Robert Fitch v. the State of Texas ( 2021 )

Modify and Affirm and Opinion Filed December 16, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00423-CR
ROBERT FITCH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F-1775148-K
MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Goldstein
Opinion by Justice Nowell
A jury convicted Robert Fitch of murder. After finding an enhancement
paragraph true, the jury assessed punishment at 40 years’ confinement. In four
issues, appellant argues the evidence is insufficient, the jury charge contains
numerous errors that caused egregious harm, and the trial court abused its discretion
by overruling his hearsay objection. In a single cross-issue, the State requests we
modify the judgment. We modify the trial court’s judgment and affirm as modified.
FACTUAL BACKGROUND
Miguel Gonzalez was murdered on November 4, 2016. Paramedics found his
body lying in an intersection in Dallas County; when authorities arrived, Gonzalez
was barely breathing and his body was wrapped in a tarp with rope. Gonzalez died
before he reached the hospital. Appellant was one of several people charged in
connection with Gonzalez’s death.
In November 2016, Rigo Reyna, Melissa Peña, Maime Cabrales, and others
lived in a house on Silversprings Drive in Dallas County, close to the intersection
where Gonzalez was found. Cabrales described the house as a “trap house” operated
by Reyna where people bought, sold, and used drugs, including methamphetamine,
Xanax, and heroin. Appellant did not live in the house, but he frequented the house;
appellant and Reyna had been friends for a long time and they considered themselves
like brothers. Another friend of Reyna, Richard Yzaguirre, also frequented the
house.
Gonzalez was dating Daniela Baron when he learned that Baron was having
sex with Reyna. Several days before November 4, 2016, Gonzalez, under the
influence of drugs, went to the trap house and kicked in the front door. Reyna came
out of his bedroom, and Gonzalez confronted him about having sex with Baron.
Reyna told Gonzalez to leave the house until he sobered up. Before leaving,
Gonzalez shot a single round from his gun through the ceiling of the house, but
Reyna “laughed it off.” One or two days later, Gonzalez returned to the trap house.
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An unnamed man was in the passenger seat of Gonzalez’s truck. Gonzalez got out
of the truck, knocked on the front door, and yelled at Reyna to come outside. Reyna
exited the house and spoke with Gonzalez. Although the passenger remained in the
truck, he pointed an assault-type rifle at Reyna through the windshield. Reyna told
Gonzalez: “If you’re going to shoot me, just do it.” He also told Gonzalez to tell the
passenger to lower the gun, and Gonzalez complied. As Gonzalez was high again,
Reyna reiterated he only wanted to talk to Gonzalez when Gonzalez was not
drugged, and Gonzalez left.
On November 4, numerous people were in and out of the house throughout
the day. In the evening, Baron called Gonzalez to the trap house because Reyna
wanted to talk to him. After Gonzalez arrived, he went into Reyna’s room along with
Reyna, Baron, Peña, Yzaguirre, and appellant. Before she entered the room, Baron
asked Reyna and appellant: “are we going to do this or what?”
Gonzalez and Reyna talked about the money Gonzalez owed to Reyna;
Gonzalez and Reyna also may have argued about Reyna having sex with Baron. At
some point during the discussion, Gonzalez reached toward his left hip with his right
hand and pulled a .9 millimeter gun from his pants. Baron announced Gonzalez had
a gun, and Reyna, Yzaguirre, and appellant tried to gain control over the gun. At
some point while they were wrestling for the gun, Baron hit Gonzalez in the head
once or twice with a butane bottle that was approximately the size of a hair spray
can. While the men wrestled for control of the gun, the gun fired a round that went
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into a wall; the shot may have been accidental and it did not hit a person. While
Gonzalez had control over the gun, appellant left the room, went to the kitchen, and
returned with a knife. Appellant stabbed Gonzalez “a couple of times.”
One of the men took the gun from Gonzalez, and the gun was not seen again.
