Canales v. State

• Decision Date: 15 January 2003
• Docket Number: No. 73988.,73988.
• Citation: 98 S.W.3d 690
• Parties: Anibal CANALES, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

98 S.W.3d 690

Anibal CANALES, Appellant, v. The STATE of Texas.

No. 73988.

Court of Criminal Appeals of Texas.

January 15, 2003.

Rehearing Denied March 19, 2003.

COPYRIGHT MATERIAL OMITTED

Paul Hoover, Jeff Harrelson, Texarkana, for appellant.

Mark Mullin, Special Prosecution Unit, Huntsville, Matthew Paul, State's Attorney, Austin, for state.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, WOMACK, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

A jury convicted appellant of capital murder pursuant to Section 19.03(a)(5)(B), Texas Penal Code, which makes it a capital offense for a person to knowingly or intentionally murder another person, while incarcerated in a penal institution, with the intent to establish, maintain, or participate in a combination or in the profits of a combination. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase. Appellant raises fifteen points of error in an automatic direct appeal to this Court. We affirm.

The evidence showed that appellant, while incarcerated in prison, was one of approximately 106 members of the Texas Mafia, a criminal organization that carries on assorted criminal activities. The evidence also showed that appellant and another inmate murdered the victim based on orders from a Texas Mafia member because the victim had interfered with some business dealings of the Texas Mafia. Appellant described the murder to another Texas Mafia member in a letter¹ in which appellant wrote:

Puff [the other inmate] put the hold on [the victim], and I [appellant] grabbed his arms. It went smooth. He lost consciousness right away, and struggled for a bit. I took the time to inform him who we were and why he's going to die. Puff told him, don't even fuck with the Texas mafia in hell. ha, ha, ha. Anyway, we made sure the dick sucker was dead, and I declared the hit complete. We put his shit smelling ass on the top bunk and went quietly out the door.

In support of appellant's alibi defense, appellant's lawyer read into the record a statement by another inmate who was unavailable to testify at appellant's trial for medical reasons.

[APPELLANT'S LAWYER]: This is a statement of Melvin Walker, an inmate at the Telford Unit. The statement was given July 23rd, 1997. Mr. Walker's housing assignment was 3-Building, Apod, Cell-29.

The statement reads as follows:

"At the time that this incident was supposed to have happened [appellant] was sitting in front of his cell. I was sitting there talking to him. Someone came in and said something had happened on B-Pod, and we had been sitting together for over an hour talking. [Appellant] was on cell restriction, and was staying close to his cell. We sat and rapped for over an hour before we heard something had happened.

Signed, Melvin Walker."

In point of error three, appellant argues that the trial court erroneously overruled his motion for a directed verdict and his objection to the jury charge at guilt/innocence on the basis that the evidence was insufficient to prove the "combination" element. We consider these claims to be a challenge to the legal sufficiency of the evidence to support the "combination" element of appellant's conviction. This requires the Court to view all of the evidence in the light most favorable to the verdict and then determine whether any rational trier of fact could have found this element of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butter v. State, 769 S.W.2d 234, 239 (Tex. Cr.App.1989).

The prosecution claimed that appellant murdered the victim with the intent to "participate in a combination." Section 19.03(a)(5)(B) does not define "combination." The Organized Crime section of the Penal Code, however, defines a "combination" as "three or more persons who collaborate in carrying on criminal activities." See Section 71.01(a), Texas Penal Code. That definition of "combination" was submitted to the jury in the court's charge without objection from either party and both parties rely on this definition of "combination" in their briefs to this Court. We will apply this definition of "combination" in this case.

PH Appellant argues that the evidence is insufficient to establish that "three or more persons who collaborate in carrying on criminal activities were involved in the [victim's] death, as is required under the statute to establish a combination" (internal quotations omitted). The State argues that it did not have to prove that three or more persons who meet the definition of "combination" in Section 71.01(a) were involved in the victim's death. The State argues that appellant could have acted alone in murdering the victim and still be guilty of capital murder under Section 19.03(a)(5)(B) so long as appellant murdered the victim with the intent to participate in a combination as defined by Section 71.01(a).

