Ibanez v. State

• Citation: 749 S.W.2d 804
• Decision Date: 11 June 1986
• Docket Number: No. 69330,69330
• Parties: Efran Castro IBANEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 804

749 S.W.2d 804

Efran Castro IBANEZ, Appellant, v. The STATE of Texas, Appellee.

No. 69330.

Court of Criminal Appeals of Texas,

En Banc.

June 11, 1986.

Rehearing Denied May 11, 1988.

Scott E. Segall, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Matthew Dekoatz, Karen Shook and Robert Dinsmoor, Asst. Dist. Attys., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071, V.A.C.C.P. Punishment was assessed at death. We will reverse and enter a judgment of acquittal of capital murder.

Appellant was convicted of intentionally and knowingly causing the death of William Morris in the course of committing the offense of robbery. Appellant raises six grounds of error. In view of our finding that the evidence introduced by the State is insufficient to support a conviction for capital murder, we need only reach ground of error three. ¹

In ground of error three appellant complains that the trial court erred in not directing a verdict of acquittal on capital murder. Appellant asserts that the trial court should have granted a directed verdict because: the State failed to disprove exculpatory matter contained within appellant's confession which was offered by the State in its entirety during the guilt/innocence phase of the trial; secondly, the evidence adduced at trial, including the entire confession, at most proves a murder and an unauthorized use of a vehicle. The State in its brief urges that the confession was not exculpatory and argues it has proven its case.

Appellant was charged by indictment with having intentionally and knowingly caused the death of William Morris in the course of committing robbery, the alleged object of the robbery being the decedent's car. ² The State's evidence, viewed in the light most favorable to the jury's verdict, established the appellant was a seventeen year old Mexican male. The deceased was a 38 year old homosexual white male. Appellant and the deceased met for the first time on the evening of January 28, 1980, and entered into a relationship. After drinking and dancing together at two gay bars the appellant and the deceased were seen leaving together between 12:00 a.m.--1:00 a.m. The deceased was discovered by his maid on January 29, 1980, at approximately 9:00 a.m. He was found in bed partially covered with a sheet. The cause of death was strangulation. There was no evidence of a forced entry, nor was there any evidence of a struggle. The apartment was 'neat and tidy', although several dresser drawers were partially opened. The deceased was wearing two gold chains, a bracelet, and a watch when his body was discovered. There was testimony to the effect that the jewelry appeared to be valuable. No money was found in the apartment and testimony established that the deceased had cashed a payroll check for $110.97 at noon the day before the homicide was discovered. Appellant's confession is, at best, ambiguous as to whether he took a checkbook; none was found in the apartment, vehicle, or in the possession of the appellant. There was no evidence to indicate that any of the deceased's checks were negotiated after his death. The only property definitely missing was the deceased's car.

When appellant was arrested he gave the police a statement which led to the discovery of the vehicle. The vehicle was found in Juarez, Mexico, locked, with the keys in the ashtray. Among the property found in the vehicle was a jewelry box containing assorted jewelry. The box was found partially entangled in a shirt on the left rear floorboard. No one ever identified the jewelry box or its contents as being the property of the deceased. Prior to trial the jewelry box was given to the deceased's employer to return to the family of the deceased. Thus the jewelry box was not presented at trial for anyone to identify.

The appellant's confession, summarized, states that the deceased woke him in the middle of the night and tried to get the appellant to commit sodomy on the deceased. Appellant claims that he had an ag eement with the deceased whereby the deceased would "be the woman" and the appellant would "be the man".

The deceased's violation of this agreement angered the drunk appellant and appellant strangled the deceased. In fear, and wanting to get out of the apartment, appellant grabbed the car keys and fled. The appellant admits an intentional killing and an intentional taking of the deceased's vehicle; however he makes clear that he acted out of anger and fear, and that the taking of the car was incidental. He specifically denies taking any other property. The medical and fingerprint testimony comported with the appellant's confession. His fingerprints were found on a glass on the nightstand in the deceased's bedroom, as well as on the rearview mirror of the vehicle.

