Sendejo v. State

• Decision Date: 27 August 1997
• Docket Number: No. 10-96-137-CR,10-96-137-CR
• Citation: Sendejo v. State, 953 S.W.2d 443 (Tex. App. 1997)
• Parties: Javier SENDEJO a/k/a Harvey, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 443

953 S.W.2d 443

Javier SENDEJO a/k/a Harvey, Appellant, v. The STATE of Texas, Appellee.

No. 10-96-137-CR.

Court of Appeals of Texas Waco.

Aug. 27, 1997.

Discretionary Review Refused Jan. 7, 1998.

Stephen A. Keathley, Robert C. Dunn & Associates, Corsicana, for appellant.

Patrick C. Batchelor, Criminal District Attorney, Corsicana, Jim Vollers, State Attorney, Austin, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

A jury convicted Appellant Javier Sendejo a/k/a Harvey ¹ of capital murder. See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 1994). Because the State waived the death penalty, the court sentenced Sendejo to confinement for life in the Institutional Division of the Texas Department of Criminal Justice.

Sendejo appeals claiming in six points that the court erred by:

allowing the admission of photographs of the victim;

admitting certain hearsay statements;

admitting certain "pre-arrest" custodial statements he made to the investigating officers;

admitting his written confession;

admitting certain oral statements he made while in custody; and

denying his request for a charge on the lesser-included offense of murder.

Sendejo alleges in another point that the evidence is factually insufficient to support his conviction. We will affirm the judgment.

FACTUAL BACKGROUND

The grand jury presented an indictment against Sendejo alleging that Linda Youngblood, Billy Jack Sharp, Billy Roy Huse, Shane Hancock, and he "acting together" intentionally caused the death of Joel Simon Patrico by stabbing him with a knife while robbing or attempting to rob him. The court's charge allowed the jury to find Sendejo guilty if it determined either that Sendejo himself killed Patrico or that Sendejo was criminally responsible for Huse's murdering Patrico. See TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 1994).

Christopher Wagner testified for the State. Wagner lived with Huse and Youngblood. He testified that on the night of March 9, 1995, Sendejo, his co-defendants, and Wagner were at a club where Huse and Youngblood discussed a plan in which Youngblood would persuade an unidentified man "to go out with them." Afterwards, Huse would "jump him and take his money." According to Wagner, Sendejo agreed to participate in the planned robbery.

Corsicana Police Officer Chad Bingham responded to a dispatch concerning a possible stabbing "at approximately 2:48" in the morning on March 11. The victim's roommate had called 911 upon discovering Patrico's body in their house. The roommate showed Bingham a bowie knife beside the kitchen sink. He then took Bingham to the living room which "was in a lot of disarray." Bingham observed Patrico's body lying supine. The officer described what he saw:

The room looked like there had been a pretty bad fight in there. There was a lot of blood on the floor. Several--if I remember, there were two major pools of blood. One had already had like blood gel in it or something. Blood spattered on the walls, things like that.

Dr. Janice Townsend-Parchman performed an autopsy on Patrico's body. She found one hundred four "sharp force injuries." She explained that a knife would be the most common cause of such injuries. Townsend-Parchman expressed her opinion that more than one knife was used to inflict the injuries noted. Townsend-Parchman concluded that Patrico died as a result of the multiple sharp force injuries.

Wagner testified that Sendejo and his co-defendants arrived at his house around 1:20 in the morning on March 11. Wagner recalled that they were acting strangely. He noticed that they were shaken and appeared out of breath as if they had been running. Huse had bloody clothing. He came in, changed his clothes, and told Sendejo "to go burn" the clothes he had been wearing. Sendejo placed the clothing inside the trench coat he was wearing.

Although the timing is unclear from the record, Sendejo, Youngblood, Sharp, and Hancock left the house at some point. Wagner and Huse later joined them at Sharp's house. Wagner saw the red jacket Huse had worn earlier that morning burning in a barbecue pit in Sharp's backyard. Wagner heard Sendejo, Sharp, Youngblood, and Huse discuss plans to leave town. Hancock indicated that he would go to his grandmother's house "because he didn't want to skip town." Wagner recalled that Sendejo altered his appearance by shaving. Youngblood asked Wagner to "go across town" and "get a ride for them so they could skip town."

