Escamilla v. State
| Decision Date | 30 June 2004 |
| Docket Number | No. 74494.,74494. |
| Citation | 143 S.W.3d 814 |
| Parties | Licho ESCAMILLA, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Appeal from the 351st District Court, Dallas County, Mark Kent, J John Tatum, Richardson, TX, for Appellant.
Anne B. Wetherfolt, Asst. DA, Houston, Matthew Paul, State's Atty., Austin, for State.
A jury convicted appellant of capital murder. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase. Appellant raises thirty-one points of error. We affirm.
The indictment alleged that appellant shot and killed a peace officer who was "then and there acting in the lawful discharge of an official duty, and the said [appellant] then and there knew the said deceased to be a peace officer." See § 19.03(a)(1), Tex. Pen.Code. Appellant claims that the evidence is legally insufficient (point of error five) and factually insufficient (point of error six) to support a finding that he knew the victim was a peace officer when appellant killed him.
In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Zuniga v. State, ___ S.W.3d ___, ___, slip op. at 8, 2004 WL 840786 (Tex.Cr.App. No. 539-02, delivered April 21, 2004).
The evidence shows that the victim was one of four off-duty Dallas police officers working extra jobs at a nightclub. The 19-year-old appellant shot and killed the victim and wounded one of the other off-duty police officers (who survived the shooting) outside the club. An employee of the club (Bravo) testified that two "cops" were approaching the scene of a fight at the parking valet station in front of the club when the shooting started.
Q. The cops were on their way to help, is that what you said?
A. Yes.
Q. All right. Go ahead?
A. And, well, as soon as, well, they didn't even get the chance to get to the guy, when the guy just bring out a gun and started shooting.
Q. And, what happens then?
A. Well, it sounded like the first cop got shot, then the [victim]. The shooting just like keep going on and on. Then the guy tried to took [sic] off and he stopped like midway where [the victim] was on the floor. He was like, shoot him a couple of times, and then just took off, and a couple of cops — a couple of policemen just followed him.
A valet parking employee (Gonzales) testified that appellant shot two uniformed police officers as they were approaching the scene of the disturbance at the parking valet station. Gonzales testified that he could tell they were police officers.
Q. And, the two persons that you saw coming, you could tell that they were police officers; is that right?
A. Yes.
Q. And, where did you see the two police officers coming from?
A. Further away in front of where we were at.
Q. Could you take your pointer and point to the area that you first saw the two police officers on State's Exhibit 10?
A. Yes.
Q. Go ahead, please?
A. (Witness did as requested.)
Q. And, you are pointing to an area that looks like it is on the driveway area, pretty close to the front of Club DMX — the front porch of DMX; is that right?
A. Yes.
Q. And, they were in uniform?
A. Yes.
The off-duty police officer who was wounded in the shooting (Lockett) testified that he was walking toward a disturbance (which he described as a breach of the peace) in the valet parking area when the shooting started.
Lockett also testified that his and the victim's clothing "clearly identified" them as police officers.
Q. And, you were wearing such a jacket on that occasion?
A. Yes.
Q. And, was [the victim] also wearing a police jacket just like you described, as best as you can recall?
A. Yes, as best as I can recall, I think he was also wearing a jacket.
Q. And, were you both clearly identified as Dallas Police Officers?
A. Yes, we were.
A police officer (Rivera), who arrived at the club soon after the shooting, testified that he unbuttoned the victim's "uniform shirt" and ballistic vest to perform CPR on the victim.
The evidence also shows that, soon after the shootings at the club, appellant was arrested and transported to a hospital because he suffered a minor gunshot wound in an exchange of gunfire with one of the other off-duty police officers. Several witnesses at the hospital heard appellant commenting about how he had shot a "faggot cop." For example, a police officer (Hay), who accompanied appellant to the hospital, testified:
Q. And, what then occurs after that, that you recall?
A. He made several more statements along those lines. He repeated that phrase several times. I recall, that after the attending physicians conducted their initial examination and the nurses started to file out to get — to do their business, he looked at myself and another Officer, Joe Allen, and started laughing and said, yeah, yeah, mother fuckers, I thought I was invincible like that cop thought he was, but I guess, I am not. And, then he made another statement and was laughing and said that he would be — he said, yeah, mother fucker, I will be out of here in forty-eight hours.
Q. And, the words that you are telling the jury right now are your recollection, not of your language, but of the language that he used.
A. That is correct.
Appellant later admitted during a videotaped interview with a television reporter that he knew he was shooting at a police officer.
Q ....so there's no question that you knew you were shooting at a police officer the first time.
A. Yeah.
Q. You think you killed him?
A. Yeah. Hell yeah. I killed that MF.
The only piece of the victim's clothing that was introduced into evidence was the victim's jacket. The State's brief describes it as the victim's "uniform jacket," but it is literally described in the reporter's record as the victim's "jacket."
Q. Yes, sir, if you would, please.
A. This is the jacket that [the victim] was wearing that evening, removed at the hospital.
Q. And, if the court please, we will have the jacket itself marked as State's Exhibit 24 and offer it into evidence and not the paper that had contained it?
The record also reflects that, during closing jury arguments, the State referred to police insignias on this jacket.
I don't know if you can see here, but, this is the jacket that was introduced into evidence. This is the jacket that [the victim] wore on that occasion. And, you can see, if you look at it, you can see the insignia of the Dallas Police Department both on the chest, as well as, on the side...
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