Pesina v. State

• Decision Date: 18 June 1997
• Docket Number: No. 04-95-00706-CR,04-95-00706-CR
• Citation: 949 S.W.2d 374
• Parties: Eugenio PESINA, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 374

949 S.W.2d 374

Eugenio PESINA, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 04-95-00706-CR.

Court of Appeals of Texas San Antonio.

June 18, 1997.

Warren Weir, Weir & Alvarado, P.C., San Antonio, for Appellant.

Robert Boyd Padgett, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before RICKHOFF, STONE and JOHN F. ONION, Jr. ¹ , JJ.

OPINION

JOHN F. ONION, Jr., Justice (Assigned).

This appeal is taken from a conviction for murder. See TEX. PENAL CODE ANN. § 19.02(a)(1) (Vernon 1994) ². After the jury found appellant, Eugenio Pesina, Jr., guilty as charged in the indictment, the trial court assessed punishment at 35 years' imprisonment.

POINTS OF ERROR

Appellant advances twelve points of error. Although labeled as jury charge error, the real thrust of the first six points of error is a challenge to the sufficiency of the evidence to sustain the conviction either as a primary actor or as a party to the offense charged. The six points have been briefed as sufficiency questions and we shall consider them as such. In the seventh point of error, appellant complains that the trial court improperly applied the law of the parties in its jury charge and authorized conviction as a party for designated acts which occurred after the completion of the offense and not prior to or contemporaneous with the offense of murder. In the eighth, ninth, and tenth points of error, appellant contends that the erroneous application of the law of parties to the facts in the court's charge deprived him of the due course of the law under the Texas Constitution, and of the due process of law and the right to a fair trial under the Fourteenth Amendment. Amend. XIV, U.S. CONST. In the eleventh and twelfth points of error, appellant argues that since the trial court authorized his conviction either for "acting alone" or as a party, he was deprived of a unanimous verdict on one theory or the other in violation of his federal and state constitutional rights.

THE INDICTMENT

The indictment charged in pertinent part that appellant, on or about June 4, 1994, "did then and there intentionally and knowingly cause the death of an individual, Keith Eugene Barabe, hereinafter referred to as complainant ³, by stabbing the said complainant with a deadly weapon, namely: a fork, that in the manner of its use and intended use was capable of causing death and serious bodily injury." The indictment also alleged a prior felony conviction which was not pursued by the State and thus was abandoned.

There was no allegation in the indictment charging appellant as a party. It was unnecessary because the law of parties may be applied to a case even though no such allegation is contained in the indictment. Jackson v. State, 898 S.W.2d 896, 898 (Tex.Crim.App.1995); Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985), cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986); Williams v. State, 676 S.W.2d 399, 401 (Tex.Crim.App.1984); Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978).

The State's primary theory of the case from voir dire examination of the jury panel through final jury argument was that appellant was guilty as a party.

PRIMARY ACTOR

We turn first to the legal sufficiency of the evidence issue and determine whether the evidence was sufficient to sustain appellant's conviction for murder "acting alone" or as a primary actor.

STANDARD OF REVIEW

In analyzing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979); Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993). This standard of review applies to both direct and circumstantial evidence cases. Green v. State, 840 S.W.2d 394, 401 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993); Geesa v. State, 820 S.W.2d 154, 160-61 (Tex.Crim.App.1991). In our review, we must consider all the evidence whether rightly or wrongly admitted. Nickerson v. State, 810 S.W.2d 398, 400 (Tex.Crim.App.1991).

Moreover, the sufficiency of the evidence must be considered in the light most favorable to the jury's verdict by comparing the evidence to the indictment as incorporated in the court's charge and measured against the theory of the offense submitted to the jury. See Fisher v. State, 887 S.W.2d 49, 55 (Tex.Crim.App.1994); Jones v. State, 815 S.W.2d 667, 668 (Tex.Crim.App.1991); Nickerson v. State, 782 S.W.2d 887, 891 (Tex.Crim.App.1990); Boozer v. State, 717 S.W.2d 608, 610-11 (Tex.Crim.App.1984); Benson v. State, 661 S.W.2d 708, 715 (Tex.Crim.App.1982), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984).

