Santellan v. State

Decision Date29 January 1997
Docket NumberNo. 72130,72130
Citation939 S.W.2d 155
PartiesJose SANTELLAN, Sr., Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals


Appellant was indicted for the offense of murder committed in the course of attempting to commit kidnapping pursuant to V.T.C.A. Penal Code Section 19.03(a)(2), alleged to have been committed on or about August 22, 1993 in Gillespie County. Appellant was convicted in a trial by jury of capital murder on March 8, 1995. The jury affirmatively answered the special issue set forth in Art. 37.071 § 2(b)(1), V.A.C.C.P. and negatively answered the special issue set forth in Article 37.071 § 2(e). 1 The trial court sentenced appellant to death as required by Article 37.071 § 2(g). Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises nine points of error on appeal.


In points of error one and two appellant challenges the legal and factual sufficiency of the evidence supporting his conviction He argues a rational trier of fact could not have found the elements of attempted kidnapping beyond a reasonable doubt. 2 We direct our legal and factual sufficiency analyses to this issue.

Legal Sufficiency

In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict, and ask whether any rational trier of fact could have found beyond a reasonable doubt all of the elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.1994), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994).

Viewed in the light most favorable to the verdict, evidence introduced at trial established the following: 3

Appellant had returned to Texas from Michigan in order to be with the victim, his girlfriend. The couple had a "big fight" in July of 1993. On August 19, 1993, appellant told the victim he wanted to make a fresh start. However, on the same day, he wrote a letter to his family (discovered by police after the murder) requesting forgiveness for the contemplated killing of the victim. 4 In pertinent part, it states:

[I]t really hurted me when me & [victim] split up. I told myself when she left, that if she were ever to returned, I would kill her. So if your reading this (I did) she shouldn't have came back. 5

In the letter appellant also referred to an agreement he believed he had with the victim:

When me & her first got together we told ourselves, this was our last relationship. If we were to part it would have to be death. Forgive me but I still loved her.

The victim also apparently anticipated violence might occur. Shortly before the incident, she wrote a letter to her employer, Hill Country Memorial Hospital, stating that she was resigning and moving to the Brenham area due to a "domestic problem endangering my welfare and possibly the welfare of my two children."

On August 22, 1993, at around 3:10 PM, after "clocking out" from work at the hospital, the victim and Norma Hoffman, a coworker, walked out into the hospital parking lot. The two women walked together for a short distance chatting, then each headed toward her respective vehicle. As they parted, Hoffman noticed appellant walking toward the victim. 6 The victim veered from her previous course and walked away from her vehicle with appellant, while Hoffman continued on toward her vehicle. 7 Appellant averred in his confession that he had come to meet the victim to "say goodbye," since he was planning to move to Alvin, Texas.

As appellant talked with the victim, he felt that she was becoming "abusive," and "[a]ll the hurt came back along with anger." Appellant's "mind went blank." He confessed that:

I pulled out a handgun with a full clip. It went off a couple of times the first time, then she went down. She was sitting up and I was trying to talk to her.... [The victim] was on the ground trying to talk to me, saying we could work it out.

Hoffman suddenly heard the victim screaming, "Think of my kids!" and looked up to see the victim lying on the ground while appellant stood over her pointing a gun at her. They had moved to a location about ten to twenty feet from the spot where the victim had turned and walked with appellant. Hoffman heard two shots, which she described as "pops," and saw appellant shake the gun as if to dislodge a jam. 8 The victim did not say anything else or show any movement. Appellant continued to stand over the victim, pointing the gun at her. Hoffman drove away to seek help. Appellant then left to retrieve his car.

In the meantime, the second eyewitness, Guadalupe Noriega, a housekeeper at the hospital, emerged from the building into the parking lot. She saw the victim lying motionless on the ground and returned inside to seek help. When she came back outside, she saw a car parked next to the victim and a man was lifting the victim into the passenger seat of the car. His clothes were "full of blood." Appellant loaded the victim into his car and took her backpack. At this point, he thought the victim might still be alive. He confessed that, "I just wanted to get away and be with her and spend some time together."

Appellant described the events that followed in his confession:

I traveled till my heart told me to stop and this must have been Campwood.... I went to the motel and got a room.... During this whole time [the victim] was in the front seat of my car.... I took [the victim] in the room and took off her uniform because it was bloody. I cleaned her up with a towel. I drank the twelve-pack of beer and took some pills that [the victim] had.... I felt that [the victim] was right there with me. We laid together and held each other like we used to. I physically expressed my love to her through intercourse probably all night long. I wanted to show her how much I really loved her. Through the night I had vaginal, anal and oral sex with [the victim].... I dressed her in my blue underwear, which was something we could share together because I put the same kind on myself.

Law enforcement officers apprehended appellant on August 24, 1993, at around 2:35 AM at a motel room in Camp Wood, Texas. After speaking with the police for about two hours through the closed motel room door, appellant placed his gun, a Lorcin .25 semiautomatic, outside the door and surrendered peacefully. In the motel room, police found the victim's body lying on the bed, covered with a blanket and dressed in a bra and appellant's blue underwear. Officers smelled a stench in the room indicating that the victim's body had begun to decompose. A clip and a live round for appellant's gun rested against her leg. They also found the victim's backpack, bloody clothing, and other belongings, an empty prescription bottle belonging to the victim, numerous empty beer cans, and a notebook containing more letters written by appellant to his family. In these letters, appellant again asked for forgiveness for the murder of the victim. 9 He discussed in detail his wishes for the disposition of his own body and possessions, as though he expected to be dead when the letters were found. He also included a statement to the police: "[t]o the cops I was not drunk or using drugs when I did this." After officers read him his Miranda rights, appellant voluntarily gave a full confession, in which he admitted shooting the victim, and having sexual intercourse with her body. He also confessed to other offenses, including an armed robbery and an incident where he tried to strangle another girlfriend in 1986 or 1987.

The medical examiner testified that the victim had been shot four times, including shots to the right side of the head, the left upper chest, the left abdomen, and the right shoulder. The shot to the head was the immediate cause of death. He testified that this injury would cause brain death almost immediately, although the victim's heart might beat for three to five more minutes. He also testified that semen was found in the victim's vagina and rectal area. Although no semen was found in the victim's mouth, blood was present, and semen in this area could have easily been washed away at some point before the autopsy was conducted.

Under Texas law, the State carried the burden of proving beyond a reasonable doubt that appellant had the specific intent to commit kidnapping, and that appellant committed an act amounting to more than mere preparation for kidnapping the victim. 10 In order to support a conviction for capital murder, the State is required to prove that appellant developed the requisite specific intent for attempted kidnapping at the time of the victim's death or before that point. See, e.g., Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995); and Garrett v. State, 851 S.W.2d 853, 856-857 (Tex.Crim.App.1993). Appellant contends the State did not meet its burden of proving beyond a reasonable doubt that appellant intentionally murdered the victim, while in the course of attempting to kidnap her. His arguments can be summarized as follows: (1) appellant did not commit an act amounting to more than mere preparation for kidnapping prior to the victim's death; (2) any act amounting to more than mere preparation committed by appellant after the victim died was irrelevant, because appellant could not kidnap a corpse; and (3) appellant did not develop the specific intent to kidnap the victim prior to or concurrent with the victim's death.

We address appellant's first two arguments together. Appellant asserts that "a dead body cannot be kidnapped." See Gribble v. State, 808 S.W.2d 65, 72 n. 16 (Tex.Crim.App.1990) (plurality opinion) cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991) ("We accept for...

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