Marquez v. State

• Decision Date: 14 January 1987
• Docket Number: No. 69466,69466
• Citation: 725 S.W.2d 217
• Parties: Mario MARQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 217

725 S.W.2d 217

Mario MARQUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 69466.

Court of Criminal Appeals of Texas En Banc.

Jan. 14, 1987.

Mark Stevens, Sharon MacRae, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty., and Ed Springer, Ed Garcia and Daniel Thornberry, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

Appellant was found guilty of capital murder. The jury answered the special issues under Art. 37.071(b), V.A.C.C.P. affirmatively, whereupon the court assessed the mandatory penalty of death. Appellant raises twenty-eight grounds of error.

Although appellant does not challenge the sufficiency of the evidence a brief outline of the relevant facts is necessary to respond to several of appellant's grounds of error.

The indictment in the instant case alleges in pertinent part that,

on or about the 27th day of January, A.D., 1984, MARIO MARQUEZ, hereinafter called defendant, did then and there intentionally cause the death of an individual, namely: RACHEL GUTIERREZ, hereinafter called complainant, by strangling the said complainant with a ligature, and the said defendant did then and there intentionally cause the death of the said complainant while in the course of committing and attempting to commit the offense of AGGRAVATED SEXUAL ASSAULT upon RACHEL GUTIERREZ: ...

The deceased, Rachel Gutierrez, was the fourteen-year-old daughter of Rosa Gutierrez. The deceased resided at 2210 Hidalgo Street in the Villa Veramendi Courts in San Antonio with her mother, her ten-year-old brother, Daniel Gutierrez, and her eighteen-year-old sister, Rebecca Marquez. Rebecca Marquez was the estranged wife of appellant.

The record reflects that on the night of January 26, 1984, at approximately 7:30 p.m., Rosa Gutierrez left her apartment to go to a night club which featured a male strip show. Rosa was accompanied by a neighbor, Kim File, and Kim's mother, Virginia Stroh. Left behind at Rosa's apartment were Daniel Gutierrez, Rachel Gutierrez, Rebecca Marquez and Kim File's three young children.

At 2:30 a.m. on the morning of January 27, 1984, Rosa and the others returned to their apartments. Rosa found the door to her apartment locked from the inside so she knocked. She saw appellant look out of a window by the front door and then go upstairs briefly before letting her into the apartment.

After appellant unlocked the door to allow Rosa to enter he went directly upstairs. Rosa followed. She tried to enter her bedroom but found the door locked. Appellant, who was standing in the upstairs bathroom, spoke, "Come in, Rose. I've got a surprise for you ... I've got a surprise for you in the shower." Rosa replied, "No, I don't want to see. I don't want to see anything. I want to go to sleep." At this point appellant grabbed Rosa, dragged her into the bathroom and threw her to the floor. Appellant placed his hands on Rosa's throat and began choking her. Then, with one hand free, appellant unbuckled his pants and exposed his penis. He ordered Rosa to remove her clothing and place his penis in her mouth. When Rosa refused appellant hit her twice. Fearing for her life Rosa complied with appellant's demand for oral sexual contact. Appellant told her, "This is something I've wanted to do for a long time."

Rosa's son, Daniel, was locked in his mother's bedroom, but upon hearing his mother's cries he opened the bedroom door and saw her being assaulted in the bathroom. Rosa told him, "No, son. He is killing me. He's going to kill you, too. Don't--go call the police and run out. Please don't try to help me. Just get out." Daniel went downstairs and attempted to telephone the police.

Shortly thereafter appellant got scared and released Rosa, pulled up his pants and went down the hall to the bedroom used by Rosa's daughter, Rachel. Rosa followed. Inside, on the bedroom floor were the nude, brutalized bodies of Rachel Gutierrez and Rebecca Marquez. Appellant admitted to Rosa that he had killed both girls "to get even" and for "vengeance." Appellant then fled the scene and Rosa went downstairs to call the police.

Virginia Stroh and Kim File testified that shortly after entering their own apartment they heard screams coming from Rosa's apartment. They went to Rosa's apartment and were let inside by Daniel. Virginia Stroh went upstairs, saw the dead bodies and tried to calm a hysterical Rosa Gutierrez. Stroh also testified that she saw a man exit the apartment through the kitchen although she could not identify him. Kim File identified the man as appellant.

