Cantu v. State, 71,857

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation939 S.W.2d 627
Docket NumberNo. 71,857,71,857
PartiesPeter Anthony CANTU, Appellant, v. The STATE of Texas.
Decision Date29 January 1997


Appellant, Peter Anthony Cantu, was charged by indictment with the offense of capital murder for killing Jennifer Ertman in the course of committing or attempting to commit robbery, kidnapping and aggravated sexual assault. Appellant was subsequently convicted of capital murder in February of 1994. 1 T EX. P ENAL C ODE A NN. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. 2 Article 37.071 § 2(g). Direct appeal is automatic. Article 37.071 § 2(h). We will affirm.

Appellant raises forty-five points of error. He does not challenge the sufficiency of the evidence to support the jury's verdict finding him guilty of capital murder. However, he does contend the evidence is insufficient to support the jury's affirmative answer to the special issue on future dangerousness. We will address the points as they are presented to us. A brief summary of the facts will be helpful.

Looking at the evidence in the light most favorable to the jury's verdict, the record reveals the following facts: Appellant was the self-appointed leader of a gang called the "Black and Whites" in Houston. On the night of June 24, 1993, this gang met to initiate a new member, Raul Villareal. The other gang members present were Roman Sandoval, Joe Medellin, Efrian Perez, and Derrick Sean O'Brien. Roman's brother, Frank, and Joe's fourteen-year-old brother, Venancio, were also present. The initiation involved fighting each member of the gang for a five to ten minute period. After Raul fought all of the members, he was welcomed into the gang. The gang then drank beer and engaged in horseplay. The group then headed towards some nearby railroad tracks.

Meanwhile, fourteen-year-old Jennifer Ertman and sixteen-year-old Elizabeth Pena were visiting a girlfriend. At 11:30 p.m., Jennifer and Elizabeth decided to head for Elizabeth's house where Jennifer would then call a taxicab to take her home. They decided to take a shortcut across the railroad tracks. Jennifer and Elizabeth first encountered Roman and Frank as they made their way home, but managed to pass them without incident. However, as they passed Joe Medellin, he grabbed Elizabeth and dragged her down a hill as she screamed for help. In response to her friend's cries, Jennifer ran back to help, but appellant grabbed her and dragged her down the hill as well. At this point, the Sandoval brothers decided that it was time to leave. Appellant asked them if they wanted to "get some," but Roman told him that he did not rape or kill girls.

The subsequent boastful statements of the remaining gang members revealed that what then ensued was a brutal gang rape of both of the girls. Fourteen-year-old Venancio watched as the others raped both girls orally, vaginally, and anally until appellant told him that he should "get some." The girls were still being raped when appellant whispered to Venancio, "We're going to have to kill them." When everyone was finished, appellant told them to take the girls to the woods where they proceeded to strangle them. Appellant kicked Elizabeth in the face with his steel toe boots, knocking out several teeth, and he stepped on Jennifer's neck until she stopped moving. Subsequently, they all took turns stomping on both girls necks to make sure they were dead.

Later that night, appellant, Joe, Efrian, and Raul regrouped at appellant's house to brag about their exploits. Appellant walked in as the rest were recounting their exploits to his older brother and sister-in-law, Joe and Christina Cantu, in graphic detail. Appellant appeared happy and amused by the conversation and readily agreed with the recollection of events. Appellant then parceled out jewelry and money he had taken from the girls.

Christina subsequently convinced her husband to report the incident to the police. By the time the bodies were discovered, they were so badly decomposed that dental records were required to identify them. However, enough tissue did exist for the medical examiner to determine that the girls had died of a trauma to the neck which was consistent with strangulation. Eventually, all of the individuals who participated in the gang rape and murder were arrested and most of the jewelry was recovered, including some from appellant's bedroom. Appellant also gave two confessions.

