Delamora v. State

Decision Date05 February 2004
Docket NumberNo. 03-02-00557-CR.,03-02-00557-CR.
Citation128 S.W.3d 344
PartiesEdwin DELAMORA, Appellant v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Linda Icenhauer-Ramirez, Austin, for appellant.

Holly E. Taylor, Assistant District Attorney, Austin, for appellee.

Before Chief Justice LAW, Justices PURYEAR and ONION.*

OPINION

JOHN F. ONION, JR., Justice (Retired).

Appellant Edwin Delamora appeals his capital murder conviction for murdering a peace officer "who is acting in the lawful discharge of an official duty and who the person knows is a peace officer." Tex. Pen.Code Ann. § 19.03(a)(1) (West 2003). The jury found appellant guilty of capital murder as alleged. The State did not seek the death penalty. The automatic penalty was life imprisonment. Tex. Pen.Code Ann. § 12.31(a) (West 2003). The trial court assessed a life sentence.

Points of Error

Appellant advances four points of error. First, appellant contends that the trial court erred in overruling the motion for new trial based on newly discovered evidence material to appellant's guilt of capital murder. Second, appellant urges that he was denied the effective assistance of trial counsel who failed to investigate and produce evidence at trial that the deceased, Keith Ruiz, was not a peace officer acting in the discharge of an official duty. Third and fourth, appellant claims that the trial court erred in limiting the cross-examination of Deputy Sheriffs Richard Hale and Billy Poole regarding their relationship with a confidential informant.

Facts

Appellant does not challenge the legal or factual sufficiency of the evidence to sustain his capital murder conviction. The background and facts are pertinent to the points of error. We shall review the applicable facts.

The offense grew out of the execution of a narcotics search warrant at appellant's mobile home in a trailer park in the Del Valle area of Travis County on the evening of February 15, 2001. Law enforcement officers of the Capital Area Narcotics Task Force were called upon to execute the search warrant in question. Knowing that trailer home doors open outwards and are hard to breach when necessary, the officers called upon Deputy Sheriff Keith Ruiz, the deceased, and Deputy Sheriff Derek Hill to assist. Both Ruiz and Hill were members of the Travis County Sheriff's Swat Team. They had specialized training in breaching doors that opened outwards. Ruiz had been a deputy sheriff for thirteen years and a member of the Swat team for seven years.

At a briefing at 7:30 p.m. on February 15, 2001, Investigator Billy Poole discussed the details of the assignment with the officers involved. At approximately 9:30 p.m. that evening, the officers approached appellant's mobile home wearing black battle dress uniforms with the word "Sheriff" emblazoned on them.1 All the officers had their weapons drawn except deputies Hill and Ruiz, who carried tools to be used in breaching the trailer door.

The officers took their assigned positions. Deputy Ruiz stationed himself on the stairs leading to the trailer house door. Deputy Hill banged or knocked loudly on the side of the trailer three times, and yelled "Police, search warrant." No noise from inside the trailer was heard. After three to five seconds, Hill took a ram and swung it at the trailer door just below the doorknob. Ruiz began to pry on the door with a "hooligan tool." The officers still heard no sound from within the trailer house. Deputy Craig Smith yelled, "Police, search warrant" several times and Investigator Poole followed up in Spanish with "Policia."

Hill again used the ram on the door, and Ruiz tried a second time to pop the door open with the hooligan tool. At this point, the whole process had consumed from twenty seconds to several minutes. As Ruiz began his third attempt to open the door, a window of the trailer house shattered. Some officers saw a hand sticking through the broken window, holding a pistol which was pointed downwards. Some officers saw a flash of bright light and heard the sound of a gunshot. Ruiz fell off the steps to the trailer. Detective Cyril Friday and other officers yelled, "shots fired." Deputy Craig Smith returned fire toward the trailer to cover the team.

Ruiz was dragged to safety and some officers began to administer aid. Other officers yelled to the occupants of the trailer house to come out. Appellant Delamora emerged wearing only white boxer shorts. His right hand was bleeding from a gunshot wound. Appellant's wife and two children followed appellant out of the house.

A search of the trailer house revealed a storage box under the sink in a bedroom containing a small scale and methamphetamine [speed] and marihuana divided up into numerous small plastic bags.

