Rodriguez v. State

• Decision Date: 22 December 1982
• Docket Number: No. 04-81-00185-CR,04-81-00185-CR
• Citation: 644 S.W.2d 200
• Parties: Nolan J. RODRIGUEZ, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 200

644 S.W.2d 200

Nolan J. RODRIGUEZ, Appellant, v. STATE of Texas, Appellee.

No. 04-81-00185-CR.

Court of Appeals of Texas,

San Antonio.

Dec. 22, 1982.

Don W. King, Jr., Egon Tausch, San Antonio, for appellant.

Bill White, Dist. Atty., Steven Zauft, Asst. Dist. Atty., San Antonio, for appellee.

Before CADENA, C.J., and CANTU and BASKIN, JJ.

OPINION

CANTU, Justice.

Nolan J. Rodriguez appeals from a conviction of attempted capital murder based upon an unfavorable jury verdict. The trial court assessed punishment at twenty years' confinement in the Texas Department of Corrections. Sentence was cumulated under the provisions of Tex.Code Crim.Pro.Ann. art. 42.08 (Vernon 1979).

In six separate grounds of error, appellant challenges the sufficiency of the evidence to establish a specific intent to kill, the propriety of introducing evidence of three separate extraneous offenses, the admissibility of an oral confession, and the stacking of consecutive sentences.

We affirm, but this case approaches the limit to which a prosecutor may strain the patience of justice without incurring a reversal on the grounds of prosecutorial misconduct.

The facts viewed in the light most favorable to the jury verdict reflect the following events.

On June 1, 1978, at approximately three o'clock in the morning, in the northwest sector of Bexar County where the cities of San Antonio and Leon Valley adjoin, appellant and two companions, Scott Mills and William Douglas Beaver, became embroiled in an incident at a Jack-in-the-Box restaurant on Evers Road. Earlier that morning Elizabeth James, 15 years of age, and her 14 year old girl friend Elizabeth Mallory arrived at the Jack-in-the-Box with two young male companions. Their male companions were already intoxicated but still had four quart sized bottles of beer they no longer wanted. At the suggestion of their male friends, the two girls offered the bottles to appellant and his companions, who were also at the Jack-in-the-Box. One of appellant's companions responded by making a lewd sexual proposal, which the girls rejected.

Sometime later, the two girls left the Jack-in-the-Box alone, walking north on Evers Road. As they walked along the side of the road, appellant, Mills, and Beaver, apparently following behind, pulled up alongside in a 1970 green Malibu automobile driven by Mills. Again one of the car's occupants propositioned the girls and the girls refused. The car sped off and turned into a service station further up the road. James and Mallory became apprehensive and returned to the Jack-in-the-Box, where they saw two young men they recognized and asked them to accompany them home. The two, Barry Smith and Scott Harben, instead volunteered to drive them home in Smith's car. While the four were driving north on Evers Road, the girls pointed to three males standing alongside the road. Smith stopped his car by the threesome, who were subsequently identified as appellant, Mills and Beaver, and along with Harben, he questioned the three about their harrassment of the girls. Appellant pulled a sawed-off shotgun from behind his back, cocked it and pointed it at Harben. At the same instant Smith accelerated his vehicle in a swerving manner, and appellant discharged the firearm, the shot striking the vehicle's right rear tire. Smith managed to drive his car some distance to a Fargo's Restaurant, and Leon Valley police were summoned.

Leon Valley Police officer Jack Day responded to the call for a reported shooting, and while interviewing Smith, Harben, Mallory and James, saw appellant and his companions speed by in the 1970 green Malibu. The girls identified the occupants of the vehicle as the same three who had fired at them, and Officer Day began his pursuit of the fleeing vehicle. Officer Day displayed his emergency overhead lights and utilized his siren in chasing the green Malibu south toward San Antonio's Loop 410. During the early phase of the chase, the front passenger in the fleeing vehicle, later identified as appellant, leaned out the window, pointed a shotgun in the direction of Officer Day's pursuing vehicle, and discharged the shotgun twice in rapid succession, striking and damaging the front end of the patrol vehicle.

During the pursuit, which covered several miles along Loop 410, as many as ten law enforcement vehicles joined the chase which reached speeds in excess of 120 miles per hour. The fleeing vehicle managed to elude road blocks set up by San Antonio police officers and came to a final stop many miles from the point of origin in Leon Valley.

