*1 rеmain, of fact this sum- Because issues and re- judgment should be reversed
mary trial.
manded for CONTRERAS, Aka Manuel
Manuel Contreras, Appellant,
Vela Texas, Appellee.
The STATE 13-90-406-CR, 13-90-405-CR, 13-
Nos. and 13-90-408-CR.
90-407-CR Texas, Appeals of
Court of
Corpus Christi. 25, 1992.
June Sept. 1992.
Rehearing Overruled (Appellant)
Discretionary Refused Review 27, 1993.
Jan. (State)
Discretionary Refused Review
Jan. 1993. *2 assault, injury to an robbery,
sexual guilty him elderly individual. A found prison terms on all counts assessed fifteen twenty years, ninety-nine years, ninety-nine respectively. years, years, *3 acquit appellant robbery affirm We of and the other convictions. points of twenty-three raises group will for discussion
error which we outset, possible. we will when At culminating briefly summarize the events address appellant’s arrest. We will then appellant’s points, elaborating on the facts necessary specific con- when address tentions. 1990, February March
Between 1989 and sexually elderly Edinburg six women during burglaries of nighttime assaulted homes. The occurred under their offenses circumstances, leading police similar was re- believe that same individual Through their sponsible for the crimes. crimes, Edinburg investigation of these prints, a Department gathered Police shoe of the fingerprint, and blood characteristics evidence, Despite physical assailant. this have they did not sufficient information identify the assailant. 1990, January the end of the toward assaults, of the victims was
series one of attack, during able to see her assailant drawing composite made a of him. and she publication drawing of led Crime- The indicated Stoppers to receive a call which Alexander, McAllen, Floes, Ricardo Mark might description. appellant fit Edinburg, appellant. for police appellant included on a list The Guerra, County Atty., Rene Dist. time, according to suspects, which Hake, Atty., Dist. Edin- Theodore C. Asst. officer, people.” lot of one included “a burg, appellee. for police apparently to lo- were unable appellant, February but on Officer cate NYE, C.J., Before and SEERDEN girl- Reyes appellant’s Ramirez talked to HINOJOSA, JJ. GILBERTO per- friend. She identified OPINION The record does son involved cases. action, any, police indicate if what SEERDEN, Justice. talking to took to find after night of March man On girlfriend. Garcia, D. into the home of C. and broke Nonetheless, morning of early on left, Edinburg Before he elderly couple. Hidalgo County Sheriff’s February C., engage in intruder beat forced D. to a sexual Department arrested for intercourse, them of and robbed sexual the of- apparently unrelated to assault acts, appellant money. For these some being investigated by the Edin- then fenses charged in a indictment four-count no- burg Department burglary, aggravated Police. Sheriff’s offenses of with the arrest, police appellant’s merely prints jail, police tified the and the used these morning, police on that same obtained compare prints from the crime fingerprints appellant’s Hidalgo from the trial scenes. find no error County Jail. Officer Luz Gomez worked police not need a ruling court’s did prints morning on the most of the appellant’s fingerprints to take for warrant appellant’s prints determined that matched taking comparison, turn to the and we those one taken from of the crime scenes. appellant’s shoes. comparison, After he made the in- Gomez taking fingerprints, Unlike supervisor, they formed his went presents complex a more is the shoes Department Sheriff’s where re- Gomez Supreme sue. The Court United quested shoes seized for police States has held that are not investigation. further Someone at *4 seize, jail, to at the obtain a warrant Department Sheriff’s went retrieved clothing lawfully defendant who appellant’s Gomez, shoes for took who then custody as the result of a lawful arrest. analysis.1 prints the shoes for from Edwards, 800, 415 U.S. United States v. these shoes were found to be similar to 806-07, 1234, 