Hernandez v. State
| Decision Date | 29 June 1988 |
| Docket Number | No. 69649,69649 |
| Citation | 757 S.W.2d 744 |
| Parties | Rogelio Rangel HERNANDEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
After a change of venue from Webb County to Zapata County, Rogelio Rangel Hernandez, hereinafter appellant, was convicted by a jury of Capital Murder for intentionally causing the death of Jose Gerardo "Curly" Herrera, who was then employed as a detention officer at the Webb County Jail, a penal institution, while appellant was incarcerated on an unrelated charge, and his punishment assessed at death. See V.T.C.A., Penal Code, §§ 19.03(a)(5) and 1.07(a)(26). Appeal to this Court is automatic. See Tex.R.App.Proc., Rule 40(b)(1).
In his sixty-seventh point of error, appellant contends that the evidence was insufficient to support conviction. 1 The record of trial establishes that appellant was one of several detainees in the Webb County Jail who, on February 3, 1986, attempted an escape from that facility. Appellant and at least two other prisoners were armed with five handguns that had been smuggled into the jail at appellant's request. Only two of the guns were large-caliber weapons (.38 caliber pistols). The other three handguns were .22 and .25 caliber weapons. When the deceased appeared on the floor to remove appellant for an interview with his attorney, he was shot and killed. No other jail personnel witnessed this event.
Jose de Jesus Benavides and Merced Martinez, two other detention officers rushing to investigate, were each shot several times by the appellant, who was then armed with a large-caliber revolver in each hand. Ruben Reyes, another detention officer, was also shot. The barrage of gunfire prevented law enforcement officers from entering the floor where appellant was located for some time. Eventually, after first threatening to kill other inmates, the appellant was persuaded to surrender and was thereafter taken into custody.
The record contains some forensic evidence from which it might be inferred that appellant was the only inmate to fire a gun during the episode. The strength of this inference is, however, subject to uncertainty because interpretation of the scientific test upon which it was based does not rule out or render improbable a variety of other inferences. In short, while it is certain that the appellant did fire a pistol himself, it is not unlikely that other inmates did as well. Moreover, ballistics examination of the various weapons involved indicated that at least three were fired during the incident in question, suggesting that more than one inmate was responsible for the gunfire.
Without assessing the reliability of witness testimony or measuring its relative weight, which are matters solely within the jury's discretion, it is clear that the circumstances do support a rational conclusion of appellant's culpability as charged in the indictment. He was evidently responsible for procuring all the weapons involved and was seen to be in possession of both large-caliber revolvers immediately after the deceased was mortally wounded. The fatal shots were apparently fired from a large-caliber weapon, only two such weapons were delivered to inmates in the Webb County Jail prior to the incident in question, and only two were discovered in the facility afterwards. As a matter of the Webb County Jail policy, detention officers are not permitted to carry sidearms while on duty. Although these circumstances do not rule out the hypothesis that another detainee caused Officer Herrera's death, it is far more likely, based on the available evidence, that appellant was the one who killed him.
In the instant cause, however, we need not evaluate evidentiary sufficiency against a standard requiring exclusion of all outstanding reasonable hypotheses. Cf. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983, on rehearing). The circumstantial evidence of guilt was reinforced with testimony of two oral admissions made by the appellant, in which he acknowledged shooting the deceased, Officer Herrera, in the head. The circumstantial evidence, summarized above, adequately corroborates this admission, establishing not only that the deceased was murdered but also that appellant was probably the killer.
Moreover, the mental culpability required for a capital murder offense was also proved with great enough certainty for due process and due course of law. As always, the mental condition of an accused is not readily susceptible of eyewitness identification. Rather, it must be inferred from the circumstances under which the prohibited act or omission was committed.
In the instant cause, events leading up to the killing and following hard upon it virtually compel an inference that the appellant acted with deliberation throughout his escape attempt. Of course, it is impossible to say with absolute certainty that his conscious objective was to kill, rather than merely to escape confinement. Moreover, it might even have been the case he was unaware that his conduct was reasonably certain to cause death, although his subsequent fusillade injuring three other jailers seems to preclude this possibility. What is most important, however, is that a finding of intentional and knowing murder is not only justified under these circumstances, but is also the most plausible explanation consistent with appellant's known conduct. Certainly the jury was not irrational in reaching this conclusion with a level of confidence surpassing reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore, appellant's sixty-seventh point of error is overruled.
In his first eight points of error, appellant complains that a number of prospective jurors were excluded from service pursuant to State challenges for cause in violation of the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 10 of the Texas Constitution, and Article 1.05 of the Texas Code of Criminal Procedure. Specifically, he maintains that opposition to the death penalty, without more, does not constitute a basis for exclusion of prospective jurors, that the burden is upon the challenging party to demonstrate a sufficient basis for exclusion, and that the State failed to meet its burden with respect to the veniremen here in question. We agree.
If one thing is clear from our published opinions in this area of the law it is that potential jurors frequently misunderstand the questions put to them by attorneys during voir dire. The problem is often exacerbated by the questions themselves.
To illustrate, we set out the entire voir dire examination of Jose Mario Martinez, the subject of appellant's fourth point of error: 2
QUESTIONS BY MR. GARCIA, DISTRICT ATTORNEY:
Q. Mr. Martinez, my name is Julio Garcia and I represent the State of Texas in this case, along with Mr. Rogelio Rios and Arturo Figueroa. Representing the defense is Mr. Eddie Pena, Hector Leal, Jr. and Lauro Benavides. They are all attorneys from Laredo, Texas. Mr. Martinez, this is a capital murder case for which the punishment is a mandatory type of punishment imposed by law, that is, either life imprisonment and/or death. Do you agree with that principle?
A. I don't know.
Q. You don't know what, sir?
A. I could not understand the questions.
Q. Do you agree with the principle that death can be a viable alternative as a form of punishment for a particular offense?
A. (No response.)
Q. Do you understand it, sir?
A. I don't understand it.
Q. Do you believe that death can or should be imposed as a penalty for the commission of some type of offense? 3
A. No.
Q. Mr. Martinez, the mandatory punishment for capital murder is either life or death. The Court would instruct you that you have to listen to all the evidence and first decide whether the defendant is guilty. If you decide he is guilty of capital murder, the Court would instruct you to answer three special issues and, based on your answer to those issues, the Court would either assess life imprisonment or death. Could you follow those instructions? Could you listen to all of the evidence and then follow the Court's instructions in faithfully and truthfully answering the three special questions that appear on this poster I am pointing to?
(Pause while witness examines questions.)
THE COURT: Have you read them?
A. Yes, sir.
Q. What did you mean by your answer?
A. I read the questions.
Q. Now my question was whether your views on the death penalty would prevent you from following the Court's instructions and would prevent you from truthfully and faithfully answering these special issues in accordance with the evidence. Would you do that, sir? 4
A. I don't understand.
Q. Would you follow the Court's instructions and listen to the evidence and then answer these three special questions based on the evidence? If the Court instructed you to do that, could you do that?
A. Yes, sir.
Q. Mr. Martinez, did I misunderstand you when you said that you had some strong feelings against the death penalty? Didn't you say that?
A. I said no.
Q. No what?
A. I don't know what the death penalty is. 5
Q. You don't know what the death penalty is?
A. No.
Q. That a man is put to death. His life is extinguished, terminated, it is finished by the legal method prescribed for by...
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