Salinas v. State

• Decision Date: 18 May 2005
• Docket Number: No. AP-74524.,AP-74524.
• Citation: Salinas v. State, 163 S.W.3d 734 (Tex. 2005)
• Parties: Jorge Alfredo SALINAS, Appellant v. The STATE of Texas.
• Court: Texas Supreme Court

163 S.W.3d 734

Jorge Alfredo SALINAS, Appellant v. The STATE of Texas.

No. AP-74524.

Court of Criminal Appeals of Texas.

May 18, 2005.

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Rogelio Garza, Edinburg and Alfredo Morales, Jr., McAllen, for Appellant.

Theodore C. Hake, Asst. District Atty., Edinburg, Matthew Paul, State's Atty., Austin, for State.

MEYERS, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was convicted in August 2002 of capital murder. TEX. PENAL CODE ANN. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).¹ Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises six points of error. We reform appellant's death sentence to a sentence of life imprisonment, and otherwise affirm.

In point of error two, appellant claims the evidence is legally insufficient to establish a specific intent to kill. In determining the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict to decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Appellant, his brother Lorenzo, and Oscar Villa Sevilla were at appellant's house in Mission on the night of Saturday, July 28, 2001, smoking marijuana. Sevilla stated that he wanted to get a gun and steal a car. Appellant said, "Let's see if you have the balls; let's go." Appellant retrieved a shotgun that he had previously stolen and gave it to Sevilla. Appellant and Sevilla walked to a nearby intersection. Sevilla jumped out and pointed the shotgun at the first car to stop at the four-way stop. Geronimo Morales was driving the car, and his 21-month-old child, Leslie Ann Morales, was in her car seat in the back. Sevilla pounded on the window, and Morales opened the door. Sevilla got into the driver's seat and forced Morales over to the passenger's seat. Sevilla handed appellant the gun, and appellant pointed it at Morales. Morales cried and pleaded with them not to hurt the baby. Appellant got into the back seat of the car while still pointing the gun at Morales. Sevilla grabbed Morales by the hair and began hitting him. Sevilla asked Morales for his money, but Morales stated that he did not have any. This made Sevilla angry, and he beat Morales some more. Sevilla stopped the car, retrieved the gun from appellant, and dragged Morales into some orchards and shot him. He stole Morales' wallet, a gold ring, and a silver necklace with a skull on it.

Sevilla returned to the car, and appellant suggested that they return to his house and pick up his brother Lorenzo. When Lorenzo got into the car, he asked them what they were going to do with the baby. Lorenzo suggested that they leave her at a store or someplace where someone would find her, but Sevilla said they were going to dump her where no one would find her. They drove to an area south of town about a half a mile from the Rio Grande River, and close to La Lomita Mission. Appellant and Lorenzo² took the baby out of the car, still in her car seat, and placed her in some tall grass.

The three then drove Morales' car to Maria Alma Rosa Acevedo Pineda's house in Reynosa, Mexico, arriving between 10:30 and 11:00 p.m. on July 28, 2001. Pineda's husband was a first cousin to appellant and Lorenzo. Appellant initially told Pineda that the car belonged to Sevilla. Lorenzo gave Pineda's son a silver necklace with a skull on it, which was later identified as Morales' necklace. Later that night, appellant told Pineda that he had something he wanted to tell her, but he was afraid she would tell someone else. He then told her that they had "broken some guy," but Pineda did not believe him. Pineda stated that the phrase "broken some guy" means "to kill, to break, to shoot some person."

The three cohorts tried to sell Morales' car in Reynosa, but were unsuccessful. On Sunday, July 29, Reynosa police attempted to stop them while they were driving Morales' car. A chase ensued, and they abandoned the vehicle. Reynosa police seized the car and turned it over to authorities in the United States. The three cohorts returned to the United States on Monday after selling the shotgun. Appellant told his girlfriend about what they had done and took her to see Morales' body where they had left it.

