Escobar v. State, 01-14-00593-CR
| Decision Date | 29 October 2015 |
| Docket Number | NO. 01-14-00593-CR,01-14-00593-CR |
| Parties | TONY ESCOBAR, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 338th District Court Harris County, Texas
A jury convicted appellant, Tony Escobar, of capital murder, and, because the State did not seek the death penalty, the trial court assessed punishment at confinement for life. We affirm.
On the evening of December 20, 2011, Russell Lopez was at home taking care of his seven-year-old son, Caden, his six-year old niece, Bailey, and his nine-month-old daughter, Julianne. Lopez's wife, Marie, and his cousin, Shonte Mabe, were at work together. When they got off work shortly after 9:00 that night, Marie tried calling Lopez twice, but was unable to reach him. Mabe gave Marie a ride home. When they pulled up to Marie's house, they noticed that Lopez's black Tahoe was not in the driveway.
Upon entering the home, they found that their house had been ransacked and Marie's nine-month-old daughter was sitting on the couch unattended. Lopez was found lying on the bedroom floor covered in blood. While Mabe called 911, Marie went to Caden's bedroom to check on the children. Marie found the children in Caden's bedroom. Both Caden and Bailey were unharmed, but their hands and feet had been bound together with Julianne's baby clothes. While Marie was in the children's bedroom, the 911 dispatch operator instructed Mabe to confirm that Lopez was not breathing. Lopez's face was so distorted that he was unrecognizable. Due to the severe nature of the injuries to Lopez's face, Mabe was unable to perform CPR.
Paramedics arrived and declared Lopez dead on the scene. A sword was laying across his left chest and arm. There was a large concentration of blood onthe floor of the dining room area, as well as bloody trails on the carpet leading to Lopez's body, indicating that his body had been dragged from the dining room to the bedroom. Various items had been removed from the home, including a television, a game system, jewelry, and Lopez's vehicle.
On December 22, Lopez's missing Tahoe was found partially submerged in a large body of water within a wooded area near Katy. The part of the vehicle that had not been submerged had been burned. Inside the vehicle, crime scene investigators with the Harris County Sheriff's Office recovered a cell phone, a shotgun shell, and a lighter.
Sergeant Craig Clopton spoke with people in the neighborhood and developed two potential suspects, Amber Thornton and Joseph Facundo. On December 28th, Clopton interviewed Thornton, who consented voluntarily to the interview, at the homicide department. Based on information he received from Thornton, Clopton also developed appellant as a suspect.
Clopton produced photo arrays containing pictures of the three suspects and showed them to Caden. Caden identified Thornton, Facundo, and appellant. Clopton then sought capital murder charges against appellant, and an arrest warrant was issued for his arrest.
On December 30th, appellant and Facundo were apprehended in Laredo, where they were attempting to cross the border into Mexico.
At appellant's trial, Thornton testified as a witness for the State. According to Thornton, Lopez was the neighborhood drug dealer. On the evening of December 20, 2011, Thornton went to the vacant house next door to her home to get high. She found that Facundo and appellant were already at the vacant house smoking marihuana. Thornton testified that they spent the next 20 to 30 minutes discussing a plan to rob Lopez to get money and drugs. They planned to enter Lopez's home under the pretense of selling him a laptop, which appellant had brought to the vacant house, in exchange for three bags of cocaine worth $20.00 each. Once inside, Facundo would hit Lopez over the head with a hammer, appellant would tie up the children, and they would steal Lopez's property and his Tahoe.
Facundo called Lopez and arranged for the "sale" of the laptop. Then they walked to Lopez's house, and he let them inside. Facundo was carrying the hammer in his pocket. Thorton testified that Lopez was sitting at the dining room table feeding his infant daughter. Caden and Bailey were also present, but Lopez told them to go to the back room. Appellant set the laptop on the table and grabbed the cocaine. Then Facundo pulled the hammer out of his pocket and struck Lopez in the back of the head. Lopez fell to the ground, and Facundo continued to repeatedly strike him with the hammer.
