Moreno v. State

Decision Date28 May 1986
Docket NumberNo. 69268,69268
Citation721 S.W.2d 295
PartiesEliseo Hernandez MORENO, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03(a)(1). 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 affirm.

Appellant was convicted of intentionally and knowingly causing the death of Department of Public Safety officer Russell Boyd, while Boyd was in the lawful discharge of his official duty as a peace officer. Appellant raises nine grounds of error. He challenges the denial of his pre-trial motion to quash; the exclusion of four potential jurors; the admission into evidence, during the guilt/innocence phase of the trial, of several extraneous offenses; the trial court's denial of appellant's request for a jury charge on the lesser included offense of murder; the sufficiency of the evidence to support the jury's finding that Officer Boyd was in the discharge of his official duty when killed; and finally the sufficiency of the evidence to support the jury's affirmative finding to special issue number two. See Art. 37.071(b)(2), V.A.C.C.P.. Since appellant urges that the evidence is insufficient for both a finding of guilt and the jury's ultimate determination of future dangerousness, a detailed review of the facts is necessary.

Appellant was indicted for the capital murder of Texas Department of Public Safety Trooper Russell Lynn Boyd, alleged to have been committed on October 11, 1983. The evidence showed that on the date in question, the appellant, from 5:30 p.m. to 8:00 p.m., killed a total of six individuals in College Station and Hempstead before being captured in Wharton. In addition to the six murders, six other people were kidnapped and one robbed in order to facilitate appellant's escape.

When viewed in the light most favorable to the jury's verdict, the State's evidence shows that on October 11, 1983, Department of Public Safety (hereinafter DPS) Trooper Russell Lynn Boyd was on duty in the Hempstead area from 1:00 p.m. to 10:00 p.m. His duties involved the enforcement of traffic regulations on state highways. At approximately 6:30 p.m., William and Janie Norris were traveling southbound on Highway 6, approximately 10 miles north of Hempstead. They noticed a DPS "black and white" vehicle parked on the shoulder of the southbound lane immediately behind a maroon Ford. Janie Norris also noticed that the blue and red emergency lights were flashing. William Norris testified that it appeared to him that the DPS vehicle had stopped a speeder. As the Norrises approached the vehicle, they noticed a body, in uniform, lying on the grass between and to the right of the vehicles. As they got closer to the vehicles and slowed down, a man appeared from behind the DPS vehicle. The man waved at the Norrises, who immediately fled. The man then reached inside the DPS vehicle, removed a shotgun, and gave chase in the maroon Ford. The chase reached speeds exceeding 100 miles per hour. During the chase, Janie Norris noted a description of the driver of the vehicle, the vehicle itself and the license plate number, RPL 311. She was also able to recall the relative locations of the two vehicles and the body.

Upon entering Hempstead, the maroon Ford ceased its pursuit of the Norrises, who then proceeded to the Waller County Sheriff's Office, where they reported what had happened. At trial, both William and Janie Norris positively identified the appellant as the person who they saw next to the DPS vehicle and who pursued them into Hempstead in the maroon Ford.

Randy Smith is a probation officer for Waller County and knew the deceased. He arrived at the scene of the offense and identified the DPS officer as Russell Lynn Boyd. He also testified that Boyd's clipboard with ticket book, smashed hat, and watch were lying near the trooper's body on the ground.

Trooper Albert Sneed was Boyd's partner. He testified that on October 11, 1983 Trooper Boyd was on duty from 1:00 p.m. to 10:00 p.m. Sneed last saw Boyd at approximately 4:30 p.m., and at that time Boyd was on duty, dressed in his DPS uniform and wearing his badge. According to Sneed, Boyd carried a Smith and Wesson .357 Magnum blue steel revolver. Additionally, Boyd carried a Remington 870 shotgun in the front seat of the DPS vehicle.

Shortly after the above incidents, officers discovered a maroon Ford bearing license number RPL 311 abandoned at the La Casita Restaurant in Hempstead. On the front seat an officer found a "bank transaction paper" bearing the name Eliseo Moreno. Under the driver's seat an officer found two pistols--a .25 caliber automatic and a .22 caliber revolver. Several spent shells were found on the floorboard. Additionally, officers found the ignition key to Trooper Boyd's vehicle on the front seat.

