Licon v. State

• Decision Date: 27 March 2003
• Docket Number: No. 08-00-00348-CR.,08-00-00348-CR.
• Citation: 99 S.W.3d 918
• Parties: Ernesto LICON, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

99 S.W.3d 918

Ernesto LICON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 08-00-00348-CR.

Court of Appeals of Texas, El Paso.

March 27, 2003.

COPYRIGHT MATERIAL OMITTED

Jaime Olivas, El Paso, for Appellant.

Jaime E. Esparza, Dist. Atty., El Paso, for Appellee.

Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.

OPINION

RICHARD BARAJAS, Chief Justice.

Appellant was indicted for the offense of murdering Angel Chafino. The jury convicted Appellant of the lesser-included offense of manslaughter and assessed his punishment at twenty (20) years' imprisonment and a fine of $10,000. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At trial, Jeremy Aguilar, a student at Riverside High School in El Paso, Texas, testified that on April 24, 1999, he went to a party held by students at Hanks High School. While at the party, he was attacked. His friend, Mike Flores, sustained damage to his car. Aguilar testified that he left the party, only to return in Flores' car along with Flores and Appellant, Ernesto Licon. Flores was angry regarding the damage done to his car and as a result was seeking out the individual who had done the damage. As they approached the party, Flores was driving his car, Appellant was in the front passenger seat, while Aguilar was in the backseat. Appellant then situated himself sitting directly on the passenger door, his upper body protruding outside the car. Aguilar testified he next heard five gunshots, but was unaware that Appellant had a gun. Aguilar was unable to see in what direction the shots were fired. The Flores vehicle then sped off. Appellant was heard to say that he may have hit someone because he saw someone wearing a cap fall to the ground.

Gilberto Armando Dellosie testified that he attended the party with his girlfriend, the victim, Angel Chafino, along with friends Joe Romero, Alex Riley, and Chris Welch. At one point, Dellosie, his girlfriend, and the victim, left the party because several individuals at the party were trying to start a fight. They left in the victim's car and proceeded to drop off Dellosie's girlfriend. The two then went back to the party to seek out their friends. They parked in front of the house where the party was being held. As Dellosie was looking for one of his friends in the front yard of the house, he saw a white car drive by with a male who was shooting a gun from the front passenger side of the car. Dellosie later saw a body lying on the ground and learned that his friend had been shot and killed.

Brian Avalos stated that he was attending the party when he saw a car approaching slowly. A male was sitting in the passenger side window pointing a pistol directly at him and his companions. He was using a two-handed grip. Avalos testified that as the shots were fired, he saw the flashes from the barrel of the gun.

Alejandro Reta testified that he likewise saw the shooting while he was at the party. He stated that he saw an individual shoot a pistol from the driver's side of the moving car. The witness related that he saw the person with his arms on the roof of the car and he saw three or four muzzle blasts. The individual was firing towards the house.

Jesus Flores testified that Appellant was a friend with whom he was attending the party. He stated that Appellant had ingested the drug Rohypnol and was drunk. The witness stated that he saw Jeremy Aguilar actually fire a pistol from the back seat of his car.

Appellant's confession was admitted at trial. It stated, in relevant part:

Michael ran up to the car and said some guys had beat up Jeremy and rocked Michael's car. He told me to go with him, so that we could find the guys that rocked his car. I then jumped into Michael's car ... In the car was Jeremy, Michael and myself.... We made the turn into the street where the party was and we drove slowly. Michael was driving the car, Jeremy in the backseat, and I was in the front passenger seat. I already had a silver gun that is small. I had the gun in my pant pocket. Then I took it out. As we were driving slowly, I heard Jeremy say that there was the guys that had jumped him next to a car. I then sat on my passenger's door and pointed the gun over the hood of our car. I held the gun in my right hand and fired a lot of times at the car in which the guys were in. When the bullets ran out I left with Michael and Jeremy to my friend Anthony Saiz' house.

. . .

When I shot at the people by the car, I only meant to scare them and shoot at their car. I did not mean to shoot anyone, as I was just trying to scare the people that beat up my friend . . .

I never meant to hurt anyone when I shot the gun. I just wanted to scare the people by shooting the tires to the car that the guys were standing next to.

