Cucuta v. State
| Decision Date | 23 February 2018 |
| Docket Number | No. 08-15-00027-CR,08-15-00027-CR |
| Parties | MICHAEL DANIEL CUCUTA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 213th District Court of Tarrant County, Texas
(TC# 1371061R)
During a robbery that occurred in the early morning hours of October 9, 2011, in an apartment shared by Eduardo Bustos and Savana Rodriguez, Bustos was shot and killed, and Rodriguez was shot and injured.1 In two separate indictments, Appellant was accused of committing two counts of aggravated robbery with respect to both Bustos and Rodriguez, one count of murder in the shooting death of Bustos, and one count each of attempted capital murder and aggravated assault in the shooting of Rodriguez. The attempted capital murder charge was based on the allegation that Appellant intentionally shot both Rodriguez and Bustos in the same criminal transaction.
A jury found Appellant guilty of all five counts, and further found that Appellant had used a deadly weapon in the commission of the offenses as charged in the indictments. The trial court sentenced Appellant to multiple concurrent prison sentences, the maximum of which was 45 years for the murder offense. In this appeal, we consider only the convictions in the Bustos matter, and we issue a separate opinion in the Rodriguez matter in 08-15-00028-CR. Here Appellant argues that the trial court erred by instructing the jury on the law of conspiracy; that the multiple punishments he received for the murder of Bustos, the attempted capital murder of Rodriguez, and the aggravated robbery of Bustos violated the Double Jeopardy Clause; that the trial court erred by allowing witnesses to testify to an extraneous drug dealing offense; and that Texas's "Law of Parties" statute is unconstitutional.2
Although Appellant pled not guilty to all of the charges against him, he admitted at trial to many of the facts underlying the State's case against him, and expressly acknowledged that he was guilty of committing the robbery. He claimed that he was innocent of the murder and attempted capital murder charges.
The undisputed testimony at trial revealed that Appellant had been friends with both Bustos and Rodriguez. However, Appellant had a falling out with Bustos approximately two months before the murder, and the two had not seen each other until the morning of the crime. Appellant claimed that the falling out occurred when he learned that Bustos had burglarized his residence while Appellant was in jail for violating his probation on a misdemeanor conviction for possession of marijuana.
Jose Acosta, who participated in the charged offenses along with Appellant, was a mutual friend of both Appellant and Bustos, and had been released from prison just days before the robbery. He also had a falling out with Bustos when he learned that Bustos had engaged in sexual relations with the mother of his child while Acosta was in prison, and that Bustos may have provided information to police that led to his imprisonment. Although Appellant claims he was unaware of Acosta's grudge against Bustos, the two of them admittedly devised a plan to burglarize an apartment where Bustos and Rodriguez were residing. According to Appellant, Acosta originally came up with the idea to commit the robbery because he needed money. Appellant agreed to the plan, in part because he believed that he might be able to regain possession of some of the items Bustos stole from him, and in part because he was admittedly addicted to methamphetamines at the time. The State introduced evidence that Appellant and Acosta had exchanged text messages prior to the crime, which indicated both individuals needed money.
Appellant testified that he and Acosta planned to commit the burglary when Bustos and Rodriguez were not at home. He admittedly obtained a gun, claiming that he and Acosta agreed they would only use the gun to scare off anyone who might witness the burglary.
It is undisputed that Appellant and Acosta drove to the apartment in the early morning hours of October 9, 2011, and that Acosta first went inside the apartment, leaving Appellant behind in the car. While inside, Acosta socialized with Bustos, Rodriguez, and another mutual friend, Jesus Hernandez, for at least an hour. After Hernandez left, Acosta contacted Appellant by cell phone, and directed him to come into the apartment. Appellant, who was high on methamphetamines, knew there were people inside the apartment when he entered.
