Rios v. State

• Decision Date: 28 October 1992
• Docket Number: No. 70983,70983
• Parties: Joe RIOS, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 310

846 S.W.2d 310

Joe RIOS, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 70983.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 28, 1992.

Rehearing Denied Dec. 9, 1992.

Richard E. Langlois, court appointed, and Royal Griffin, San Antonio, for appellant.

Steven C. Hilbig, Dist. Atty., and Sam Ponder, Lyndee Bordini, and Daniel Thornberry, Asst. Dist. Attys., San Antonio, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appellant was convicted of murder of more than one person during the same transaction, a capital offense under V.T.C.A. Penal Code, § 19.03(a)(6). ¹ The jury answered special issues affirmatively, and punishment was assessed accordingly at death. Article 37.071, V.A.C.C.P. Appeal to this Court is automatic. Id., § (h).

In his first two points of error appellant challenges the sufficiency of the evidence to show he is responsible for the multiple killings in this cause, and that the killings occurred during the same criminal transaction. The evidence that appellant perpetrated the killings is circumstantial. Appellant does not challenge sufficiency of the evidence at the punishment phase.

The grand jury returned a three count indictment in this cause. The first count alleged appellant intentionally caused the death of two individuals, Alex Delgado and Robert Torres, during the same criminal transaction. § 19.03(a)(6)(A), supra. Count two alleged appellant intentionally caused the deaths of Delgado and Torres, and that during the same scheme or course of conduct he also intentionally caused the death of a third individual, Rosalio Ruiz. § 19.03(a)(6)(B), supra. In the third count it is alleged, in addition to what is alleged in the second count, that during the same scheme and course of conduct appellant also intentionally caused the death of a fourth individual, Jorge Rangel. Id. All four killings were proven at trial. After all the evidence was presented at the guilt phase, the State elected to proceed on the first count alone. Accordingly, the jury was instructed that in order to convict for the offense of capital murder, it must find appellant intentionally caused the deaths of Delgado and Torres, and that he perpetrated these two killings during the same criminal transaction. The jury was also instructed it could consider extraneous offenses to the extent they have a bearing on the issues of identity and intent. Appellant maintains the evidence fails to establish he committed the killings, or that they were committed during a single criminal transaction. The facts, viewed in the light most favorable to the jury's verdict, are as follows.

The bodies of Delgado and Ruiz were discovered close together on the grounds of St. John's Lutheran Cemetery in San Antonio at about 7:30 a.m. on August 17, 1987. According to the medical examiner, by that time they had been dead at least 24 hours. Delgado had been shot once in the head with a .22 caliber weapon. Torres had been shot three times in the head with a weapon of the same caliber. Each man's pockets had been turned out. Torres' zipper was open and his pants partially pulled down. Two spent .22 caliber shell casings were found at the scene. Both men had last been seen alive in the company of appellant sometime after 11:30 p.m. on the night of August 15, 1987, in a white van appellant had borrowed from his girlfriend's father. Earlier that evening appellant was seen handling a small caliber automatic pistol, and had fired at least one round out of the window as he was driving the van. A .22 caliber shell casing was later discovered on the floorboard beneath the driver's seat in the van.

The firearms examiner testified that, although he could not "positively say," it was his opinion, judging from a rare rifling pattern present on all of the four bullets recovered from the bodies of Delgado and Torres, that each had been fired from the same gun. That gun, he opined, was a Tanfoglio GT22 or FIE E22. ² He was able positively to say that the three spent shell casings were all fired from the same weapon, also a Tanfoglio. ³

On the morning of August 23, 1987, the body of Rosalio Ruiz was discovered just outside the grounds of the Alamo Lodge Masonic Cemetery, near St. John's Lutheran Cemetery. Ruiz had been shot twice in the head with a .22 caliber pistol. Abrasions on the body indicated it had been dragged. His pockets were turned out and his pants "pulled down slightly." Within the grounds of the cemetery was a 1974 Oldsmobile Toronado with a recent bullet hole through the windshield. Appellant's fingerprints were lifted from outside of the driver's side door of the Toronado, and from the roof on the driver's side. One spent shell casing was discovered inside the car. Another was found on the cemetery grounds. The firearms examiner testified that these shell casings had been fired from the same .22 caliber Tanfoglio that had fired the shell casings discovered at the St. John's Lutheran Cemetery and in the white van. He also opined that the bullets retrieved from Ruiz' brain were fired from the same weapon that had killed Torres. ⁴