Detective Armando Fonseca testified that he located the handgun used in the commission of the offense in Appellant's vehicle. At the scene of the offense, six .25 caliber gun casings were found. There was a distance of 65 feet between where the first and last casings were found. The last casing was found about 50 feet from the end of a driveway near where the victim's car was parked. Officer Fonseca testified that a .25 caliber bullet was removed from the victim's right armpit during the autopsy. Russell Johnson testified that he was a firearms examiner with the Texas Department of Public Safety. He stated that the bullet recovered from the victim's body was fired from the same gun found in Appellant's vehicle. He stated that all six of the casings found at the scene of the offense were also expended from that same weapon.

Dr. Juan Contin, the El Paso County Medical Examiner, testified that the victim, Angel Chafino, bled to death from a single gunshot to the left, backside of his chest. The shot appeared to have come from behind the victim, while the victim was looking away from the perpetrator.

II. DISCUSSION

In Point of Error No. One, Appellant asserts that the court erred in admitting his confession because it was the result of coercion and improper influences which caused it to be involuntary. At the trial on the merits, the parties consensually relitigated the suppression issue. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim.App.1996). Appellant secured a charge regarding the voluntariness of the confession submitted in the trial court's instructions. In such a case, we review the entire record, not just the record made at the suppression hearing, to determine whether the confession was voluntary. See Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996). Urias v. State, No. 08-01-00355-CR, ___ S.W.3d ___, ___, 2003 WL 125007, at *5 (Tex.App.-El Paso Jan. 16, 2003, n.p.h.) (not yet released for publication).

Officer Carlos Contreras testified that he and his partner stopped Appellant in his vehicle at noon on April 25, 1999. Appellant was stopped pursuant to a seatbelt violation. There was a total of ten officers assisting in the stop of Appellant's vehicle. Some had weapons drawn while Appellant was ordered out of the car. Appellant appeared scared; he was handcuffed. Contreras testified that at the time of the stop, Appellant was a suspect regarding a homicide, and sufficient force was utilized for the safety of the officers.

Police Officer Juan Torres was a member of one of the units that stopped Appellant. Officer Torres first transported Appellant to an address on Manuel Acosta Street in El Paso to search for a pistol. Officer Carlos Carrillo was also in the vehicle for that part of the trip. After arriving at that location, Appellant and Officer Torres proceeded to the Crimes Against Persons Office at the main police station. During the trip, Appellant started crying and appeared scared. Appellant asked if his friends had "narked" on him and had turned him in. Appellant stated that if he had to talk to an officer, he wanted to talk to Officer Carrillo. Appellant asked that his grandmother not be told about what was happening as he did not want to burden her. Appellant stated that he was a good student and that he had won a Golden Gloves championship. When they arrived at the police station, Officer took Appellant to the restroom. Appellant was crying and he stated that he only wanted to speak with Officer Carrillo. Appellant was turned over to the detectives who were investigating the case.

Officer Torres further testified at trial that during the trip to the police station, Appellant would cry and would then calm down. He felt that Appellant had developed a rapport with Officer Carrillo. Officer Torres stated that he was readily able to speak with Appellant, and Appellant was not under the influence of any alcohol or drugs, nor was he disoriented. They initially went to the address on Manual Acosta Street to search for a gun. Officer Carrillo of the El Paso Police Department testified that he worked for the Gang Intelligence Unit. While conducting surveillance on Appellant on the morning of April 25, 1999, he followed Appellant to a local Catholic church and observed him during church. He observed Appellant eat breakfast at the church. While Appellant was driving away, Officer Carrillo saw that Appellant's seatbelt was not fastened and the officer communicated to some marked police units to stop Appellant's car. Appellant was placed in Officer Torres' patrol unit and Officer. Carrillo advised Appellant of his rights. Appellant waived his rights by initialing the card indicating that he had been advised of his rights. He was not handcuffed. Officer Carrillo stated that he was able to establish a rapport with Appellant and he spoke freely with him. Appellant was not under the influence of drugs or alcohol. Officer Carrillo rode part of the way back to the police station with Appellant and Officer Torres. During this portion of the ride, Appellant told Officer Carrillo that he was the one who had shot the victim although he had initially denied any involvement in the shooting. He told...