Garcia v. State

• Decision Date: 21 December 1994
• Docket Number: No. 71417,71417
• Citation: 919 S.W.2d 370
• Parties: Gustavo Julian GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 370

919 S.W.2d 370

Gustavo Julian GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 71417.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 21, 1994.

Opinion after Grant of Rehearing

March 27, 1996.

Michael L. Strasser, Wylie, for appellant.

Tom O'Connell, Dist. Atty., and Randall A. Blake, Mark J. Rusch and David Waddill, Asst. Dist. Atty's, McKinney, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

PER CURIAM.

Appellant was convicted of capital murder. Tex.Penal Code Ann. § 19.03(a)(2). The jury affirmatively answered the statutory punishment issues and the trial judge sentenced appellant to death. Tex.Code Crim.Proc.Ann. arts. 37.071, § 2(b) and (e). Appeal to this Court is automatic. Id. at (h). Appellant raises seventy points of error, including challenges to the sufficiency of the evidence at both the guilt/innocence and the punishment stages of trial. However, because we sustain point of error forty-two, we address only this point of error as well as appellant's challenges to the sufficiency of the evidence.

I. SUFFICIENCY OF THE EVIDENCE AT GUILT/INNOCENCE

The evidence at trial established that on December 9, 1990, appellant and his co-defendant, Christopher Vargas, entered a liquor store in Plano. Appellant was armed with a single shot, twenty gauge, sawed-off shotgun and carried extra ammunition. Appellant ordered the store clerk to retrieve the money from the cash register while Vargas took beer to their car.

Appellant ordered the clerk into a small room and on his knees. Appellant then shot the clerk in the abdomen. The clerk managed to get to his feet, threw a chair at appellant and escaped, running around the building and over a fence. Appellant reloaded, pursued the clerk, and shot him in the back of the head. By the time authorities arrived at the scene, appellant and Vargas had departed. The clerk later died from his shotgun wounds.

Approximately one month later, appellant, his common law wife, and Vargas parked at the gas pumps of a convenience store in Plano. While appellant's wife pumped gas, appellant and Vargas entered the store with the same shotgun used at the liquor store. The clerk, who was talking on the telephone with his girlfriend, asked her to call the police. The clerk was taken to a back room, placed on his knees and shot in the back of the head. While appellant contends Vargas shot the clerk, the State presented fingerprint evidence which indicated Vargas again carried beer to the car while appellant shot the clerk. Appellant and Vargas were arrested at the convenience store.

The instant prosecution is for the liquor store murder. Appellant executed a written statement concerning this offense, which, in part, provides:

CHRIS VARGAS & I ROBBED A LIQUOR STORE & I KILLED THE CLERK. THE LIQUOR STORE WAS BEHIND A 7-11 STORE AT PLANO PKWY & AVE K.

* * * * * *

WE WAITED IN THE LIQUOR STORE PARKING LOT UNTIL THE CUSTOMERS ALL LEFT. BOTH CHRIS & I WENT INTO THE LIQUOR STORE & I PULLED A 20 GA. SAWED-OFF SHOTGUN ON THE CLERK. I HAD THE CLERK GIVE ME THE MONEY OUT OF THE CASH REGISTER....

* * * * * *

I SHOT THE CLERK WITH THE SHOTGUN. THE CLERK STARTED COMING AT ME & THREW A CHAIR AT ME & THEN HE RAN OUTSIDE. I LOADED THE SHOTGUN & SHOT THE CLERK AGAIN OUTSIDE THE STORE. THE CLERK HAD JUMPED OVER A FENCE & WAS IN SOME GRASS WHEN I SHOT HIM THE 2ND TIME.

At trial, Bobby Flores testified he was at Vargas' house on the night of the liquor store murder. Flores testified appellant and Vargas left the house and returned with beer and a lot of money. When appellant was asked where the beer and money came from, appellant stated he went into a store, asked the clerk for the money, took the beer, shot the clerk and left.

