Hernandez v. State

• Decision Date: 05 June 1991
• Docket Number: No. 70979,70979
• Citation: 819 S.W.2d 806
• Parties: Rogelio Rangel HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 806

819 S.W.2d 806

Rogelio Rangel HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 70979.

Court of Criminal Appeals of Texas En Banc.

June 5, 1991.

Rehearing Overruled Sept. 18, 1991.

Teresa A. Hunter, Laredo, for appellant.

Joe Rubio, Jr., Dist. Atty., Jose Angel Moreno, Asst. Dist. Atty., Laredo, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BENAVIDES, Judge.

The appellant, Rogelio Rangel Hernandez, was convicted of Capital Murder for causing the death of Jose Gerardo "Curly" Herrera, who was then employed as a detention officer at the Webb County Jail, while appellant was incarcerated on an unrelated charge. His punishment was assessed at death. See V.T.C.A. Penal Code Secs. 19.03(a)(5) and 1.07(a)(26). ¹ Appeal to this court is automatic. See Art 37.071(h), V.A.C.C.P.; Rule 40(b)(1), Tex.R.App.Proc. After considering appellants forty-one points of error, we find no error that would require us to disturb the trial court's judgment of conviction and sentence of death.

The record reflects that appellant was one of several detainees in the Webb County Jail who, on February 3, 1986, attempted to 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. Two of the guns were large caliber weapons (.38 caliber pistols). The other three handguns were .22 and .25 caliber weapons. Herrera was shot and killed when he appeared on the second floor of the jail to remove appellant for an interview with his attorney. No other jail personnel witnessed the actual shooting.

Jose de Jesus Benavides and Merced Martinez, two other detention officers who came to investigate the sound of gunfire, 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. A narrow stairwell in the jail prevented law enforcement officers from reaching the second floor and allowed appellant to control that floor for most of the night. After threatening to shoot other inmates on the second floor, appellant finally surrendered and was taken into custody.

In appellant's twenty-ninth point of error he asserts that the evidence is insufficient to sustain a conviction for capital murder in that a rational trier of fact could not have found beyond a reasonable doubt that appellant intentionally caused the death of Herrera. We review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found beyond a reasonable doubt that appellant intentionally caused the death of Herrera. See Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); See Marras v. State, 741 S.W.2d 395 (Tex.Cr.App.1987). Intent may be inferred from acts, words and conduct of accused. See Gutierrez v. State, 672 S.W.2d 633 (Tex.App. 13 Dist.1984) [Held, trier of facts may infer intent to kill from any facts in evidence which, to his mind, proves existence of such intent to kill. V.T.C.A. Penal Code § 19.02(a), affirmed as reformed 741 S.W.2d 444 (Tex.Cr.App.1987) ] Indeed, mental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs.

The record reflects that appellant was responsible for procuring all the weapons involved in the shooting incident. He was seen in possession of both large caliber revolvers immediately after Herrera was shot. The fatal shots were 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. The record also reflects that appellant made two oral admissions in which he acknowledged shooting the deceased in the head. There was evidence that appellant also shot another jailer, Merced Martinez, as Martinez turned to run away after discovering appellant standing over Herrera's body. There was evidence that appellant planned this escape for quite some time and was well aware that it could include bloodshed. We find that any rational trier of fact could have found, beyond a reasonable doubt, that appellant intentionally caused Herrera's death. Therefore appellant's twenty-ninth point of error is overruled.

In point of error forty appellant contends that the evidence is insufficient to support the jury's affirmative answer to the first special issue, namely, whether the conduct of appellant that caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased or another would result. ²

The legislature has not defined the term "deliberately" and this Court has declined to do so as a matter of statutory construction. See Farris v. State, 819 S.W.2d 490 (Tex.Cr.App.1990). However, for the purpose of evidentiary review, we found in Farris that the term "deliberately" in a capital murder context is "something more than intentional, ... [but] less than premeditation, ... [representing] a conscious decision--greater than mere will--to cause the death of the victim." See Farris, at 497, citing Nichols v. State, 754 S.W.2d 185, 201 (Tex.Cr.App.1988). It is against this standard that we determine whether the evidence is sufficient to establish deliberate conduct on the part of appellant.

The record reflects that appellant wrote numerous letters to various relatives announcing he was about to do something which would either gain him his freedom or get him killed. He ordered large caliber weapons; apparently dissatisfied with smaller ones that were delivered earlier. He shot Herrera in the head. In an ongoing attempt to win his freedom, appellant, after shooting Herrera, attempted to kill other jailers who were trapped inside the jail's security doors. Violence that occurs after the murder may be used to support an affirmative finding on deliberateness. See Selvage v. State, 680 S.W.2d 17 (Tex.Cr.App.1984). Appellant's conduct could easily be viewed as deliberate conduct with the attendant and reasonable expectation that the death of Herrera would result. The evidence supports the conclusion that a rational trier of fact could have found that appellant acted deliberately in causing Herrera's death. Point of error forty is overruled.

Appellant's points of error one and eleven relate to the court's charge at the guilt phase. Appellant contends that the trial court erred in overruling his objection to the definition of intentional and denying his requested definition of intentional. In the charge of the court the trial court defined the word "intentional" as it is defined in V.T.C.A., Penal Code Sec. 6.03(a), which provides:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

After the trial court overruled this objection to the definition appellant then requested the following definition of "intentional":

"A person acts intentionally with respect to a result of his conduct when it is his conscious objective to cause the result."

The term "intentional" was explained, in the application portion of the charge, as follows:

Now bearing in mind the foregoing instruction, if you believe from the evidence beyond a reasonable doubt, that the defendant, ROGELIO RANGEL HERNANDEZ, on or about the 3rd day of February, A.D., 1986, in the county of Webb, and State of Texas, as alleged in count one in the indictment, did then and there intentionally or knowingly cause the death of an individual, JOSE GERARDO HERRERA, by intentionally or knowingly shooting the said JOSE GERARDO HERRERA with a firearm; and the said ROGELIO RANGEL HERNANDEZ, did then and there intentionally or knowingly cause the death of JOSE GERARDO HERRERA, while the said ROGELIO RANGEL HERNANDEZ was incarcerated in a penal institution, to wit: the Webb County Jail at Laredo, Texas, and the said JOSE GERARDO HERRERA was then and there employed in the operation of the said penal institution, you will find the defendant guilty of the offense of capital murder and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the first count of the indictment and proceed to consider the second count of the indictment.

The jury found appellant guilty of the first count; no verdict was returned on the second count.

Appellant argues that the failure of the trial court to delete the "nature of his conduct" and "engage in the conduct" language found in Penal Code § 6.03(a) "allowed the jury to find the specific intent to kill based on proof of only a general intent to engage in a course of conduct, such as pulling the trigger of a weapon, or engage in conduct of attempting to escape from jail." We reject appellant's point of error.

In support of his contention appellant relies on Alvarado v. State, 704 S.W.2d 36 (Tex.Cr.App.1985). ³ In Alvarado this court held that where a statute prohibits intentionally or knowingly causing a result, on motion of the defendant, the definition of intentionally or knowingly must be limited to causing the result. However, under the facts of this cause, appellant's reliance on Alvarado is misplaced because unlike in Alvarado this offense, as alleged, was not merely a "result of conduct" offense.

We find that it was not error to submit the penal code definition of intentional due to the wording of the indictment and the wording of the application portion of the charge, which tracked the language of the indictment. The indictment in this cause required a finding of a culpable mental state to both "cause the result" (the death of Herrera) AND "engage in the conduct" (shooting Herrera with a gun). Thus in order to secure a conviction under...