Rojas v. State

• Decision Date: 23 September 1998
• Docket Number: No. 72475,72475
• Citation: 986 S.W.2d 241,1998 WL 648745
• Parties: Leonard Uresti ROJAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 241

986 S.W.2d 241

Leonard Uresti ROJAS, Appellant, v. The STATE of Texas, Appellee.

No. 72475.

Court of Criminal Appeals of Texas.

Sept. 23, 1998.

Dick Turner, Cleburne, for appellant.

David W. Vernon, Asst. DA, Cleburne, Matthew Paul, State's Atty., Austin, for State.

OPINION

MEYERS, Judge, delivered the opinion of the Court in which McCORMICK, Presiding Judge, and MANSFIELD, KELLER, PRICE, HOLLAND and WOMACK, Judges, joined.

Appellant was convicted of capital murder for an offense committed on or about December 27, 1994. TEX. PENAL CODE ANN. § 19.03(a)(2). The jury affirmatively answered the punishment question set forth in Texas Code of Criminal Procedure Article 37.071 § 2(b)(1) and negatively answered the question in Article 37.071 § 2(e). ¹ The trial judge sentenced appellant to death pursuant to Article 37.071 § 2(g). Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises twelve points of error. We will affirm.

In appellant's first, second, and third points of error, he contends the trial court erred in denying his Motion for Instructed Verdict and Motion for New Trial because a fatal variance existed between the indictment and proof at trial. Appellant asserts this fatal variance resulted in a failure to provide adequate notice to appellant of the charges against him, a failure to afford him adequate protection against re-prosecution for the same offense, and rendered the evidence insufficient to sustain the conviction. In points of error four and five, appellant argues the trial court erred in denying his Motion for New Trial because the evidence presented at trial was legally and factually insufficient to support the jury's guilty verdict. These points of error necessitate a review of the facts of the case.

On the evening of December 27, 1994, Fabian Narvaez took his sons, Adrian and Eric Narvaez, to a Texaco station in Arlington, Texas, to meet their mother, Jo Ann Reed (Narvaez's ex-wife). The boys had just completed a Christmas holiday visit with their father and were scheduled to meet their mother at 7:00 p.m. at the Texaco station, the usual exchange point agreed to by Narvaez and Reed. When Reed had not appeared and could not be reached by 8:05 p.m., Adrian called his aunt, Linda Hancks (Reed's sister). Hancks drove to the Texaco, picked up the boys, and took them to her house. After trying unsuccessfully to reach Reed, she called her sister, Terry Ceballos. Ceballos informed Hancks that she had been calling Reed all day and had repeatedly encountered a busy signal. The two sisters then drove together to the area of Johnson County, where Reed lived with appellant (her boyfriend or common law husband), his brother, David Rojas, and Reed's two sons in a double-wide trailer.

When Hancks and Ceballos arrived at the home at approximately 9:20 p.m., appellant's car was parked in the driveway and the trailer was completely dark. After pushing past two large trash cans which were blocking the back door, they discovered Reed's bloody body buried under a pile of sheets, blankets and pillows on the bed in the master bedroom. A white plastic bag was tied tightly around Reed's head. With some effort, Hancks was able to pry off the bag, then discovered that Reed had a gunshot wound in the center of her forehead and seemed to have been dead for some time. Hancks also noticed a .32 caliber weapon lying on the bed. Ceballos later discovered David Rojas' body in the second bathroom. Rojas had apparently been shot multiple times.

The sisters called 9-1-1 and were told to leave the trailer. The police arrived and began investigating the murders. At some point, officers on the scene received a call notifying them that Dallas police were holding a man who had apparently confessed to these killings to security guards in a bus station. Johnson County officers traveled to Dallas where they were introduced to appellant who immediately began confessing his actions to them and had to be stopped so officers could read him his Miranda ² rights.

At approximately 2:00 a.m., December 28, 1994, appellant willingly gave Johnson County officers a written statement in which he admitted killing Reed and his brother and explained the events leading up to the murders. The Johnson County police then took appellant back to the scene of the crime, where he made a videotaped statement in which he toured the house explaining the events. Police took an additional statement from appellant at around 1:00 p.m. on the 28th after appellant had eaten breakfast and rested to verify the accuracy of the first two statements. When compared, the three statements contain minor inconsistencies but recount substantially the same events.