In point of error number sixty-eight, appellant contends the evidence is insufficient to show he committed, or attempted to commit a robbery. To review the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found 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); and, Dunn v. State, 721 S.W.2d 325, 327 (Tex.Cr.App.1986). Even evidence erroneously admitted is properly considered in a sufficiency review. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App.1993). Therefore, we hold, after considering appellant's written statement and the other evidence presented, a rational trier of fact could have found appellant committed, or attempted to commit, robbery. Point of error number sixty-eight is overruled.

II.

THE WRITTEN STATEMENT

A.

In point of error forty-two appellant contends the trial judge erred in admitting his written statement concerning the liquor store murder. Specifically, appellant contends the written statement did not comply with Tex.Code Crim.Proc.Ann. art. 38.22, § 2(b). Art. 38.22, § 2, provides:

Sec. 2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(a) the accused, prior to making the statement ... received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time; and

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

Id. (Emphasis added.)

The face of the form upon which appellant's written statement appears contained the following language:

I have been duly warned and advised by [the Detective], a person who has identified himself as an officer of the Plano Police Department, that:

(1) I have the right to remain silent and not make any statement at all and any statement I make will be used against me at my trial;

(2) Any statement I make will be used as evidence against me in court;

(3) I have the right to have a lawyer present to advise me prior to and during questioning;

(4) If I am unable to employ a lawyer, I have the right to have a lawyer appointed (without cost to me) to advise me prior to and during my questioning; and

(4) [sic] I have the right to terminate the interview at any time.

* * * * * *

I have read each page of this statement consisting of [# omitted] page(s), each page of which bears my signature, and corrections, if any bear my initials, and I certify that the facts contained herein are true and correct. I further certify that I have made no request for the advice or presence of a lawyer before or during any part of this statement, nor at any time before it was finished did I request that this statement be stopped. I also declare that I was not told or prompted what to say in this statement.

[Time, date and signature lines omitted.]

Clearly, this form contained the warnings required by art. 38.22, § 2(a). However, appellant contends the statement was inadmissible under art. 38.22, § 2(b) because it did not show, on its face, the waiver of each of the rights contained within the art. 38.22, § 2(a) warnings. We agree. Under art. 38.22, § 2(b) the written statement must show on its face the knowing, intelligent and voluntary waiver of each of the rights of art. 38.22, § 2(a). Art. 38.22, § 2(b) is clear and unambiguous, and "the Legislature is constitutionally entitled to expect that [we] will faithfully follow the specific text that was adopted." ¹ Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991).

The State contends appellant's waiver of his rights was demonstrated when he initialed each warning on the statement. The State's contention is supported by the trial judge's findings of fact when he overruled appellant's motion to suppress the statement. While we ordinarily will not disturb factual determinations made by the trial judge, White v. State, 779 S.W.2d 809 (Tex.Cr.App.1989), we hold the trial judge's findings in the instant case are not supported by the record. The trial judge's findings can not change what is readily apparent (or more appropriately, lacking) from the face of written statement. We hold that appellant, by initialing each warning reflected on the written statement form, did not affirmatively waive the rights contained within the warnings. At best, appellant's initials only indicated he read and understood those warnings. The detective who interrogated appellant testified he "had [appellant] read those rights" and then told him "if he understood them I wanted him to initial them, which he did." (Emphasis added.)

The State next contends the final paragraph on the written statement form can be interpreted as a waiver. The State concedes the final paragraph does not contain the word "waiver" and does not address all of the rights enumerated in art. 38.22, § 2(a). But, citing Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985), and Hardesty v. State, 667 S.W.2d 130 (Tex.Cr.App.1984), the State contends the final paragraph is in substantial compliance with art. 38.22, § 2(b). The State's reliance on Penry and Hardesty is misplaced. In each case we considered the admissibility of a written statement which provided on its face all the art. 38.22, § 2(a) warnings, only not in the exact statutory language. Noting that all the warnings required by art. 38.22, § 2(a) appeared on the face of the statement, and that the language conveyed the exact meaning of ...