Narvaiz v. State, 70810

• Decision Date: 23 September 1992
• Docket Number: No. 70810,70810
• Citation: 840 S.W.2d 415
• Parties: Leopoldo NARVAIZ, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 415

840 S.W.2d 415

Leopoldo NARVAIZ, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 70810.

Court of Criminal Appeals of Texas En Banc.

Sept. 23, 1992.

William T. Reece, Jr. (on appeal only), San Antonio, for appellant.

Steven C. Hilbig, Dist. Atty., Fred G. Rodriguez, Former Dist. Atty., and Elizabeth Taylor and Daniel Thornberry, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

After a trial held in November 1988, a Bexar County jury found twenty-year-old Leopoldo Narvaiz, Jr. (appellant) guilty of the April 15, 1988, capital slaying of one male, eleven-year-old E___ M___, Jr., and three females, fifteen-year-old M___ M___, seventeen-year-old S___ M___, and nineteen-year-old J___ M___. ¹ At the punishment phase of the trial, the jury answered affirmatively the punishment issues submitted to them under Article 37.071(b) of the Texas Code of Criminal Procedure, ² and appellant was sentenced to death. Direct appeal to this Court was then automatic under Article 37.071(h). ³ We will affirm.

In twenty points of error, appellant challenges: the sufficiency of the evidence to support the jury's finding of guilt beyond a reasonable doubt; the sufficiency of the evidence to support the jury's affirmative answers to the punishment issues; the trial court's excusal of six venirepersons from jury service; the trial court's denial of appellant's motion for change of venue; the trial court's admission in evidence of photographs of the crime scene, certain hearsay testimony, evidence of uncharged misconduct, a copy of a written statement appellant gave to police after his arrest, and a tape recording of victim S___ M___'s "911" telephone call to the police; the validity, under the Texas and United States Constitutions, of the Penal Code provision under which he was found guilty and the Code of Criminal Procedure provision under which his punishment was assessed; the trial court's failure to charge the jury on voluntary manslaughter with respect to all his victims; and the adequacy, under the United States Constitution, of his counsel's assistance at both the guilt/innocence and punishment phases of trial. With the exception of the points of error challenging the sufficiency of the evidence, appellant's points will be addressed in the order in which they occurred at trial.

In point of error fifteen, appellant argues he has been denied his liberty without due process of law because the evidence adduced at trial was insufficient to support the jury's finding of guilt. Appellant argues that "the physical, medical and other forensic [evidence] has not disproven" an "outstanding reasonable hypothesis" that he is guilty only of voluntary manslaughter ⁴ arising out of legally adequate provocation by victim J___ M___.

Appellant was charged with, and found guilty of, violating Penal Code § 19.03(a)(6)(A). See footnote one, supra. The State presented forty-eight witnesses ⁵ and numerous exhibits at the guilt/innocence phase in an attempt to prove its case. Appellant presented no evidence at the guilt/innocence phase. Viewed in the light most favorable to the jury's verdict, the State's evidence established the following:

Appellant was S___ M___'s boyfriend "on and off" for several years before the two split up, at S___ M___'s insistence, in early February 1988. Late on the evening of March 27, 1988, appellant went to S___ M___'s residence at 202 Formosa Street in San Antonio and found her sitting with her new boyfriend, Ricky Moore, in Moore's pickup truck. Appellant demanded to speak with S___ M___, but she refused. When appellant became belligerent, S___ M___ and Moore drove away, but they returned a while later and continued their conversation beside the pickup. Sometime after midnight, appellant, who had previously left, also returned, carrying a knife and a pipe. S___ M___ and Moore retreated into the residence and telephoned the police. Through a window, Moore observed appellant smashing the windows out of Moore's pickup. S___ M___'s mother who had been inside the residence, went outside, confronted appellant, and "asked him why he kept coming around and bothering [S___ M___] when she didn't want nothing [sic] to do with him." Appellant told her that "if he wasn't going to be able to have [S___ M___], nobody else was going to." Appellant left before the police arrived.

A few nights later, appellant "broke into" S___ M___'s residence on Formosa Street. The day after the break-in, S___ M___ and her family (i.e., her mother and three siblings, M___ M___, J___ M___, and E___ M___, Jr.) moved to a mobile home located on lot 277, Villa Grande mobile home park, 8622 South Zarzamora Street in San Antonio.