Mills and Beaver were arrested immediately. Appellant, however, fled on foot and managed to elude police officers. Later that day appellant surrendered to law enforcement officers and made an oral confession directing officers to the area where he had abandoned the shotgun and outer clothing. The appellant also executed a written confession later in the day. Both Beaver and Mills executed written statements implicating appellant.

Officer Day testified unwaveringly that appellant aimed the shotgun at him and fired as he pursued appellant from four car lengths behind. According to Day there was no doubt in his mind that appellant intended to kill him when he fired the weapon.

Appellant, testifying in his own behalf, denied any intent to harm Officer Day. According to appellant, he was aiming at the officer's vehicle's front tire in an attempt to discourage the pursuit.

On rebuttal, the State called upon co-defendant Beaver, ¹ who testified that appellant had stated during the chase that he was shooting at the pursuing officers. When told by Beaver and Mills to discard the shotgun, appellant allegedly responded by ordering them to "shut up" or he would shoot them.

Appellant argues on appeal that the physical evidence supports his testimony that he was not aiming at Officer Day, since the major damage to the police vehicle was to the area of the driver's side headlight, turn signal and front grille. Further testimony revealed damage to the overhead light lenses and to the protector over the loudspeaker located on top of the car. Appellant further insists that his written confession, executed after a conflicting oral confession was given, supports his contention that he merely sought to shoot out the officer's tire.

Appellant recognizes that the shooting of a victim with a deadly weapon supports a finding of intent to kill. Coleman v. State, 542 S.W.2d 144 (Tex.Cr.App.1976). He urges us, however, to adopt a different rule because Officer Day did not suffer actual harm or death. We decline the invitation to do so.

Tex.Penal Code § 1.07(a)(11) (Vernon 1974) defines a deadly weapon as:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

A sawed-off shotgun is a firearm and is by definition a deadly weapon. When death results from the use of a deadly weapon per se, the intent to kill may be inferred. Baylor v. State, 151 Tex.Cr.R. 365, 208 S.W.2d 558 (1948). This is so even though the defendant denies the specific intent to kill. Giles v. State, 617 S.W.2d 690 (Tex.Cr.App.1981). Similarly, firing at one's intended victim, even if the firer misses, supports a finding of intent to kill. ²

Appellant's denial of an intent to kill or to harm Officer Day presented an issue of fact for the jury, which it obviously resolved against appellant as was within its province, Tex.Code Crim.Pro.Ann. art. 38.04 (Vernon 1979). From all the facts developed in the case, the jury could and obviously did infer the specific intent to kill from the use of the sawed-off shotgun. The first ground of error is overruled.

In his second ground of error, appellant complains of alleged trial court error in the admission, over objection, of references to an extraneous offense of conspiracy to commit aggravated robbery. Appellant asserts that because the prosecutor recognized that evidence on the issue of intent to kill was weak, the State embarked on a campaign of trying him as a criminal generally. He directs this court to various incidents during the trial in which the State called upon witnesses who testified to issues completely irrelevant to the case and created the impression that appellant was a known criminal figure. He acknowledges that reversible error is not shown, and we agree, noting that the record does not support preservation of any error in this regard. We further agree with appellant, because the record bears him out, that the prosecutor intentionally tested the limits of the trial court's patience in maintaining some semblance of fairness in its rulings on extraneous matters being presented before the jury. We are not prepared, however, to hold that all of the references to extraneous offenses were inadmissible.

In anticipation of the prosecutor's course of conduct, appellant had filed a motion in limine seeking to suppress any mention of a planned robbery which was expected to be elicited from police officer Day relating the events leading to appellant's subsequent oral confession. After a hearing outside the presence of the jury, the trial court held the oral confession admissible, including references to the alleged planned robbery at the Jack-in-the-Box. Over repeated objection, the prosecutor was permitted to elicit testimony about the planned robbery during the State's case in chief.

After the State rested its case, appellant took the stand to deny any intent to harm Officer Day. On cross-examination, the prosecutor immediately delved into the matter of the planned robbery and most of the cross-examination centered upon this topic. Following appellant's denial of any planned robbery, the State called co-defendant Beaver on rebuttal to again stress the planned robbery. At one point the trial court admonished the prosecutor...