An emergency medical team arrived and began to treat both Ruiz and appellant. Lieutenant Paul Barrientos of the Setco Volunteer Fire Department served with the emergency medical treatment team. Upon his arrival at the scene, Barrientos was assigned to treat appellant's wound. After Barrientos treated and wrapped appellant's hand with gauze, he testified that appellant:

Just kept just hollering and saying that he had—he knew what he had done. He had just shot a cop and that he hoped—why was everyone attending to that cop and why nobody was attending him, doing any type of medical treatment because he was hurting, his hand was hurting, his hand was hurting and why everybody attending to the cop. And then said, that well, I hope that the son-of-a-bitch motherfucker dies because I'm glad he was there.

The record then reflects:

Q. Did he [appellant] ever make any statement to you with regard to whether or not he knew when he shot that those individuals outside were police officers?

A. Yes, ma'am, he said that they were cops.

Barrientos also testified that appellant began shouting in English to a woman, apparently appellant's wife, for her not to worry, to call Dad, and "Dad will take care of it." Barrientos did not believe that appellant had any difficulty understanding the English language.

It appears that Kristi Delamora, appellant's wife, made a 911 telephone call after the shots were fired. The 911 tape and an enhanced version was introduced into evidence. Investigator Poole testified as to what he heard on the 911 tape. The first thing heard on the tape was Mrs. Delamora saying, "No, Edwin!" Apparently concerned for the safety of her family, Mrs. Delamora never told the operators that there was a burglary or robbery in process or that she was being attacked and wanted the assistance of the police. On the tape, Poole heard his own voice yelling in Spanish "Abre la puerta" ("Open the door"). He heard other officers yelling in English. At one point in the recording, a male voice stated: "Let me get my heater" (slang meaning gun). After Mrs. Delamora left the trailer, Poole attempted to speak in Spanish, but she requested that he speak in English as she did not fully understand Spanish.

Andrew Hartman, a Travis County jail inmate, was in the jail with appellant in late September 2001. Appellant told Hartman that he knew before he fired the gun that the people outside the trailer were police officers. Appellant also told Hartman that he heard sounds outside the trailer, saw the police, and tried to get rid of the dope he had—which was approximately a pound of methamphetamine. Hartman did not learn whether appellant had been able to dispose of the "dope." Appellant first told Hartman that he fired his weapon out of the door, but sometime later stated that he had fired out of a window at the officers, shooting downwards.

Ruiz was shot in the left upper arm with a nine millimeter Smith and Wesson pistol. The bullet entered Ruiz's uniform only one and a half centimeters from the patch that read "Sheriff, Travis County" and "SWAT." The bullet traveled sharply downward through Ruiz's chest, hit both lungs, pierced his aorta, and lodged in his twelfth vertebra. The medical examiner ruled that the gunshot wound of the chest causing the large rupture of the aorta was the cause of death.

As appellant's brief points out, appellant at trial sought to show that the law enforcement officers failed to follow proper procedure in conducting "a dynamic entry" into appellant's home; and that the post-shooting investigation "was done poorly." The defense also advanced the theory that Ruiz had been shot by friendly fire and not by appellant; that the friendly fire resulted when a "raid" team member returned fire.2 Appellant also challenged two "raid" team members' credibility by showing a personal relationship between them and a confidential informant, who had two brothers employed by the Travis County Sheriff.

At the conclusion of the evidence at the guilt/innocence stage of the trial, the trial court submitted the issue of capital murder to the jury as alleged in count one of the indictment, as well as the offenses of aggravated assault upon a public servant as alleged in count two of the indictment, and the offenses of murder as alleged in three paragraphs of count three of the indictment. Various issues of self-defense and defense of a third person were also submitted. The jury found appellant guilty of count I beyond a reasonable doubt and rejected all defenses.

Motion for New Trial

The first complaint that appellant urges is that the trial court erred in denying his motion for new trial. After sentencing, appellant's newly appointed counsel on appeal filed a motion for new trial based solely on newly discovered evidence. See Tex.Code Crim. Proc. Ann. art. 40.001 (West Supp.2004). The motion alleged, inter alia, that trial counsel discovered only after sentencing that Ruiz was not acting in the lawful discharge of an official duty on the night of his death as required by section 19.03(a)(1) of the Penal Code because he had not complied with article XVI, section 1 of the Texas Constitution and Texas Local Government Code section 85.003 by failing to take...

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