Elizondo v. State, No. 13-01-619-CR (TX 5/12/2005)
| Decision Date | 12 May 2005 |
| Docket Number | No. 13-01-619-CR,13-01-619-CR |
| Parties | RAFAEL ELIZONDO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On appeal from the 103rd District Court of Willacy County, Texas.
Before Justices YAZEZ, CASTILLO and GARZA.
A jury convicted appellant Rafael Elizondo of murder and aggravated assault with a deadly weapon. The trial court assessed punishment at twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.
By his first and second issues, Elizondo asserts that the evidence is legally and factually insufficient to sustain his convictions. By his third and fourth issues, he asserts the trial court erred by not timely complying with the mandates in articles 38.22 and 38.30 of the Texas Code of Criminal Procedure. By his fifth issue, Elizondo challenges the trial court's refusal to exclude a State's witness from the courtroom. By his sixth issue, Elizondo asserts the trial court abused its discretion in excluding an autopsy photograph. Finally, by his seventh issue, Elizondo asserts the trial court abused its discretion by refusing him a new trial.
On August 5, 2000, in the 900 block of West Tampico Street in Raymondville, a residential area, Elizondo shot and killed Pablo Garcia and shot Garcia's wife, Guadalupe Gallardo Garcia ("Gallardo"). Two indictments charged Elizondo with the offenses of: (1) murder;2 (2) aggravated assault with a deadly weapon;3 and (3) conspiracy to commit murder.4 Anna Luisa Martinez ("Martinez")5 was indicted for conspiracy to commit aggravated assault but was acquitted. Elizondo and Martinez were tried together.
By August 5, 2000, Martinez and Elizondo had been living together for about eight months. The two considered themselves married under the common law, but evidence at trial showed Martinez remained married to another man. Martinez, pregnant at the time, had her baby son with her at their residence on Norman Street. Her two daughters had spent the night at the home of her sister, Maria Carbajal, at 925 West Tampico. Elizondo was working and supporting the family.
The night before the shooting, Martinez and Elizondo received two calls between two and three o'clock in the morning. Elizondo told Martinez that one of the calls was from his sister, Angela De Los Santos, and the other from Fernando Chihuahua, whose nickname was "Little Man." Chihuahua had called from the residence of Carlos Salazar. According to Martinez, Elizondo, Chihuahua and Salazar were members of the same cadre. Martinez asked Elizondo if the callers waited until she fell asleep to phone, and he laughed in response. She asked him nothing more about the calls. On the day of the shooting, Martinez and Elizondo arose at about seven o'clock in the morning. Elizondo watched television and drank a twenty-four ounce can of beer. Martinez noticed that Elizondo had consumed most of the case of beer he had purchased the preceding day.
At about 10:45 a.m. on the same day, Elizondo and Martinez left their residence. The two planned to pick up Martinez's daughters, shop for school clothes for the older child, and have a picnic. On their way to Tampico Street to pick up the children, they traveled a route calculated to avoid passing in front of the residence of Garcia and Gallardo in the 800 block of West Tampico, three or four houses away from their destination. According to Martinez, they were trying to avoid a fight between Garcia and Elizondo because Garcia had told different people he was going to kill Elizondo "like a dog in the street." Martinez previously heard Garcia say he was going to "get anyone who was around" Elizondo and did not care if children were hurt. Aware of the threats, Elizondo told Martinez that Garcia was going to kill him. Elizondo and Martinez had taken the long way to her sister's house about ten times since May 2000, when the conflict between Garcia and Elizondo began. As they drove onto Tampico Street, Martinez noticed a dark-colored truck in front of Garcia's house. Garcia was standing on the passenger side near the truck bed, and seemed to be talking to another man standing nearby. Martinez was scared and told Elizondo, "[Garcia] is out there." Elizondo told her to hurry and get the girls. They pulled into her sister's driveway, afraid to park in the street because they did not want Garcia to see them. Elizondo exited the car, went around the rear of the car, and tried to open the door for Martinez, as the passenger side door was broken. Martinez looked back and saw Garcia running down the street toward them with a tire tool in his left hand.6 According to Martinez's testimony at trial, Garcia also had a black gun with him, though she did not remember in which hand.7 Gallardo, Garcia's wife, was with Garcia. Afraid Garcia would hurt her and her baby, Martinez panicked and tried to open her passenger side door but could not. Instead, she reached into the back seat and, without unbuckling the seatbelt holding him, removed her son from his car seat. Meanwhile, Elizondo was at the passenger side door trying to open it and "yelled" at Martinez for making "him go open the passenger door." Martinez ran toward the house when she saw Garcia and Gallardo still running toward them. She heard Garcia saying, in Spanish, he was going to kill Elizondo like a dog and did not want Elizondo on his street. She heard Gallardo tell Garcia to kill Elizondo. Martinez told them, "Leave us alone." When she was halfway into the house, Martinez heard four or five consecutive shots. They were quick—one right after the other. She did not hear Elizondo say anything before the shooting. When she walked out of the house, she saw Garcia run back, collapse, and drop the tire iron. She saw Gallardo grab her neck, run, and fall down near Garcia. Elizondo was sitting in the driver's seat of the car.