Thornton testified that the baby began crying, so she picked her up from the highchair and held her while appellant went to Caden's room and tied up the other children. Facundo started grabbing televisions, guns, laptops, drugs, and money. Appellant and Facundo loaded the stolen items into the appellant's Tahoe, while Thornton held the baby. Appellant and Facundo grabbed Lopez by the hands and dragged his body into the bedroom. Then, Facundo retrieved an ornamental sword from Lopez's bedroom. Facundo and appellant were standing over Lopez's body, and Facundo was about to stab Lopez with the sword when he told Thornton to look the other way. Thornton testified that she did not watch what happened in the bedroom; instead, she walked over to the couch and set the baby down.
Then they drove the Tahoe to the vacant house and hid the stolen property in the attic. Facundo told Thornton that he and appellant discarded the Tahoe at a lake known locally as "The Cliffs." Thornton testified that she sold some of the jewelry that she had stolen from Lopez's house. Thornton, Facundo, and appellant also took a safe stolen from the Lopez's home to a neighborhood friend named David Tillman. Tillman managed to open the safe, but they only found legal papers inside. Tillman later provided the stolen safe to Sergeant Clopton.
Roger Milton, Jr., Assistant Medical Examiner for Harris County, testified regarding Lopez's autopsy results. Milton explained that Lopez had extensive blunt and sharp force injuries primarily of his head and neck region and some on thefront of his chest. Milton also observed the presence of two narrow objects penetrating into the soft tissue in what he referred to as potentially chop injuries. The injuries to complainant's face were extensive and very destructive with fractures. Milton also observed perforating wounds on Lopez's body, including a stab wound to the right upper chest that went through his lung. Milton testified that a sword shown to him (State's exhibit No. 94) was capable of inflicting the type of injuries sustained by the complainant. He indicated that there was very little hemorrhage along the wound track indicating that the injury was consistent with either a peri-mortem (around the time of death) or even postmortem injury. Milton opined that the complainant's cause of death was multiple blunt and sharp force injuries of the head, neck, and chest. He determined that the manner of death was homicide.
Lopez's son, Caden, testified that on the evening of December 20, 2011, he saw his father sitting at the kitchen table feeding his sister Julianne, and there were two men standing behind him. His father told him to go back to his room. Approximately 10 minutes later, a man entered his room carrying Julianne's baby clothes and said "we're going to play cops and robbers." The man used the baby clothes to tie his legs together and to tie his hands behind his back. The man also tied up his cousin, Bailey. Then the man said "If I hear a noise, I'm going to bring a dog in here." After the man left, Caden cracked the bedroom door open and sawthe two men and woman rummaging around in the kitchen. Caden estimated that he waited approximately 30 minutes before his mother came home from work and found him.
The following day, Caden was taken to the Children's Assessment Center to be interviewed. Sergeant Clopton showed him pictures and asked him to identify the people that were in his home that night. Caden circled appellant's photograph and identified him as the man that tied him up. Caden also made an in-court identification of appellant.
The jury found appellant guilty of capital murder as charged in the indictment.
Appellant brings the following twelve issues on appeal:
1. The evidence is insufficient as a matter of law to sustain the jury's verdict finding the appellant guilty of capital murder beyond a reasonable doubt.
2. The trial court erred when it denied appellant's motion for instructed verdict of not guilty at the end of the State's case.
3. The trial court erred when it admitted the 911 tape into evidence over appellant's objection.
4. The trial court erred when it admitted numerous autopsy photographs into evidence over appellant's objections.
5. The trial court erred when it limited appellant's cross examination of Sergeant Clopton regarding influences and motives to fabricate a story.
6. The trial court erred when it refused to allow appellant to establish what questions Sergeant Clopton asked Amber Thornton during her interview with him on December 28, 2011.
7. The trial court erred when it refused to allow appellant to introduce Amber Thornton's statement to Sergeant Clopton in evidence pursuant to rule 801(E)(1)(E) of the Texas Rules of Evidence.
8. The trial court erred when it refused to admit Amber Thornton's statement to Sergeant Clopton under the Rule of Optional Completeness.
9. The trial court erred when it prevented appellant from cross examining Amber Thornton about her habit and routine lying to law enforcement to avoid responsibility for her actions.
10. The trial court erred when it refused appellant's requested jury instruction on necessity.
11. The trial court erred when it refused appellant's request for a jury instruction on the lesser offense of theft.
12. The trial court erred when it commented on the weight of the evidence in the instructions given to the jury...
To continue reading
Request your trial