Benavides v. State
| Decision Date | 25 February 1999 |
| Docket Number | No. 01-94-00987-CR,01-94-00987-CR |
| Citation | 992 S.W.2d 511 |
| Parties | Edward John BENAVIDES, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
D. Jennings Bryant, Jr., La Porte, Henry L. Burkholder, III, Houston, for appellant.
John B. Holmes, Kevin P. Yeary, Houston, for appellee.
Before Justices COHEN, O'CONNOR, and ANDELL.
Appellant was indicted for capital murder. A jury convicted him of murder and assessed punishment at life imprisonment. Appellant contends the evidence was insufficient; the judge should have instructed the jury on the lesser included offense of voluntary manslaughter; and the judge erred by admitting extraneous offense type evidence. We affirm.
This case involves two raids of the same property. Although appellant was charged with the murder that occurred during the second raid, the facts of the first raid are important.
At 7:45 p.m. on August 12, 1993, the Harris County Organized Crime Task Force and the Houston Police Department SWAT team executed a warrant searching for cocaine (the first search). An informant had made a controlled cocaine purchase at the premises three days earlier and had previously purchased one-quarter kilogram of cocaine there. The premises searched consisted of four buildings--designated A through D at trial--surrounded by a fence. Houston Police Officer Mark Scales threw a "distraction device"--a light and sound bomb commonly called a "flash bang"--into building B, a house trailer. The officers found appellant in building B and handcuffed him, and they temporarily detained him while executing the warrant. Appellant was startled by the distraction device, but Officer Scales told him not to be concerned. Appellant was not arrested. Harris County Sheriff's Deputy Eleanor Marie Brown testified she heard appellant say that somebody could have been hurt or shot during the raid, but she did not think appellant was making a threat. Veronica Alvarado, who lived in building B, testified appellant told her and her children during the raid to calm down, or somebody might get hurt.
During the first raid, the police found in building A 1 a shotgun, .45 caliber handgun, and a drug ledger, and they arrested another person. The police also found 11 pistols and rifles in appellant's car and over $59,000, more than three-fourths of which was later attributed to appellant in a civil forfeiture judgment. They also seized "numerous military assault weapons," according to a subsequent search warrant affidavit. Narcotics dogs "alerted" on several locations in three of the buildings and on several vehicles in the yard. While officers were searching, they answered five telephone calls; three of the calls were from people ordering drugs.
At 5:30 a.m. on November 5, 1993, the officers executed another warrant searching the same premises for cocaine (the second raid). The raid team consisted of approximately 40 officers from the Harris County Organized Task Force and the Pasadena and Baytown Police Department SWAT teams. The raid team was under the command of Houston Police Department Sergeant R.J. Cuevas. Pasadena SWAT officers were assigned to search building A, the residence, and Baytown SWAT officers were assigned to search building B, the trailer. The raid was in response to information that a large sum of cash had been exchanged on the premises for cocaine on November 1. The search warrant described a suspect who resembled appellant.
The Pasadena SWAT officers wore dark gray camouflage, including dark gray ski-mask hoods, helmets, and goggles, and carried MP5 submachine guns. The MP5s had attached tactical lights, which the raid team members would turn on as they entered a building. On the night of the second raid, Officer Les Early's MP5 was the only gun that had a red, as opposed to white, lens on the tactical light. Officer Early used a red lens because the smoke from the distraction devices would reflect back white light. The camouflage gear did not have "police" written on it or any similar words that would identify the raid team members as peace officers. There were no lights on in building A before and during the raid, and the window blinds were closed. It was very dark at the time of the raid, and there was very little ambient light.
The raid team used bolt cutters to cut the heavy chain and padlock that secured the gate to the fence around the premises. Once inside the premises, the Pasadena SWAT team used a tow truck to pull burglar bars off the front door of building A. At the same time the bars were pulled off, Pasadena Police Sergeant Steve Devillier broke the window to the right of the door and yelled "Police," Pasadena Police Officer John R. Dombroa threw in a distraction device, and another officer threw in a second distraction device. The purpose of the distraction devices was to distract and disorient anyone inside the room. Although the devices were not powerful enough to cause blindness or deafness, they would impair a person's hearing for a few seconds. The two distraction devices detonated almost simultaneously. The officers carried a battering ram, but the door was unlocked.
