Ramirez v. State, 69749

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 815 S.W.2d 636
• Docket Number: No. 69749,69749
• Parties: Carlos RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 19 June 1991

Page 636

815 S.W.2d 636

Carlos RAMIREZ, Appellant, v. The STATE of Texas, Appellee.

No. 69749.

Court of Criminal Appeals of Texas,

En Banc.

June 19, 1991.

Rehearing Denied Sept. 18, 1991.

Jane Wynegar (court appointed on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Kathlyn Giannaula and Alan Curry, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted of capital murder. V.T.C.A. Penal Code, sec. 19.03(a)(2). The trial judge assessed appellant's punishment at death by lethal injection after the jury returned affirmative answers to the special issues submitted pursuant to Art. 37.071(b)(1) and (2). ¹ Appellant presents twenty-eight points of error in this direct appeal. We will reverse the judgment of the trial court and address those points of error which may arise in the event of a retrial.

Appellant does not challenge the sufficiency of the evidence to support his conviction or to support the jury's affirmative answers to the issues at punishment. Appellant does challenge, however, the admissibility of certain evidence at guilt/innocence. A somewhat detailed recitation of the facts is necessary to facilitate our discussion of those points of error.

Appellant was charged with committing the murder of Beverly Strothers in the course of burglarizing her home. The indictment specifically alleged in pertinent part that appellant:

while in the course of committing and attempting to commit burglary of a habitation owned by BEVERLY SUE STROTHERS, intentionally cause (sic) the death of BEVERLY SUE STROTHERS, ..., by cutting and stabbing [her] with a knife.

Appellant and a friend, Steve Hernandez, who was also charged in connection with this offense, went to visit Jacquie Picasso at approximately 3:00 a.m. on September 14, 1985. Jacquie's mother, Leci Gillette, told appellant and Hernandez that Jacquie was out with her friend Candis Cain. ² The two men then left, and Gillette watched them walk in the direction of Candy's apartment, but she did not see whether they entered it. Approximately fifteen or thirty minutes later, Gillette heard screams, which she recognized as her daughter Jacquie's and Candy's voices, coming from Candy's home.

Candy testified she and Jacquie entered her home through the back entrance. Candy noticed both the patio gate and the sliding glass door to her room were open which was unusual. Once inside the apartment, Candy noticed her mother's room was "messed up" and then she saw her mother's legs protruding from the bathroom into the hallway. Candy described her mother as naked, very bloody, and still alive when she found her in the bathroom. Candy asked her mother what happened; her mother told her "They raped me" and she mumbled something else before dying in Candy's arms. Candy's little brother, Jim Bob Strothers, was asleep on one of the couches in the front room and was not awakened during the assault on his mother. Both Candy's TV and her mother's TV were missing from the apartment.

Appellant did not testify at trial. His confession, which was edited and read to the jury, stated in pertinent part:

Steve said let's go to Candy's house and get the TV's (sic). We walked around to Candy's apartment and went to the back patio. Steven opened the sliding door and we went in. The bedroom light was on but no one was in the room. We started looking around in the bedroom for jewelry. We did not find any thing so decided to take the TV. We were in the living room trying to take the TV. Candy's mother was laying down on the couch sleeping. Candy's little brother was laying on the small couch. I guess we were making too much noise, and she started moving around and sat up. She saw us and started yelling. We both told her to shut up. She yelled y'all are Candy's friends, ain't you. We grabbed and drug her into the hall between the bathroom and the kitchen. As we were dragging her her gown came off. She started fighting with us. We told her to be quiet and stay still. Steve said, 'Hey, man, she knows us, we'll have to kill her.' I told Steve no but he kept hollering that we had to kill her. Steve got a knife from the kitchen and came in and stabbed her somewhere in the chest while I was holding her. She then laid still. I went into the kitchen and got a big knife from one of the drawers. I went back and stabbed her about three times in the left chest. Steve was holding her around the mouth. She was still alive. We both cut her throat. I put the knife I had in the closet with the towels ... After we finished stabbing her, I grabbed the small TV which came out of one of the bedrooms, and Steve grabbed the big TV which was in the living room ... I didn't mean to kill her, we just went over there to steal the T.V., but when she woke up she recogniezed (sic) us. Things just happened ...

