Roberto Cardenas v. State ( 2015 )

ACCEPTED
13-14-00530-cr
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
FILED 8/26/2015 3:38:52 PM
IN THE 13TH COURT OF APPEALS CECILE FOY GSANGER
CORPUS CHRISTI CLERK
8/26/15 NO. 13-14-00530-CR
DORIAN E. RAMIREZ, CLERK
BY Delia S. Rodriguez IN THE
RECEIVED IN
13th COURT OF APPEALS
COURT OF APPEALS FOR THE CORPUS CHRISTI/EDINBURG, TEXAS
8/26/2015 3:38:52 PM
THIRTEENTH SUPREME JUDICIAL DISTRICT CECILE FOY GSANGER
Clerk
CORPUS CHRISTI, TEXAS
______________________________________________________
ROBERTO CARDENAS GARZA
VS.
THE STATE OF TEXAS
______________________________________________________
ON APPEAL FROM THE
206th JUDICIAL DISTRICT COURT
EDINBURG, HIDLAGO COUNTY, TEXAS
IN CAUSE NO. CR-4064-11-D
______________________________________________________
APPELLANT’S AMENDED BRIEF
______________________________________________________
ALFREDO MORALES, JR.
ATTORNEY AT LAW
P.O. BOX 52942
MCALLEN, TX 78505
(956) 536-8800 TEL
(956) 381-4269 FAX
EMAIL: amjr700@gmail.com
APPELLANT’S COUNSEL
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES AND COUNSEL
The undersigned counsel of record certifies that the
persons listed below have an interest in the outcome of
this case. This representation is made so that the judges
of this court may properly evaluate said information to
determine whether there exists any reason requiring his/her
disqualification or recusal from the case at bar.
A. Parties
Appellant: Roberto Cardenas Garza
Appellee: State of Texas
B. Counsel at Trial
For Appellant: Rogelio Garza
Attorney at Law
310 W. University
Edinburg, TX 78539
For Appellee: Joaquin Zamora, ADA
Hidalgo County Dist. Atty.
100 N. Closner
Edinburg, TX 78539
C. Counsel on Appeal
For Appellant: Alfredo Morales, Jr.
P.O. Box 52942
McAllen, TX 78505
For Appellee: Ted Hake, ADA
Hidalgo County Dist. Atty.
100 N. Closner
Edinburg, TX 78539
i
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . iii - vi
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1
APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . 1 - 2
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . 2 - 3
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . 3
ARGUMENT UNDER POINT OF ERROR NUMBER ONE . . . . . . 4 - 11
ARGUMENT UNDER POINT OF ERROR NUMBER TWO . . . . . 12 - 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . 25
PRAYER . . . . . . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . 27
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . 27
ii
INDEX OF AUTHORITIES
CONSTITUTIONS
United States Constitution
5th Amendment . . . . . . . . . . . . . . 4, 5, 8, 11
6th Amendment . . . . . . . . . . . . . . . . . 10
STATUTES
Texas Penal Code
Section 6.03(a) . . . . . . . . . . . . . . . . 14
Section 6.03(b) . . . . . . . . . . . . . . . . 14
Section 7.02 . . . . . . . . . . . . . . . . . . 20
Section 19.03(a)(2) . . . . . . . . . . . . . . . 14
CASES
United States Supreme Court
Arizona v. Robinson, 108 S. Ct. 2093 (1988) . . . . 10
Davis v. U.S., 114 S. Ct. 2350 (1994) . . . . . . . 11
Edwards v. Arizona, 101 S. Ct. 1880 (1981) . . . 9, 11
Jackson v. Virginia, 116 S. Ct. 717 (1996) . . . . 12
Miranda v. Arizona, 86 S. Ct. 1602 (1964) . . . . . 8
Rhode Island v. Innis, 100 S. Ct. 1682 (1980) . . . 10
Stansbury v. California, 114 S. Ct. 1526 (1994) . . 8
Texas Court of Criminal Appeals
Adames v. State, 353 S.W.3d 854 (Tex. Crim. App.
2011) . . . . . . . . . . . . . . . . . . . . . . 21
iii
Brooks v. State, 323 S.W.3d 895 (Tex. Crim.
App. 2010) . . . . . . . . . . . . . . . . . . . 12
Burden v. State, 55 S.W.3d 608 (Tex. Crim.
App. 2001) . . . . . . . . . . . . . . . . . . . 12
Denton v. State, 911 S.W.2d 388 (Tex. Crim.
App. 1995) . . . . . . . . . . . . . . . . . . . . 12
Dohitt v. State, 931 S.W.2d 244 (Tex. Crim.
App. 1996) . . . . . . . . . . . . . . . . . . . 8
Fuentes v. State, 991 S.W.2d 267 (Tex. Crim.
