Longoria v. State

• Citation: 154 S.W.3d 747
• Decision Date: 14 December 2004
• Docket Number: No. 14-03-00553-CR.,14-03-00553-CR.
• Parties: Richard LONGORIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

154 S.W.3d 747

Richard LONGORIA, Appellant, v. The STATE of Texas, Appellee.

No. 14-03-00553-CR.

Court of Appeals of Texas, Houston (14th Dist.).

December 14, 2004.

Rehearing Overruled January 25, 2005.

Terry W. Yates, Houston, for appellant.

Alan Curry, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.

OPINION

ADELE HEDGES, Chief Justice.

Appellant, Richard Longoria, appeals from his conviction for capital murder. A jury found appellant guilty and he was sentenced to imprisonment for life. On appeal, appellant contends that (1) the evidence was legally and factually insufficient to support the verdict, (2) the evidence was insufficient to corroborate accomplice witness testimony, (3) the court erred in its charge submission, (4) the court erred in refusing to hold a hearing on his motion for new trial, and (5) the prosecutor made numerous improper jury arguments. We affirm.

I. Background

Appellant was convicted of the capital murder of Harris County Sheriff's Deputy Shane Bennett. Deputies Sean Conrad and Terrence Burk testified that, in the early morning hours of June 12, 2003, they, along with Deputy Bennett, responded to a report of a weapon's disturbance at Maria Ochoa's residence. Hearing noises from inside the residence that sounded as if someone was being assaulted, the three deputies entered the home. In a dark, interior room, they were fired upon and returned fire. During the exchange, Deputy Bennett was shot. He later died of his wounds. Subsequent ballistics analysis revealed that the deadly shot was fired from Deputy Conrad's weapon. Two of the robbers were also shot and killed during the exchange of gunfire.

Maria Ochoa testified that, on the morning of June 12, she was awakened by gun-wielding intruders who corralled everyone in the house into one room, demanded to know where marijuana was being kept in the house, and threatened to kill them. Ochoa's husband and her two adult daughters also testified regarding the events of that morning. Both daughters testified that they managed to call 9-1-1 during the encounter.

It is uncontested that appellant was not present at the Ochoa home during the invasion and shooting. Christian Gonzales was the chief witness tying appellant to the crimes committed that morning. He testified that appellant participated in conversations planning the home invasion, provided a handgun for use in the robbery, and served as a lookout for police during the robbery. Additionally, phone records were introduced to demonstrate communication between appellant and others involved in the robbery at the time the robbery was occurring, and appellant's ex-wife testified that appellant tried to get her to lie about his whereabouts at the time of the robbery.

II. Sufficiency of the Evidence

In his first issue, appellant attacks the legal sufficiency of the evidence to support the verdict. In his third issue, appellant attacks the factual sufficiency of the evidence. Since appellant's arguments are generally the same under the two issues, we will discuss them together. We utilize the normal standards in conducting our sufficiency review. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000) (legal sufficiency standards); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000) (factual sufficiency standards). We examine the evidence in light of the elements of the crime as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). The correct charge "would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.

A. Theory of the Case

The State's theory of the case was that appellant was guilty of capital murder in the death of Deputy Bennett — notwithstanding appellant's absence from the crime scene and notwithstanding that a fellow officer actually shot Bennett — because appellant was criminally responsible for the conduct of his coconspirators in an armed robbery and the coconspirators caused Bennett's death when they exchanged gunfire with the responding deputies.¹ This theory is based on the law of conspiracy, set forth in section 7.02(b) of the Penal Code:

[i]f, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Tex. Pen.Code Ann. § 7.02(b) (Vernon 2003). It is well-settled in Texas that a person can be found guilty of capital murder as a conspiring party under section 7.02(b). E.g., Johnson v. State, 853 S.W.2d 527, 535 (Tex.Crim.App.1992); Cienfuegos v. State, 113 S.W.3d 481, 489-90 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); see also Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App.1989) ("the theory of criminal responsibility set forth in Section 7.02(b) has often been applied in capital murder cases").² Thus, under section 7.02(b), if the evidence demonstrated that appellant conspired with others to commit the robbery of Ochoa's residence and that during the robbery, one of the coconspirators committed capital murder, appellant could be held criminally responsible for the capital murder if it was in furtherance of the conspiracy's unlawful purpose and should have been anticipated.