1239, 94 39 S.Ct. L.Ed.2d 771 prints some of the left at some of the crime (1974). fingerprints scenes. After the and shoes compare, police were found to sought burglary Edwards was arrested for and obtained search two warrants. These jailed During in his own clothes. discovery warrants led to the of evidence investigation, course of the it was learned against appellant used at his trial for the paint chips entry- from the against offenses the Garcias. might clothing. be on Edwards’ Without a warrant, police seized and examined the Seizure of Evidence clothing, finding matching paint chips. six, seven, points eight, appellant This evidence was admitted at trial. Ed- contends that the trial court should have wards, 804, 415 U.S. at at 94 S.Ct. 1237. suppressed any gathered evidence as a re- Following Edwards, the Court of Crimi Edinburg sult of the Department’s Police Appeals nal held that the sei warrantless fingerprints seizure of his and shoes from suspect’s clothing subsequent zure of a Hidalgo County Jail. does arrest, legal custody, he is in while challenge legality not of his arrest but permissible. State, Marquez v. jail, contends that as he was incarcerated in 217, (Tex.Crim.App.1987); 234 see Deal v. obtain, police had time to and should State, 355, (Tex.Crim.App. 508 357 S.W.2d obtained, have a warrant to seize these 1974). Appellant argues items. because blush, progeny At first and its warrantless seizure Edwards does not fall within a recognized exception appear present would to control the case. to the warrant re- quirement, review, however, illegally Upon evidence was ob- closer it is en- not tained. tirely clear that the Edwards line of cases case, present should control. Unlike the taking ap We first address the Edwards concerned a situation where the pellant’s fingerprints. The Court of Crimi personal effects were seized as evidence of Appeals relatively nal has held that unin- the crime for which the defendant was evidence, finger trusive identification like case, present appellant’s arrested. In the prints, line-ups, handwriting exem shoes seized for use as in an were plars, gathered without a warrant while a Thus, offense unrelated to his arrest. arrest, person custody is in after does not appeal exact issue this is whether the violate Fourth Amendment. Mulder v. Edwards, 908, rationale in (Tex.Crim.App. which made War- 914 1986). Appellant’s prints inapplicable post-arrest taken at the sei- rant Clause constitutionally significant. 1. The record does not show whether the shoes v. See United States 518, Oaxaca, (9th Cir.1978), appellant’s were seized from feet or from the 569 F.2d 310, denied, 926, property Although Sheriffs room. the State did U.S. cert. 439 99 S.Ct. 58 fact, (1978). develop appear it does not L.Ed.2d 319 598 there, applies general proscrip- under the facts Fourth
zures
when
Amendment’s
against
unrelated to
seizure is
the arrest. We
tion
unreasonable searches and
guide
(citation omitted.)
found several cases to
us and
have
seizures.”
But the
that,
find
at least under
facts of this
Appeals
Court
here conceded that
case,
required
police were not
to obtain
probable
for the search
cause existed
a warrant to retrieve
shoes.
clothing,
respondent’s
seizure of
and re-
spondent complains only that a warrant
Generally, the courts
that a
have held
should
have been secured.
thus have
lawfully
person
expectation
arrested
has no
express
concerning
no
a view
occasion
respect
of privacy
property.
to such
those
surround
circumstances
custodial
Thompson,
See
States v.
837 F.2d
United
searches incident to incarceration which
(5th Cir.1988);
parte Hilley,
674
Ex
might
the dictates of
ei-
“violate
reason
(Ala.1985); People
484
490
v.
So.2d
ther because of their number or their
Tyrell,
Cal.App.3d
Cal.Rptr.
Dist.1987).
(citations
(2nd
perpetration.”
manner of
Other courts have not
omit-
ted.)
police
to obtain a
warrant
already in
property
custody,
seize
their
but Edwards,
808 n.
415 U.S. at
S.Ct. аt
expressly
they have not
articulated a ratio-
1239 n. 9.
holding.
