Rubio v. State

• Decision Date: 11 February 2020
• Docket Number: No. 05-18-00861-CR,05-18-00861-CR
• Citation: 596 S.W.3d 410
• Parties: Christopher Michael RUBIO, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

596 S.W.3d 410

Christopher Michael RUBIO, Appellant

v.The STATE of Texas, Appellee

No. 05-18-00861-CR

Court of Appeals of Texas, Dallas.

Opinion Filed February 11, 2020

Discretionary Review Granted July 1, 2020

Christi Dean, Assistant Public Defender, Michael R. Casillas, Attorney at Law, Dallas, TX, for Appellant.

Faith Johnson, Dallas County District Attorney, Jessie R. Allen, Assistant District Attorney, Dallas County District Attorney's Office, John Creuzot, Dallas County District Attorney, Dallas, TX, Lori Ordiway, for State of Texas.

Before Justices Bridges, Molberg, and Partida -Kipness

OPINION

Opinion by Justice Molberg

A jury found Christopher Michael Rubio guilty of capital murder, and the trial court assessed the mandatory punishment of life imprisonment without the possibility of parole. In six issues, Rubio contends: (1) his attorney conceded Rubio's guilt in closing arguments, in violation of the United States and Texas constitutions; (2) and (3) his attorney rendered ineffective assistance of counsel; (4) and (5) the trial court committed reversible error by failing, sua sponte, to include in the jury charge an instruction on the lesser-included offenses of murder and manslaughter; and (6) the mandatory statutory sentence of life imprisonment without the possibility of parole violates the prohibition of cruel and unusual punishment under the United States and Texas constitutions.

In a single cross-issue, the State contends this Court may not consider as a part of the appellate record the arguments in, or any evidence presented in support of, Rubio's amended motion for new trial. We affirm the trial court's judgment.

BACKGROUND

Factual Background

Rubio and Elizabeth Adams dated and they had two children together. They resided in Rubio's apartment, which was located in the same apartment complex where Elizabeth's mother, Connie Adams, lived. Rubio and Elizabeth broke up but they continued to live together. Rubio began dating Dana Grove, who moved into the apartment with Rubio and Elizabeth. Elizabeth began dating James Tewes a few weeks before Rubio killed them both.

At approximately noon on the day of the murders, Rubio and Dana were asleep in his apartment when Connie, John Adams (Elizabeth's brother), and Janice Rist (a family friend), helped move Elizabeth's belongings out of Rubio's apartment and into Connie's apartment. After the move was complete, Connie left to get food, leaving Elizabeth, Janice, John, Timothy and Jennifer (Elizabeth's other siblings), and James, who had come to visit Elizabeth, in the apartment.

At trial, Dana testified that when Rubio woke up and realized Elizabeth's belongings were gone, he became upset and left the apartment to look for the children. Rubio shortly returned to the apartment, took his shotgun out of the closet and loaded it. Dana testified Rubio was angry, and he was yelling "something about [Elizabeth] threatening to take the kids[.]" According to Dana, Rubio knew the children were with Elizabeth's grandparents and Elizabeth was at Connie's apartment. As Rubio loaded his shotgun, Dana tried to calm him, but "[he was] not listening. He's going, [‘]I'm tired, I can't do it anymore[’]." Rubio left the apartment with his shotgun. When he returned approximately twenty minutes later, Rubio told Dana, "I killed them. I did it. I killed them. They're dead."

Elizabeth's brother John testified he was at Connie's apartment when Rubio knocked on the door and demanded to know where Elizabeth and the children were. Rubio left when John said he did not know. Shortly thereafter, Rubio returned to Connie's apartment with a shotgun. When John answered the door, Rubio threatened to kill him and then forcibly entered Connie's apartment and went upstairs. A few moments later, gunshots were fired. Rubio fled Connie's apartment and ran into his apartment. When John discovered James dead in the bathroom, he ran out of Connie's apartment.

Timothy Adams, Elizabeth's brother, lived with Connie. Prior to Rubio's arrival at Connie's apartment on the day of the murders, Timothy, Elizabeth, and James were in Timothy's bedroom watching a movie for a while before Elizabeth and James went to Connie's bedroom. Timothy testified he was sitting on his bed when Rubio entered his bedroom with a shotgun and demanded to know Elizabeth's whereabouts. When Timothy said he did not know, Rubio went to Connie's bedroom, where Janice was hiding, and he kicked open the locked bedroom door.¹ According to Janice, Elizabeth and James were hiding in the upstairs bathroom. Rubio pointed the shotgun at Janice and said, "Where's the fucking bitch." When Janice replied she did not know, Rubio returned to Timothy's bedroom.