App. 1999) . . . . . . . . . . . . . . . . . . . 13
Gross v. State, 380 S.W.3d 181 (Tex. Crim.
App. 2012) . . . . . . . . . . . . . . . . . . 20, 21
Haggins v. State, 785 S.W.2d 827 (Tex. Crim.
App. 1990) . . . . . . . . . . . . . . . . . . . 15
Herrin v. State, 125 S.W.3d 436 (Tex. Crim.
App. 2002) . . . . . . . . . . . . . . . . . . . 24
Janenka v. State, 739 S.W.2d 813 (Tex. Crim.
App. 1987) . . . . . . . . . . . . . . . . . . . 9
Johnson v. State, 68 S.W.3d 644 (Tex. Crim.
App. 2002) . . . . . . . . . . . . . . . . . . . 5
Johnson v. State, 414 S.W.3d 184 (Tex. Crim.
App. 2013) . . . . . . . . . . . . . . . . . . . 8
Montanez v. State, 195 S.W.3d 101 (Tex. Crim.
App. 2006) . . . . . . . . . . . . . . . . . . . 5
Montelongo v. State, 681 S.W.2d 47 (Tex. Crim.
App. 1984) . . . . . . . . . . . . . . . . . . . 9
Malik v. State, 953 S.W.2d 234 (Tex. Crim.
App. 1997) . . . . . . . . . . . . . . . . . . 13
McDuff v. State, 939 S.W.2d 607 (Tex. Crim.
App. 1997) . . . . . . . . . . . . . . . . . . 13
iv
Patrick v. State, 906 S.w.2d 248 (Tex. Crim.
App. 1995). . . . . . . . . . . . . . . . . 14, 16
Pecina v. State, 361 S.W.3d 68 (Tex. Crim.
App. 2012) . . . . . . . . . . . . . . . . . 11
Rodriguez v. State, 146 S.W.3d 674 (Tex. Crim.
App. 2004) . . . . . . . . . . . . . . . . . . 14
Salazar v. State, 86 S.W.3d 640 (Tex. Crim.
App. 2002) . . . . . . . . . . . . . . . . . . . 16
State v. Ortiz, 382 S.W.3d 367 (Tex. Crim.
App. 2012) . . . . . . . . . . . . . . . . . . . 5
Turner v. State, 805 S.W.2d 423 (Tex. Crim.
App. 1991) . . . . . . . . . . . . . . . . . . 14
Turro v. State, 867 S.W.2d 43 (Tex. Crim. App.
1993) . . . . . . . . . . . . . . . . . . . . . 13
Villarreal v. State, 935 S.W.2d 134 (Tex. Crim.
App. 1996) . . . . . . . . . . . . . . . . . . . 6
Texas Courts of Appeals
Delgado v. State, 840 S.W.2d 594 (Tex. App. –
Corpus Christi 1992) . . . . . . . . . . . . . . 16
Erivin v. State, 333 S.W.3d 151 (Tex. App. – Houston
[1st Dist.] 2010) . . . . . . . . . . . . . . . . 21, 24
Martinez v. State, 645 S.W.2d 322 (Tex. App. – Corpus
Christi 1982) . . . . . . . . . . . . . . . . . . . 11
Montgomery v. State, 198 S.W.3d 67 (Tex. App. – Ft.
Worth 2006) . . . . . . . . . . . . . . . . . . . . 16
Murray v. State, 24 S.W.3d 881 (Tex. App. – Waco
2000) . . . . . . . . . . . . . . . . . . . . . . 13
State v. Vasquez, 305 S.W.3d 289 (Tex. App. – Corpus
Christi 2009) . . . . . . . . . . . . . . . . . . . 11
v.
Wooden v. State, 101 S.W.3d 542 (Tex. App. – Ft.
Worth 2003) . . . . . . . . . . . . . . . . . . . 24
vi.
STATEMENT OF THE CASE
Appellant Roberto Cardenas Garza was charged by
indictment with the offense of capital murder. More
specifically, the State alleged at trial that Appellant, on
or about August 15, 2011, did then and there intentionally
and knowingly cause the death of David Alejandro Martinez
by shooting him with a firearm while in the course of
committing, or attempting to commit, the offense of
kidnapping. (RR. Vol. 31, p. 16). The Appellant entered a
not guilty plea to the charge before the jury at his formal
arraignment. (RR. Vol. 31, p. 16, ln. 21). The State did
not seek the death penalty.
After the State presented its evidence, the jury found
Appellant guilty of the offense of capital murder as
charged in the indictment, (RR. Vol. 33, p. 58), and the
trial court then imposed an automatic life sentence,
without parole, in accordance with the law. (RR. Vol. 33,
p. 63).