Still carrying her son, Martinez tried to remove the diaper bag from the back seat of the car, because the bag contained her money. Elizondo asked her if she was staying or leaving. Scared, she left with him, taking her baby. In the car, Elizondo said, "I told him, I told him, he came at us; hey baby I just wanted to get my girls." He repeatedly said he messed up. According to Martinez, Elizondo has since cried, said he did not mean to do it, and said he regretted his actions.
Martinez admitted she left her two daughters behind with her twelve-year-old niece, V.C., without thinking about whether they were in danger. Leaving Tampico Street, Elizondo and Martinez took the same route they traveled before and left town, stopping along the way at a convenience store to buy beer and snacks. Later that afternoon, Elizondo left her at their residence.8 Martinez was arrested later that night.
Martinez's twelve-year-old niece, V.C.,9 was at home with Martinez's daughters on August 5, 2000. V.C. was in her room looking out her bedroom window, waiting for her parents who had gone to Wal-Mart. The window faces Tampico Street. V.C. saw Elizondo's car pull up; she saw Martinez and her son with him. She saw Garcia walking toward Elizondo's car with a tire tool in his hand and "something else." Garcia was not doing anything with the tire tool. She heard him say he was going to kill Elizondo "like a dog in the street" and did not hear anyone else say anything. She testified Garcia was "a little bit away" from Elizondo.10 V.C. saw Gallardo but did not remember seeing Elizondo when she heard shots fired. Garcia turned around, walked a couple of steps, and fell. The tire tool remained in his hand until he fell. When shown the diagram admitted in evidence depicting where Garcia fell, V.C. testified the distance would be far from her residence. V.C. did not see Gallardo after the shooting. V.C. ran outside the house and saw Garcia lying on the street. A couple of people approached Garcia to check his pulse to see if he was alive. She saw Rudy Chavez, a neighbor, approach Garcia's body, take something away from him, and run home.11 She did not remember if Chavez tried to cover what he took. She recalled he did not take the shiny object but took the dark object in Garcia's waistband. V.C. admitted she could not see whether the object was a gun.12
Gallardo testified that she arose about 10 o'clock on the morning of August 5, 2000. Garcia was engaged in various activities, including washing clothes and watering plants outside, making breakfast, and getting ready to go to work. For about twenty minutes, Garcia spoke with Jose Cortinas about work and fixing a car that belonged to Garcia's sister. According to Gallardo, Garcia said he needed tools for tires and brakes to fix the car. Gallardo asked Garcia to eat breakfast with her because they usually ate together. Gallardo then heard neighbor Rudy Chavez say that Elizondo was "out there." According to Gallardo, Garcia was going to see exactly where Elizondo was and "already had the tire tool." Knowing "things had happened already," Gallardo went after Garcia, telling him to go home because "they said that Elizondo was after my husband; it was for me to prevent anything from happening." She had that feeling because of what had happened in the past, and knew that Elizondo and Garcia did not like each other. As Garcia was "going to where Elizondo was," Gallardo followed him about a house length behind. Gallardo saw Elizondo standing close to the street and saw him pull out a gun. She testified that she heard Garcia say in Spanish, "clean hands," and that Elizondo yelled back at Garcia that he was not going to fight with "clean hands."13 The prosecutor then asked Gallardo if she saw the gun pointed at her, she testified she saw Elizondo pick up the weapon and heard her...
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