Alba v. State

• Decision Date: 28 June 1995
• Docket Number: No. 71487,71487
• Citation: 905 S.W.2d 581
• Parties: John Avalos ALBA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 581

905 S.W.2d 581

John Avalos ALBA, Appellant, v. The STATE of Texas, Appellee.

No. 71487.

Court of Criminal Appeals of Texas En Banc.

June 28, 1995.

Richard Weaver, McKinney, for appellant.

Tom O'Connell, Dist. Atty., and J. Matthew Goeller, Asst. Dist. Atty., McKinney, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

Appellant was convicted of capital murder for intentionally causing the death of an individual during the course of burglary. V.T.C.A., Penal Code, Section 19.03(a)(2). The jury answered the special issues affirmatively and punishment was assessed accordingly at death. Article 37.071(b), V.A.C.C.P. ¹ Appeal to this Court is automatic. Article 37.071(h). Appellant raises eight points of error. We will affirm.

Appellant does not challenge the sufficiency of the evidence. However, a brief summary of the facts will be helpful in resolving the points of error.

Viewed in the light most favorable to the verdict, the evidence at trial showed: On the morning of August 5, 1991, appellant went to the Plano Pawn Shop and purchased a .22-caliber semi-automatic pistol and a box of ammunition. At approximately 10:00 p.m. that evening, appellant arrived at the apartment of Gail Webb and Bob Donoho looking for his wife, Wendy. Upon finding Wendy at the residence, appellant sought to gain entry while Wendy and Webb attempted to shut the door on his arm. Appellant eventually fired his pistol into the back of the door and forced his way into the apartment. He told Wendy and Webb that "you bitches deserve this." Appellant then grabbed Wendy by the hair and pulled her halfway out of the apartment where he proceeded to pistol whip and shoot her three times. He shot her in the back of her head, her buttocks, and the middle of her back severing her spinal cord. ² She later died at the hospital.

Appellant next went after Webb who had run into the kitchen and was now crouching on the floor. Appellant stood over her and laughingly stated, "you deserve to die, bitch." He then shot her six times in the head and arms. Webb survived the attack.

During this time, Donoho had gone to the back bedroom to place an emergency "911" call. When he came out to check on Wendy and Webb, appellant asked him, "You want some of this?" and fired a shot at Donoho's head, missing by about twelve to fifteen inches.

Upon leaving the apartment, appellant was confronted by Misty Magers, the apartment manager, her boyfriend, and a neighbor. When the manager ran to call for help, appellant fired a shot in her direction and yelled, "I'm going to get you too, Misty." He then turned the gun on the other two and asked, "Do you want any of this?" They let appellant pass. As appellant was attempting to finally leave the complex, he ran into Officer Wallace Moreland of the Allen Police Department. Appellant told Moreland, "I'm getting the hell out of here. There's a crazy son of a bitch over there shooting people." Appellant then left. Moreland did not stop him because he was unaware that appellant was involved in the crime.

Appellant left the scene in his own car at a high rate of speed. He later abandoned his vehicle in Plano and fled on foot to a Plano bowling alley. There he came upon Ryan Clay, a teenager, working on a car in the parking lot. Appellant asked for a ride and when Clay stated that it was not his car appellant pointed his gun at him and again asked for a ride. Clay complied. However, before they could leave the parking lot, sixteen-year old Michael Carr, the owner of the car, stopped them. Carr, realizing something was not right, drove appellant as requested to a nearby neighborhood. Appellant was apprehended on August 6, 1991, after a lengthy stand-off with the police at a retail shopping center in Plano.

In his first point of error, appellant complains that the trial court erred in receiving the jury's verdict of guilty of capital murder under V.T.C.A., Penal Code, Section 19.03(a)(2), and subsequently the sentence of death, because Section 19.03(a)(2) was unconstitutionally applied to him. ³ Specifically, he asserts that the State used the killing of appellant's wife as the primary offense of murder and as an element of the underlying offense of burglary. He claims such "bootstrapping" violates the "narrowing" test under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). ⁴ We do not need to reach these arguments because appellant's complaint is without merit.

