Cantu v. State

• Decision Date: 06 May 1999
• Citation: 994 S.W.2d 721
• Parties: (Tex.App.-Austin 1999) John Cantu, Appellant v. The State of Texas, Appellee NO. 03-97-00028-CR
• Court: Texas Court of Appeals

Page 721

994 S.W.2d 721 (Tex.App.-Austin 1999)

John Cantu, Appellant v. The State of Texas, Appellee

NO. 03-97-00028-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

May 6, 1999

Rehearing Overruled June 17,1999.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 963189, HONORABLE LARRY FULLER, JUDGE PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices Jones, Kidd and B. A. Smith

Bea Ann Smith, Justice

Appellant John Cantu, a juvenile, was charged with the offense of first-degree murder. See Tex. Penal Code Ann. 19.02(b)(2) (West 1994). After a hearing before the juvenile court, Cantu was certified to stand trial as an adult. See Tex. Fam. Code Ann. 54.02(a)(3) (West 1996). In a trial before the district court, a jury found Cantu guilty and assessed his punishment at forty years' imprisonment. In twenty-one issues on appeal, Cantu disputes the legal and factual sufficiency of the evidence and argues that the trial court erred in refusing to charge the jury on a lesser-included offense of deadly conduct. See Tex. Penal Code Ann. 22.05 (West 1994). Cantu also claims that his federal and state constitutional rights and his state statutory rights were violated by the admission of psychiatric testimony from his court-ordered certification examination during the penalty phase of his trial. In addition, Cantu claims that the trial court violated his rights under the Confrontation Clause by limiting his cross-examination of a witness, and raises several other evidentiary points. We will affirm the conviction, but reverse the assessment of punishment and remand the cause to the trial court for further proceedings.

BACKGROUND

This case arises from a gang-related shooting. On October 28, 1995, Gloria Nauman hosted a Halloween party at her home, located in a rural area in southeast Austin. Nauman's house is set back some distance from the road. A driveway runs from the house to the road, crossing over a large field and a tree-lined creek. On the night of the party, many of the guests parked in the field and made the short walk down the driveway and over the creek to the house.

Among those attending the party were Salvador Garcia, Steve Alford, and Lydia Perez. Around 11:00 p.m., the three teenagers decided to leave together, and started walking from the house out to Alford's vehicle, a Ford Bronco. On the way they encountered another teen who appeared to be drunk. This person identified himself as "Trebla,"¹ a member of the street gang "S.T.B.C."² Upon learning that Garcia was a member of the Latin Kings, a rival gang,³ "Trebla" became angry and threatened to kill Garcia. A number of people intervened, including Perez, a sixteen-year-old girl who was a friend of Garcia's. "Trebla" momentarily left, apparently for the purpose of finding fellow gang members to help him fight Garcia. At this point, Perez, Garcia, and Alford got into the Bronco and started to drive off the property.

As they were driving away, a group of young men ran after them. Before the Bronco could reach the road, gunshots were fired at their car. Perez, sitting in the passenger seat, was struck on the right side of her head by a single .38 caliber gunshot and died several days later. Garcia, sitting in the backseat, was hit by several bullet fragments. Alford was not injured.

Appellant, another member of the S.T.B.C. gang, was arrested at the scene after several witnesses identified him as the person carrying a revolver earlier in the evening. Nauman also identified him as the person she saw carrying a black revolver and shooting at the Bronco. Cantu was taken into custody and an atomic-absorption test was conducted to determine whether various elements contained in gunpowder residue were present on his hands. The test came back positive. A .38 caliber revolver with some rust on its barrel and a wood handle was recovered in the vicinity with five empty casings; four spent shells from a .32 caliber semiautomatic pistol were also found at the scene. Police never found the semiautomatic weapon.

