Rocha v. State

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 16 S.W.3d 1
• Parties: (Tex.Crim.App. 2000) FELIX ROCHA, Appellant v. THE STATE OF TEXAS NO.73,280
• Decision Date: 12 April 2000

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16 S.W.3d 1 (Tex.Crim.App. 2000) FELIX ROCHA, Appellant
v.
THE STATE OF TEXAS NO.73,280 IN THE COURT OF CRIMINAL APPEALS OF TEXAS April 12, 2000

ON DIRECT APPEAL FROM HARRIS COUNTY

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Randy McDonald, Houston, for appellant.

Kelly Ann Smith, Asst. Dist. Atty., Houston, for State.

O P I N I O N

KELLER, J., delivered the opinion of the Court in which McCORMICK, P.J., and MANSFIELD, WOMACK and KEASLER, JJ., joined.

Appellant was convicted in November 1998 of capital murder (murder in the course of a robbery). Tex. Penal Code 19.03(a)(2). ¹ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 2(g). ² Direct appeal to this Court is automatic. Article 37.071 2(h). Appellant raises fifteen points of error. We will affirm.

I. SUFFICIENCY OF THE EVIDENCE

In point of error two, appellant contends that the State failed to prove the corpus delicti for the underlying offense of robbery. The corpus delicti rule is a rule of evidentiary sufficiency that can be summarized as follows: an extrajudicial confession of wrongdoing, standing alone, is not enough to support a conviction; there must exist other evidence showing that a crime has in fact been committed. Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997). This other evidence is commonly referred to as the "corpus delicti." Id. This other evidence need not be sufficient by itself to prove the offense: "all that is required is that there be some evidence which renders the commission of the offense more probable than it would be without the evidence." Id. (quoting Chambers v. State, 866 S.W.2d 9, 15-16 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1100 (1994)). We have held that, in a capital

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murder case, the corpus delicti requirement extends to both the murder and the underlying offense. Williams, 958 S.W.2d at 190. But see Monterrubio v. State, 916 S.W.2d 506 (Tex. Crim. App. 1996)(Keller, J. dissenting).

The evidence shows the following: On November 26, 1994, Rafael Fuentes, the decedent, was working as a security guard at La Camelia, a nightclub in Harris County. Reynaldo Munoz, who owned some pool tables at the nightclub, arrived at around 7:00 p.m. Munoz talked to Fuentes for ten to fifteen minutes while Fuentes stood at the door to the club. Munoz noticed that Fuentes was wearing a holster containing a gun. Two men, a tall man and a short man, moved quickly toward Fuentes. Munoz moved out of the way as Fuentes stopped the men to conduct a search. Munoz saw the tall man raise his arms as if to permit a frisk. Then Munoz watched the short man pull out a gun, point the gun at Fuentes, demand Fuentes' gun, ³ and reach for Fuentes' gun. At that point, Munoz began to flee the scene and did not see what happened next. As he fled, Munoz heard two or three gunshots.

A police radio dispatch informed patrol officer Michael Junco of a shooting in progress. Junco arrived at the scene to find Fuentes' body with gunshot wounds. Junco noticed that there was no gun in Fuentes' holster.

The tall man was later identified as Virgilio Maldonado. The short man was believed by law enforcement officials to be appellant. Houston Police Officer X.E. Avila interviewed appellant. In his oral statements, appellant gave the following version of events: Appellant and Fuentes had been involved in an altercation at some time prior to the murder. Fuentes had beaten and otherwise embarrassed appellant, and appellant had vowed to get revenge. On the night of the killing, appellant and Maldonado confronted Fuentes. Appellant intended to take Fuentes' gun to embarrass him and show that Fuentes was not a good security guard. Appellant pulled his own gun on Fuentes, and Fuentes grabbed appellant's gun. Then appellant and Fuentes struggled over appellant's gun, and appellant's gun was shot once during the struggle. Appellant did not know whether the shot hit Fuentes or simply went into the air. Maldonado shot Fuentes several times to protect appellant. Maldonado then took Fuentes' gun, and appellant and Maldonado fled the scene.