Leslie Ann's body was found by border patrol officers around 7 p.m. on July 29, 2001. The officers were patrolling south of La Lomita Mission near the river, looking for illegal aliens who might be hiding in the grass. The patrol officer who testified stated that the child was in an area where she was not likely to be found. Other testimony placed her approximately fifteen feet from the road in grass that was two to three feet high. The medical examiner testified that Leslie Ann died from dehydration, exposure to the elements, and heatstroke.

Morales' body was found on August 1, 2001. He died from a gunshot wound at close range to the right side of the head.

Appellant argues that the evidence does not support a finding that he had a specific intent to kill anyone or to assist, promote, or encourage Sevilla in committing the murders. He contends, "The only thing he intended to do, and agreed with, was to steal a car at gun point." He claims Sevilla alone formulated, during the course of the robbery, the specific intent to kill the victims. Appellant says the murders, at least on appellant's part, were unintended, unplanned and random, spurred only by his co-hort's independent impulse. He claims he could not have reasonably foreseen or anticipated Sevilla's actions when they stole the car.

The indictment charged appellant with capital murder in three separate counts. The first count charged him with the murder of Morales while in the course of committing or attempting to commit robbery of him. The charge required the jury to find that (1) appellant intentionally caused Morales' death while in the course of robbing him; or (2) either Lorenzo or Sevilla had done so, under circumstances rendering appellant responsible under the law of parties. The second count charged appellant with committing the murders of Morales and Leslie Ann in the same criminal transaction. The charge required the jury to find that (1) appellant intentionally or knowingly caused their deaths; or (2) either Lorenzo or Sevilla had intentionally or knowingly caused their deaths, under circumstances rendering appellant responsible under the law of parties, or because the murders were the anticipated result of a conspiracy to commit another offense (robbery). Appellant was charged in the third count with the murder of Leslie Ann, an individual younger than six years of age. The jury charge required the jury to find that (1) appellant intentionally or knowingly caused the death of Leslie Ann; or (2) either Lorenzo or Sevilla had intentionally or knowingly caused her death, under circumstances rendering appellant responsible under the law of parties, or because the murder was the anticipated result of a conspiracy to commit another offense (robbery).

The court submitted a separate jury charge for each count, along with a separate verdict sheet for each count. The jury found appellant guilty of each count. Appellant does not argue his insufficiency claim specifically as to any one or more of the counts.

Appellant's claim that the evidence does not support a finding that he had specific intent to kill is applicable only to count one because that is the only theory under which intentionally causing death is an element. His conviction could be supported under counts two and three upon a finding that he acted intentionally or knowingly. Because the jury found appellant guilty under each of the three theories separately, two of which do not require a finding that applicant acted intentionally, appellant's argument regarding legal insufficiency to prove specific intent is moot.

In a conclusory statement, appellant also claims that the evidence is insufficient to support a finding that appellant assisted, promoted, or encouraged Sevilla in committing the murders. He further asserts that he could not have reasonably foreseen or anticipated Sevilla's actions in killing the victims. We address these contentions in the interest of justice.

"Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement." Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994). Party participation may be shown by events occurring before, during, and after the commission of the offense, and may be demonstrated by actions showing an understanding and common design to do the prohibited act. Id.

According to appellant's own confession, when Sevilla stated that he wanted to commit a carjacking, appellant dared him to do it and provided him with a shotgun. Sevilla's intent to do more than steal the car was apparent. If Sevilla had intended only to steal the car, he could have ordered Morales and Leslie Ann out as soon as he stopped the car, and left them at the side of the road. Instead, Sevilla handed the shotgun to appellant, who pointed it at Morales as Sevilla got in and drove to a remote area. Appellant did nothing as he watched Sevilla drag Morales from the car and shoot him. Later, Sevilla stated his plan to leave Leslie Ann where she could not be found, rejecting Lorenzo's suggestion to leave her in a public place where she could be found. The evidence supports the inference that appellant and Lorenzo removed Leslie Ann from the car, still strapped in her car seat, and placed her in tall grass fifteen feet from a road...