Appellant stated that he and the victims, Reed and David Rojas, had stayed up all night playing dominoes and using drugs (marijuana, cocaine, and methamphetamine). According to appellant, at around 9:30 a.m. on the morning of the 27th following this all-night binge, he was in the kitchen making coffee and saw Reed emerge from Rojas' bedroom. Appellant confronted Reed because he suspected that she had been sleeping with Rojas. Reed denied this accusation. Appellant and Reed went to the master bedroom, then Reed removed her clothing. She offered to perform fellatio on appellant and appellant accepted her offer. Appellant claims that, after completing this act, Reed told him she had met a new man (apparently not David Rojas) and asked appellant to move out of the house. Appellant angrily refused to move out and Reed told him that they would make him leave. Appellant reached under the dresser, retrieved his gun (a .32 caliber Smith and Wesson) and shot Reed between the eyes. He then put on his robe, knocked on the bathroom door, and asked Rojas to come out of the bathroom. When Rojas opened the door, appellant shot him three times.

After shooting Rojas, appellant noticed that Reed was still breathing. Ostensibly in order to end her suffering, appellant tied a plastic bag tightly over her head. Appellant then covered the bodies, sat down in the kitchen, and drank a cup of coffee. He thought about what he had done and decided he would have to leave the house. During this period, Lisa Gonzales, a friend of Reed's, called twice on the telephone, and Pam Raby, a coworker of Reed's, called once. Appellant told both of them that Reed was ill and could not talk on the phone. He told Raby that Reed could not come to work. He took the four empty shells out of the gun and threw them in a trash can by the pool table. He prepared to leave, but could not find his car keys. After searching for the keys for some time in vain, appellant left the house on foot. He hitchhiked to the Fort Worth bus station, then bought a bus ticket to Atlanta, Georgia. He only made it as far as Dallas, where he confessed to security guards.

Assistant Medical Examiner Dr. Marie Araneta testified that Reed had a gunshot wound to the forehead. Bullet fragments were found in her head. Gunpowder residue indicated the gun was within one inch of her head when fired. Reed's urine tested positive for metabolites of marijuana, cocaine, and nicotine. Her blood tested negative for these substances. Dr. Araneta also discovered dried blood around Reed's anal opening and vagina and a contusion of the groin, indicating some kind of trauma such as penetration by a foreign object (no sperm was detected). David Rojas received several gunshot wounds to the chest, leg, head, and neck. His urine tested positive for metabolites of marijuana, cocaine, caffeine, and nicotine. His blood was also negative. Dr. Araneta opined that the cause of death of both victims was the gunshots wounds they received, although she noted that Reed's cause of death could have been compounded by asphyxiation with the plastic bag.

Dan Dykes testified that appellant appeared at his house at 3:30 or 4:00 p.m. on December 27th. Appellant asked for a ride to the bus station or to the house of some friends. Dykes agreed to take appellant to the friends' house but they were not home. Appellant then asked for a ride from some people driving by in a pickup truck and left with them. Gonzales confirmed that she had called the house twice looking for Reed and appellant had told her she was ill. Raby stated she had called the house at around 3:20 p.m. to see if Reed would be working her shift, which started at 3:00. Appellant told her Reed was sick and would not be working her shift. In addition, police found four shell casings in the family room trash can consistent with the .32 caliber weapon found at the house.

Appellant's first, second, and third points of error turn on the question of whether a fatal variance existed between the indictment and the proof at trial. Appellant points out that the indictment charged him with causing the death of Reed by shooting her with a firearm. He cites at length the trial testimony of Dr. Araneta, arguing that it presents evidence of a cause of death different from the cause named in the indictment i.e., the trial testimony showed asphyxiation via a plastic bag being tied over the victim's head. He asserts that, when the State alleges specific information which is descriptive of an essential element of the offense, the State must prove that descriptive matter. Thus, the State was required to prove beyond a reasonable doubt that appellant caused Reed's death by shooting her with a gun, not suffocating her with a plastic bag. He claims this fatal variance between the indictment and the proof at trial deprived him of notice and subjected him to re-prosecution.

When an indictment facially alleges a complete offense, the State is bound by the theory alleged in the indictment, as is the reviewing court in its sufficiency analysis. Montoya v. State, 906 S.W.2d 528, 529 (Tex.Crim.App.1995); Fisher v. State, 887 S.W.2d 49, 57 (Tex.Crim.App.1994). And, a variance between the indictment and the evidence at trial may be fatal to a...