At the time of the shooting, Cantu was fifteen years old. After being taken into custody, he had counsel appointed and was taken before a magistrate. His counsel attended the hearing before the magistrate, where Cantu was advised of his rights. A juvenile court appointed Dr. Jeff Ezell, a psychologist, to conduct a diagnostic examination of Cantu to determine whether he should be tried as an adult pursuant to the Family Code. See Tex. Fam. Code Ann. 54.02(d) (West 1996). Cantu's counsel did not attend the psychological exam, although he was aware of it and apparently discussed it with his client. Based on test evaluations and observations made during the interview, Dr. Ezell testified at the certification hearing that Cantu should be tried as an adult. The juvenile court accordingly waived jurisdiction and transferred Cantu to district court, where he was indicted for the offense of first-degree murder. Cantu pleaded not guilty and was tried before a jury, which found him guilty. During the penalty phase, Dr. Ezell testified that Cantu showed no remorse during his diagnostic exam, and diagnosed him as a sadistic sociopath without a conscience who was unlikely to change in the future. Other testimony was presented by the prosecution and defense, and Cantu was sentenced to forty years' imprisonment. Cantu appeals his conviction on sufficiency and evidentiary grounds. In addition, Cantu appeals his sentence on grounds that his constitutional and statutory rights were violated by the admission of Dr. Ezell's testimony at the punishment phase and by the prosecutor's comment during jury argument on appellant's failure to testify.

DISCUSSION

Legal and Factual Sufficiency

In his first two issues on appeal, appellant contends that evidence at trial was legally and factually insufficient to support his conviction. We address first whether there was legally sufficient evidence to support the jury finding that appellant committed first-degree murder. The jury found that Cantu intended to cause serious bodily injury to an individual and committed an act clearly dangerous to human life by shooting Lydia Perez with a firearm and causing her death. See Tex. Penal Code Ann. 19.02(b)(2) (West 1994). In evaluating a conviction for legal sufficiency, we ask whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is, after viewing the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Williams v. State, 958 S.W.2d 186, 190-91 (Tex. Crim. App. 1997).

The State's evidence included testimony from witnesses who identified Cantu as the man they saw pointing a gun at a dog earlier in the evening. Two of the party guests, Carrie Brown⁴ and Larry Clark, testified that they were talking in the garage when a small dog walked up to a group of people nearby. Someone joked that the dog might bite. Both Brown and Clark said that appellant pulled a gun out of his pocket, pointed it at the dog's head, and said either "no, he won't" or "well, I got something for that dog." Brown described the gun as a black revolver, with a rusty color where the black had rubbed off. Clark said the gun was a revolver, made of blue steel with an old wooden handle, with rust on the gun barrel. Both identified the .38 revolver that police recovered from the scene as looking like the one the appellant pulled out of his pocket. Both described appellant as wearing a greyish-white shirt and blue pants. Steve Alford, the driver of the Bronco, described one of the shooters as wearing the same clothing.

Brown, Clark, and another guest, Melissa Garmon, testified that appellant was one of several young males they saw running toward the Bronco just before the shootings. As they ran, Clark heard one of the group tell Cantu, "Not here, man. Not here. Don't do it here." Clark testified that Cantu had his hand in his pocket as he ran, the same pocket from which Clark had seen Cantu retrieve the pistol minutes earlier in the garage. Garmon testified that Cantu was carrying a gun when she saw him run by.

Gloria Nauman had asked her son Shannon to go out to the gate near the road and eject people who were not invited to the party from the property. As Nauman was going out to check on Shannon, she saw appellant standing near the carport. Nauman followed appellant as he walked toward the driveway. She testified that when he got to the bridge, she saw him pull out a black revolver and start running. Nauman ran after him until he stopped and she heard someone yell, "Mom, stop." At that point she saw the Bronco and fire flash from the gun. After the gunshots ceased, she testified, the Bronco drove off and Cantu disappeared. Nauman testified that later she saw appellant in handcuffs and he told her, "Ma'am, you know it wasn't me. And if you say it was me we'll get you."

Salvador Garcia testified that appellant was a member of S.T.B.C., a gang that had a rivalry with Garcia's former gang, the Latin Kings. The State presented evidence that Cantu had traces of gunpowder residue on his hands consistent with his having fired a weapon on the night of the shooting. The State also presented expert testimony that the bullet that killed Perez was fired from the .38 revolver found at the scene.

Brown and Clark testified that after the shooting, they were standing near some trees on the house side of the creek. They heard rustling in the bushes behind them, and both saw appellant standing there, looking nervous and apparently using them as a wall between him and the police. The State presented evidence that Cantu had fresh scratches on his right arm that night that were consistent with the type of injuries one might sustain running through bushes...