Reyna, Yzaguirre, and appellant began punching Gonzalez, although the testimony
is unclear whether the punching started before they wrestled the gun away from
Gonzalez. Reyna, Yzaguirre, and appellant punched Gonzalez numerous times in his
face and upper body. After losing the gun, Gonzalez did not fight back. A lot of
blood flowed from Gonzalez’s nose and back. Gonzalez eventually lost
consciousness.
Once Gonzalez regained some consciousness, the men told him to go into the
backyard. Dazed and stumbling, Gonzalez went to the back porch along with Reyna,
Baron, and appellant. While Gonzalez was lying on the back porch, Reyna hit him
“a couple of times” with an item that Peña thought looked like a two-by-four.
Gonzalez’s body was then wrapped in a tarp and placed in the back of his truck,
which Peña had moved to the back yard. Reyna, driving Gonzalez’s truck, and
appellant, driving his own car, left the property. About twenty minutes later, Reyna
and appellant returned to the house in appellant’s car; Gonzalez’s truck was not
returned to the trap house. After Gonzalez was taken from the house, several people
began cleaning large quantities of blood from the floors, walls, and back porch.
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Police executed a search warrant on the trap house several months later. They
found evidence of blood in the room where Gonzalez was beaten, in the hallway, on
the back porch, and in other places in the house. Much of the blood belonged to
Gonzalez.
Using photographs of the body, the medical examiner described Gonzalez’s
injuries, including a fractured skull and stab wound to his back. The stab wound
penetrated about five inches into the muscle. The medical examiner testified the stab
wound was “a nonlethal injury.” He later explained he calls such stab wounds
“potentially lethal injuries from the standpoint that if left untreated, you could get
muscular vessels that bleed or it can get infected. It’s not rapidly lethal. The blunt
force injuries are the rapidly lethal injuries.” The stab wound did not kill Gonzalez,
but the stab wound was “potentially fatal in the absence of blunt force injuries.”
Blunt force injuries caused Gonzalez’s death.
Appellant and Reyna were tried together. The jury convicted appellant and
Reyna of murder. Appellant appeals.1
LAW & ANALYSIS
A. Sufficiency of the Evidence
In his first issue, appellant argues the evidence is insufficient to support his
conviction. The State responds that appellant’s first issue is multifarious and,
1
Reyna’s appeal was handled separately. See Reyna v. State, No. 06-20-00090-CR, 2021 WL 297585,
at *1 (Tex. App.—Texarkana Jan. 29, 2021, pet. ref’d) (mem. op., not designated for publication).
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alternatively, the evidence is sufficient. We agree with the State. An issue is
multifarious if it raises multiple complaints or grounds for reversal in a single issue.
Killian v. State, No. 05-19-00227-CR, 2020 WL 2847275, at *10 (Tex. App.—
Dallas June 2, 2020, pet. ref’d) (mem. op., not designated for publication) (citing
Busby v. State, 253 S.W.3d 661, 667 (Tex. Crim. App. 2008); In re S.K.A., 236
S.W.3d 875, 894 (Tex. App.—Texarkana 2007, pet. denied)). By combining
independent grounds together in a single issue, an appellant risks rejection of his
arguments on the basis that nothing has been presented for review. Id. (citing Wood
v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000) (refusing to address
multifarious grounds)). The Texas Court of Criminal Appeals repeatedly has warned
litigants that raising multifarious points of error presents nothing for review. See
Wood , 18 S.W.3d at 649 n.6.; see also County v. State, 812 S.W.2d 303, 308 (Tex.
Crim. App. 1989) (“Appellant presents nothing for review in this point of error
because his argument is multifarious.”); Mays v. State, 318 S.W.3d 368, 385 (Tex.