Cope-
their
nale for
State v.
mind,
language in
and in
With this
view
land,
(Conn.1987);
Appellant next
contends that
intruder when he came in the
samples
bedroom
suppressed
blood
should have been
money.
they
because the State did not show that
said he wanted
She could not see
accepted
were taken in accordance with
the man’s face because he had turned off
procedures.
medical
The warrant ordered
lights.
pistol
he
The man said
had a
blood, saliva,
samples
that
and hair
woke,
and a knife. When C.
the intruder
body
“shall be obtained from the
of said
engage
beat him. The man then made D.
by
Manuel
qualified
Contreras
a
medical
in oral sex. She did not know or could not
in
accepted
technician
accordance with
remember whether the man forced her to
procedures.”
medical
engage in sexual
intercourse. The man
gave
money,
contends that the State failed would not
until she
him
leave
prove
that it
did,
so executed the warrant.
and he
which she
left. She could not
disagree.
Giesbrecht,
Brenda
identify her assailant.
manager
emergency depart-
nurse
at the
Investigating officers testified that
Edinburg
Hospital,
ment at
General
testi-
a
through
man entered the Garcias’ house
registered
fied that she was a
nurse autho- window,
they
any
but
were unable to lift
Although
rized to
blood.
she could
draw
fingerprints. The officers found some
positively identify appellant
prints
shoe
outside this window. Police
courtroom, she testified that she took
samples
collected blood and seminal fluid
in
saliva,
blood,
samples
per-
and hair
from a
the Garcia’s bedroom.
son known to her аs Manuel Contreras.
arrest,
appellant’s
After
these evidentia-
She identified courtroom exhibits as those
ry
compared
items were tested and
she took.
John
he
Fuentes stated that
appellant’s shoes and blood. The shoe
emergen-
Edinburg Hospital
worked in the
print
general
pattern
had the same
tread
cy
room and assisted Giesbrecht
obtain-
shoes,
appellant’s
unique
but no
character-
ing appellant’s body samples. He combed
pubic hair.
istics
shown.
It is
pulled appellant’s
head and
were
observed
crimes,
of other
shoes occurred
S.W.2d at 386. Evidence
appellant’s
seizure of
about
analy-
prove
year
wrongs,
after the offense. The blood
a
or acts is not admissible
and the
blood
sis showed
person in order to show
the character of a
a
stain each contained
common
seminal
conformity
he acted in
therewith.
analysis
factor. The blood
rare blood
404(b). Such evidence
Tex.R.Crim.Evid.
comparisons
only physi-
were the
footprint
admissible, however, if it has rele
may be
linking appellant
pieces of
cal
evidence
prove
apart
tendency
its
vance
from
against
the Garcias.
the offenses
person
of a
in order to show
character
Id.;
proving
aid in
To
conformity
he acted in
therewith.
against
the crimes
person who committed
There
Montgomery,
601 caused engage in conduct that knowingly after the extraneous acts were fore and trial, allegation bodily injury” at and these instructions was introduced serious jury charge. Without repeated conscious “(1) that it was defendant’s] [the evidence, extraneous offense bodily serious to cause objective or desire evidence would have State’s identification (2) was injury and defendant] [the Therefore, cannot slim at best. we been reasonably cer that her conduct aware the trial court abused its conclude that bodily injury.” Beggs, cause serious tain to admitting Ap- discretion evidence. Adhering Beggs, at 377. is overrulеd. pellant’s ninth of error “in appellant allegation find that in con knowingly engage[d] tentionally and “INJURY-TO-AN-ELDERLY-PERSON” bodily injury to C. that caused serious duct Allegations ChaRge supplied the essential mens rea Garcia” one, two, thir points In of error claimed allegation which sixteen, teen, appellant complains Thus, alleged that missing. the indictment injury-to-an-elderly about the statute intended, knew, or the result charge permitted the the trial court’s which State, 725 S.W.2d act. Brown v. him of this offense. jury to convict See 801, 1987), vacated (Tex.App. —Austin (Vernon Ann. 22.04 Tex.Penal Code § (Tex.Crim.App.1988), grounds, on other 1989). remand, 764 S.W.2d aff 'd Appellant challenged through the statute 1989), (Tex.App. aff'd, 798 —Austin quash, contending that a motion to find (Tex.Crim.App.1990). S.W.2d statute violated the Texas and Federal Con- alleged the