Appellant then timely filed his notice of appeal with
the trial court.
APPELLANT’S POINTS OF ERROR
APPELLANT’S POINT OF ERROR ONE:
The trial court abused its discretion in failing
1
to grant the Appellant’s pre-trial motion to suppress the
statements made to the police.
APPELLANT’S POINT OF ERROR NUMBER TWO:
The evidence introduced at the Appellant’s trial was
legally insufficient to support the jury’s guilty verdict
for the offense capital murder.
STATEMENT OF FACTS
The evidence presented at trial showed that, late in
the afternoon of August 17, 2011, police responded to a
call of a body found in an open filed at a remote location
in western Hidalgo County, Texas. Based on the evidence
found at the scene and the advanced decomposition state of
the body, the police immediately suspected foul play. The
initial investigation developed several potential suspects
and “persons of interest,” including the Appellant.
Days later, as police officers executed a search
warrant at Appellant’s house for possible evidence relating
to the body discovered in the open field, Appellant
approached his house from the adjacent roadway. However,
alarmed by the number of officers and police units at his
house, he did not stop. Not knowing what to do, he
immediately contacted his lawyer (who was representing him
2
in an unrelated drug case) and asked for his advice. His
lawyer, believing the presence of police was related to his
pending drug case, advised him to stop and return to the
residence.
Appellant promptly returned to his residence, but was
not allowed to go into his home. He was then detained,
without a warrant, and taken to the Hidalgo County
Sheriff’s Department, where police interrogated him for
over 20 hours, resulting in three separate statements in
which he ultimately admitted to being present when David
Martinez, the person later identified to be the body found
in the open field, was killed. (RR. Vols. 31 – 32).
SUMMARY OF THE ARGUMENT
The Appellant contends that the trial court abused its
discretion when it denied his motion to suppress all three
statements on the ground that his 5th Amendment right to
counsel was violated.
Without waiving the foregoing argument, the Appellant
further alleges that the evidence introduced at his trial
on the merits was legally insufficient to prove all of the
elements of the offense of capital murder beyond a
reasonable doubt.
3
APPELLANT’S POINT OF ERROR NUMBER ONE
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL
THREE OF APPELLANT’S CONFESSIONS ON THE GROUND THAT HIS
FIFTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED.
As stated earlier, upon arriving at his house while
police executed a search warrant on the premises, Appellant
was stopped, denied entry into his house, detained without
a warrant, and transported to the Hidalgo County Sheriff’s
Office in an unmarked police unit. There he remained,
incommunicado, for over 20 hours of continuous, repeated
interrogation by three investigators who took turns and
questioned him at different times. And, while Appellant
made a request to speak to his previously-retained lawyer,
the investigators denied his request, insisting he did not
a lawyer. Eventually, under the pressure of incessant
interrogation, Appellant gave three statements confirming
his presence at the murder scene. (RR. Vol. 20; See also,
Supplemental RR. Vol. 1, Exhibits A – E).
The Appellant filed a pre-trial motion to suppress,
which the trial court denied after an evidentiary hearing.
The Appellant contends the trial court erred in not
suppressing his three written statements because the
investigators violated his 5th Amendment right to counsel.
4
A trial court’s ruling of a suppression motion is
reviewed under an abuse of discretion standard. In
reviewing is factual and legal determinations in a
suppression hearing, the appeals court conducts a
bifurcated review. Montanez v. State, 195 S.W.3d 101
(Tex. Crim. App. 2006). Under this standard, almost
total deference is given to the trial court’s factual
determination, particularly on those questions and issues
that deal with the credibility of the witnesses. However,
the appeals court reviews de novo the trial court’s ruling
on mixed questions of law and fact which do not turn on the
credibility or demeanor of the witnesses, Johnson v.
State, 68 S.W.3d 644 (Tex. Crim. App. 2002), and those
determinations that present purely “legal rulings.”
State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012).
Thus, while affording almost total deference to the
findings of fact, the court reviews de novo the conclusions
of law to determine if the trial court abused its
discretion in denying the suppression motion and admitting
the confession. Montanez, supra. Of course, a trial
court’s ruling on a suppression motion must be upheld if it
is reasonably supported by the record and is correct on any
legal theory of law applicable to the case. Villarreal v.
5
State, 935 S.W.2d 134 (Tex. Crim. App. 1996).
At the suppression hearing, Appellant testified that,
having previously spoken to his lawyer (Eddie Medrano),
whom he had already retained in another pending case, over
the cell phone while being detained at his house, he
requested to speak to him upon being advised of his Miranda
rights at the Sheriff’s Office. The investigators,
however, insisted that a lawyer was unnecessary, and
declined his request.
