Fuentes v. State

• Decision Date: 28 April 1999
• Docket Number: No. 72700,72700
• Parties: Anthony FUENTES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 267

991 S.W.2d 267

Anthony FUENTES, Appellant, v. The STATE of Texas, Appellee.

No. 72700.

Court of Criminal Appeals of Texas.

April 28, 1999.

Gary Taylor, Austin, for appellant.

Kevin P. Yeary, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for the State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which MANSFIELD, PRICE, HOLLAND, WOMACK, JOHNSON, and KEASLER, J.J., joined.

Appellant was convicted in November 1996, of a capital murder committed on February 18, 1994. TEX. PENAL CODE § 19.03. The jury's verdicts required the trial court to sentence appellant to death. TEX. CODE CRIM. PROC. art. 37.071 § 2. Appeal from the sentence of death is automatic to this Court. Id; TEX. CONST. Art. I, § 5. Appellant raises seventeen points of error.

In his first point of error, appellant challenges the legal sufficiency of the evidence to establish beyond a reasonable doubt that he is the person who shot and killed the victim. Appellant also argues the evidence is insufficient to corroborate the accomplice witness testimony.

Reviewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993), the evidence establishes that on Friday, February 18, 1994, appellant, Kelvin Templeton, Terrell Lincoln, and Steve Vela conspired to rob the Handi Food Mart and any employees or customers who happened to be in the store. The Handi Mart was busy with employees of the Swartz Electric Company who had just been paid, cashed their paychecks at the store and were enjoying a few beers and the company of coworkers outside the premises of the store. Among those gathered was Robert Tate, a regular customer and acquaintance of the proprietors of the Handi Mart and sometime employee of Swartz Electric.

Appellant and his cohorts arrived at the store, noted that it was busy and proceeded with their plan. Templeton went directly to the coolers, grabbed two cases of beer and walked out. Appellant and Vela walked into the store behind Templeton and pulled out their guns. Vela went to the cashier and demanded money. Appellant approached the proprietor and a customer who were standing near the counter. The customer, Raymundo Soria, was a high school classmate of appellant's. He followed appellant's orders, hiding his identity in fear that appellant would recognize him. James Draffin was walking into the store when he noticed that it was being robbed. He ran to inform his co-workers of the robbery. Ignoring his friends' warnings not to get involved, Tate gave chase when Templeton left the store with the beer. Tate caught up to Templeton and grabbed him. Templeton dropped the beer. Just then, appellant came running out of the store. Julio Flores testified that appellant came out of the store, ran up to Tate and Templeton, and shot Tate twice in the chest. Testimony at trial indicated that appellant used a semi-automatic gun. Tate fell into a nearby ditch and died. The bullets recovered from Tate's body were consistent with those used in a 9 millimeter weapon, which are most commonly semiautomatic.

Flores further testified that, despite standing five hundred meters from appellant, he got a good look at his face and positively identified appellant as Tate's murderer. Flores' description of appellant was consistent with the description given by the proprietor as the man who robbed him in the store. Flores and Soria positively identified appellant in photo lineups.

Templeton was the only co-conspirator to testify. He testified that he was not watching when he heard the shots fired; he thought Tate had shot at him, so he just began running. Templeton testified that although he did not see it, he was under the impression that appellant had shot Tate because when he looked back, appellant had a gun in his hand and was the one closest to him, and he had not seen Vela near the victim.

In arguing the evidence was legally insufficient to prove beyond a reasonable doubt that appellant was the person who shot the victim, appellant relies in large part on the testimony of an expert witness regarding the inaccuracy of eye-witness testimony and Flores' identification of appellant in particular. For example, appellant points out that the entire robbery took place very quickly, visibility was poor at that time of the evening, the witnesses were some distance from the shooting, there were a number of distractions and obstructions, and some of the matters Flores testified to were not supported in the record. The victim was killed with a gun capable of firing a nine millimeter bullet, but testimony was inconsistent concerning the types of guns carried by appellant and Vela in the robbery.