Officer Manuel Lopez of the San Antonio Police Department was the first officer on the scene after being dispatched to investigate a "family disturbance." He arrived at approximately 2:33 a.m. After discovering the dead bodies Officer Lopez called an ambulance, obtained a description and picture of appellant and sealed off the apartment.

Shortly thereafter, detectives Eleazar Galindo and Fernando Ceasares arrived at the scene and began collecting physical evidence. Among the items collected were two beer cans found in Rachel's bedroom. A latent fingerprint found on one of the beer cans matched that of appellant.

Rosalio Perez, a neighbor, testified that he was awakened at approximately 4:00 a.m. on the morning of January 27, 1984, by the noise of police helicopters which were searching for appellant. Perez was again awakened at 6:00 a.m. when he heard a noise in his backyard. He observed a man wearing tennis shoes and dark clothing climbing his fence and running through his back yard. Perez called the police who began searching the area some four blocks from the murder scene. Later, Perez discovered that a jacket he had hung on a clothes line in his back yard was missing. When appellant was apprehended he was wearing the missing jacket.

Angelita Vasques testified that on the morning of January 27, 1984, she received a telephone call from appellant who asked to speak to her daughter, Elida Vasquez. Appellant had previously lived with Elida. Angelita informed appellant that Elida was not at home and appellant hung up. Almost immediately appellant called again saying that he was using a pay telephone near an icehouse on Palo Alto Street. He admitted to Angelita that he had strangled two women. Initially, Angelita was scared that appellant had strangled her daughter but appellant told her it was his "other girl." Angelita identified appellant at trial saying she had known him for ten years and could easily recognize his voice. After the second call Angelita called the police and met Officer Wayne Harrell near the icehouse.

Officers Harrell and R.B. Garcia arrived at the corner of Palo Alto and Cree Street at around 7:30 a.m. and observed appellant using a telephone at an abandoned icehouse. Appellant saw the officers and attempted to run away but he was caught and arrested some two miles from the scene of the murders. Appellant was taken to the police station where he was placed in the custody of homicide detectives at around 8:00 a.m. His clothing, which was bloodstained, was taken for analysis by the detectives.

Dr. Suzanna Dana, deputy chief medical examiner at the Bexar County Medical Examiner's Officer performed autopsies on both bodies on the morning of January 27th. The autopsies included external and internal examinations, as well as a rape test.

The autopsy performed on Rachel Gutierrez, the deceased in the instant case, revealed that she had been killed by ligature strangulation--that is strangulation using a cord, wire or piece of cloth. Dr. Dana also testified that she found bite marks on the deceased's right breast and in her pubic area along with superficial lacerations around her anus and perineum which could have been caused by the insertion of an erect penis. In addition, approximately ten short human hairs were found in the deceased's mouth.

Dr. Dana was also of the opinion that because of the loss of blood and bruising, the bite marks as well as the lacerations of the anus and perineum were inflicted while the victim was alive or at or near the time of her death. Fluid found in the lungs of the deceased along with the swelling of her brain indicated to Dr. Dana that, while the deceased might have lost consciousness within seconds, it probably took as long as ten minutes to die from ligature strangulation. Testing revealed the presence of sperm in the deceased's rectum.

The autopsy of Rebecca Marquez yielded similar results. She was also killed by ligature strangulation and had bite marks to the pubic area and right breast. Dr. Dana also found a bottle of cologne inside Rebecca Marquez's rectum. Testing revealed the presence of sperm in Rebecca Marquez's vagina.

Heather Mann, a forensic serologist, performed blood tests on appellant, the deceased and Rebecca Marquez. She determined that all three had different blood types and that the blood found on appellant's clothing was consistent with the deceased's type.

The State also presented testimony linking appellant with the murders by matching a cast of his teeth with the bite marks found on both bodies. Dr. Bill Baker, a professor of Dental Diagnostics and Dental Pathology at the University of Texas Health Science Center, was called to the Bexar County Medical Examiner's Office on January 27, 1984, in order to photograph the bite marks exhibited on the bodies. Then, on April 17, 1984, pursuant to a search warrant, Dr. Baker made dental casts of appellant's teeth. Dr. James Cottone, a forensic dentist, testified that a comparison of the photographs and casts showed that the bite marks were consistent with appellant's teeth pattern.

At the close of the State's case in chief, appellant closed without offering any evidence. The trial court overruled appellant's motion for instructed verdict. The jury found appellant guilty of the capital murder of Rachel Gutierrez.

During the...