Sosa v. State

• Decision Date: 15 February 1989
• Docket Number: No. 69454,69454
• Citation: 769 S.W.2d 909
• Parties: Pedro SOSA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 909

769 S.W.2d 909

Pedro SOSA, Appellant, v. The STATE of Texas, Appellee.

No. 69454.

Court of Criminal Appeals of Texas En Banc.

Feb. 15, 1989.

Rehearing Denied March 15, 1989.

Manuel P. Montez, San Antonio, for appellant.

Alger H. Kendall, Jr., Dist. Atty., Karnes City, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death.

On November 4, 1983, appellant and his nephew, Leroy Sosa, traveled from San Antonio to LaVernia, Texas, in appellant's Thunderbird with the intention of robbing the LaVernia State Bank. Outside LaVernia, the duo passed a Wilson County deputy sheriff's car driven by the deceased, Deputy Sheriff Ollie Childress. Appellant decided they should use the deputy's car to rob the bank. Appellant and Leroy turned the Thunderbird around, caught up with the deceased and flagged him down. When the two cars had pulled to a stop, appellant, who was wearing a ski mask, got out of the Thunderbird, pulled out his gun and told the deceased they were going to use his car. Appellant disarmed the deceased, had him move over to the passenger's side of the patrol car and then got in behind the steering wheel.

Appellant and Leroy then drove both cars down an isolated dirt road. There they all got out of the vehicles and appellant told the deceased to take off the shirt of his uniform. The deceased did so and then was handcuffed with his hands behind his back. Appellant then put on the deputy's shirt and in the process, his ski mask was pulled up slightly so as to reveal the bottom part of his face. Appellant immediately pulled the ski mask down and then made the deceased climb into the trunk of the patrol car. Appellant and Leroy then drove both cars to the outskirts of LaVernia where they parked the Thunderbird.

After driving to the bank in the patrol car, the two went in the bank. Both appellant and Leroy were wearing masks throughout the robbery. In addition both men were armed and appellant was wearing the deceased's shirt and badge. While Leroy approached the tellers' windows and obtained the money, appellant herded all the people in the bank into a single office. Witnesses testified that throughout the robbery, appellant appeared to be in charge. He continuously pointed to the badge and the shirt he was wearing and boasted that he had the deputy locked in the trunk of the car, that he was now the sheriff and if anybody tried anything he would kill the deputy.

In addition, at two separate times he pointed his cocked gun first at the head of the vice president of the bank and then at the head of the bank loan officer and threatened to blow their brains out if anything went wrong. After everyone was in the office and Leroy had gotten all the money, appellant attempted to take two women as hostages; however, one of the women became hysterical and the other woman refused to go. Finally appellant and Leroy left the bank, carrying approximately $51,000.

As they left the bank and drove back to the Thunderbird, they could hear the deceased in the trunk asking them to let him go. When they reached the Thunderbird, appellant told Leroy he was going to shoot the deceased because he had seen his face. Appellant then walked to the back of the patrol car, opened up the trunk and fired a shot at the deceased. The two men got into the Thunderbird and drove a short distance when appellant remarked that he had forgotten to wipe his fingerprints off of the trunk lid.

They drove back to the patrol car. Appellant got out of the Thunderbird, walked over to the patrol car, wiped off the trunk lid which had been left partially open, and then fired another shot into the deceased. After getting back in the Thunderbird, appellant told Leroy that he had to shoot the deceased again because he was still alive and moving. The two then returned to San Antonio. Appellant was arrested for the offense on February 4, 1984. Medical testimony established that the deceased died from two gunshot wounds in the neck.

In his first point of error, appellant argues that the evidence is insufficient to support the jury's affirmative answer to the second special issue, the probability of future crimes of violence. Article 37.071(b)(2), V.A.C.C.P. During the punishment phase of the trial, the State reintroduced the evidence offered at the guilt stage of the trial and then in addition offered evidence that in 1980, appellant had been convicted of Class A theft, placed on probation for one year and in 1981, after completion of the probation, the cause was dismissed. During cross-examination of the defense witnesses, the State also elicited the fact that appellant had been arrested in 1979 for unlawfully carrying a weapon. No other evidence was offered by the State.