Appellant's arguments amount to attacks on the credibility of the State's evidence. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). When faced with conflicting evidence, this Court "presume[s] the trier of fact resolved any such conflict in favor of the prosecution." Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993). A reasonable juror could, on the evidence provided, find beyond a reasonable doubt that appellant was the person who shot and killed Tate.

Appellant also complains the non-accomplice evidence (that is, discounting Templeton's testimony) does not "tend to connect" him with the offense. He contends Flores' testimony was unreliable for many of the reasons cited above and argues the non-accomplice evidence was more incriminating of Vela than of appellant. Appellant also argues that while there is evidence connecting him to the robbery, there is no non-accomplice evidence connecting him to the killing.

Flores was not an accomplice. He testified that he saw appellant run up to the victim and shoot him. This testimony is sufficient to "tend to connect" appellant with the commission of the offense. Appellant's first point of error is overruled.

In his second point of error, appellant challenges the factual sufficiency of the evidence to establish that he committed capital murder. Clewis v. State, 922 S.W.2d 126, 131-32 (Tex.Crim.App.1996); Bigby v. State, 892 S.W.2d 864, 875 (Tex.Crim.App.1994), cert. denied, 515 U.S. 1162, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996), cert. denied, --- U.S. ----, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997). A factual sufficiency review takes into consideration all of the evidence and weighs the evidence which tends to prove the existence of the fact in dispute against the contradictory evidence. Clewis, 922 S.W.2d at 129, 134; see, e.g., Ellis County State Bank v. Keever, 915 S.W.2d 478, 479 (Tex.1995). But, to avoid intruding on the jury's role as arbiter of the weight and credibility of the evidence, a factual sufficiency review remains deferential to the jury's verdict. Clewis, 922 S.W.2d at 133. That a different verdict would be more reasonable is, therefore, insufficient to justify reversal; the jury's verdict will be upheld, unless it is so "against the great weight of the evidence " that it is "clearly wrong and unjust," i.e., manifestly unjust, shocking to the conscience or clearly biased. Id. at 135.

Appellant cites sufficient conflicting evidence to support an argument that another reasonable jury, weighing the evidence and assessing the credibility of the witnesses, could have reached a different verdict from the one reached by appellant's jury. But having reviewed the record, we cannot agree with appellant that the verdict reached was so "against the great weight of the evidence that it is clearly wrong and unjust, i.e., manifestly unjust, shocking to the conscience or clearly biased." Appellant's second point of error is overruled.

In his third point of error, appellant claims he was denied his Sixth Amendment right to counsel when trial counsel failed to request a jury instruction on the lesser included offense of felony murder. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In determining the effectiveness of counsel under the Sixth Amendment, we utilize the two prong test set forth in Strickland, supra. The first question is whether counsel's performance fell below professional norms. Id. at 685, 104 S.Ct. 2052. If counsel's performance was deficient, we then ask whether there is a reasonable probability the result would have been different but for counsel's deficient performance. Id.A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id.

In order to establish his claim that trial counsel's performance was deficient for failing to request an instruction, appellant must show that he was entitled to an instruction on the lesser included offense of felony murder. Kinnamon v. State, 791 S.W.2d 84, 97 (Tex.Crim.App.1990)(since the evidence did not authorize submission of a murder instruction as a lesser included offense appellant's trial counsel was not ineffective for failing to request it), overruled on other grounds, Cook v. State, 884 S.W.2d 485 (1994). To establish he was entitled to an instruction on felony murder, appellant must establish that felony murder is a lesser included offense of capital murder and that there was evidence that if guilty of an offense, appellant was guilty only of felony murder. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993).

The distinguishing element between felony murder and capital murder is the intent to kill. Adanandus v. State, 866 S.W.2d 210, 231 (Tex.Crim.App.1993)(evidence that in course of robbery, bystander was accidentally shot in...