Later that same evening at about 11:00 p.m., officers conducting a road block of the southbound lanes of U.S. Highway 59, just outside Wharton discovered appellant riding as a passenger in the front seat of a blue Ford Bronco. The driver of the Bronco testified that appellant told him he had shot a DPS officer earlier that day. Appellant was removed from the car and handcuffed. Inside the Bronco, officers found a Smith and Wesson .357 Magnum blue steel revolver, which was subsequently determined to be Trooper Boyd's DPS revolver. Also discovered was a Smith and Wesson .357 Magnum stainless steel revolver, later determined to be the murder weapon. Two bullets recovered from Trooper Boyd's bullet proof vest were determined to have been fired from the stainless steel revolver found on the passenger side of the Bronco in which appellant had been a passenger. Further, spent cartridges recovered from the maroon Ford were proven to have been fired by the same stainless steel revolver.

The State established through competent medical testimony that Trooper Boyd suffered five gunshot wounds, dying as a result of a bullet wound which went through his arm and entered his chest. Additionally, one shot was fired from a range of 6 to 24 inches into Trooper Boyd's head, underneath his ear and through his neck, as he was lying on the ground.

In addition, the State offered numerous extraneous offenses into evidence. All the extraneous offenses were shown to have occurred both prior to the shooting of Trooper Boyd and immediately after the shooting in an attempt to avoid apprehension.

The State's evidence showed that, approximately 30 minutes before the Norrises discovered appellant and Trooper Boyd on Highway 6, appellant killed his brother and sister-in-law, Juan and Esther Garza, in College Station. Two witnesses positively identified appellant as the person they saw leaving the Garza's apartment immediately after the shooting. One witness, hearing "popping noises" and the Garza children screaming, went to the Garza apartment and there actually saw appellant shooting Juan Garza. Appellant followed the witness and threatened him with a pistol. The witness called the police and, after observing appellant flee, entered the apartment and observed the bodies of Juan and Esther Garza on the floor. Appellant was observed leaving the scene of these two killings in the same maroon Ford observed by the Norrises. Ballistics evidence showed that the bullets removed from Juan Garza were fired by the same weapon as the bullets removed from Trooper Boyd.

Another extraneous offense introduced was aggravated robbery of Genaro Cibrian. Cibrian testified that, at approximately 6:30 p.m. to 7:00 p.m. on the evening of October 11, 1983, he and his three children drove up to La Casita Restaurant in Hempstead in a green 1974 Ford. A person unknown to him drove up beside them. At gunpoint, Cibrian and his children were ordered from their car. The assailant then placed a pistol and shotgun in the car, and drove off in Cibrian's car, leaving his own car behind. Cibrian identified appellant as the person who took his car at gunpoint.

Through the testimony of Bill and Patricia Shirley, the State introduced yet another extraneous offense. The Shirleys both testified that appellant appeared at their home in Hempstead, on the evening of October 11, 1983 at about 6:30 to 7:00 p.m., driving an older model green Ford and ordered Bill Shirley at gunpoint to drive him to Houston. Patricia Shirley insisted on going with her husband. As a result, they both rode in their Oldsmobile with appellant to Houston. During the trip appellant admitted taking the shotgun and pistol "off of a DPS officer". Also during the trip, appellant threw the shotgun out the window. Near the intersection of Highway 610 and 225 in Pasadena, appellant got out of the Oldsmobile and left on foot. The Shirleys then drove part of the way back to Hempstead, stopping at a truck stop to report the incident to the police. Later that evening, Bill Shirley directed officers to the location where appellant discarded the shotgun. This shotgun proved to be the one carried by Russell Lynn Boyd in the DPS patrol car. The State further offered evidence from a fingerprint expert showing that appellant's prints had been found on Boyd's shotgun.

Finally, the State proved, during the guilt/innocence portion of the trial, one last extraneous offense committed by appellant on that same day. After being dropped off by the Shirleys, appellant then asked Ronald Gangle to drive him to the airport. Gangle agreed. On the way to the airport, appellant pulled out a pistol and ordered Gangle to drive him south on Highway 59 to Victoria. During the trip south, appellant told Gangle...

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