Marmolejo v. State
| Decision Date | 30 April 2013 |
| Docket Number | No. 08-11-00108-CR,08-11-00108-CR |
| Parties | DAVID MARMOLEJO, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the
210th District Court
of El Paso County, Texas
(TC#20090D04868)
OPINIONDavid Marmolejo ("Appellant" or "Marmolejo") appeals his conviction of murder. Marmolejo brings three issues: (1) legal insufficiency of the evidence to sustain his conviction; (2) error by the trial court in failing to include a mitigation instruction of manslaughter during the punishment phase; and (3) error by denying Marmolejo his right to confront and cross-examine a material witness. For the reasons set out below, we affirm.
PROCEDURAL BACKGROUND
Marmolejo was indicted for murder. The case initially proceeded to trial in October of 2010, but the jury was unable to reach a unanimous verdict and a mistrial was granted. Marmolejo's second trial began in March of 2011. Marmolejo was found guilty of the murder offense alleged in paragraphs A and B of the indictment. Marmolejo elected to go to the jury forpunishment, and was assessed a sentence of fifty-four (54) years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. Marmolejo timely appealed.
FACTUAL BACKGROUND
In July of 2009, Gloria Marmolejo ("Gloria"), Marmolejo's mother, was residing in Arizona with her other son Manuel ("Manny") and his wife Jennifer. Gloria allowed Marmolejo to live in her home on Sonoma Street on the eastside of El Paso. Marmolejo was to maintain the home while she was living in Arizona.
Gloria would return monthly to El Paso to check on her home and visit friends and family. On Saturday July 25, 2009, Gloria came to El Paso to make an unannounced visit and check on her home. She wanted to catch Marmolejo off-guard and confirm her suspicion Marmolejo was in a sexual relationship with his stepsister, Mariah Wilson ("Wilson"), and living in her home together. Gloria had made it clear she disapproved of this relationship and would evict Marmolejo if she found Wilson living with Marmolejo in Gloria's home. Gloria specifically asked Manny not to tell Marmolejo she was going to El Paso. Manny and Jennifer described Gloria as growing increasingly more frustrated with Marmolejo. She chastised him for not getting his life together, not paying the bills for her home, and breaking promises to see his nephew. According to Jennifer, Gloria intended to evict Marmolejo if she found Wilson's possessions in her home.
Gloria called her mother, Mary Rodriguez ("Mary"), on Saturday at approximately 8:25 a.m. stating she was on her way to El Paso. She specifically asked Mary not to tell Marmolejo she was coming. Gloria called Mary later that day confirming she had arrived home in El Paso. Mary invited Gloria over for coffee, but Gloria declined saying she could not because the housewas filthy and smelled terrible. Gloria told Mary she was going to buy cleaning supplies because she could not sleep in the home unless it was clean. Gloria also complained that she could not get into her bedroom because the lock had been changed. She asked if Mary's husband Sal could come and help her unlock the master bedroom door. Mary said Sal would go over. Shortly after they hung up, Gloria called Mary again. She told Mary not to worry because she had spoken to Marmolejo. He was on his way to unlock the bedroom door for her. Mary estimated these calls took place between 5 and 6 p.m., Saturday evening.1
Manny called Gloria at approximately 7:30 p.m. Saturday night because he had not heard from her. Manny stated this was unusual because Gloria always called him to let him know she had made it safely to El Paso. When Manny called, Gloria did not answer; her phone rang repeatedly until it went to voice mail. Manny called his mother again at 9:15 p.m. with no response. The calls from Manny to Gloria's cell phone were confirmed at trial through the testimony of Michelle Lovejoy, a forensic examiner for the FBI.
Conrad Huerta ("Conrad"), Gloria's brother, also called Gloria on Saturday but did not get an answer.2 At 7:05 p.m. Saturday, Marmolejo called Conrad, wished him a happy birthday and suggested they go out to celebrate, although ultimately they did not. Marmolejo sent a text message about 10 p.m. Saturday night to Conrad and other family members about a possible family cookout at Gloria's house on July 26. Marmolejo called Manny at approximately 11:50 p.m. Saturday night. Manny said this was unusual as Marmolejo normally did not call him late atnight. Manny asked Marmolejo if he had seen Gloria. Marmolejo said yes and he had helped her unload her car. He said Gloria had begun yelling at him because of the condition of the home and other issues. Marmolejo said he then left the house because Gloria was yelling.