properly the indictment inadequately stitutions notified a because points one and two. offense and overrule citizen of the conduct. The infir- forbidden sixteen, appellant points thirteen and mity, appellant argued, was that the stat- charge failed to include the asserts that the necessary ute lacked a mens rea and there- proper for the offense and there mens rea potentially punished fore innocent conduct. dis justify fore failed to a conviction. We case, At the time relevant to this charge in agree. The court’s tracked the injury-to-an-elderly-person provided statute allegations defined the nec dictment’s but person that a committed an offense if he relating essary mental states terms intentionally knowingly engaged in con- or defining By of conduct. so the result bodily injury duct that caused serious to an states, charge required jury mental age sixty-five years individual who was knew, intended, to find that that, Appellant argued or older.4 as writ- conduct, pre and thus it the result ten, require the statute did not the actor to convicting appellant from vented conduct, intend the result of his and there- was not criminal. for conduct which Cf. intentionally perform fore the actor could State, 704 S.W.2d Alvarado v. intending some act without the result (Tex.Crim.App.1986). Points thirteen and strictly for result be held liable sixteen are overruled. disagreе innocent act. We *8 argument. Allegations, Sexual Assault years ago, the Court of Criminal Twelve EVIDENCE CHARGE, AND Appeals argument the same in addressed error, appel point In his third of State, 375, 376-77
Beggs v. court erred in lant contends that the trial (Tex.Crim.App.1980). The Court discussed failing quash the sexual assault count origin the 22.04 and noted that the § require by refusing to the the indictment unique phraseology of the section was a allege what “acts and words” State Penal carryover from the former Code. rely prove that on would Attributing phraseology the to its historical placed the victim in fear. The indictment allegation origin, the Court held that an appellant sexually assaulted intentionally alleged that the defendant “did that (Ver- 4. An amendment Tex.Penal Code Ann. 22.04 § omitted to the statute in 1991 plaint. Supp.1992). underlying phraseology com- non the vagina D.’s have entered aggravating fluid could alleged as an nal the victim testi- “intentionally and Martinez sexual intercourse. element that without words, placed the testi- knowingly, acts After further it could have. fied that Appellant contends in fear ...” victim аsked the doctor mony, prosecutor adequately defend him- not that he could following question: knowing acts and words self without Now, your human your based on —first against him. We dis- use the State would into consider- okay, take that experience, agree. your med- into consideration ation. Take State, 571 S.W.2d In Brem v. medical doctor licensed training as a ical the Court held that (Tex.Crim.App.1978), of Texas. in the State practice law and “threats” were allegations of “force” examination of your on visual Based place the defendant on notice sufficient Garcia, physical ex- your based Mrs. allegations further factual and that no Garcia, based on the of Mrs. amination necessary. followed Brem in of the contents internal examination Quevedo prepara- vagina you that did with her ref’d). pet. (Tex.App. Corpus Christi — emergency there in the tion of slides need not rape indictment We held that through a you later observed room and specify of the force or allege the character laboratory, in based on miсroscope Al- of the threats. Id. the substance you, okay, can things she told though of these cases concerned both jury whether Court and this you tell this statute, logic remains rape their former you opinion have an as to whether or not his acts notified that Appellant was valid. inter- Mrs. had sexual or not Garcia in fear of placed the victim and words her to an individual that sent course with injury. No further bodily serious death or through his actions? emergency room Appel- allegation required. specific immediately objected that point is overruled. lant’s third (1) D.’s testimo- sought to bolster question four, appellant attacks In credibility to D.’s (2) attempted to add ny, conviction, contending that assault sexual statements, (3) improper