Gamboa v. State

• Decision Date: 08 April 2009
• Docket Number: No. AP-75,635.,AP-75,635.
• Citation: 296 S.W.3d 574
• Parties: Joseph GAMBOA, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

296 S.W.3d 574

Joseph GAMBOA, Appellant, v. The STATE of Texas.

No. AP-75,635.

Court of Criminal Appeals of Texas.

April 8, 2009.

Roderick B. Glass, Asst. Appellate Public Defender, San Antonio, for appellant.

Scott Roberts, Asst. D.A., San Antonio, Jeffrey L. VanHorn, State's Attorney, Austin, for the State.

KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

In March 2007, appellant was convicted of capital murder and sentenced to death.¹ Direct appeal to this Court is automatic.² Appellant raises eighteen points of error. Finding no reversible error, we affirm the conviction and sentence.

I. BACKGROUND

A. The Crime

On the night of June 23, 2005, Ramiro "Ram" Ayala, the owner of a San Antonio bar named Taco Land, was working alongside employees Denise Koger and Douglas Morgan. Shortly after the bar opened, between 10:00 and 11:00 in the evening, appellant and Jose Najera entered the bar. Neither man was known to the employer or his staff. Patrons Paul Mata and Ashley Casas arrived at around 11:30 p.m. They purchased a couple of beers and began a game of pool. Shortly afterwards, appellant approached Paul, introduced himself as "Rick," and asked to play pool. After Paul and Ashley finished their game, appellant and Paul began to play. Another patron, Anita Exon, left around midnight and remembered seeing two Hispanic males who remained at the bar.

At some point during the pool game, appellant approached Ram and began to argue. Appellant then put a gun to Ram's stomach and shot him. Paul and Ashley hid in a nearby closet. Douglas and Denise hid behind the bar, only to be confronted later by appellant. Appellant told Douglas to open the cash register, but he was unable to do so. Appellant then shot him and had Denise open the cash register. After she retrieved the money, appellant demanded any money that was not kept in the register. While Denise was complying, appellant shot her in the back and commenced kicking her in the head. He then picked up Douglas and shot him again.

Shortly afterwards, appellant and Najera left the bar. Denise was able to telephone 911 for help while Paul attempted to render aid to Ram and assist Denise with the phone call. Ram died that same night; Douglas lived for three more weeks before succumbing to his injuries.

B. Investigation and Evidence

Officer Michael Wesner arrived first on the scene at approximately 1:15 a.m. Investigators took statements from the three witnesses and collected various items such as pool cues and a beer can thought to have been handled by appellant, as well as spent bullets and samples of blood. Later, he attended a memorial service for Ram where he interviewed several people. The leads he received at the service did not pan out under further investigation.

At some point, Anita Exon told Detective John Slaughter that, based on her belief that Denise had owed a person called "Tiny" money for drugs, "Tiny" might have been involved in this offense. Other leads included a June 25th Crime Stoppers tip regarding a person named Sean Waggoner.

Detective Slaughter testified that he had no reason to think of or discount "Tiny" as a suspect. The only reason he was considered by Detective Slaughter was that Anita mentioned him. Nothing in Denise's account of what happened referred to "Tiny," nor did anything else that came up in the investigation. Sean Waggoner matched the description of one of the assailants, and once he heard that the police where looking for him, he contacted Detective Slaughter. Detective Slaughter then met with Sean, who was cooperative. Sean gave a DNA sample and an alibi for his whereabouts on the night in question. His DNA did not match the DNA taken from the beer can believed to have been used by appellant and his accomplice, and further investigation substantiated his alibi.

On July 2, 2005, Detective Slaughter received a tip from Crime Stoppers regarding the identities of the two assailants, Najera and appellant. Detective Slaughter returned to the hospital that day to show Denise a photo line-up with a picture of appellant. She was not able to identify him as her assailant, but she did point to his picture and that of another person and said that they looked familiar to her. Detective Slaughter showed her another photo array that included Najera, and she was able to identify him as one of the assailants. Detective Slaughter was never able to communicate in any significant way with the other victim, Douglas, before his death.