The corpus delicti for robbery was established by the testimony of Munoz and Junco. Munoz's testimony established that Fuentes was carrying a gun in his holster prior to being shot, that he was confronted by two persons, that one of these persons demanded and reached for Fuentes' gun, and that a shooting occurred afterwards. Junco's testimony established that Fuentes had been shot and that his gun was missing shortly after the shooting had occurred. This evidence tends to show that Fuentes' gun was stolen during a physical attack upon him and that the physical attack culminated in a murder. Point of error two is overruled.

II. VOIR DIRE

A. Defendant's Peremptories/Challenges for Cause

In point of error nine, appellant contends that the trial court erred in refusing to permit the retroactive exercise of a peremptory challenge. After the individual voir dire examination of David Kelley, both parties accepted Kelley as a juror. Later in voir dire, appellant requested that he be permitted to retroactively exercise a peremptory challenge against Kelley. The trial court refused the request. Without authority, appellant contends that the trial court's refusal violated his "due process rights to a fair and impartial jury."

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The Legislature has prescribed the procedure for exercising for cause and peremptory challenges by the parties in a capital case. Article 35.13. ⁴ Under this procedure, "the defendant must exercise peremptory challenges upon the examination of individual prospective jurors without the opportunity to evaluate the panel as a group." Janecka v. State, 739 S.W.2d 813, 833 (Tex. Crim. App. 1987). Having followed the statutory procedure, the trial court cannot be held in error for failing to grant an out-of-time peremptory challenge. Robison v. State, 888 S.W.2d 473, 484 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1162 (1995). We have held that the statutory procedure does not violate due process. Janecka, 739 S.W.2d at 834; Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim. App. 1996). Point of error nine is overruled.

In points of error twelve through fifteen, appellant complains about the trial court's refusal to grant challenges for cause made by appellant against various members of the venire. However, appellant used only thirteen of his fifteen peremptory challenges. A defendant is not harmed by a trial court's erroneous refusal to grant defense challenges for cause if the defendant has failed to exhaust his peremptory challenges. Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim. App. 1997), cert. dism'd, U.S. , 119 S. Ct. 290 (1998); Narvaiz v. State, 840 S.W.2d 415, 427 (Tex. Crim. App.1992), cert. denied, 507 U.S. 975 (1993). Points of error twelve through fifteen are overruled.

B. State's Challenges for Cause

In point of error ten, appellant claims that the trial court erroneously granted the State's challenge for cause against prospective juror Williams in violation of the constitutional proscription against excluding jurors with conscientious scruples concerning the death penalty. Under the United States Constitution, a prospective juror may be disqualified for having conscientious scruples about the death penalty only if his "views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"Wainwright v. Witt, 469 U.S. 412, 425 (U.S. 1985). We give deference to a trial court's decision to exclude a prospective juror and will reverse only for an abuse of discretion. Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998). We will uphold the trial court's decision when a prospective juror's answers on a challenge for cause issue are "vacillating, unclear, or contradictory." Id.

We need not address appellant's "conscientious scruples" claim, however, because at least two other grounds for granting a challenge for cause against Williams are apparent. First, the juror stated that she could not answer the future dangerousness special issue: ⁵

[Prosecution voir dire]

Q.The first question that's asked in a death penalty trial is whether there is a - a probability that the defendant will commit criminal acts of violence that constitutes a threat to society. Now, most people would - would think that they would look at what happened in the crime, maybe - maybe the defendant's past, the person that's been convicted, his past, if he has one, what other evidence. And they say, I could decide whether a person is

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dangerous or not, even though that might lead to a finding that he should be put to death. Could you do that?

A.I don't know how I could determine that a person could be dangerous in the future.

Q.Well, assume - assume with me for a moment that that's possible for you to do?

A.All right.

Q.That that's possible for any human being to do. And look at it from this aspect. If I answer this question, yes - and looking at it from a point of view that there are three questions there, is one third of the way for that man to get the death penalty. From that aspect, could you give fair attention to that question? Or would your views affect the way you looked at that question?

A.Yes, they would.

....

[Defense voir dire]

Q.Or are you saying that regardless of the amount of evidence that the prosecution has, regardless of the eyeball witnesses that they may have of other crimes, for example, from other crime victims and the behavior that, you know, maybe a person did, are you saying that you would - you could never answer Special Issue No. 1, yes?

A.I don't think I could. Because I still don't think I could, even based on what someone would tell me or show me, I don't believe I could choose to decide whether that...