hearsay allowing, over court erred the trial sent her asking the individual who about to ren expert medical witness objection, an response, prosecu- hospital. re credibility. To opinion on D.’s der an ques- portion the final tor withdrew portions must review point, solve her to that sent the individual tion about testimony. expеrt’s victim’s and medical trial court then emergency room. assault, the prove aggravated sexual To objection and allowed overruled appellant en- establish that State had to answer. Martinez answered doctor to D. When gaged intercourse with sexual inter- D. had recent sexual he believed D. if she had sexual prosecutor asked course. intruder, responded D. intercourse with the that the trial court Appellant now asserts know, not, she did that she did render an permitting Martinez to erred in she did not remember. over credibility of the victim opinion on the testi- alleged direct victim’s Without the Appellant’s point presumes objection. the State penetration, mony to establish opinion sought Martinez’ question this element to establish necessarily had not read the credibility. We do on D.’s called Dr. the State circumstantially, and opinion on asking for an question as State’s Martinez was testify. Jorge Martinez to do we read the doctor’s subject, nor room of Edin- emergency working at the credi- opinion on D.’s giving an answer as *9 night Hospital on burg General opinion was asked bility. The doctor 2, that D. came testified March 1989. He intercourse, not D. had sexual whether dazed. She confused and hospital into credible. whether she was raped, and Martinez she had been said that may answer Martinez’ admit that Martinez rape examination. performed a testi- impeached D.’s trial indirectly have vagina. The fluid in D.’s found seminal believability her mony and enhanced the semi- to whether testimony then turned
603 State, Holder v. (Tex.Crim.App.1988); made to Martinez 651 “I-was-raped” statement (Tex.Crim.App.1983); issue, thus, 718, 722 emergency room. The 648 S.W.2d 251, 253-54 State, should not have Dodson v. the trial court 699 S.W.2d whether v. permitted it Elkins question 1985, because permitted pet.); no (Tex.App.—Tyler testify indirectly about D.’s Martinez to State, 890, (Tex.App.—Fort 681 S.W.2d find that the Court of credibility. We 1984, pet.). no Worth Appeals already has decided this Criminal that sexual provides current statute Our In adversely appellant’s position. to issue “by if the defendant aggravated assault State, 906, (Tex. v. Duckett 797 S.W.2d in fear that places the victim acts or words expert Crim.App.1990),the held that Court kidnapping death, or bodily injury, serious merely testimony is not inadmissible be any person.” imminently inflicted on will be might indirectly upon it comment cause 22.021(a)(2)(A)(iii) Ann. Tex.Penal Code § credibility. Applying the another witness’ 1898). (Vernon here, court logic we find that the trial same may jury a 22.021 Pursuant expert the medical permitting § did not err in a and words of As the consider both the actions testify about a medical issue. directly asking totality question not one infer from the was defendant and find credibility, address D.’s doctor to the defendant’s overall circumstances that overruling trial court’s no error in the of death placed the victim fear conduct objection. Appellant’s fourth State, appellant’s bodily injury. Alvarez v. or serious point is overruled. (Tex.App.—Corpus 767 S.W.2d ref’d). 1989, pet. Christi eleven, appellant points ten and In the evidence is insufficient to contends that Here, money, told appellant demanded establish, aggravated regard to the knife, beat gun he had a and a the victim offense, sexual assault that the victim was husband, engage in forced her to her injury or placed bodily in fear of serious testified that she sexual acts. The victim In by appellant’s death words or acts. evidence, this in fear of her life. From was fourteen, point appellant alleges the trial appel- conclude that juror a rational could charging jury court erred to the lant’s and acts contributed words in deter could consider words bodily serious fear that death or victim’s mining appellant threatened to whether inflicted on her or her injury would be Ap bodily injury serious or death. cause Appellant’s tenth and eleventh husband. pellant