Crim. App. 2010); Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990);
Taylor v. State, No. 05-95-01172-CR, 1997 WL 468425, at *2 (Tex. App.—Dallas
Aug. 18, 1997, pet. ref’d) (not designated for publication) (“A point of error is
multifarious if it combines more than one contention in a single point. . . . A
multifarious point of error presents nothing for our review.”) (internal citations
omitted)).
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Appellant’s first issue includes numerous propositions, including: (1) the legal
standard for considering accomplice-witness testimony and an argument that there
is insufficient evidence corroborating Peña’s testimony,2 (2) two arguments that the
credibility of a key witness is a critical issue and the jury should have been provided
with additional information about one specific witness’s criminal background so the
jury could properly assess her credibility, (3) a request that we take judicial notice
of records filed with the Dallas County District Clerk, (4) an argument that the jury
charge includes erroneous instructions, (5) an argument that Peña could not
accurately recall the events that occurred and Peña simply agreed with the prosecutor
who examined her in violation of Texas Rule of Evidence 611, and (6) an assertion
the evidence is legally insufficient to show the attacks on Gonzalez were not
immediately necessary to prevent Gonzalez from harming others. Because appellant
bases his first issue on multiple legal theories, his first issue is multifarious. See
Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (citing TEX. R. APP. P.
38.1); see also Jenkins v. State, 493 S.W.3d 583, 605 n.50 (Tex. Crim. App. 2016).
However, in the interest of justice, we will review the evidence to determine whether
it is sufficient to support the conviction.
To evaluate the sufficiency of the evidence, we consider the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact
2
Appellant provides the legal standard for considering accomplice witness testimony on page 43 of his
brief and argues there is insufficient evidence corroborating Peña’s testimony on page 67 of his brief;
several of the other listed arguments appear between the two.
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could have found the essential elements of the offense beyond a reasonable doubt.
Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014); see also Jackson
v. Virginia, 443 U.S. 307 (1979). “This standard tasks the factfinder with resolving
conflicts in the testimony, weighing the evidence, and drawing reasonable inferences
from basic facts.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015).
Our duty is to ensure that the evidence presented supports the jury’s verdict and that
the State has presented a legally sufficient case of the offense charged. Montgomery
v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). “[O]ur role is not to become
a thirteenth juror,” and we “may not re-evaluate the weight and credibility of the
record evidence and thereby substitute our judgment for that of the fact-finder.”
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), modified by Guidry
v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999).
Relevant here, a person commits the offense of murder if he intentionally or
knowingly causes the death of an individual or if he intends to cause serious bodily
injury and commits an act “clearly dangerous to human life” that causes the death of
an individual. TEX. PENAL CODE § 19.02(b)(1), (2). A person acts intentionally or
with intent with respect to the nature of his conduct or to the result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the
conduct to result. Id. § 6.03(a). A person 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
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person acts knowingly, 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. Id.
§ 6.03(b).
The indictment charged appellant with intentionally and knowingly causing
the death of Gonzalez by “causing blunt force injuries to the deceased with an
unknown object, a deadly weapon, the exact nature and description of which is
unknown and unknowable to the grand jury and by causing sharp force injuries to
the deceased with an unknown object, a deadly weapon, the exact nature and
description of which is unknown and unknowable to the grand jury.”3
Evidence shows that three men, including appellant, were punching Gonzalez
and continued attacking him after he no longer had control over the gun and after he
was not fighting back. Appellant briefly left the bedroom to obtain a knife from the
kitchen. Appellant then stabbed Gonzalez a couple of times. Gonzalez was bleeding
heavily from his back as he stumbled out of the trap house. The medical examiner
testified a stab wound on Gonzalez’s back was about five inches deep into the
muscle. While this injury was not the cause of death, such an injury is a “rapidly
lethal injury” that, if left untreated, could be lethal.
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational fact finder could have found, beyond a reasonable doubt, each element
3
The language in the indictment appears in all capital letters.