Rubio then went to the upstairs bathroom and said, "James, open up the door—open the door." Rubio attempted to kick open the door, but James was pushing the door from inside the bathroom to prevent Rubio from entering and "there [was] too much force on the other side for anything to happen." Rubio "tells James that he has one more chance to open the bathroom door ... he counts to three and he shoots through [the door]." Rubio entered the bathroom and fired more shots. The police discovered James' body on the bathroom floor and Elizabeth's body in the bathtub. Both James and Elizabeth had been shot. At the time of their deaths, Elizabeth was nineteen years old and James was twenty.

Procedural History

A jury found Rubio guilty of capital murder. On July 11, 2018, the trial court sentenced Rubio to life imprisonment without the possibility of parole, as required by section 12.31 of the Texas Penal Code, since the State was not seeking the death penalty. TEX. PENAL CODE ANN. § 12.31. On the same day, Rubio timely filed a general form motion for new trial challenging the verdict as contrary to the law and the evidence, which the trial court promptly overruled. On August 10, 2018—thirty days after sentence was pronounced in open court—Rubio, represented by new counsel, filed a motion for leave to file amended motion for new trial and an amended motion for new trial, alleging new grounds upon which he sought a new trial. In its response, filed on September 14, 2018, the State objected to Rubio's amended motion for new trial as untimely and asked the trial court to take no action on the amended motion. On September 18 and September 20, 2018, Rubio filed eleven additional exhibits to his amended motion for new trial. The trial court conducted a hearing on September 21, 2018, seventy-two days after sentence was pronounced. At the hearing, the State again objected to Rubio's amended motion as untimely and objected to the hearing. The State also objected to the exhibits Rubio filed on September 18 and September 20 in support of his amended motion. Addressing Rubio's new counsel, and without rescinding or vacating its previous denial of Rubio's timely motion for new trial, the trial court stated, "Well, I'm going to let you present your motion because you have done all this work." At the end of the hearing, the trial court denied Rubio's amended motion. This appeal followed.

ANALYSIS

State's Cross-Issue: Rubio's Amended Motion for New Trial Was Untimely

We begin our analysis by addressing the State's cross-issue, which will determine the arguments and evidence we may consider as part of the record on appeal to resolve Rubio's issues. The State argues the permissible time for Rubio to file an amended motion for new trial terminated when the trial court overruled his timely motion for new trial. Therefore, says the State, this Court may not consider the arguments in Rubio's amended motion, the exhibits filed in support thereof, or any evidence presented in the trial court at the September 21, 2018 hearing. In response, Rubio contends the trial court had plenary jurisdiction, for seventy-five days from the date sentence was pronounced in open court, to rescind its order denying Rubio's timely motion for new trial. Rubio argues this Court may consider the amended motion, related exhibits, and evidence presented in the trial court during the hearing because "the trial court impliedly rescinded her original ruling when she denied the State's objections to the timeliness of [Rubio's] amended motion for new trial and exhibits and conducted a hearing on Appellant's new claims."

Texas Rule of Appellate Procedure 21.4(b) dictates the permissible time for amending a motion for new trial:

(b) To Amend. Within 30 days after the date when the trial court imposes or suspends sentence in open court but before the court overrules any preceding motion for new trial, a defendant may, without leave of court, file one or more amended motions for new trial.

TEX. R. APP. P. 21.4(b). Texas Rule of Appellate Procedure 21.8(a) grants a trial court limited post-judgment jurisdiction to exercise plenary power to rule on a timely filed motion for new trial:

(a) Time to Rule. The court must rule on a motion for new trial within 75 days after imposing or suspending sentence in open court.

(b) Ruling. In ruling on a motion for new trial, the court may make oral or written findings of fact. The granting of a motion for new trial must be accomplished by written order. A docket entry does not constitute a written order.

(c) Failure to Rule. A motion not timely ruled on by written order will be deemed denied when the period prescribed in (a) expires.

TEX. R. APP. P. 21.8.

While a trial court may rescind an order granting or denying a motion for new trial after the thirty-day deadline imposed by rule of appellate procedure 21.4(b), Kirk v. State , 454 S.W.3d 511, 515 (Tex. Crim. App. 2015), the trial court may not allow a motion for new trial to be amended after overruling a preceding motion. TEX. R. APP. P. 21.4(b) ; Starks v. State , 995 S.W.2d 844, 846 (Tex. App.—Amarillo 1999, no pet.) ("The overruling of a preceding motion [for new trial] terminates the time during which amendments are allowed."); see also Castillo-Diaz v. State , No. 05-17-00644-CR, ...