Section 19.03(a)(2) states that "[a] person commits [a capital] offense if he commits murder [by intentionally or knowingly causing the death of an individual] in the course of committing or attempting to commit ... burglary...." A person commits burglary if, without the effective consent of the owner, he enters a habitation, or a building not then open to the public, with the intent to commit a felony or theft. V.T.C.A., Penal Code, Section 30.02(a)(1). The indictment in the instant cause alleged that appellant "... intentionally cause[d] the death of an individual, Wendy Alba, by shooting the said Wendy Alba with a deadly weapon, namely, a firearm, and the said defendant was then and there in the course of committing and attempting to commit the offense of burglary of a habitation of Robert Guinn Donoho; ..."

In the instant case, appellant beat and murdered his wife after forcing his way into Webb's apartment at gunpoint, attempted to murder Webb by shooting her six times, and attempted to murder Donoho by shooting at him once. Appellant committed two completely separate felonies of attempted murder after forcing his way into the apartment. On appeal, he ignores these additional felonies. There was no need for the State to use the murder of appellant's wife as both the primary offense and an element of burglary. Further, the jury was instructed on the felony offense of attempted murder. ⁵ Point of error one is overruled.

In his second point of error, appellant complains that the trial court erred in failing to quash the indictment. Because appellant was charged with murder in the course of a burglary, he believes that fair notice dictates that the State should have been required to specifically allege the elements of the underlying offense of burglary. Further, he claims that because the indictment lacked specificity, the State was able to "bootstrap a 'burglary by murder' into a capital murder" by using the murder of Wendy Alba as both the primary and underlying offenses.

Appellant acknowledges that we have repeatedly held that an indictment need not allege the constituent elements of the underlying offense which elevates murder to capital murder. Barnes v. State, 876 S.W.2d 316, 323 (Tex.Cr.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994) (need not allege the constituent elements of burglary); Beathard v. State, 767 S.W.2d 423, 431 (Tex.Cr.App.1989) (burglary); Marquez v. State, 725 S.W.2d 217, 236 (Tex.Cr.App.), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987) (aggravated sexual assault). He raises no novel argument to persuade us to revisit these holdings. We further note that appellant's "bootstrapping" argument is sufficiently addressed in our discussion of the previous point of error. Point of error two is overruled.

Point of error three avers that the trial court erred in admitting evidence of the extraneous offense of kidnapping the two teenage boys at the guilt/innocence phase of trial. Specifically, he contends that the evidence was not relevant under Texas Rule of Criminal Evidence 404(b). ⁶ He further states that if the evidence was relevant its prejudicial impact outweighs its probative value. See Tex.R.Crim.Evid. 403.

It is improper to try a defendant for being a criminal, generally. Nobles v. State, 843 S.W.2d 503, 514 (Tex.Cr.App.1992). Therefore, an extraneous offense must be shown to be relevant apart from character conformity before it may be admitted into evidence. McFarland v. State, 845 S.W.2d 824, 837 (Tex.Cr.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). If relevant, then the extraneous offense must be shown to have more probative value than prejudicial impact. Id.; Foster v. State, 779 S.W.2d 845, 858 (Tex.Cr.App.1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1505, 108 L.Ed.2d 639 (1990). However, the trial court need not engage in this balancing test unless the opponent of the evidence further objects under Rule 403. McFarland, 845 S.W.2d at 837. If the proper objection is made, then the decision on admissibility lies within the discretion of the trial court. Id.; Foster, 779 S.W.2d at 858. Appellant objected under Rules 401, 403 and 404(b).

We have previously held that flight is admissible as a circumstance from which an inference of guilt may be drawn. Foster, 779 S.W.2d at 859. So long as the extraneous offense is shown to be a necessarily related circumstance of the defendant's flight, it may be admitted to the jury. Id.

As appellant explains, the complained-of evidence showed:

[Ryan Clay] was outside a Plano bowling alley working on some speakers in a friend's car when he was approached by a man he identified as appellant. The man asked for a ride and when Clay stated it was not his car the man pulled a gun. Clay and the man got into the car and, as they were driving out of the parking lot, Clay's friend, Michael Eugene Carr, came out of the bowling alley and stopped them. Clay told Carr this guy needs a ride. Clay got in the rear passenger Seat and Carr began to drive. Clay believed the man had the gun between his legs, however he did not point the gun at Carr or even exhibit it to Carr. Clay and Carr were with the man for maybe 10 to 15 minutes.

In the context of the evidence previously adduced at trial, the evidence also showed that the extraneous offense occurred: (1) within...