The assistant medical examiner testified Strothers, the deceased, had a cluster of five stab wounds to the left side of her neck and another such cluster to the left side of her chest. In addition to these ten stab wounds, Strothers had superficial cuts and abrasions, defensive wounds on her right hand, an abrasion of her vagina, and a contusion between her vagina and anus. Strothers died as a result of three of the stab wounds to her chest.

Houston police department chemist Christie Kim testified she performed serological analyses on the hair, skin, and bodily fluids samples from appellant, Hernandez, and the victim. Kim testified she found spermatozoa in the deceased's mouth which indicated to her the deceased had had oral sex prior to her death, but there was an insufficient seminal stain present to detect the type of donor's seminal fluid. No sperm were detected on the vaginal and oral smears taken from the victim. Kim stated seminal stains were also present on the briefs appellant was wearing when he was arrested later that morning of the offense, but no such stains were found on Steve Hernandez's clothing. Kim's testimony coincided with that of the assistant medical examiner that the contusions in the victim's vaginal and anal orifices were consistent with an assault to the genital area but were not made by the male sex organ. The assistant medical examiner stated the contusions and abrasions could have been caused by fingers or a blunt object.

In his first point of error, appellant contends the trial court committed reversible error by allowing Candy, the victim's daughter, to testify her mother told her she had been raped. Appellant argues this testimony introduced evidence of an extraneous offense which was not admissible because "rape" was not alleged in the indictment and the State relied upon his intent to steal, as evidenced by his confession, to prove its case.

During trial the trial judge conducted a hearing outside the jury's presence on the admissibility of Candy's testimony that her mother said "They raped me" prior to dying. Appellant objected to admission of the statement arguing the State could not prove beyond a reasonable doubt the extraneous offense occurred, that there is no such thing as extraneous offense by party, and given the confession the State had overwhelming evidence upon which to convict appellant. ³ Appellant also stated for the record, after the trial judge ruled the statement was admissible, that the prejudicial value of the statement greatly outweighed its probative value and that it was not admissible under Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). Appellant renewed his objections to this testimony when the State offered it in the jury's presence. Given the state of this record, we cannot conclude, for reasons to be given, Candy's statement impermissibly interjected evidence of an extraneous offense.

As we noted infra, the indictment in this case charged appellant with murder in the course of burglary of a habitation. Under V.T.C.A. Penal Code sec. 30.02(a) a person commits burglary "if, without the effective consent of the owner, he (1) enters a habitation ... with intent to commit a felony or theft; or (3) enters a ... habitation and commits or attempts to commit a felony or theft." The indictment did not specifically allege which burglarious intent appellant had when he committed this offense, nor was the State required to plead the constituent elements of the offense constituting the aggravating feature of capital murder. Marquez v. State, 725 S.W.2d 217, 236 (Tex.Cr.App.1987). In order for the State to meet its burden of proof as to the allegation of burglary in the indictment the State had to show beyond a reasonable doubt appellant entered the Strothers' apartment with either the intent to commit a felony, e.g. sexual assault, or with the intent to commit theft, the taking of the television sets. The indictment was not specific as to which theory the State intended to prove to support its capital murder allegation. Any evidence tending to show either burglarious intent on the part of appellant was admissible proof of the State's case. See Barefoot v. State, 596 S.W.2d 875, 887 (Tex.Cr.App.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (1981), (other evidence of motive did not preclude admission of evidence of extraneous offense establishing another motive for killing victim of capital murder).

Appellant's argument that the sexual assault is an extraneous offense because it is not alleged in the indictment is without merit. As we just noted, the evidence of the sexual assault is part of the State's proof on the aggravating feature of this capital murder, and the State was not required to plead the offense or attempted offense which indicated burglarious intent. Evidence of sexual assault goes directly to that material issue in this case. Evidence of appellant's intent may be gleaned from his actions. See and cf. McGee v. State, 774 S.W.2d 229 (Tex.Cr.App.1989) (actions of accused indicate intent to...