contends that the State failed error in points We find no are overruled. prove of this nature and that words permitting to con- the trial court’s submitting to sexu victim never testified to de- appellant’s words and conduct sider by al intercourse because of threats made placed the whether had termine Appellant relies on the the defendant. bodily death or serious in fear that victim com proposition that the victim must be imminently on the injury inflicted would be bodily injury pelled threats of submit Appellant’s statement that he hаd victim. inflicted. imminently or death provide knife sufficient evi- gun and a State, Rucker v. S.W.2d Appellant’s support charge. dence to Rucker, two (Tex.Crim.App.1980). eleventh, points of tenth, and fourteenth cites, addressed the other cases error are overruled. proof under a former State’s burden aggravated rape statute. version of the Photographic Evidence decided, provid When Rucker was the law five, contends if the defen rape aggravated ed that admitting court erred that the trial rape by compelled dant submission photo F. photograph of Williams. death, injury bodily serious threat of night on the graph shows Williams imminently inflicted on kidnapping to be treated, burglarized, being home after Rucker, Af at 585. anyone. photograph patch on his head. The with a Rucker, Legislature amended the ter gruesome inherently nor inflam is neither statutes, effectively overruling Ruck rape rele- matory. Tex.R.Crim.Evid. Under Lindsey er. See *10 604 charge requirements pro unless its if includes
vant evidence admissible even statutory of a crime or outweighed definition substantially by value is which bative v. indictment did not. Warren See danger confusion prejudice, of unfair State, (Tex.Crim.App.1991); 810 202 S.W.2d issues, or misleading jury, by or State, (Tex. 887 Nickerson v. 782 S.W.2d delay, or considerations undue needless State, 696 Crim.App.1990); v. Williams presentation of cumulative evidence. Long (Tex.Crim.App.1985). S.W.2d 896 State, (Tex.Crim. 259, 823 271 v. S.W.2d probative App.1991). We conclude State, alleged ap having that The outweighed substantially by value was not her, kill pellant told victim he would any prejudice. did not The trial court err support was bound to introduce evidence to admitting Long, 823 allegation. exhibit. See The rule that excess mat 273; State, alleged at v. proved S.W.2d Ramirez 815 ters must be is still viable 636, followed, (Tex.Crim.App.1991). although and must be the rule S.W.2d 646-47 State, criticized. has been Benson v. Appellant’s point fifth is overruled. 708, (Tex.Crim.App. 717-20 661 S.W.2d Sufficiency 1983) (McCormick,J., dissenting); Blevins the Evidence (Tex. State, 828, 672 832-839
to
RobbeRY
v.
S.W.2d
Show
1984,
pet.) (Nye,
App.—Corpus Christi
no
twelve,
appellant
contends
C.J.,
State,
concurring);
703
Casares v.
prove
to
evidence is insufficient
(Tex.App.—Corpus
S.W.2d
robbery
alleged
as it was
in the indictment.
ref’d)
C.J.,
pet.
(Nye,
concur
Christi
agree.
alleged
ap
indictment
Accordingly,
if
ring).
must determine
pellant
appellant
there is evidence to show that
intentionally
did then
there
telling
“by
threatened his victim
the said
knowingly, while in the course of com-
kill
he would
her.”
victim
mitting
[D.],
property
theft of
from
The evidence
that after
shows
intent to
and maintain con-
obtain
D.,
gun
he stated
and a
woke
that he had
place
property,
trol of said
threaten and
orally
Appellant
knife. He beat C.
never
bodily
the victim fear of imminent
D. that he
kill her. The State
told
would
death,
injury and
by telling
said
however,
his acts and
argues,
by
(emphasis
he
her.
victim
would kill
words, appellant
to kill
conveyed a threat
ours).
keeps
“particularly
to the victim
when one
charge
court’s
tracked
jury
trial
in mind the obvious fact that one can and
and,
language of the indictment
to return a
something by
tell
non-
often does
someone
verdict,
to find
guilty
jury
had
disagree.
means.” We
The Ran-
verbal
placed the victim in
threatened or
Dictionary,
dom House
defines
death,
injury
bodily
by
fear of imminent
or
word “tell” as:
telling D. he
kill her.
would
of;
give an
narrative
1.
to
account or
contеnds that the
is insufficient to
narrate,
relate. 2. to make known
D. he
establish that
told
would
writing;
or
3. to
speech
communicate.
kill her.
proclaim.