On the same day, Detective Roy Rodriguez showed Paul a black and white photo array consisting of pictures of appellant and five other men. Paul was able to identify appellant as one of the two men involved in the crime. Three days later, due to a miscommunication between Detectives Slaughter and Rodriguez, the same photo array, but this time in color, was shown to Paul. Once again he identified appellant. Paul was also shown another array, which included Najera's photo, but he was unable to identify him as one of the two offenders.

On July 6, 2005, Detective Slaughter received fingerprint results from the pool cues and beer cans. A fingerprint examiner for the San Antonio Police Department found that the prints from one of the pool cues matched those of appellant.

On June 7, 2006, Detective Slaughter executed a search warrant to obtain a DNA sample from appellant. The next day, appellant's and Najera's DNA were compared to samples from the beer can found at the Taco Land Bar. The results excluded Najera, but did not exclude appellant.

II. GUILT

A. Factual Sufficiency of the Evidence

In point of error nine, appellant contends that the evidence at trial, including DNA, eyewitness identification, and fingerprints, was factually insufficient to justify the jury's verdict. Appellant argues that the three witnesses who testified to seeing appellant shoot Ram never positively identified appellant before trial and therefore their in-court identifications are suspect. Appellant also argues that Anita testified that appellant and Najera left the bar before she did, so the DNA and fingerprint evidence collected were not dispositive of guilt. Finally, appellant suggests that Detective Slaughter purposefully ignored other suspects, such as "Tiny" and Sean Waggoner.

DNA evidence from beer cans was consistent with appellant's DNA. Bexar County's forensic scientist testified that the chance of finding another person with the same DNA profile as appellant's is 1 in 5.95 quadrillion. Also, appellant's fingerprints were recovered from the crime scene, and multiple eyewitnesses identified him as the perpetrator of the crime. During Paul's testimony, there was some confusion as to when he became positive of his identification. Nevertheless, the record indicates that Paul positively identified appellant at the time he reviewed the photo array. The photo array, with his signature behind appellant's photograph, was admitted into evidence as well. Denise testified that once she was out of the hospital and no longer under the influence of medication, she was also able to positively identify appellant.

Appellant also contends that Anita stated that appellant and Najera left before she did. But appellant seems to be referring to what Detective Slaughter testified regarding what Anita had told him, as opposed to her own testimony. Anita testified that she never told him anything of the sort and the two men she saw were still at the bar when she left. The record shows that Detective Slaughter investigated both Sean and Tiny and was able to eliminate them as suspects.

In reviewing a factual sufficiency challenge, we consider all of the evidence in a neutral light and ask whether the evidence introduced to support the verdict, though legally sufficient, is nevertheless so weak or so against the great weight and preponderance of conflicting evidence as to render the jury's verdict clearly wrong and manifestly unjust.³ Viewing the evidence in a neutral light, we find the evidence factually sufficient to sustain the verdict. Point of error nine is overruled.

B. Jury Selection

In point of error one, appellant complains that the trial judge erred in dismissing a juror sua sponte when he was not disqualified as a matter of law. Appellant argues that the trial judge erroneously relied upon Brooks v. Dretke in dismissing the juror.⁴ In addition, appellant argues that the harmless error doctrine does not apply due to the Supreme Court's ruling in Gray v. Mississippi.⁵

During voir dire, Juror Aulds was arrested for driving while intoxicated. The arrest occurred after the jury was selected, but before it was sworn, and a couple of days before the trial was to commence. Neither the State nor appellant objected to Juror Aulds serving on the jury. But the trial judge believed that because of the Fifth Circuit's ruling in Brooks v. Dretke, Juror Aulds should be disqualified or else his inclusion would lead to an eventual overturning of a verdict on appeal. The trial judge believed that the power the District Attorney's office would have over Juror Aulds would influence his ability to be impartial. Appellant objected to the sua sponte dismissal of Juror Aulds. After the dismissal, the trial judge decided to place the already-selected alternate in Juror Aulds' position and continue voir dire with the remaining potential jurors to fill the alternate's spot.

Appellant relies on Gray v. Mississippi to support his position.⁶ But the Supreme Court has explained that the broad language in Gray was too sweeping to be applied literally and should not be extended beyond the context of the "erroneous `Witherspoon exclusion' of a qualified juror in a capital case."⁷ This Court has also held that, when Witherspoon error is not at issue, the erroneous excusal of a veniremember will call for reversal "only if the record shows that the error deprived the defendant of a lawfully constituted...