The Court of Criminal Appeals has held that a person can be found guilty of capital murder when that person (or an accomplice) engages in a gun battle with police officers, during which one officer shoots and kills another officer. Dowden v. State, 758 S.W.2d 264, 272-3 (Tex.Crim.App.1988) (stating that the defendant caused the officer's death, even though officer was shot by fellow officer during gun battle); Blansett v. State, 556 S.W.2d 322, 324-26 (Tex.Crim.App.1977) (affirming defendant's capital murder conviction based on law of parties); see also Pettigrew v. State, 999 S.W.2d 810, 812-13 (Tex.App.-Tyler 1999, no pet.) (affirming murder conviction of defendant who shot at a rival gang resulting in an innocent bystander's being shot by a member of the rival gang).³

Dowden and Blansett were companion cases involving a raid on a jail facility to free a prisoner. Dowden, 758 S.W.2d at 271-2; Blansett, 556 S.W.2d at 324. During the raid, Dowden engaged in a gun battle with police officers, and one of the officers was shot and killed by another officer. Blansett, 556 S.W.2d at 324. The court upheld the capital murder convictions of both Dowden and his accomplice, Blansett.⁴ The court reasoned in both cases that although an innocent third party may have actually shot the decedent, it was the conduct of the appellants themselves, as principal and accomplice, that caused the death, citing Penal Code section 6.04(a). Tex. Pen.Code Ann. § 6.04(a)⁵; Dowden, 758 S.W.2d at 271-2; Blansett, 556 S.W.2d at 324.⁶

Thus, under Texas law, appellant could be found guilty of capital murder if the evidence demonstrated that appellant conspired with others to commit the robbery of Ochoa's residence, that during the robbery, one or more of the conspirators exchanged gunfire with the responding deputies in furtherance of the conspiracy's unlawful purpose and causing Deputy Bennett's death, and that his death should have been anticipated. The jury charge submitted these elements to the jury, albeit not in perfect form. However, we analyze the evidence under a hypothetically correct charge. Malik, 953 S.W.2d at 240.

B. The Evidence

In making his sufficiency arguments, appellant does not deny that several armed men invaded the Ochoa residence and subsequently exchanged gunfire with police officers resulting in the death of Deputy Bennett. Instead, appellant centers his attack on the evidence allegedly connecting him with the home invasion and Bennett's murder.

Christian Gonzales testified that, on June 11, 2002, he, Daniel Damien, Carlos Ramirez, and Benjamin Gonzales discussed robbing someone. They later went to appellant's mother's house and talked about taking sixty pounds of marijuana from a residence. Christian testified that appellant was present during the discussion and that he was "involved in the conversation." The plan called for Christian to drop the others off near the house and then ride around until they were ready to be picked up. Appellant's role was to look for police officers while riding around in a car and to call the others on his cellular telephone. Christian also testified that appellant provided a handgun for use in the robbery. Christian said that appellant "[rode] around looking out" and later called him to tell him police were in the neighborhood. Cell phone records were introduced that showed numerous calls were made from appellant's cell phone to the cell phones of other participants during and immediately after the home invasion. There was also evidence that a handgun found at the Ochoa residence was of the same caliber as the weapon Christian said appellant provided.

Appellant first contends that Christian never testified to any words or acts of appellant that were sufficient to show agreement or participation in the conspiracy to commit robbery. Appellant specifically argues that saying appellant was "involved" in a conversation did not demonstrate agreement. However, the jury was entitled to consider the entirety of Gonzales's testimony and was not required to consider each statement in isolation. The jury could have reasonably deduced that appellant agreed to commit the robbery and was an active participant based on Christian's testimony that (1) appellant was involved in a conversation in which a robbery was planned,...