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necessary to support the finding that appellant committed the offense of murder as
charged in the indictment. See Acosta, 429 S.W.3d at 624–25; TEX. PENAL CODE
§ 19.02(b)(1), (2). We overrule appellant’s first issue.
B. Jury Charge
Appellant phrases his second issue as follows: “The jury charge did not
distinctly set forth the law applicable to the case and expressed an opinion about the
weight of the evidence. These errors egregiously injured Fitch’s rights . . .” Within
his second issue, appellant argues the paragraph in the jury charge related to the
testimony of an accomplice witness is inadequate because the jury was not informed
that accomplices “often have incentives to lie” and, thus, the jury “should exercise
caution when considering the testimony of an accomplice.” He also argues the
charge failed to explain how one person may assume criminal responsibility for the
conduct of another, did not identify the other person, and did not limit or identify the
form of assistance that the jury could have considered. Within his second issue, he
also asserts the charge is erroneous because the trial court did not use language from
Texas Code of Criminal Procedure Article 38.14 (“Charge of the Court”), but instead
“the trial court instructed the jury that they [sic] did not even need to find Peña was
an accomplice witness.” He argues the trial court’s specific instruction about Peña
as an accomplice was “confusing” and “needed to incorporate the idea that Fitch was
being held criminally responsible for the conduct of Reyna.”
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Like his first issue, appellant’s second issue is multifarious because it presents
joinder of more than one legal theory and raises more than one specific complaint.
See Killian 2020 WL 2847275, at *10. Appellant’s second issue fails because it
presents multifarious joinder of grounds, which this Court disapproves. See id.Appellant also raises an alleged jury charge error in his third issue. However,
like his first and second issues, appellant’s third issue is multifarious. Appellant’s
third issue argues the following problems with the trial court’s charge: (1) the
paragraph titled “Application of Deadly Force in Defense of Person” should have
included the words “if any” in the phrase “but you further find [appellant] reasonably
believed that the use of deadly force [if any] on his part was immediately necessary
. . .” because the sentence as written implies he used deadly force; (2) the paragraph
titled “Self-Defense” should not have stated the “use of force against another is not
justified in response to verbal provocation alone” because (a) there was no evidence
that appellant or anyone else initially provoked Gonzalez to draw his gun and (b) the
doctrine of provocation involves a legal term of art; and (3) the trial court should
have included a different instruction about appellant’s right to use force. He argues
these errors (which his third issue does not specifically state he is challenging as
errors)4 caused egregious harm.
4
Appellant’s third issue states: “Fitch was egregiously harmed by the jury instructions about the
justified use of force.”
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Because appellant bases his third issue on multiple legal theories, his third
issue also is multifarious. See id. We decline to consider his arguments.
C. Hearsay Objection
In his fourth issue, appellant argues the trial court erred by overruling his
objection to hearsay evidence. We review a trial court’s decision to admit or exclude
evidence for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.
Crim. App. 2019); Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
The trial court abuses its discretion when it acts without reference to any guiding
rules and principles or acts arbitrarily or unreasonably. Rhomer, 569 S.W.3d at 669
(citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). We will
not reverse the trial court’s ruling unless it falls outside the zone of reasonable
disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018).
Mamie Cabrales lived in the trap house. She testified that on the afternoon of
November 4, 2016, she left the house and walked to a nearby game room. While she
was there, another woman who lived in the house, Tiffany, came into the game room;
Tiffany acted nervous because she had “just seen something.” Cabrales testified:
“[Tiffany] said she heard that they hurt that boy. They hurt that boy bad.” Appellant
objected to Cabrales’s testimony as hearsay, and the State maintained it was
admissible as a present sense impression. On appeal, appellant argues the trial court
erred by admitting the statement and the error impacted his substantial rights because
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“the sole possible relevance of this evidence was that someone at the scene told the
witness that the defendants hurt Gonzalez earlier that day.”