During Wagner's conversations with Sendejo and his co-defendants, Huse told Wagner "that they had jumped a black man and beat him up." Sendejo interjected that "it wasn't a black man, it was a Mexican man." Later, Youngblood sent Wagner back to her house to get some money. Before returning, Wagner "got scared" and went to a Whataburger restaurant where he reported all this information to Officer Mark Nanny and provided a written statement. Wagner informed Nanny that Sendejo and his co-defendants were at Sharp's residence.

The officers went to Sharp's home and found Sendejo and his accomplices in the process of leaving. The officers detained the suspects and obtained consent from Sharp's aunt to search the premises. The search of the residence revealed packed luggage and a barbecue pit in the backyard containing smoldering ashes. Nanny testified that Hancock wore a trench coat. He handcuffed Hancock and frisked him, finding three knives in the pockets of the coat. Nanny delivered Hancock to another officer for transport.

Sendejo claimed ownership of the coat and one of the knives. ² Nanny then placed Sendejo under arrest, read him his Miranda warnings, and transported him to jail. The next morning, Sendejo advised the police that he wanted to give a voluntary statement. In a typewritten statement signed by Sendejo, he confessed to plotting to rob Patrico, assisting in Patrico's murder by stabbing him "several times," and participating in the search for Patrico's wallet "[a]fter the stabbing was done and [Patrico] quit struggling." Sendejo's confession largely corroborates Wagner's testimony of the pertinent events.

PHOTOGRAPHS

Sendejo's first point avers that the court erred in allowing in evidence seven photographs of Patrico's body because the probative value of the photographs is substantially outweighed by the danger of unfair prejudice. TEX.R.CRIM. EVID. 403.

Rule 403 governs the admissibility of photographic evidence alleged to be unduly prejudicial. See Emery v. State, 881 S.W.2d 702, 710 (Tex.Crim.App.1994). Several factors are weighed to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, including:

the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed [,and] ... the availability of other means of proof and the circumstances unique to each individual case.

Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991). If a verbal description of an object or scene is admissible, then a photograph of that object or scene is generally also admissible. Emery, 881 S.W.2d at 710.

The State offered seven photographs of Patrico's body through Officer Bingham. The photographs depict the wounds on Patrico's body as described by Bingham and other witnesses. The first depicts Patrico as Bingham found him. The second, third and fourth photographs depict Patrico's upper torso from different angles. The fifth photograph is a close-up of a stab wound on Patrico's right side. The sixth depicts Patrico's back wounds. And the seventh is a close-up of the back wounds. Townsend-Parchman used the fifth and seventh photographs to explain her findings.

While the photographs are gruesome to some extent, they demonstrate the brutal nature of the offense committed and reflect the testimony of the State's witnesses. Thus, we overrule Sendejo's first point.

SENDEJO'S WRITTEN CONFESSION

Sendejo argues in his fourth point that the court erred in admitting his typewritten confession because he did not give it voluntarily. More specifically, Sendejo argues that the officers obtained the confession from him while he was under the influence of marihuana which he had smoked earlier.

The court conducted a Jackson v. Denno hearing outside the presence of the jury to determine whether Sendejo gave his confession voluntarily. 378 U.S. 368, 380, 84 S.Ct. 1774, 1783, 12 L.Ed.2d 908 (1964). During this hearing, Justice of the Peace Connie Mayfield testified that she arraigned Sendejo the morning of March 12, the day after Sendejo's arrest. Sendejo indicated to her that he understood each of his rights. He did not appear to be overly tired or under the influence of alcohol or drugs.

Corsicana Police Officer Rex Givens testified that he picked up Sendejo from the jail at Sendejo's request shortly after Judge Mayfield arraigned him. Givens recalled that Sendejo appeared tired but did not seem to be under the influence of alcohol or drugs at that time. Givens advised Sendejo of the statutory warnings provided by article 38.22 of the Code of Criminal Procedure. See TEX.CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 1979). Sendejo waived his rights and gave his statement. As Sendejo gave the statement, Givens typed it in the computer. Givens then printed out the statement and presented it to Sendejo for his review. Givens reminded Sendejo of his rights and advised him that he could make any changes he felt necessary. After reviewing the printed statement, Sendejo signed it.

Sendejo offered the testimony of a fellow jail inmate who stated on direct examination that he observed Sendejo smoking marihuana the night he was arrested. On cross-examination, the inmate recanted and admitted that he was asleep and did not see Sendejo smoking marihuana. Another acquaintance testified that he had seen Sendejo in jail smoking what he believed...