When reviewing sufficiency of the evidence this Court is bound to review the evidence in the light most favorable to the jury's verdict. We must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981). Additionally, under our state voucher rule, the State is bound to disprove, beyond a reasonable doubt, exculpatory evidence contained within a statement offered by the State. ³ Palafox v. State, 608 S.W.2d S.W.2d 177 (Tex.Cr.App.1980); Davis v. State, 474 S.W.2d 466 (Tex.Cr.App.1971); see also, Rogers v. State, 687 S.W.2d 337 (Tex.Cr.App.1985).

In order for the State to obtain a conviction for capital murder under V.T.C.A. Penal Code, § 19.03(a)(2), it must prove that the appellant intentionally and knowingly killed the deceased in the course of committing certain delineated felonies, in this instance, robbery. The assaultive act which causes the death of an individual must be intentional. Furthermore, under the Penal Code's definition of robbery, see V.T.C.A. Penal Code, § 29.02, an assault which occurs in the course of committing a theft must be committed with the intent to obtain or maintain control of property. This Court has previously held that the term "in the course of committing" as used in the capital murder statute has the same meaning as the term used and defined in the robbery statute. Riles v. State, 595 S.W.2d 858 (Tex.Cr.App.1980); V.T.C.A. Penal Code, § 29.01(1). § 29.01(1) defines the term 'in the course of committing theft' as "conduct which occurs in an attempt to commit, during the commission, or in immediate flight after the commission of..". The State, in order to obtain a conviction, was bound to prove, beyond a reasonable doubt, that appellant committed the murder during the commission of a robbery. Since the State alleged the same assaultive conduct for both the murder and the robbery, it had to prove that the appellant intentionally strangled the deceased with the intent to obtain control of the deceased's property. ⁴ A killing and unrelated taking of property do not constitute capital murder under 19.03(a)(2): the State must prove a nexus between the murder and the theft, i.e. that the murder occurred in order to facilitate the taking of the property. ⁵ O'Pry v. State, 642 S.W.2d 748, (Tex.Cr.App.1982); Autry v. State, 626 S.W.2d 758 (Tex.Cr.App.1982); Cannon v. State, 691 S.W.2d 664(Tex.Cr.App.1985); see also, Cruz v. State, 629 S.W.2d 852 (Tex.Cr.App.1982, rev. ref'd.)

The State, in its case in chief, offered the appellant's confession in its entirety. The confession denies that the murder occurred in order to facilitate the theft. In fact, according to the appellant's confession no robbery occurred. According to his confession, the assaultive conduct occurred out of anger and fear, not in order to "obtain and maintain control of the deceased's car" as alleged in the indictment. Under this Court's previous holdings the State was bound by these statements. In order to convict appellant of capital murder, the State had to disprove, beyond a reasonable doubt, appellant's assertion that he killed the deceased out of fear and anger. This the State failed to do.

In what appears to have been an attempt to disprove the exculpatory statements contained in the confession, the State attempted to show that other property was missing. While the maid testified that the deceased normally kept a jewelry box in his dresser drawer, the jewelry box found in the deceased's vehicle was never identified as being the deceased's jewelry box; moreover no one ever identified the contents of the jewelry box to establish if any jewelry was missing, or if any of it belonged to the deceased.

The State further argues that no money was found in the deceased's apartment even though he had been paid $110.87 the morning preceeding the murder. To conclude that the appellant had stolen cash from the deceased would require rank speculation on the part of this Court. The record is clear that the deceased cashed his check at noon on January 28, 1980. What bills he may have paid, other cash outlays that may have occurred prior to his death, or how much money he may have spent during the evening buying drinks for appellant and himself is unknown.

Finally, the remaining facts and circumstances developed at trial are inconsistent with the State's theory of the case and fail to disprove the exculpatory matter contained in appellant's confession. If appellant killed the deceased to steal his car, why did he then abandon the locked vehicle? If the appellant killed the deceased to obtain property, why did he not steal the jewelry found on the deceased's person? The jewelry box, upon which the...