The night before, on August 22, 1987, in a neighborhood near the cemeteries, appellant had waved around a small automatic pistol, and pointed it at the forehead of an eighteen year old boy. A short distance down the street appellant was again seen playing with the gun, and he pointed it at one other person. Sometime after 10:00 p.m. he was seen to get in the front passenger side of a car driven by Ruiz. Appellant had been arguing with Ruiz, and pointing the gun at him as well. The car looked like the Toronado found the next morning at the Alamo Lodge Masonic Cemetery. ⁵

The body of Jorge Rangel was found about 2:00 a.m. on August 24, 1987, in the parking lot of Pitman-Sullivan park, in the same general neighborhood. His pockets had been turned out, his pants were unzipped, and his shirt was pulled up. He had been shot once in the neck and once in the temple, and had been dead less than four hours when found. There was blood on his pants, a circumstance consistent with his having been sitting up when shot. A .22 caliber bullet was recovered from his brain. The firearms examiner concluded this bullet was fired from the same Tanfoglio used to kill Delgado, Torres and Ruiz.

Appellant was arrested on August 26, 1987, shortly after leaving his mother's residence at 1223 Virginia in a green and white Plymouth Satellite. In the Satellite police found two live .22 caliber rounds, a spent slug, and a spent shell casing. Both the slug and the shell casing were fired from the same Tanfoglio as were all the others. The slug contained traces of human blood. A quantity of blood was discovered on the front passenger side of the car. The specific blood characteristics, shared by only three percent of the population, proved consistent with Rangel's blood.

Finally, appellant's ex-wife testified that in July of 1987, appellant was living at the residence at 1223 Virginia, close to where each of the bodies was later recovered. Toward the end of July she went there to visit appellant, and an argument ensued. In the course of the argument appellant pointed a small automatic pistol at her, and fired a round into the wall. Police later removed a bullet from the wall, and the firearms examiner concluded that it was fired from the same Tanfoglio later used in all four killings.

Every circumstantial evidence case must be tested by its own facts to determine the sufficiency of the evidence. Brasfield v. State, 600 S.W.2d 288, at 293 (Tex.Cr.App.1980) (Opinion on original submission). Given the above facts the jury could rationally conclude appellant intentionally caused the deaths of Delgado and Torres. The same weapon was used to perpetrate all four murders. That murder weapon was shown to have been in appellant's possession several weeks prior to the killings. Appellant was seen with Delgado and Torres, brandishing a small caliber pistol, within hours of their having been found dead. He was shown to have been threatening others with a small caliber pistol on the night he met up with Ruiz, shortly before Ruiz was killed. A bullet and shell casing fired from the murder weapon were found in the car appellant was driving when arrested, and blood consistent with Rangel's was found on the passenger seat. All the bodies were left in the same general vicinity, close to appellant's home, three out of four in or just beyond cemetery grounds. All had been shot in the head. Each had had his pockets turned out and three of the four had had their clothing tampered with in a peculiar fashion. Together these facts support the conclusion that the same person perpetrated all four killings, and that appellant was that person. The evidence admits of no other reasonable hypothesis. We hold the evidence is sufficient to show appellant killed Delgado and Torres. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We conclude also that the evidence was sufficient to support a jury finding that appellant killed Delgado and Torres "during the same criminal transaction." § 19.03(a)(6)(A), supra. The Legislature did not define "criminal transaction." The trial court did not define it in the jury charge. Thus, the jury was left to common acceptation. The dictionary defines a transaction as "an act, process, or instance of transacting." Webster's Ninth New Collegiate Dictionary (1988), at 1252. "Transact," in turn, is a transitive verb meaning "to carry out: PERFORM; esp: to carry on." Id. Thus, in common acceptation, a criminal transaction must be understood as an act, process, or instance of carrying on or carrying out crime.

"Criminal transaction" is different, however, from "scheme or course of conduct" under § 19.03(a)(6)(B), supra. In fact, under the statute the two are mutually exclusive. As § 19.03(a)(6)(B) is drafted, one cannot be convicted of murdering...