In determining questions regarding sufficiency of the evidence, it is our duty to review the evidence in the light most favorable to the jury's findings. Santana v. State, 714 S.W.2d 1 (Tex.Cr.App.1986). Furthermore, it is often the case that the circumstances of the offense can alone sustain an affirmative answer to the second special issue. Moreno v. State, 721 S.W.2d 295 (Tex.Cr.App.1986); O'Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979). We agree with the State that this is such a case.

The evidence shows that appellant and Leroy had been considering committing a robbery for several weeks. In broad daylight after having armed themselves, the two set out to commit the robbery. After kidnapping the deceased at gunpoint, handcuffing him and stuffing him into the trunk of his car, they commandeered his car and drove to the bank. Witnesses in the bank at the time of the robbery described appellant as being in charge, acting as if he knew what he was doing and as if he had done it before, and acting in a very threatening manner. Indeed the record is clear that during the robbery appellant threatened not only to kill the deceased, but also two bank employees. Finally, the record shows that appellant shot the deceased the first time in a totally cold and calculated manner. Then, not content with the violence he first wrought, he returned to the murder scene to complete his crime.

Appellant relies heavily on the recent case of Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987). ¹ Keeton is easily distinguishable from the instant case. In Keeton, although a horrendous crime was committed, there was only one instance of violence--one crime, if you will. In the instant case, on the other hand, a series of violent crimes was committed, escalating in the degree of violence until culminated by the most violent crime of all--the murder of the victim. We find appellant's conduct not only demonstrates a total disregard for the sanctity of human life but also demonstrates a tendency to resort to violence and threats of violence in order to accomplish his goals. After reading the record and viewing it in the light most favorable to the jury's verdict, we find the evidence sufficient to support their finding on the second special issue. Moreno v. State, supra; Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977). Appellant's first point of error is overruled.

Dr. Betty Lou Schroeder, a psychologist, testified at the hearing on appellant's competency to stand trial. It was established that Dr. Schroeder had prepared two reports regarding appellant. The first report dealt with sanity; the second dealt with competency. Dr. Schroeder testified that the two reports were identical through the first five pages, with only the sixth page which dealt with her conclusions being different. Dr. Schroeder testified that she mailed the two reports to the judge in the same envelope. On direct examination, Dr. Schroeder testified that in her opinion, appellant was competent to stand trial. During cross-examination, defense counsel handed his copy of Dr. Schroeder's report to her. At that time, it was discovered by defense counsel that although they had received Dr. Schroeder's report on sanity, they had never received a copy of the report on competency. Out of the presence of the jury, the judge surmised that when he received the reports, he thought they were identical and thus made only one copy and mailed it to defense counsel. Appellant moved for a mistrial on the basis that deprivation of the report infringed on his right of cross-examination. The court overruled the appellant's motion.

In his seventh point of error, appellant argues that the trial court erred in refusing to grant the mistrial. We disagree. As noted above, the reports were identical with the exception of the last page of each. The sixth page of the report on sanity which was provided to defense counsel prior to the hearing reads as follows:

"CONCLUSIONS: In response to the questions issued in the order provided by J. Taylor Brite, District Judge Providing (sic), Atascosa County, Texas, the following is provided:

"1. In my opinion, this defendent (sic) is not mentally ill but rather has a personality disorder which is simply a maladaptive pattern of behavior which is learned and reinforced from the environment and is qualitatively different from a thought disorder or a type of mental disorder. He does not require observation, treatment, or hospitalization in a mental hospital for his own welfare and for protection of others.

"2. In my opinion, the defendent (sic) is not mentally retarded and does not require commitment to a mental retardation facility. His level of mental ability is seen within the dull normal to borderline range; and is probably a variable of psycho-social deprivation and/or little interest in academic pursuit.

"3. In my opinion, this defendent (sic) was well aware that his conduct was wrong at the time of the offense; he is therefore considered not only sane at the present time but sane at the time of the commission of the offense and competent to come to trial."

The sixth...