5. to
announce or
4. to utter.
“there
It is
well established
express in words.
reveal or di-
6. to
part
thing
‘surplusage’
distinguish.
8. to
vulge.
no such
7. to discern or
account
give
which
or command. 9. to
an
court’s instructions to the
bid
report.
give
or
10.
evidence or be
State,
Ortega v.
authorizes a conviction.”
something
11. to
se-
indication.
disclose
(Tex.Crim.App.
705 n.
private;
cret or
tattle. 12. to determine
State,
1983);
see Arceneaux
13. to
marked or
predict.
produce
State,
(Tex.Crim.App.1990); Polk v.
effect.
severe
(Tex.Crim.App.1988);
troduce evidence to establish 1. narrate; order; re- charge, relate in 2. to necessary to conviction under
605 Supreme Court the United States express spoken or written Both 3. to count. announce; recently Appeals words; report; of Criminal to utter. 4. to and the Court reveal; disclose; requirement general make publish. 5. is no held that “there solve; explain, pre to inter- agreement known. 6. to jury reach that the distinguish; recognize; dis- pret. 7. to underlie issues which liminary factual — decide; 9. to 8. to know. U.S. -, criminate. Arizona, Schad verdict.” to; acquainted give instruction to make L.Ed.2d 111 S.Ct. order, with; give an to inform. 10. to (1991); Kitchens v. or request. or 11. to declare command requires The law (Tex.Crim.App.1991). positive- emphasis; inform to assert with Crim.Proc. Tex.Code a unanimous verdict. by; 12. to set store ly; to assure. (Vernon Supp.1992); Kitch Ann. art. 36.29 of; regard. make account not ens, The law does at 258. unani jury These definitions indicate that word require that members requires “tell” oral or written communica- supporting the mously agree upon the facts Thus, allegation appellant tion. point of er Appellant’s fifteenth verdict. kill her must be “told” the victim he would ror is overruled. orally supported by evidence that Elderly Charge Injury writing expressed kill or in that he would An her. seventeen, appellant con point In tends, regard jury charge on to the with commu-
The evidence reveals no written injury elderly person, orally that he the law of Appellant nication. stated gun. submitting the a knife and a Those words were erred in not had the trial court communicate a death threat. sufficient to instruction: following requested State, however, beyond merely went crim- provides person that a Our law alleging threatened the vic- if result would not inally responsible, specifically alleged that tim with death. It conduct, occurred, oper- for his but have kill appellant told the victim that he would ating concurrently or with either alone kill Appellant her. never told D. he would cause, concurrent another unless the only D. had a knife and a her. He told he produce clearly sufficient to cause was Thus, gun. es- proof the State’s does not the actor and the conduct of the result allegation, appel- tablish the and we sustain clearly insufficient. point Finding lant’s twelfth error. you unless find from the evi- So that prove robbery evidence insufficient beyond dence a reasonable doubt alleged jury and submitted bodily injury, any, if to C. Garcia serious charge, appellant acquitted of we order de- as that term is herein was caused robbery. fined, Vela by the Defendant Manuel Charge hand, striking him with Contreras
BURGLARY guilty, Defendant not you will find the fifteen, contends thereof, you a reasonable doubt if have instructing that the court erred guilty. you find the defendant not will unanimous jury they had to determine appellant had he ly type of intent when argued portion of Appellant that a C.’s The indictment al entered the habitation. injuries attributable to his Parkin- appel leged, separate paragraphs, trial court son’s disease and therefore the the Garcias’ habitation with lant entered given have this instruction. The should assault, the intent to commit sexual gave no instruction on concur- trial court D., and the intent to commit theft from rent causation. The trial intent to commit theft from C. 6.04(a) (Vernon Tex.Penal Code Ann. § court submitted the case to provides: Supp.1992) require that the three intents but did not criminally responsible if the person A agree on the intent to return jurors but for result would not have occurred argues that guilty verdict. conduct, operating either alone or permit court to improper for the trial cause, another unless agreement. concurrently