On the evening of April 14, 1988, appellant, wearing white tennis shoes, attended a party at a residence at 347 East Amber Street, about two miles from S___ M___'s new residence on South Zarzamora Street. Appellant left the party sometime during the early morning hours of April 15.

At 3:17 a.m., April 15, 1988, San Antonio police received an emergency "911" telephone call, which was tape-recorded. The caller, later identified as S___ M___, first told the "911" operator, "My boyfriend just beat us up. He's killed my little sister." She then gave her address as "277 Villa Grande Drive." There was screaming in the background. Moments later, a second voice on the line, later identified as that of appellant, asked S___ M___, "Why did you have to do this to me?" S___ M___ responded, "I love you. I love you. I am dying already. I can't breathe." Finally, before the line went dead, appellant asked S___ M___, "Did you call the cops?"

The "911" operator established quickly that there was no street known as "Villa Grande Drive" in San Antonio. She then deduced that the caller had been referring to the Villa Grande mobile home park on South Zarzamora Street. Several San Antonio police officers were then dispatched to that location, arriving at approximately 3:30 a.m. Upon locating S___ M___'s residence, they found it quiet and dark, with a single window propped open with a piece of wood. A large ice chest was positioned beneath that window. The officers also found the back door of the home ajar.

The officers entered the mobile home and found S___ M___, M___ M___, J___ M___, and E___ M___, Jr. all stabbed to death. No one else was found in the residence. Autopsies of the victims showed later that S___ M___'s body had sustained six knife wounds, M___ M___'s body nine, J___ M___'s body 23, and E___ M___ Jr.'s body 63. The pattern of the victims' wounds indicated that each had struggled with their assailant before succumbing. Also, a later study of the crime scene by a bloodstain pattern analyst indicated that there had probably been only one assailant.

The police also found several kitchen knives scattered throughout the residence, and two such knives were found in the yard of the residence a few feet from the back door that had been found ajar. One of the knives found in the yard contained a thumbprint matching that of appellant's left thumb.

At 6:30 a.m., the victims' father, E___ M___, Sr., arrived at the mobile home park and, in a rage, blamed the police for the deaths. "This is your fault," he said to them. "I told you Leo would do this." S___ M___ had no boyfriend named "Leo" except for appellant.

Later that same morning, appellant, wearing only gym shorts, was arrested inside the residence at 347 East Amber Street, the site of the party he had attended the night before. At the time of the arrest, appellant had a deep cut on the front of his right thigh, a lesser cut on his left hand, and "scratches all on his upper torso, sides, chest, [and] arms." A search of the East Amber residence conducted at the time of the arrest turned up a pair of wet blue jeans hanging on a towel rack in the bathroom and a pair of damp, white tennis shoes in a room next to the bathroom. There was a cut on the jeans that corresponded to the size and location of appellant's leg wound, and the tennis shoes were similar to the pair worn by appellant at the party the night before. Furthermore, a later chemical analysis of the jeans and shoes revealed that each contained significant traces of human blood.

The jury also had before it a signed, written statement that appellant gave to police two days after his arrest. The statement read as follows:

I am going to give this statement voluntarily and I have not been threatened or promised anything to give this statement. I want to cooperate with the police on my own. I can read and write English. I went up to the ninth grade in school.

I was going on six years with my girlfriend [S___ M___]. I met [S___ M___] through her sister [J___ M___] at school. [S___ M___] was thirteen years old and I was sixteen years old when we started going with each other. I think I was fifteen instead of sixteen. During our relationship we loved each other and we even talked about marrying each other several times. We broke up about three weeks ago. I went to her house on Formosa to pick up my clothes and she was outside with somebody else. They were in a pickup truck. I got mad and asked [S___ M___] what she was doing with him and who he was. She wouldn't say anything. The guy put the truck in reverse and almost ran over me. They drove away in the truck and I waited near the house and when they got back she got off the truck and went inside. The guy got off the truck and I started telling him that he was way too much older than her. The guy told me not to worry about it. Then I got mad and broke all of the truck windows. After my break up with [S___ M___] I started using cocaine. I didn't use very much, but I used it. I was losing my sleep and my weight. I was using a quarter of a gram of cocaine. I had a job, but I couldn't concentrate on anything. I wouldn't eat at work because I was always thinking about [S___...