We agree. The evidence shows that three or more persons, including appellant, collaborated to kill the victim. Point of error three is overruled.

In point of error one, appellant claims that the trial court erroneously denied his mistrial motion after the prosecution commented on his failure to testify. The record reflects that, during closing jury arguments at guilt/innocence, appellant's lawyer made an assertion, unsupported by the record, that "they" (the Texas Mafia?) had appellant write the letter "with the understanding that [appellant] couldn't be prosecuted because he had an ironclad alibi."

[APPELLANT]: ... The only explanation is that they had [the recipient of the letter] solicit the letter from [appellant], with the understanding that [appellant] couldn't be prosecuted because he had an ironclad alibi, which he's got. He's got an ironclad alibi.

The prosecution responded in its closing jury arguments by rhetorically asking if there was "any other way for [appellant] to explain the letter."

[PROSECUTION]: [Appellant's lawyer] says that appellant wrote the letter because he had an ironclad alibi. Really, was there any other way for [appellant] to explain the letter? I mean really, what do you do if you're sitting over there and you have to explain this letter?

[APPELLANT]: Objection, Your Honor, I will have a motion.

[TRIAL COURT]: All right [sic], we'll take it up later.

[APPELLANT]: Take up at the conclusion.

[TRIAL COURT]: Yes, sir.

[PROSECUTION]: [Appellant's lawyer] explanation is that somehow [appellant] had an ironclad alibi, therefore, he wrote the letter. The logic doesn't follow. He's actually suggesting that [appellant] — if I understand him — that [appellant] knew the letter was going to be intercepted, and we get it, so it would take the heat off of somebody else. That's phenomenal — that's phenomenal to think that.

When appellant's counsel moved for a mistrial on the basis that the prosecution's jury arguments commented on appellant's failure to testify, the prosecution responded that it was rebutting statements appellant had made during his closing jury arguments. The trial court denied appellant's mistrial motion.

On appeal, appellant claims that the prosecution's arguments commented on his failure to testify primarily because they referred to appellant's (and not his lawyer's) explanation for why appellant wrote the letter. Appellant argues in his brief:

If the comment had been "Really, was there any other way for [appellant's lawyer] to explain the letter", it may not have been objectionable. However, the comment explicitly says "was there any other way for [appellant] to explain the letter", after Appellant had exercised his constitutional right not to testify.

(Emphasis in Original).

Prosecutorial comment that refers to an accused's failure to testify violates the accused's Fifth Amendment right against compelled self-incrimination. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Cr.App.2001). The comment must clearly refer to the accused's failure to testify, and it is not sufficient if it "might be construed as an implied or indirect allusion." Id. The "test is whether the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Id.

As we understand it, appellant argues that the prosecutor's rhetorical comment asking if there was any other way for appellant (not his lawyer) to explain the letter clearly referred to appellant's failure to testify and explain why he wrote the letter. However, given the context in which the prosecution's comment was made (as a response to the argument of appellant's lawyer speculating on why appellant wrote the letter), we cannot conclude that the jury necessarily took it as a comment that appellant's guilt could be inferred from appellant's failure to testify. Cf. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Cr.App.2000) (a permissible area for jury argument is "answer to argument of opposing counsel"). Point of error one is overruled.

In point of error two, appellant claims that the trial court erroneously denied his motion for mistrial because of improper prosecutorial comments during voir dire. We set out the relevant portions of the voir dire record.

Q. [PROSECUTION]: [Veniremember], yes. Talk to me?

A. [VENIREMEMBER]: It wouldn't make a difference on whether or not [appellant] were guilty, but if the victim would have done something to provoke this, then it may make a difference on how the testimony is received.

Q. [PROSECUTION]: You bet. You bet. And any defenses, [veniremember], that [appellant] wishes to bring to you — he should bring, and have every right to bring. I say "should" — I'm not going to say what he should do

[APPELLANT]: Objection, Your Honor.

[PROSECUTION]: I apologize, I didn't mean to —

[APPELLANT]: I...