Quite telling was the fact that, in indicating that he
understood his constitutional rights, he initialed all of
the Miranda warnings and waivers, with the exception of the
right to consult with a lawyer, a clear indication that he
was not waiving that particular right, and lending further
support to his contention that he never waived his right to
counsel, and had in fact asserted his right to speak to his
retained lawyer. (Vol. 20, pp. 109 – 120).
Each investigator testified that Appellant went to
the station voluntarily, that he was Mirandized prior to
the taking of each statement, that he understood his
constitutional rights, that he never requested to speak to
a lawyer, and that he voluntarily gave them the statements.
One investigator (Hernan Perez) did acknowledge that
6
Appellant had initialed only four of the five warnings /
waivers. (Herman Perez, RR. Vol. 20, pp. 6 – 36; Max Cantu,
RR. Vol. 20, pp. 37 – 75; Vic De Leon, RR. Vol. 20, pp. 75
– 93).
Appellant’s lawyer, Heriberto “Eddie” Medrano,
testified that he spoke to Appellant on his cell phone
while on his way to a court hearing in San Antonio, that
Appellant told him he police were at his house, and that he
was being detained. Believing that he was being detained
for a pending drug case for which he was representing
Appellant, he advised him to contact him once he got to
the Sheriff’s Office. Mr. Medrano further testified that
on his return from his court hearing, he and another lawyer
(Rudy Martinez) had stopped at the Sheriff’s Office to
speak to Appellant. Once there, he identified himself as
Appellant’s lawyer and requested to visit with Appellant,
but that an investigator, whom he identified as Max Cantu,
had told him Appellant did not want to talk to him
(Medrano). (RR. Vol. 20, pp. 95 – 104).
Attorney Rudy Martinez confirmed the conversation
between Medrano and Cantu. (RR. Vol. 20, pp. 105 – 109).
Investigator Cantu testified that he did not recall
speaking to Appellant’s lawyer, but indicated that it was
7
“possible.” Nonetheless, he claimed that, even if he had
had such a conversation with the lawyer, he opined that a
lawyer could not invoke the 5th Amendment right to counsel
on behalf of a client. (RR. Vol. 20, pp. 63 – 65).
The question of whether the Appellant was detained,
seized, and in custody is subject to a de novo review by
the appeals court. Johnson v. State, 414 S.W.3d 184 (Tex.
Crim. App. 2013).
In the case at bar, there is no question that
Appellant was in custody for purpose of the Miranda rule.
Miranda v. Arizona, 86 S. Ct. 1602 (1964). Given the facts
and circumstances surrounding his warrantless detention at
his house and his subsequent transportation to the
Sheriff’s Office, in a police unit, by a criminal
investigator, it is clear that, a reasonable person in his
position would have believed that his freedom of movement
was restrained to the degree associated with a formal
arrest. Stansbury v. California, 114 S. Ct. 1526 (1994).
Therefore, the subjective views of the investigators in
this case – all of whom attempted to characterize his
leaving with them as “voluntary,” since he was neither
handcuffed or under formal arrest – are immaterial. See,
Dothitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996).
8
Accordingly, Miranda was applicable and, once he requested
to speak to his retained lawyer, and all interrogations
should have ceased. Edwards v. Arizona, 101 S. Ct. 1880
(1981). Because the interrogations continued and the
investigators ultimately obtained the Appellant’s
statements, all three statements should have been
suppressed as they were a direct product of the violation
of Appellant’s constitutional right to a lawyer.
Moreover, Investigator Cantu’s observation that the
right to counsel cannot be invoked by a lawyer on behalf
of his client, is generally speaking accurate, Montelongo
v. State, 681 S.W.2d 47 (Tex. Crim. App. 1984), he clearly
misapplied the rule in the case at bar, and totally
mischaracterized the Appellant’s lawyer’s presence at the
Sheriff’s Office. Contrary to Cantu’s assertion, Mr.
Medrano was not there to invoke the Appellant’s right to
counsel, because Appellant had already done so; rather,
he was there to confirm an already existing attorney-
client relationship, Janeka v. State, 739 S.W.2d 813 (Tex.
Crim. App. 1987), and to exercise his right to visit
with, and speak to, his client. In fact, he had talked
to Appellant over the cell phone just hours earlier while
police were executing a search warrant on the house. That
9
Mr. Medrano was representing Appellant in an unrelated drug
case is neither controlling or relevant for purposes of the
legal analysis under Miranda. He was the Appellant’s
lawyer and he was there to protect his client’s interests.
More importantly, in this particular context, the
Miranda 5th Amendment right to counsel, unlike the 6th
Amendment right to counsel, is not offense specific.
Arizona v. Roberson, 108 S. Ct. 2093 (1988), and Mr. Medrano
could have talked to Appellant in his capacity as his
current lawyer, even though he had not been retained for
the offense for which Appellant was being questioned.