The victim, Officer Leslie Early, was the first team member to enter building A, and he went to the right after entering. Officer Early's MP5 was equipped with a silencer for "suppressed fire." Sergeant Cuevas heard someone yell, "Police, get down." Pasadena Police Officer Steven Brown was the second SWAT team member to enter building A, and he went to the left after entering. Officer Brown testified that both he and Officer Early yelled "Police" when they entered. Pasadena Police Officer James M. Ford was the third SWAT team member to enter building A, and he also yelled "Police" when he entered. Police Officers Gene Keen and Daniel Wayne Pennington were the fourth and fifth SWAT team members to enter building A. Pasadena Police Officer Steven Johnson also entered building A.
Officer Ford heard Officer Early's gun discharge and then saw Early backing out of the front right room, saying he was hurt. Moreover, Officer Stephen Johnson testified that only three seconds elapsed from the time he dropped the battering ram and entered the building behind Officer Early until Early came backing out. Using the light source on his gun, Officer Ford saw appellant in the front right room. The lights were off in the room. Officer Ford could see, despite the smoke from the distraction device's discharge, because the smoke initially goes to the top of the room, then settles down after a few seconds. Appellant was on his knees on a bed, his hands were up in the air, and he yelled, "Okay, okay, okay, don't shoot, don't shoot." Officer Ford did not see a gun in appellant's hand. At that time, Officer Pennington came into the room and "covered" appellant. Officer Pennington did not hear any weapon discharge before he came into the room. Officer Brown, who went to the left front room, heard Officer Early say, "I'm down, I'm out." Officer Brown went to Officer Early, pushed him out towards the front door, and then went to the right front room. After the smoke from the distraction device cleared, Officer Brown saw appellant on a bed, with a gun lying nearby.
After the distraction device went off in the front right room of building A, Sergeant Devillier saw appellant through the window. Appellant was sitting on his knees on a bed, with his hands up, wearing night wear. Sergeant Devillier also saw Officer Pennington pointing a gun at appellant. Sergeant Devillier did not see appellant fire a gun, but he knew Officer Early fired his gun. Officer Keen encountered Officer Early as Early was staggering backwards. Officer Keen then went to the right front room and saw appellant kneeling on a bed with his hands in the air. Appellant told one of the officers that he thought the raid officers were "crash burglars." 2 Officer Keen did not hear any gunfire.
Officers Johnson and Pennington were originally assigned to batter in the front door with a ram. When they discovered the door was unlocked, they entered building A. Officer Johnson encountered Officer Early staggering out of the building. Pasadena Police Sergeant Kevin Wingerson testified that approximately 20 seconds elapsed from the time the two distraction devices discharged to the time the building was secured and the "all clear" signal was given.
Sergeant Wayman Allen, Jr., a Houston Police Department homicide investigator, arrived at the scene at 6:30 a.m. He found four bullet holes near appellant's bed and four spent shell casings that came from Officer Early's gun. Sergeant Allen also recovered a gun wedged between the bed's headboard and mattress, and one spent shell casing from it. The medical examiner testified that Officer Early died from a single gunshot wound.
Officer C.E. Anderson, a Houston Police Department firearms examiner, testified that the bullet recovered from Officer Early's body was fired from the gun found in the bedroom. He also testified that two bullets found near the bed were fired from Officer Early's gun. Robert Reynolds, a Houston Police Department criminalist, conducted an atomic absorption test on samples taken from appellant's hands. Reynolds did not find any metal or gunpowder residue on appellant's hands, but he stated that the test was not conclusive.
The search turned up $289,840 in cash, 15 guns, 31 pieces of gold jewelry, ledgers recording drug transactions, and 22 "pyro pops." An agreed civil forfeiture judgment states that appellant owned 75 percent of the cash. Appellant did not testify at trial.
The jury had the option to convict appellant of capital murder, murder, involuntary manslaughter, and criminally negligent homicide. The jury rejected his self-defense plea and convicted him of murder.
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