Hinojosa v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: HOLLAND, J., delivered the opinion of the Court in which MCCORMICK, P.J., MEYERS, J., MANSFIELD, J., KELLER, J., PRICE, J., WOMACK, J., and KEASLER, J., joined. JOHNSON
• Citation: Hinojosa v. State, 4 S.W.3d 240 (Tex. Crim. App. 1999)
• Decision Date: 27 October 1999
• Parties: (Tex.Crim.App. 1999) RICHARD HINOJOSA, Appellant, v. THE STATE OF TEXAS. NO. 72, 932.

Page 240

4 S.W.3d 240 (Tex.Crim.App. 1999)

RICHARD HINOJOSA, Appellant, v. THE STATE OF TEXAS.

NO. 72, 932.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS.

October 27, 1999.

ON DIRECT APPEALM FROM BEXAR COUNTY.

[Copyrighted Material Omitted]

O P I N I O N

HOLLAND, J., delivered the opinion of the Court in which MCCORMICK, P.J., MEYERS, J., MANSFIELD, J., KELLER, J., PRICE, J., WOMACK, J., and KEASLER, J., joined. JOHNSON, J., concurred in the result.

Appellant was convicted of capital murder on July 21, 1997. See TEX. PENAL CODE ANN. 19.03(a). Pursuant to the jury's answers to the special issues set forth in articles 37.071 2(b) and 2(e) of the Texas Code of Criminal Procedure, the trial judge sentenced appellant to death. See Art. 37.071 2(g).¹ Direct appeal to this Court is automatic. See Art. 37.071 2(h). Appellant raises eight points of error. We will affirm.

SUFFICIENCY OF THE EVIDENCE

In his fourth point of error, appellant challenges the factual sufficiency of the evidence to support his conviction. The evidence shows that on May 9, 1994, Terry Wright, a 29-year-old manager of a dentist office, had made a date to see her boyfriend, Charles Miller, after work. They were unable to meet, however, because Miller had to work late and she had a late meeting. Miller called Wright at her home around 11 p.m. She had just returned from work and sounded tired from working all day. That was the last time they spoke.

Wright did not show up for work the following morning. Upon hearing this news, Wright's father went to her house to investigate. The front of Wright's house was completely caged by burglar bars. With a spare key, Wright's father unlocked the gate and the front door. The house was in disarray, particularly Wright's bedroom. Wright's nightgown, torn at the straps, lay on the floor. The cord to an oscillating fan was cut. Numerous items had been thrown around the room, and it appeared that a jewelry box had been rummaged through. Outside, police discovered that the phone lines on the side of the house had been severed. Apparently, the perpetrator gained entry by climbing up the burglar bars onto the roof, lowering himself into an enclosed garden atrium,² and throwing a flower pot through the atrium window into the dining room. Police found mud on the burglar bars, a footprint in the mud inside the atrium, and muddy footprints inside the house leading from the dining room into Wright's bedroom.

At eight o'clock that same morning, police found Wright's abandoned black Beretta car near the intersection of Sulphur Springs Road and Loop 410.³ A trail of transmission fluid guided police from the car to a dirt road off the freeway where a metal pipe protruding through the mud apparently severed the car's transmission line. With the assistance of a K-9 unit, police found Wright's nude body, which had been covered with grass, in a nearby field. Wright had been stabbed 11 times in the chest and back, causing her death. Blood splattered on vegetation indicated that Wright was still alive when she arrived at the field.

Vincent DiMaio, the medical examiner, testified that the presence of sperm on vaginal swabs taken from the victim indicated that she had sexual intercourse within 24 hours of her death. According to the State's DNA expert, only 1 in 19,900,000 randomly selected people of appellant's racial classification group would match the DNA profile of the sperm collected on the vaginal swab. Appellant possessed a DNA profile that matched the sperm taken from the victim.

Near the location where the victim's body was located, police found a footprint identical to the one found in the atrium. According to a Fila brand shoe representative, the prints were made by a leather Fila "Slant Shot" tennis shoe, style number 1-T32-0517. The Slant Shot was first distributed in January 1994 and was a "low seller," comprising only one percent of Fila shoe sales in North America. Appellant's ex-wife⁴, Rebecca Alfaro, purchased a pair of size 10 or 11 white Fila tennis shoes for appellant and a couple of months later bought the same style of shoes for herself at a different store. She stated at trial that the soles of appellant's shoes were the same as the soles of her shoes. The soles of Alfaro's shoes were identical to the prints found at the crime scenes, except that the prints were the size of a man's shoe. When police began asking about appellant's shoes, Alfaro looked for the shoes but could not find them. Appellant offered his wife several excuses for why the shoes were missing: maybe his father accidently threw them away, maybe a dog carried them away, or maybe somebody stole them.