In points of error one and two, appellant complains that the trial court erred in overruling his challenge to the Texas death penalty scheme. Specifically, he alleges that denying jurors the knowledge that appellant would have to serve at least 35 years in prison before becoming eligible for parole if sentenced to life in prison results in the arbitrary imposition of the death penalty in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10, 13, and 19 of the Texas Constitution. In point three, appellant avers that the trial court erred in prohibiting him from introducing testimony that he would have to serve 35 calendar years before becoming parole eligible if sentenced to life imprisonment. And in point four, appellant contends that the trial court erred by denying appellant the right to question jurors about their ability to consider the 35 calendar year condition on a life sentence.

We have already decided these issues adversely to appellant. Smith v. State, 898 S.W.2d 838 (Tex.Crim.App.) (plurality op.), cert. denied, --- U.S. ----, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); Willingham v. State, 897 S.W.2d 351 (Tex.Crim.App.), cert. denied, --- U.S. ----, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995); Broxton v. State, 909 S.W.2d 912 (Tex.Crim.App.1995); Sonnier v. State, 913 S.W.2d 511 (Tex.Crim.App.1995). We have previously held a defendant is not entitled to an instruction on parole law in a capital case under the Texas Constitution. Elliott v. State, 858 S.W.2d 478 (Tex.Crim.App.), cert. denied, 510 U.S. 997, 114 S.Ct. 563, 126 L.Ed.2d 463 (1993); Boyd v. State, 811 S.W.2d 105 (Tex.Crim.App.1991). Appellant has given us no reason to revisit our analyses in these cases, nor has he shown us any distinguishing evidence in the record or provided us with any other reason why these cases should not control in the instant case. Points of error one through four are overruled. 3

In his fifth point of error, appellant complains that the trial court erred in overruling his objection to the prosecutor's argument that the jury had to find a nexus between the defense evidence and the crime before they could consider it mitigating. Appellant specifically complains of the emphasized portion of the following argument:

[THE STATE:] [I would] [l]ike to talk to you briefly about the issue of mitigation[.]

* * *

Nowhere will you find the court instructing you that you have to find any evidence that you've heard in this case mitigating.

* * *

[W]hy do you consider mitigation, ... that's because the courts allow you to individualize the justice. There might be a fact and circumstance out there that just cries out for mercy, cries out for you to give the person some leniency and not give them the death penalty,.... Keep that in mind when you think in terms of what is it that really compels our mercy and do you see it in this case? A little thing that I would suggest is that you kind of go in the step of number one, you look to determine is there any mitigation. If there is the mitigation, is it sufficient, sufficient to rise to the level that you want to take this man, [appellant], and show him some mercy. Does it rise to that level? And then ask yourself another question. Is there a connection between what they try to give to you as mitigation, is there some connection between that and the crime itself, when you think of what you discovered to possibly be mitigating. Does that cause the defendant's behavior? Does it justify it? Is there a link there and correlation between what you've heard and what you saw happen on June 24th, 1993?

[DEFENSE:] Excuse me, [prosecutor's name omitted]. Your Honor, we object to the suggestion that there has to be a nexus between the mitigation and the returning of a verdict which would result in a life sentence.

THE COURT: Overruled.

Appellant argues, in essence, that the prosecutor misstated the law. He asserts that the nexus requirement set out by this Court in cases like Lackey v. State, 819 S.W.2d 111, 135 n. 10 (Tex.Crim.App.1989), Mines v. State, 852 S.W.2d 941 (Tex.Crim.App.1992), 4 Richardson v. State, 879 S.W.2d 874 (Tex.Crim.App.1993), and Willingham v. State, supra, is no longer valid in light of the post-Penry sentencing scheme. 5 He conclusorily states that, while a nexus was required under these post-Penry, pre-statute cases, this should no longer be the law in light of the enactment of Article 37.071, Section 2(e). 6

We have held that, to constitute proper jury argument, the argument must encompass one (or more) of the following: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993); Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App.1988). We noted, in Gaddis, supra, that counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable and offered in good faith. Conversely, jury argument must be extreme or manifestly improper, or inject new and...

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