Sorto v. State

• Decision Date: 05 October 2005
• Docket Number: No. AP-74836.,AP-74836.
• Citation: 173 S.W.3d 469
• Parties: Walter Alexander SORTO, Appellant v. The STATE of Texas.
• Court: Texas Supreme Court

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173 S.W.3d 469 Walter Alexander SORTO, Appellant
v.
The STATE of Texas. No. AP-74836. Court of Criminal Appeals of Texas. October 5, 2005.

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COPYRIGHT MATERIAL OMITTED

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Patrick F. McCann, Houston, for Appellant.

Bridget Holloway, Asst. District Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

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

Appellant was convicted in November 2003 of capital murder.¹ Pursuant to the jury's answers to the special issues during the punishment stage,² the trial court sentenced appellant to death.³ Direct appeal to this Court is automatic.⁴ Appellant raises sixteen points of error. We will affirm.

Sufficiency of the Evidence

In his second point of error, appellant argues that the evidence is legally

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insufficient to prove that he intended to kill the victims. When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.⁵

Appellant was indicted for intentionally and knowingly causing the deaths of Maria Rangel and Roxana Capulin by shooting them with a firearm during the same criminal transaction.⁶ The charge authorized the jury to convict appellant on any of three theories of capital murder: (1) as a principal; (2) as a party under Section 7.02(a) of the Texas Penal Code;⁷ or (3) as a conspirator under the law of parties in Section 7.02(b) of the Texas Penal Code. Because the trial court's charge authorized the jury to convict on alternative theories, the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories.⁸

A. The evidence.

The evidence at trial showed that Maria Rangel and Roxana Capulin were working at El Mirador restaurant on Canal Street in Houston on the evening of May 31, 2002. Ms. Capulin's husband testified that Roxana called him at about 10:00 p.m. to tell him that she was closing the restaurant and would be coming home soon. The cook, Gabriel Mello, testified that he left at about 10:15 p.m., and that Ms. Rangel and Ms. Capulin stayed behind to close the restaurant.

Ruben Limon testified that he drove by the restaurant at around 11:15 p.m. and saw two men and two women outside. One woman was putting a chain around the door, and the other woman was standing nearby talking to one of the men. The second man, whom Limon identified at trial as appellant, was talking on a pay phone. Limon further testified that he observed a "red truck" parked outside the restaurant.

Roxana's husband became worried when she did not arrive home by 10:30 p.m., so he called the restaurant. When no one answered the phone, he drove to the restaurant to look for her. As soon as he arrived, he saw that Roxana's maroon Dodge Durango⁹ was gone, the restaurant lights were off, and the restaurant door was chained but unlocked. Maria Rangel's husband later arrived, and they entered the restaurant and found no one inside.

Roxana's car was found on the morning of June 1, 2002. Emil Havelka testified that he saw a Dodge Durango parked in the middle of Joyner Street, near his office, at 7:00 a.m. When he saw two bodies inside the car and a large pool of blood on the ground by the back passenger door, he called the police.

The police arrived and found the bodies of Roxana Capulin and Maria Rangel inside the car. The car doors were unlocked and the keys were in the ignition. The Durango had three rows of seats; Ms. Rangel's body was in the middle row, and

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Ms. Capulin's body was in the back row. Ms. Rangel was wearing an El Mirador apron, and she had duct tape on her hands and wrists and over her eyes and mouth. Ms. Capulin also had duct tape over her eyes and mouth. The medical examiner testified that Ms. Rangel's death was caused by two gunshot wounds to her head, and that Ms. Capulin died from a single gunshot wound to her head.

Police recovered a bullet and three cartridge casings from inside the car. The medical examiner also recovered bullet fragments from Ms. Capulin's head during her autopsy. The firearms expert who examined the ballistics evidence testified that all three bullets could have been fired from the same 9-millimeter firearm.

Harris County Sheriff's Deputy Miguel Gonzalez testified that, over two months later, on August 20, 2002, he was contacted by a confidential informant with information about the murders. Deputy Gonzalez and Detective Alejandro Ortiz met with the informant and appellant at a Marriott hotel room at about 7:30 p.m. that evening.¹⁰ Deputy Gonzalez testified that appellant said he had information regarding the women who were abducted from El Mirador restaurant, and that he needed the $5,000 Crimestoppers reward money because his wife was pregnant. Appellant stated that Edgardo Cubas and Eduardo Navarro, a juvenile, had abducted and murdered the victims.¹¹ He said that Cubas and Navarro had invited him to go along with them that night, but he declined their invitation and followed them instead. He parked his car in a parking lot across the street from the restaurant and saw Cubas and Navarro abduct the women. He then followed them to a remote location and parked nearby, but he left the scene after he heard gunshots.