Once inside, Appellant observed Bustos and Rodriguez sitting together on a couch in the living room. Shortly thereafter, Acosta confronted Bustos about being a "snitch," and also about whether he had previously engaged in sexual intercourse with Acosta's "baby momma." When Bustos admitted to a sexual relationship, Acosta pulled out the gun and directed Appellant to hit Bustos on the head with a liquor bottle that was on a nearby table. Appellant refused to do so. However, fearing that Acosta might turn the gun on him for failing to follow his directions, Appellant went into the victims' bedroom, and began looking through their things.
Rodriguez testified that while Appellant was in the bedroom, Acosta was pointing his gun at Bustos, and she therefore tried to protect herself by moving away from Bustos. When she did so, Acosta grabbed her by the hair and pointed the gun at her, saying, "Bitch, don't fucking move." Bustos then tackled Acosta, and while the two were wrestling, Rodriguez heard at least four gunshots ring out, and saw blood on Bustos. As Rodriguez tried to run to the door, Acosta shot her in the hip. Rodriguez acknowledged that Appellant did not fire any shots or have a gun with him, and never touched her or Bustos. Nevertheless, she testified that Appellant did not appear to be surprised when Acosta pulled out the gun and threatened to shoot Bustos, and did nothing to stop Acosta from shooting them.
Appellant testified that while he was in the bedroom, he heard gunshots coming from the living room. When he returned to the living room, he saw that both Bustos and Rodriguez had been shot, and that Acosta was pistol-whipping Bustos on his forehead as he lay on the floor. Appellant claimed that he grabbed Acosta and stopped him from continuing to assault Bustos. Appellant also recalled that as they were exiting the apartment, Acosta tried to shoot Rodriguez again, but the gun jammed, and the two of them then ran out the door.
Bustos suffered three gunshot wounds and died shortly after the shooting. The medical examiner testified that Bustos died from a fatal wound to his chest, which was fired while the gun was in contact with his skin. Rodriguez, who had been shot in the right hip, spent several days in the hospital, but was able to attend Bustos's funeral, albeit in a wheelchair.
Following a joint trial on the charges against him in both the Bustos and Rodriguez indictments, a jury found Appellant guilty of one count of murder with regard to Bustos's death, one count each of the attempted capital murder and aggravated assault with regard to Rodriguez's injuries, and two counts of aggravated robbery, one naming Bustos as the victim and the other naming Rodriguez. In addition, the jury found that Appellant had used a firearm during the course of his crimes, and answered "yes" to a deadly weapon special issue. The trial court sentenced Appellant to the following prison terms: 45 years for Bustos's murder; 35 years for the aggravated robbery of Bustos; 35 years for the attempted capital murder of Rodriguez; 20 years for the aggravated assault of Rodriguez; and 35 years for the aggravated robbery of Rodriguez, all sentences to run concurrently. This appeal follows.
In Issue One, Appellant argues that the trial court erred by giving the following instructions in the jury charge:
"Conspiracy" means an agreement with one or more person that they or one or more of them engage in conduct that would constitute a felony. An agreement constituting a conspiracy may be inferred from the acts of the parties.
. . .
A person is criminally responsible for an offense committed by the conduct of another if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense wascommitted in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Appellant did not object to the charge at trial, and contends for the first time on appeal that the instructions may have confused the jurors and caused them to convict him for all of the offenses as a co-conspirator. He emphasizes that criminal conspiracy is a separate substantive offense under section 15.02 of the Texas Penal Code, and that he was not charged with criminal conspiracy in either of his indictments. He urges that we reverse all of his convictions on this basis, so that he might receive a fair trial with a jury charge that is limited to the charges set forth in his indictment.
The first step in analyzing a claim of jury charge error is to determine whether the submitted charge was erroneous. Arteaga v. State, 521 S.W.3d 329, 333 (Tex.Crim.App. 2017) (citing Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App. 2009)). If so, we must then determine whether the defendant was harmed by that error. Id. (citing Barrios, 283 S.W.3d at 350). When a defendant did not object to the charge, he can prevail only if he can demonstrate that he was egregiously harmed. Id. at 338 (). Charge error is egregiously harmful if it affects the very basis of a case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. (citing Sanchez v. State, 209 S.W.3d 117, 121...
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