The investigators knew, from the outset, that their
express questioning was reasonably likely to elicit
incriminating responses. Rhode Island v. Innis, 100 S. Ct.
1682 (1980). At the suppression hearing – and even at
trial – the investigators unabashedly admitted that their
purpose in taking him to the station was to secure a
confession from the Appellant.
Appellant invoked his right to counsel, yet they
ignored his request, and continued with their questioning.
That Appellant then continued to cooperate and talk with
the investigators, even after invoking his right to
counsel, is of no moment and cannot be construed as a
10
waiver of his right to a lawyer. Edwards v. Arizona,
supra; Martinez v. State, 645 S.W.2d 322 (Tex. App. –
Corpus Christi 1982).
The facts established that Appellant invoked his right
to counsel under Miranda. His lawyer did not show up at
the station out of an act of benevolence or clairvoyance.
He was there because of an already existing attorney-client
relationship, and he wanted to consult with his client.
Reviewing the testimony objectively and under the
totality of circumstances present in the case, Davis v.
U.S., 114 S. Ct. 2350 (1994); Pecina v. State, 361 S.W.3d
68 (Tex. Crim. App. 2012), the evidence demonstrates that
the Appellant invoked his 5th Amendment right to counsel.
Accordingly, because the statements obtained by the
police were a direct and immediate consequence of a
relentless interrogation conducted in violation of his
Miranda’s right to counsel, all three of Appellant’s
statements should have been suppressed and excluded at
his jury trial.
The trial court abused its discretion in failing to
grant the Appellant’s motion to suppress his statements.
Martinez v. State, supra; State v. Vasquez, 305 S.W.3d 289
(Tex. App. – Corpus Christi 2009).
11
APPELLANT’S POINT OF ERROR NUMBER TWO
THE EVIDENCE ADDUCED AT APPELLANT’S TRIAL WAS LEGALLY
INSUFFICIENT TO SUPPORT THE JURY’S GUILTY VERDICT FOR THE
OFFENSE OF CAPITAL MURDER
Appellant contends that the evidence presented for the
jury’s consideration at his trial was legally insufficient
and failed to prove beyond a reasonable doubt that he
intentionally and knowingly caused the death of David
Alejandro Martinez.
In reviewing the legal sufficiency of the evidence,
the appeals court examines all of the evidence in the light
most favorable to the verdict in order to determine whether
any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 116 S. Ct. 717 (1996); Denton v. State, 911
S.W.2d 388 (Tex. Crim. App. 1995). The Texas Court of
Criminal Appeals has determined that the legal sufficiency
review is the only standard that an appellate court must
undertake to ascertain whether the evidence is sufficient
to support each element that the State is required to prove
to the jury. Brooks v. State, 323 S.W.3d 895 (Tex. Crim.
App. 2010). This standard is the same for both direct and
circumstantial cases. Burden v. State, 55 S.W.2d 608 (Tex.
Crim. App. 2001). Guided by this standards, the evidence
12
is measured by the elements of the offense as defined by a
hypothetically correct charge for the case, Malik v. State,
953 S.W.2d 234 (Tex. Crim. App. 1997), and the appeals
court considers all the evidence adduced at trial,
regardless of whether or not it was properly admitted.
Murray v. State, 24 S.W.3d 881 (Tex. App. – Waco 2000).
The jury, as the trier of fact, is the sole judge of the
credibility of the witnesses and of the strength of the
evidence, and it may choose to believe or disbelieve any
portion of the witnesses’ testimony. Fuentes v. State, 991
S.W.2d 267 (Tex. Crim. App. 1999). When faced with
conflicting evidence, the appeals court presumes the jury
resolved conflicts in favor of the prevailing party. Turro
v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993). Moreover,
the appeals court must affirm the verdict if it determines
that, based on the evidence presented, any rational trier
of fact could have found all the essential elements of the
charged crime beyond a reasonable doubt. McDuff v. State,
939 S.W.2d 607 (Tex. Crim. App.1997).
In the case at bar, in order to prevail under the
foregoing legal standard, the State had to prove beyond a
reasonable doubt that the Appellant, on the alleged date,
intentionally and knowingly caused the death of another in
13
the course of committing a kidnapping. Tex. Pen. Code,
Sect. 19.03(a)(2). Under the law, a person acts
“intentionally,” or with intent, with respect to the
nature of his conduct or to a result of his conduct when it
is his conscious objective or desire to engage in the
conduct or cause the result, Tex. Pen. Code, Sect. 6.03(a),
and acts “knowingly,” or with knowledge, with respect to
the nature of his conduct or to circumstances surrounding
his conduct when he is aware of the nature of his conduct
or that the circumstances exist. A person acts knowing, or
with knowledge, with respect to a result of his conduct
when he is aware that his conduct is reasonably certain to
cause the result. Tex. Pen. Code, Sect. 6.03(b).
