Fierro v. State, 68383

Citation706 S.W.2d 310
Decision Date08 January 1986
Docket NumberNo. 68383,68383
PartiesCesar Roberto FIERRO aka Cesar Roberto Reyna, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03. After the jury affirmatively answered the two special issues submitted pursuant to Article 37.071, V.A.C.C.P., the court assessed punishment at death. V.T.C.A., Penal Code, § 12.31.

Initially appellant contends "the evidence was insufficient to sustain a conviction for capital murder because the evidence failed to establish beyond a reasonable doubt that appellant committed murder in the course of committing the offense of aggravated robbery."

On February 27, 1979, the body of Nicolas Castanon, an El Paso taxicab driver, was discovered in Modesto Gomez Park in the city of El Paso. Castanon had a bullet wound in his head behind the right ear and another bullet wound in his shoulder.

The taxicab which Castanon had been driving was discovered across the international border in Juarez, Mexico, with bloodstains on the front seat and carpet. His jacket was discovered on the grounds of Bowie High School on a road leading from Modesto Gomez Park to Juarez.

The cause of death was shown by autopsy to have been the bullet wound behind the right ear which fractured the first vertebra and the base of the skull and compressed the medulla oblongata. This stopped respiration and caused almost instantaneous death. It was estimated that the shot had been fired from no more than 15 inches away. The bullet fragment recovered revealed the deceased had been shot by a .357 Magnum or a .38 caliber Special. No valuables were found on the body.

Some months later on July 31, 1979, Geraldo (Jerry) Olague, age 16, personally contacted El Paso police officers. His written statement to the police led to the arrest of the appellant. The officers took Olague to Juarez where he pointed out the residence of appellant's mother and stepfather.

At trial Olague testified he was with appellant at the time the deceased was shot. Olague revealed that about 2:15 a.m. on February 27, 1979, he and appellant were together in front of the El Paso Public Library. Olague hailed a taxicab to go home. The taxi driver was Castanon. After he stopped, Olague got in the front seat and appellant got in the back seat. Appellant told Olague that after Olague was taken home he would go to his home in Juarez. Olague requested Castanon to take him to 226 Wooldridge where he lived. As they neared the location Olague heard appellant yell "stop" and as Castanon turned appellant shot him in the back of the head. Castanon fell into Olague's lap leaving blood on Olague's pants. The taxicab jumped the curb and ran into a yard, but Olague hit the brake and the engine died. Olague was surprised and scared. Appellant told him to get into the back seat. Appellant got behind the wheel. Olague remembered asking appellant why he shot Castanon, but he could not recall appellant's response.

The appellant drove to Modesto Gomez Park. Appellant removed Castanon from the cab and dragged him some distance and then shot Castanon again, and took Castanon's wallet and watch and jacket. Olague stated appellant used the jacket to wipe up some blood and threw the jacket out along the road they took to Juarez. The watch was discarded in a dumpster. After reaching Juarez, the taxicab was abandoned and appellant and Olague went to the home of appellant's mother. Olague revealed that when the television news told of the murder appellant laughed. Later appellant and Olague went into the interior of Mexico where appellant sold his .357 Magnum to a rancher. Olague then went to visit his father in Mexico, but appellant later checked on him by telephone and warned him not to tell of the incident. After some months, Olague returned to El Paso and went to the police.

Appellant's written extrajudicial confession was also introduced into evidence. It was very similar to the details related by Olague. Appellant stated he had a .357 Magnum which had been stolen by his brother, that he shot the deceased and drove the automobile to a small park. After Olague dragged the body out of the cab, appellant admitted he shot the deceased and took his watch. He stated he later threw the watch into a trash can on the way to Juarez.

Appellant argues the evidence does not show the murder was committed in the course of a robbery as alleged in the indictment, and thus the evidence is not sufficient to sustain a conviction for capital murder. He contends there was no prior discussion of robbery prior to the shooting and no indication in the confession of an intent to commit robbery at the time of the shooting.

In Riles v. State, 595 S.W.2d 858, 862 (Tex.Cr.App.1980), the defendant claimed a fundamental error in the charge. There this Court stated:

"The phrase 'in the course of committing or attempting to commit ...' as used in Sec. 19.03(a)(2), supra, is not defined in the Penal Code. Section 29.01(1) of the code, however, does define 'In the course of committing theft.' That phrase is given the definition of 'conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.' We similarly construe the phrase of Sec. 19.03(a)(2) to mean conduct occurring in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of the offense, i.e., in this case, of robbery."

See also Autry v. State, 626 S.W.2d 758, 762 (Tex.Cr.App.1982); Anderson v. State, 701 S.W.2d 868 (Tex.Cr.App.1985) (Murder in the course of robbery).

In Woolridge v. State, 653 S.W.2d 811, 816 (Tex.Cr.App.1983), it was held that the fact that the aggravated rape had been committed prior to the events leading to the death of the victim who was killed in flight after rape did not mean that the death of the victim was not caused in the course of committing aggravated rape as alleged in the capital murder indictment. There this Court wrote:

"The Court has held 'in the course of committing' an offense listed in V.T.C.A., Penal Code, Sec. 19.03(a)(2), means conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense. Riles v. State, 595 S.W.2d 858, 862 (Tex.Cr.App.1980)."

Thus, a robbery of the victim immediately after the shooting of the victim resulting in his death is capital murder occurring in the course of committing robbery.

The fact that there was no prior discussion of robbery and no indication of an intent to commit robbery mentioned in the confession is not controlling. It is true there was no evidence that appellant demanded of the victim money or property prior to shooting him, but a verbal demand is not the talisman of an intent to steal. Such intent may be inferred from actions or conduct. Johnson v. State, 471 S.W.2d 811, 812 (Tex.Cr.App.1971).

Viewing the evidence in the light most favorable to the jury's verdict, we hold the evidence was sufficient for the rational trier of facts to find all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This standard applies in both direct and circumstantial evidence cases. See Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983) (Opinion on State's Motion for Rehearing); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983) (Opinion on Rehearing); Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983) (Opinion on Rehearing). See also Brandley v. State, 691 S.W.2d 699, 703 (Tex.Cr.App.1985); Anderson v. State, supra.

Next appellant contends the trial court erred in admitting into evidence his extrajudicial confession because the confession was taken as a result of an illegal arrest in that the arrest warrant was issued pursuant to an affidavit which failed to state probable cause.

The record reflects that after taking a statement from Olague on July 31st the El Paso police learned the next morning that appellant was in the county jail as a result of alleged violations of probation. Appellant does not challenge the validity of his custody under the revocation proceedings. The city officers checked appellant out of the county jail about 8:30 a.m. on August 1st and took him to the Crimes Against Persons section of the police department. He was asked about the incident, and when he did not respond, Officer Medrano told him not to say anything until he had been taken before a magistrate and given his "Miranda" warnings. At 9:08 a.m. appellant was taken before Justice of the Peace Baca. There Officer Holland filed an affidavit for an arrest warrant with Judge Baca. Determining that it reflected probable cause, the judge issued an arrest warrant. Judge Baca informed appellant of the murder charge and warned him of his rights in English and Spanish in accordance with Articles 15.17 and 38.22, V.A.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The officers returned appellant to the police department and Officer Medrano again warned appellant of his rights under Miranda and commenced taking the written confession at 9:35 a.m. It was concluded at 10:17 a.m. The confession was taken in Spanish at appellant's request and typed in Spanish. Appellant read the warnings at the top of the confession form and initialed it. He then signed the confession after reading it.

Appellant argues that the arrest warrant affidavit does not meet the second prong of the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in that there...

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