At this point, Det. Ortiz thought appellant was a witness to the double murder, so he asked appellant and the informant if they would continue the interview at the Harris County Sheriff's homicide division office. They agreed to do so, and appellant drove himself and the informant to the office. When they arrived at around 9:45 p.m., Det. Ortiz and a Detective Brown conducted a videotaped interview with appellant. Appellant again stated that he witnessed the abduction from across the street. He said that Navarro stayed in Cubas's Honda Accord while Cubas talked to the women outside the restaurant; then Cubas got into a Dodge Durango with the women, and Navarro followed them as they drove away. Appellant followed both cars to a second location and parked about one hundred twenty feet away. Cubas and the women remained parked in the Durango for about thirty minutes. One of the women got out of the car and tried to run away, but Cubas caught her and put her back inside the vehicle. Appellant saw that Cubas had a pistol and a large roll of tape in his hands, and he watched as Cubas fired three shots into the Durango. Appellant then left, and Navarro saw him as he was driving away. Appellant later saw Cubas and Navarro in a bar, and Cubas threatened to kill him and his family if he told anyone what he had seen.

During the interview, Det. Ortiz asked appellant if he would agree to give a saliva sample. After appellant consented to give a saliva sample, he added that he, Cubas, and Navarro left the club and returned to the scene, where Cubas forced him to have sex with Ms. Rangel's body.

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Det. Ortiz testified that he took appellant into custody after he learned of an outstanding warrant for appellant's arrest at approximately 1:10 a.m. Appellant then agreed to show the detective where Cubas and Navarro lived. They left the homicide division office at 2:05 a.m. and returned at 3:10 a.m. At 7:30 a.m., appellant was taken before a magistrate, who gave him his statutory warnings.

Appellant was then taken to the Houston Police Department homicide division office, where he was interviewed by Officers Jesus Sosa and Heraclio Chavez. In this videotaped statement, appellant told a very different version of the events. He said that Cubas picked him up in his Honda Accord at about 8:30 p.m., and they then picked up fourteen-year-old Navarro. Appellant and Cubas went to a few bars while Navarro waited in the car; then they went looking for a bar that would admit Navarro. Cubas, who was in possession of a 9-millimeter Beretta pistol, said that he wanted to commit a robbery because he needed money to pay rent. They were driving on Canal Street when they saw two women coming out of a restaurant. Cubas parked in a nearby parking lot, got out of the car, and approached the women from behind as they were walking toward the Durango. Cubas motioned for appellant to come over to them, and Cubas made Roxana Capulin give appellant the keys. Ms. Capulin sat in the back seat with Cubas, Maria Rangel sat in the middle seat, and appellant drove the vehicle. As appellant drove to an area near "Dixie and Wayside," Cubas placed tape over the eyes and mouths of the women and bound Ms. Rangel's hands with tape. Cubas wanted to sexually assault Roxana Capulin, so he told Ms. Rangel "to get down from the truck" when they stopped. Ms. Rangel fell out of the car onto the ground. Appellant also got out of the car, and Cubas stayed inside with Roxana Capulin. When Ms. Rangel later got too close to the car, Cubas pointed the gun at her and told her to take her clothes off. He told appellant "to fuck her by force," and appellant "gave her like 3 thrusts" and ejaculated. Appellant then "fixed... her pants" and put her back inside the Durango, where Cubas was forcing Ms. Capulin to perform oral sex on him. Appellant told Cubas to let the women go. He drove the car a short distance, then turned it off, left the key in the ignition, got out, and started walking away. As he was walking to the Accord where Navarro was waiting, he heard three shots coming from the direction of the Durango. Cubas then came running toward him, and they got into the Accord with Navarro and left. When appellant asked Cubas what happened to the women, he said, "I killed them whores." Cubas said he had taken money and jewelry from the women, and he showed appellant a chain that belonged to one of them. Cubas dropped appellant and Navarro off at the apartment complex where they both lived at about 12:05 a.m.

Appellant's videotaped...