Additionally, in a capital murder case, the State must
prove that the accused committed the underlying aggravating
crime (in this instance, kidnapping), Patrick v. State, 906
S.W.2d 2481 (Tex. Crim. App. 1995); Rodriguez v. State, 146
S.W.3d 674 (Tex. Crim. App. 2004), and prove that the
accused, not only intended to engage in the act that
caused the death, but also that he had the specific intent
to cause the death of the individual. Turner v. State, 805
S.W.2d 423 (Tex. Crim. App. 1991).
Given the statutory definitions, it is clear that the
14
mental state criminalized is the state of mind that
contemplates the particular prohibited result. See,
Haggins v. State, 785 S.W.2d 827 (Tex. Crim. App. 1990).
In this particular case, then, the State had to prove,
beyond a reasonable doubt, that Appellant intentionally or
knowingly caused the kidnapping and death of David
Alejandro Martinez.
As the record on appeal demonstrates, the State’s
witness testimony, together physical and forensic evidence
introduced at trial, failed to establish beyond a
reasonable doubt that Appellant intentionally or knowingly
– and with the requisite specific intent – killed David
Martinez.
Before addressing the legal insufficiency of the
evidence, and without waiving his first point of error
(but assuming, arguendo, that the court overrules it),
the Appellant readily acknowledges that he gave
three detailed statements to the police regarding the
events leading up to that fateful day. However, it is well
settled law that a person may not be convicted upon his
extrajudicial confession alone; rather, the State must
establish all the elements of the crime for which he is
charged totally independent of the confession. In short,
15
there must be sufficient, independent evidence tending to
corroborate the facts contained in the confession. Salazar
v. State, 86 S.W.3d 640 (Tex. Crim. App. 2002); Delgado v.
State, 840 S.W.2d 594 (Tex. App. – Corpus Christi 1992).
The evidence in the case at bar, contrary to the
assertion of the State at trial, corroborates the
Appellant’s statements that he did not harbor the specific
intent to kill Martinez, as alleged in the indictment.
Appellant openly admits to putting the zip ties on
Martinez - but only at the insistence (and under the
direction) of - “Pepe,” and accompanying them (as a
passenger in Pepe’s truck) to a couple of houses where
Martinez claimed the others responsible for stealing the
Marijuana lived, and then to the open filed where
Martinez was ultimately murdered. However, none of those
acts rose to the level of having engaged in the intentional
and knowing conduct contemplated by the statute. Proof of
a culpable mental state invariably depends upon
circumstantial evidence, Montgomery v. State, 198 S.W.3d 67
(Tex. App. – Ft. Worth 2006), and intent can be inferred
from the facts and circumstances regarding the event in
question. Patrick v. State, Id, supra.
However, a close examination of the Appellant’s
16
statements does not show that, by engaging in the conduct
in which he admits doing, it was “his conscious objective
or desire to engage in the conduct or cause the result,” or
that “he (was) aware that his conduct (was) reasonably
certain to cause the result.” In other words, by having
placed the zip ties on Martinez and then riding as a
passenger in the pickup truck driven by Pepe to the homes
of Martinez’s alleged cohorts and finally to the remote
area, it was not Appellant’s “conscious objective or
desire” to cause Martinez’s death; or, that, even by having
engaged in such conduct, he had the specific intent to
cause his death.
The evidence introduced at trial in this case, when
coupled with the Appellant’s statements to the police,
clearly supports his contention that he did not engage in
any act or course of conduct – with the requisite intent or
knowledge as contemplated by the capital murder statute –
to kidnap and kill Martinez.
The testimonial, physical, scientific and forensic
evidence was scant and did not support the State’s theory
that Appellant intentionally and knowingly murdered
Martinez, either as a principal or party.
More specifically, neither the witness testimony nor
17
any of the forensic evidence introduced before the jury
established, beyond a reasonable doubt, that the Appellant
killed Martinez in the course of committing, or attempting
to commit, his kidnapping.
The crime scene specialists and evidence technicians
collected a number of items, both at the crime scene and
the Appellant’s home, mechanic shop, and vehicles.
However, none of the items recovered – shotgun shell,
casing, zip ties, tire tracks, and empty gun holsters –
was connected to the Appellant or to the murder. In fact,
the witnesses made clear that the evidence recovered could
not be in any way specifically attributed to the Appellant
or directly tie him to the murder. (RR. Vol. 31, pp. 27 –
217). Additionally, the State’s firearms expert
unequivocally testified that neither the casing nor
cartridges he examined matched the one found at the crime
scene, and that the weapon recovered by police, and which
he test-fired, was definitely not the murder weapon. (RR.
