. State, 779 S.W.2d 417, 427–28 (Tex. Crim. App. 1989) (finding that when defendant wanted opportunity to take polygraph test to prove innocence, and the police promised that he would be examined by polygraph, the court stated, “we fail to perceive in what way ‘a promise’ of a polygraph, without more, would operate to induce an accused falsely to inculpate himself”); Salazar v. State, 687 S.W.2d 502, 503–04 (Tex. App.—Dallas 1985, pet. ref’d) (holding that promise of leniency toward other members of theft ring was unlikely to influence defendant to untruthfully confess to burglary) with Pitts v. State, 614 S.W.2d 142, 142–44 (Tex. Crim. App. 1981) (holding that defendant’s confession should be suppressed when, among other things, police promised appellant that if he helped clear “up any wrecking yard burglaries that he was involved in” and helped recover “all the property possible” then they would not file charges against him as habitual criminal); Tovar v. State, 709 S.W.2d 25, 28–29 (Tex. App.—Corpus Christi 1986, no pet.) (concluding that defendant’s confession should be suppressed after police told him that if “he took the rap . . . [then his pregnant wife] wouldn’t be filed on”). Given the totality of the circumstances surrounding the acquisition of appellant’s statement, see Creager, 952 S.W.2d at 856–57, we conclude that the trial court’s finding that that Ynosencio did not “make any promises to the defendant in order to get him to waive his rights and give any statements” was not outside the zone of reasonable disagreement. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Therefore, we conclude that the trial court did not abuse its discretion in denying appellant’s motion to suppress. We overrule point of error one. SUFFICIENCY OF THE EVIDENCE In his second point of error, appellant argues the evidence was insufficient to sustain his conviction for capital murder because the State did not prove intent. Specifically, appellant contends he should have been convicted of felony murder because the State failed to show that appellant intended to cause Cruz’s death. Appellant’s theory of the case was that the gun went off accidentally when Cruz grabbed for it. Standard of Review We review a challenge to the legal sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781, 2788–89 (1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex. Crim. App. 2010)). Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317, 317–19, 99 S. Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The Jackson standard gives full play to the responsibility of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes the factfinder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982). Applicable Law A person commits the offense of capital murder if he intentionally commits murder while in the course of committing a robbery. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2011). Felony murder is a lesser-included offense of capital murder. Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004); Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999). The element distinguishing capital murder from felony murder is the intent to kill. Threadgill, 146 S.W.3d at 665; Fuentes, 991 S.W.2d at 272. Felony murder is an unintentional murder committed in the course of committing a felony, whereas capital murder includes an intentional murder committed in the course of robbery. Threadgill, 146 S.W.3d at 665; Fuentes, 991 S.W.2d at 272. Intent is most often proven through the circumstantial evidence surrounding the crime. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), overruled on other grounds, Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992); Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). A jury may infer intent from any facts that tend to prove its existence, such as the acts, words, and conduct of the defendant. Hernandez, 819 S.W.2d at 810; Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980); Dominguez, 125 S.W.3d at 761. Additionally, intent to kill may be inferred from the use of a deadly weapon, unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Dominguez, 125 S.W.3d at 762. When a deadly weapon is fired at close range, and death results, the law presumes an intent to kill. See Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (citing Childs v. State, 21 S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)). Analysis Here, appellant fired a deadly weapon at Cruz from close range. Thus, the law presumes an intent to kill. Id. An intent to kill could also be inferred from evidence showing that appellant fired the gun five or six times. See Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (finding that evidence of multiple wounds and gunshots evinced a specific intent to kill), Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.—Houston [14th Dist.] 1996, no writ) (same). Forensic evidence indicates that appellant fired his gun at the complainant multiple times. There was no evidence, other than appellant’s own statement, that he fired the gun as he struggled with Cruz over the weapon. In fact, the surviving victim, Garcia, testified that Cruz did not move toward the victim in any way or make any move to grab the gun. Smith testified that appellant never said anything to her about a struggle for the gun; he just said, “Drive. Go. I shot him.” The evidence shows that Cruz was shot as he sat in the driver’s seat of the car, and Garcia was shot in the back when he bailed out of the car after the shooting started. A bullet and bullet casing were found inside the car. The jury also heard appellant’s inconsistent stories about the shooting. Initially, he denied any involvement, but, when Officer Ynosencio gave him an “out” suggesting that the victims may have started the altercation, appellant changed his story and claimed for the first time that Cruz and Garcia had jumped him and the gun had gone off accidentally. Considering all the record evidence in the light most favorable to the verdict, a rational factfinder could have found that the element of intent was proved beyond a reasonable doubt. See Jackson, 443 U.S. at 317, 318–19, 99 S. Ct. at 2788–89. We overrule point of error two. CONCLUSION We affirm the trial court’s judgment. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. Tex. R. App. P. 47.2(b).