The jury's verdict must stand unless the verdict is irrational or unsupported by more than a "mere modicum" of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988); see Haddad v. State, 860 S.W.2d 947, 950 (Tex.App.--Dallas 1993, pet. ref'd). The proof offered may be by direct or circumstantial evidence. In a circumstantial evidence case, proof amounting only to a strong suspicion is not enough. Vaughn v. State, 607 S.W.2d 914, 921 (Tex.Crim.App.1980). Nevertheless, every fact need not point directly and independently to the accused's guilt; a conclusion of guilt can rest on the combined and cumulative force of all incriminating circumstances. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982).

THE FACTS

Eugene Barabe, Jr., the father of the victim, Keith Eugene Barabe, testified that he last saw his twenty-five year old son in Pleasanton about 8:30 in the morning of June 4, 1994, as his son was "heading into the bank where he does banking." He described his son as wearing a gold necklace and a gold bracelet. At the time, the elder Barabe observed his son's dog, "Sheba," a black Pomeranian, in the son's car, a blue 1986 Oldsmobile Delta 88. The witness later learned that his son had withdrawn $140 from the bank on the morning in question.

The blood-crusted and ant-covered body of Keith Eugene Barabe was found by the police in the backyard of appellant's residence at 707 Chihuahua in San Antonio after appellant had called 911 about 11:47 p.m. on June 4, 1994. San Antonio Police Officer Randy Walter was the first officer to arrive at the scene. Appellant led the officer to the body and stated that he investigated after hearing "a noise in the back" and saw several individuals running from the yard, leaving the body behind. Officer Walter saw a trail of blood from the back porch to the body and blood on the grass and on the porch itself. The shirt of the victim was rolled up under his armpits and the victim's face was bloody and swollen. There were no shoes on the body, only one sock. Walter described appellant as very cooperative and stated that appellant signed a form giving consent to search the house.

Detective Menefee arrived shortly after the original call. Appellant told Menefee that the victim had not been in the house and he denied any knowledge of the offense or how blood had gotten on the porch or in the house. Menefee was suspicious about the traces of blood he saw on appellant's pants up to his knees, although appellant explained that he had been walking through the bloody grass six to eight inches tall. Detective Menefee also described appellant as being cooperative. He did not consider appellant intoxicated. Later, Menefee was approached by a neighbor, Ruben Vera, Jr., and as a result of their conversation, a nearby dumpster was searched and certain items belonging to the victim were recovered.

Jose Luis Aleman, a city paramedic, arrived at the scene. He found no signs of life in the body of the victim. Appellant told Aleman that he did not know the victim and had not seen anyone else in the backyard.

Detective Clay Gill had the responsibility of collecting evidence. He testified that most of the blood in appellant's house was found in the kitchen. Blood was seen on a cart across from the kitchen sink and on items situated on the cart. Other blood was observed on the floor of the hallway and of a back bedroom, on the door to another bedroom, and on the interior wall of the living room. Detective Gill was of the opinion that a struggle took place inside the house, that there was a "big bloody mess" and there had been only a "halfhearted" attempt to clean it up.

In addition to beer cans, Gill found in the kitchen sink a bent kitchen knife and a chrome barbeque or meat fork with a plastic handle. Both prongs of the fork were bent and twisted. In the dumpster across from appellant's house, a number of items were discovered, including two bloody Rockport tennis shoes, a bloody bedspread and towel, and a nylon wallet. Officer Gill took appellant's boots and blue jeans, both containing traces of what appeared to be blood. There was also hair on the toes of the boots. Gill was unable to obtain fingerprints from the knife or fork or from the items found in the dumpster. The search of the house did not reveal any money, narcotics, or gold jewelry. Appellant was arrested and taken to jail.

Several hours later, about 2:21 a.m. on June 5, 1994, a traffic accident report was received. A car hit a utility pole and turned over. The driver, Robert "Beto" Guerrero, was injured. The passenger was Jose Luis Moreno. The car was a "gray" four door 1986 Oldsmobile Delta 88 registered to Keith Barabe, the victim in the instant case. Fingerprints and blood samples were taken from the vehicle.

Dr. Robert Bux, a deputy medical examiner for Bexar County, performed the autopsy on Keith Barabe. The doctor found abrasions on Barabe's chest and abdomen which had occurred after death and which were consistent with "drag marks." There were bruises,...