Vol. 31, pp. 39 – 56).
Even the State’s key witness, Jose Francisco
Rodriguez, who was the person the investigation determined
actually picked up Martinez and drove him over to, and
dropped him off with, the perpetrators at the mechanic
18
shop failed to identify in open court – by name or physical
description – the Appellant. In fact, when specifically
asked by the State on direct examination if the person(s)
who had requested that he (Rodriguez) take Martinez to the
shop were present in the courtroom, he neither identified
or acknowledged the Appellant. (RR. Vol. 31, pp. 250 –
251).
The State’s entire case was predicated exclusively on
the Appellant’s three statements given to the
investigators. (RR. Vol. 32`, pp. 56 – 276)(See also, SX
148, SX 149, and SX 151). There was a total absence of
physical, testimonial, or forensic evidence to tie the
Appellant to the capital murder of Martinez.
In fact, when Appellant’s counsel pointedly asked Vic
De Leon, the main investigator in the case, what evidence
he had that Appellant had actively participated in
Martinez’s kidnapping and murder, he candidly stated that
there was nothing “other than what Robert (Appellant) was
telling me.” (RR. Vol. 32, p. 269, line 20). He also
reiterated that none of the physical or forensic evidence
found at the crime scene and at the Appellant’s home,
mechanic shop, and vehicles connected, or even implicated,
him in the kidnapping / murder of Martinez. (RR. Vol. 32,
19
pp. 250 – 256). When further pressed about the basis for
the issuance of the arrest warrant, Investigator De Leon,
again, stated without hesitation or reservation, that it
was “his (Appellant’s) confession.” (RR. Vol. 32, p. 259).
Although the Appellant was charged as a principal with
Martinez’s death, the case also was submitted to the jury
under the law of parties. Sect. 7.02, Texas Penal Code.
Nonetheless, the State was unable to prove Appellant’s
guilt under either theory.
Certainly, there was legally insufficient evidence to
establish, beyond a reasonable doubt, that Appellant,
alone, acting as a principal, kidnapped and murdered
Martinez. So too, the State had legally insufficient
evidence to make Appellant criminally responsible for
Martinez’s death under the law of parties. There was
no evidence to show that, acting with the intent to assist
the commission of the crime, the Appellant solicited,
encouraged, directed or aided Pepe to commit the
kidnapping and murder involved here.
In order to hold Appellant criminally responsible
under the law of parties for the capital murder, the State
had to provide some evidence of a common scheme or
understanding to commit the crime. Gross v. State, 380
20
S.W.3d 181 (Tex. Crim. App. 2012).
While unquestionably the Appellant placed himself at
the scene of the crime by virtue of his statements to the
police, mere presence at the crime scene will not be
sufficient to convict a person of a crime under the law of
parties. In order to hold a person responsible for the
conduct of another, the evidence must show that, at the
time of the offense, the parties were acting together in
concert for a common purpose, with each contributing some
part towards the execution of the crime – here, the
kidnapping and murder of Martinez.
For example, in Adames v. State, 353 S.W.3d 854 (Tex.
Crim. App. 2011), the Appellant was found guilty of capital
murder under the law of parties. In that case, however,
the Appellant actively participated in the kidnapping and
murder of the victim. He knew, at the time he was told to
inject the victim with heroin, that it was for the specific
purpose of causing her death. Then, with full knowledge of
of her impending death, Appellant, along with the other co-
defendants, placed her in a vehicle, drove her to a remote
area, and dumped her body.
Similarly, in Ervin v. State, 333 S.W.3d 187 (Tex.
App. – Houston [1st Dist.] 2010), the jury likewise found
21
the Appellant guilty of capital murder. But, again, like
the Appellant in Adames, supra, Appellant actively
participated with her co-defendants, from beginning to end.
The Appellant, with full appreciation and knowledge that
her co-conspirators were going to rob and kill the victim,
she drove them to the carwash where the victim was located.
There, she dropped them off as they stepped out with loaded
weapons and donned masks and hoodies to conceal their
identities. She waited down the street while they committed
the crime. Upon hearing the gunshots, she then drove to
the carwash, pick them up, and took them over to one of the
co-conspirator’s house.
As can be gleaned from these cases, and other
authorities cited therein, the level of participation and
knowledge required for a conviction under the law of
parties is one of an active, knowing, engaging, and ongoing
role, a far cry from the one involved in this particular
case.
The facts in this particular instance did not involve
the requisite knowledge or participation to hold Appellant
criminally responsible for Martinez’s death under the law
of parties.