Evidence showed that appellant, his father, wife, sister, brother-in-law, and sister's children lived next door to Wright⁵ in appellant's father's house. On May 9th, appellant returned home from work around 11 p.m -- close to the same time as Wright. According to family members, appellant had developed a persistent, hacking cough from years of heavy smoking. Lisa Pecina, appellant's sister, awoke around 1 a.m. and could hear appellant coughing until about 2:30 or 3:00 a.m. Two dogs in the backyard of appellant's father's house normally barked at everybody, including appellant. But Pecina did not hear them bark that night. Pecina also did not see anyone drive up their street that night.

Laurie Lowry, who lives in the house 70-90 feet directly behind Wright's, was awake feeding her newborn baby between 2:00 and 3:00 a.m. on the night of the murder. Through the closed blinds in Wright's bedroom, she could see the silhouettes of a woman, a big muscular man with a bushy ponytail, and a shorter man with spiked hair. Lowry saw a lot of movement in the room, and it appeared that the three were dancing.⁶

Dwayne Cann worked the night shift at a company near Old W.W. White Road and Loop 410. At around 3 to 4 a.m. on May 10, Cann was walking from one building to another when he heard a loud thumping sound. Near the 410 overpass, he saw two Hispanic males working on a black Beretta. One man with a ponytail⁷ was looking under the hatchback,⁸ and another man was lying on the ground, pounding on the underneath side of the car. Pablo Villegas, a taxi driver, testified that he was dispatched to the intersection of Sulphur Springs Road and Loop 410 sometime early that morning. He picked up two Hispanic males who paid him between $380 and $400 to take them to Dallas.

Appellant's father woke appellant between 5:30 and 6:00 a.m. on May 10th to get ready for work. Because appellant did not have a car, his brother-in-law drove appellant to his sister Irene Hernandez's house so that she could drive him to the Brooks Club at Brooks Air Force Base, where appellant had worked for several years as a custodian. Appellant clocked in at 8:04 a.m. He also worked the following day, but skipped work on May 12th. After working a half-day on May 13th, appellant never returned to work again. Appellant moved out of his father's house on the day Wright's body was found and stayed with Irene for two weeks before moving back in with his father.

Soon after the murder, appellant called the manager of the Brooks Club, attempting to use the club bartender and a retired tech sergeant as alibis. Neither the bartender nor the sergeant testified at trial.

Two of appellant's former coworkers identified Wright as a woman that appellant had brought to the Brooks Club about six months before the murder.⁹ Two other coworkers testified that when they heard news that Wright's body had been found they asked appellant if he had known her. Appellant confirmed that the deceased had been his next-door neighbor, but stated, "I don't know the bitch."¹⁰ A couple of weeks later, appellant visited the club and another former coworker asked appellant where he had been lately. He replied jokingly that he had been a "fugitive on the run."

In March of 1995, Rebecca Alfaro and appellant moved out of appellant's father's house and into some apartments. When appellant was arrested shortly thereafter, Alfaro went to live with her mother. She boxed up appellant's personal things and took them with her. On October 16, 1995, she gave the boxes to his nephew, who gave them to appellant's sister, Irene. A few days before trial, investigators working for appellant's counsel requested clothes for appellant to wear during the trial. While looking through appellant's clothing, Irene found a pair of men's size 10 Fila athletic shoes. Like Rebecca Alfaro's Filas, these shoes are made of white leather with a red and blue Fila symbol on the side and tongue. The defense submitted these shoes into evidence at trial. Although the shoes submitted by the defense were similar in appearance to Alfaro's shoes, appellant's shoes were a different style (1-J17-0517) and had wholly dissimilar soles.¹¹

This Court has the authority to review the factual sufficiency of a capital murder case. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Under the factual sufficiency review standard, we view all the evidence "without the prism of 'in the light most favorable to the prosecution'" and set aside the verdict only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A clearly wrong and unjust verdict may occur in instances where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Appellant does not assert that the evidence is legally insufficient; therefore, we assume that the evidence is legally sufficient under the Jackson v. Virginia¹² test. Then, we consider all of the evidence in the record related to appellant's sufficiency challenge, comparing the evidence supporting with the evidence controverting the elemental fact in dispute. See Santellan, 939 S.W.2d at 164. Even if probative evidence...