Reyna Yanez ("Yanez") was renting a room at Gloria's house from Marmolejo. On Saturday evening, she clocked out of work at 6:12 p.m. and stayed at the mall with a friend until about 9 p.m. While she was at the mall, she received a voice mail from Marmolejo. He advised Yanez that Gloria would be at the house and not to become alarmed if Yanez saw her. Yanez arrived home Saturday evening around 9:15 to 9:20 p.m. and did not see any other cars. The house was dark, so Yanez turned on the light for the staircase and went straight upstairs to her room. Yanez did not see or hear anyone, and her presence did not draw anyone's attention, though Yanez was expecting to see Gloria. Yanez took a shower and waited for her boyfriend, Robert Campos, to come over to watch movies. Sometime after he arrived, between fifteen to forty-five minutes later, around 10:30 p.m., they left the house to get something to eat. After thirty to forty minutes, they returned and went back upstairs to Yanez's room. They watched movies and spent the night in Yanez's room. Neither heard anyone else in the house during that time. They remained in Yanez's room until 9:30 a.m. the next day. Yanez and Campos testified neither saw Gloria, Marmolejo, or Wilson. Further, neither one of them heard anything to indicate anyone else was at the house. They stated they did not see Marmolejo's car, but also admitted neither were paying close attention.3
At 1:37 a.m.,4 on Sunday July 26, Akasha Loo ("Akasha"), an ex-girlfriend of Marmolejo who was living in Hawaii, received a phone call from Marmolejo. She testified that although they kept in contact, it was unusual for him to call that late. She recalled he was unnaturally quiet.
At approximately 5:30 a.m. Sunday morning, Gloria's neighbor, Julie Serrano ("Serrano"), saw the garage door of Gloria's house open. She saw someone, believed to be a female, drive Gloria's red Hyundai SUV out of the garage and down the street. Serrano was unable to see the driver and initially assumed it was Gloria. Serrano testified whoever drove the vehicle appeared to be smaller than Marmolejo. Rafael Vargas ("Vargas") was outside with Serrano and corroborated her testimony. Vargas further described the driver as "[s]ome lady like in her 30's or so . . . I just saw like her pale white face and her eyes, like she was scared" and he had no doubt the driver was a woman with "blondish or so" shoulder-length hair. He also testified he thought he saw another person in the back of Gloria's car.
Later on July 26, Manny began calling his mother's cell phone again. Yet again Gloria did not answer and the call went to her voice mail. Conrad, who thought there was a family cookout planned, also called Gloria that Sunday afternoon, but she did not answer. Conrad then called Marmolejo, who told Conrad he had been unable to find out from Gloria whether there would be a family cookout or not. At 9:30 p.m. Sunday evening, Marmolejo told Manny that he had not seen or talked to Gloria.
On Monday July 27, Manny called his mother again, with no response. Given that he could not find anyone who had seen or talked to Gloria, Manny attempted to file a missing-person's report with El Paso Police Department ("EPPD"). He was told he could not fileit because he was not the last person to have seen her. Manny then decided to come to El Paso. Manny called Marmolejo prior to leaving for El Paso. Marmolejo reiterated he still had not seen or talked to Gloria. He also told Manny she was not in her room and her car was gone. On Monday afternoon, Mary went to Gloria's house. Marmolejo admitted to Mary he had seen Gloria when she arrived home Saturday evening and had opened the master bedroom door for her. Mary noticed the house did not seem quite as bad as Gloria had described it and it appeared to her to have been cleaned. Conrad, Mary, Sal, and Marmolejo discussed who had seen Gloria last and determined amongst themselves that Marmolejo was the last person to have seen her. Marmolejo made a missing-person's report with the EPPD. As Marmolejo made the report, the other family members were present. Manny, who was still in Arizona, was on the phone and listening. During this initial phone call with EPPD, Marmolejo gave a description of what Gloria was wearing when he last saw her. At trial, Manny stated the description he heard Marmolejo give EPPD that day were the same clothes Gloria was wearing when she left Manny's home Saturday morning. Marmolejo told EPPD, Gloria called him while he was at a movie theater in northeast El Paso. She asked him to come home and let her into the house. He said he came home, unloaded her car, spoke to her briefly, and then returned to the theater.
Manny and Jennifer arrived in El Paso on Tuesday July 28; Marmolejo repeated the story to Manny and Jennifer that he had given EPPD of his last interaction with his mother. Manny observed the master bedroom and it appeared to him as if the room had been tidied. Manny noticed the bed was made. Gloria's suitcase had not been unpacked and her cosmetics bag was still packed on the bathroom counter, all of which were uncharacteristic of Gloria's habits....
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