For purposes of this appeal, we will assume without deciding that the
admission of the statement was error. “A violation of the evidentiary rules that
results in the erroneous admission of evidence is non-constitutional error.” Delgado
v. State, No. 05-19-00821-CR, 2021 WL 4901565, at *18 (Tex. App.—Dallas Oct.
21, 2021, no pet. h.) (citing Jones v. State, 111 S.W.3d 600, 604 (Tex. App.—Dallas
2003, pet. ref’d)). We disregard any non-constitutional error that does not affect a
defendant’s “substantial rights.” TEX. R. APP. P. 44.2(b); see also Delgado, 2021 WL
4901565, at *18. A substantial right is affected if an error has a substantial and
injurious effect or influence in determining the jury’s verdict. Delgado, 2021 WL
4901565, at *18 (citing Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App.
2016)). An error does not affect substantial rights if the appellate court has “a fair
assurance from an examination of the record as a whole that the error did not
influence the jury, or had but a slight effect.” Macedo v. State, 629 S.W.3d 237 (Tex.
Crim. App. 2021). When deciding that question, we consider: “(1) the character of
the alleged error and how it might be considered in connection with other evidence;
(2) the nature of the evidence supporting the verdict; (3) the existence and degree of
additional evidence supporting the verdict; and (4) whether the State emphasized the
error.” Id.–13–
In this case, the evidence showed appellant acted with two other men to beat
Gonzalez until he was unconscious; they beat Gonzalez after Gonzalez no longer
had a gun and stopped fighting back. Appellant left the room where the beating was
taking place to obtain a knife; he then used that knife to stab Gonzalez, inflicting a
significant wound. Once Gonzalez regained some consciousness and was lying on
the back porch, Reyna hit him more than once with an item that may have been a
two-by-four. The men wrapped his body in a tarp, tied his body with rope, and loaded
the body into the back of Gonzalez’s truck. Gonzalez’s body was found in the middle
of a nearby intersection, and he died en route to the hospital. The medical examiner
testified Gonzalez died from blunt force injuries. All evidence at trial showed
Gonzalez was beaten very badly and beaten by multiple men. Tiffany’s statement
did not indicate which people hurt “that boy.” The State did not emphasize
Cabrales’s testimony about what Tiffany said to the jury.
Given the evidence of guilt in this record, we conclude any error by the trial
court in allowing Cabrales’s testimony about what Tiffany said did not influence the
jury or had but slight effect. Thus, any error did not affect appellant’s substantial
rights. We overrule appellant’s fourth issue.
D. Modification of Judgment
In a single-cross issue, the State requests we modify the judgment to correctly
show appellant was charged with only one enhancement paragraph and appellant
pleaded not true to the enhancement allegation. We agree the judgment incorrectly
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reflects appellant was charged with two enhancement paragraphs and pleaded true
to both. We have the power to modify the trial court’s judgment when we have the
necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–
30 (Tex. App.—Dallas 1991, pet. ref’d). Because the requested modification is
proper, we modify the judgment as requested.
CONCLUSION
We modify the trial court’s judgment and affirm the judgment as modified.
/Erin A. Nowell//
ERIN A. NOWELL
JUSTICE
200423f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERT FITCH, Appellant On Appeal from the Criminal District
Court No. 4, Dallas County, Texas
No. 05-20-00423-CR V. Trial Court Cause No. F-1775148-K.
Opinion delivered by Justice Nowell.
THE STATE OF TEXAS, Appellee Justices Molberg and Goldstein
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
Under the heading “1st Enhancement Paragraph,” we DELETE the phrase
“Pleaded True” and ADD the phrase “Pleaded Not True.”
Under the heading “2nd Enhancement Paragraph,” we DELETE the phrase
“Pleaded True” and ADD the letters “N/A.”
Under the heading “Finding on 2nd Enhancement Paragraph,” we DELETE
the phrase “Found True” and ADD the letters “N/A.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 16th day of December, 2021.
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