While placing the zip ties around Martinez’s hands
22
restrained his hands, it by no means restrained his
movements. Unlike the facts in Adames, supra, where the
Appellant injected the victim with heroin with the intent
to kill her, it was clear, from the surrounding
circumstances, that the reason Pepe wanted Martinez’s
hands immobilized was to prevent Martinez from engaging in
a physical confrontation with him, since as soon as
Appellant put on the ties, Pepe began beating Martinez.
It is inconceivable that Appellant could have
reasonably anticipated that Pepe would then kidnap
Martinez.
As the events were unfolding, the Appellant’s
reasonable belief for the purpose of taking Martinez for
a ride in the truck was so that he could tell Pepe where
Paco and the other man (both of whom had helped him
steal the marijuana) lived. It was not until Pepe drove
to a remote, grassy area that he then realized Pepe was
not content with just finding out where the men lived;
he wanted to kill Martinez.
Appellant never actively participated, encouraged,
aided, or abetted Pepe in any way to either kidnap and
murder Martinez. Concededly, while he was present during
the entire encounter between Pepe and Martinez, his
23
presence was without full appreciation of what Pepe was
contemplating on doing to Martinez.
Unlike the cited cases, then, the evidence introduced
at Appellant’s trial failed to establish that Appellant
encouraged the commission of the offense by acts, words, or
agreement. Wooden v. State, 101 S.W.3d 542 (Tex. App. –
Ft. Worth 2003); Ervin v. State, 333 S.W.3d 151 (Tex. App.
– Houston [1st Dist.] 2010).
A rational jury could not have determined from the
state of the evidence that the Appellant, acting with the
intent to promote or assist Pepe, either solicited,
encouraged, directed, aided or abetted him in committing
the murder while in the course of committing the offense
of kidnapping. Herrin v. State, 125 S.W.3d 436 (Tex. Crim.
App. 2002).
The testimonial facts adduced at trial, together with
the corresponding forensic and physical evidence collected
at the crime scene, and Appellant’s home, business, and
vehicles, including the Appellant’s statements, failed to
establish, beyond a reasonable doubt that Appellant
intentionally or knowingly – and with the requisite
specific intent – caused the death of David Martinez,
either as a principal or party.
24
Accordingly, examining all of the pertinent evidence
in the light most favorable to the verdict, it is evidently
clear that no rational trier of fact could have found all
of the essential elements of the offense of capital murder
beyond a reasonable doubt.
Therefore, the Appellant requests that the court
sustain this point of error, and reverse the jury verdict
in this cause with respect to the charge of the capital
murder.
CONCLUSION
Appellant demonstrated that he invoked his right to
counsel prior to being questioned by the investigators, and
that all three statements were obtained in violation of his
right to counsel. In that regard, then, the trial court
abused its discretion in failing to grant Appellant’s pre-t
trial motion to suppress.
Additionally, Appellant has established that the
evidence adduced at his trial was legally insufficient to
support the jury’s guilty verdict for the offense of
capital murder, because the State failed to prove that
Appellant intentionally, knowingly, and with the specific
intent, caused the death of Martinez in the course of
committing his kidnapping.
25
PRAYER
Therefore, in light of the foregoing facts, arguments,
and legal authorities, the Appellant respectfully requests
that the court reverse the jury’s guilty verdict and remand
the case for a new trial if it sustains Point of Error
Number One. Alternatively, and without waiving the
foregoing arguments in Point of Error Number One, if the
court sustains Point of Error Number Two, then the
Appellant requests that the court vacate the jury’s guilty
Verdict, enter a judgment of acquittal, and discharge the
Appellant.
Respectfully Submitted,
Alfredo Morales, Jr.
Attorney at Law
P. O. Box 52942
McAllen, TX 78505
(956) 536-8800 TEL
(956) 381-4269 FAX
EMAIL: amjr700@gmail.com
/S/ Alfredo Morales, Jr.
_______________________
ALFREDO MORALES, JR.
STATE BAR NO. 14417290
26
CERTIFICATE OF SERVICE
I, Alfredo Morales, Jr., hereby certify that a true
and correct copy of the foregoing Appellant’s Brief was
hand-delivered to the Hon. Glenn Devino, ADA, appellate
counsel for the State, at the Hidalgo County Courthouse,
100 N. Closner, Edinburg, TX 78539, on this the 26th day
Of August, 2015.
/S/ Alfredo Morales, Jr.
_______________________
ALFREDO MORALES, JR.
CERTIFICATE OF COMPLIANCE
In accordance with Rule 9.4(i)(3) of the Amended Rules
of Appellate Procedure, I, Alfredo Morales, Jr., counsel of
record for Appellant, hereby certify that, relying on the
word count of the computer program used to prepare
Appellant’s Brief herein, the brief contains 6,807 words.
/S/ Alfredo Morales, Jr.
________________________
ALFREDO MORALES, JR.
27