with unanimous conviction without *12 prose- clearly argument appears based on the the concurrent cause was suffi- This produce con- re- cient to the result that was cutor’s conclusion clearly duct of the actor insufficient. against the Garci- sponsible for the crimes Williams, a reasonable as and which was 6.04, person criminally a is lia Under § produced at deduction from the evidence conduct, regardless if ble his concur argument portion which trial. cause, rent caused the harm or if his con put through ter- people states that will be duct, cause, together caused with another people like are long ror as as State, the harm. Robbins v. 717 S.W.2d proper plea nothing than a around is more 348, (Tex.Crim.App.1986). Only when find no error conduct, itself, for law enforcement. We by clearly is person’s may argument. insufficient he not to cause the harm interpreting this be convicted. Id. Cases Appellant complains prose- that the next charge section hold that a on Penal Code improperly argued when he stated: cutor required is concurrent causation when you told that Mrs. Doctor Martinez the defendant’s conduct was sufficient to raped. told him that she had been Garcia State, produce the result. Daniel v. night happened? that it When? On the (Tex.Crim.App. Why Why would he take an oral swab? 1979); State, 692 S.W.2d 920- More v. vaginal Why would he take a swab? (Tex.App. Dist.] [14th —Houston private parts penetrate would he ref’d).
pet. conversely, Stated a concurrent any patient hospital received and that the charge the evidence is not when Why? He wouldn’t have risk lawsuit? conduct does not show that the defendant’s patient told him so. done that unless clearly to cause the result. insufficient happened to me— This is what We find no such evidence this case. Appellant objected prosecutor that testimony showing Appellant relies on that giving personal opinion give to may by was his injuriеs C.’s have been exacerbated testimony, testimony. credibility Parkinson’s disease. That how to the doctor’s We ever, does not show that con disagree. happened is what to me” “This to cause the result. duct was insufficient appears to refer to what D. Garcia was is Point seventeen overruled. telling happened the doctor about what prosecu- no reference to the
her. We find opinion. JURY ARGUMENT personal tor’s points eighteen through Appellant complains of the also appellant alleges twenty-three, that various following argument: prosecutor’s closing jury portions of the eyewitnesses If I had to the Garcia Ap argument reversible error. constituted perpetrated they attack would be here following argu pellant complains about you. testify Mrs. came to before Garcia ment: you If think to the best that she could. conceive, you you compare can Can testify going get people I’m that by people terror faced afraid when I according to how want the evidence they’re testifying the terror faced versus be, you my job if feel that’s or that the Mrs. by Mrs. Garcia and Williams? go police department going is out hope comparison. And I There is no by way there and fabricate through again. nobody gets ever otherwise, your fingerprints and then long people like Manuel But I know as acquit duty is clear to the Defendant. people I know will are around Contreras gentle- you, let me tell ladies and But put through that. men, painstaking time to have taken objected prosecutor Appellant I do the we could and believe best person opinion. “It injecting his Edinburg police department their —that may argue prosecutor well settled investiga- job their did an incredible on in a case so opinions concerning issues tion. long opinions are based on evi- as the objected prosecutor dence in the record.” Barnard opinion. The trial stating personal (Tex.Crim.App.1987). was the evi- objection instructed was a deduction from court overruled the but reasonable disregard personal opinion any It rеfer to extraneous dence. did not You lawyer either side. be the “of offenses. are.” judge of what the facts appellant complains of Finally, prosecu any find that error argument: tor’s statement was removed the trial identity question and it has been any also find error court’s instruction. We *13 identity beginning the and don’t from beyond doubt. harmless a reasonable Tex. The misled. at the Look evidence. 81(b)(2). R.App.P. The off-handed com crime, in for brought Williams which police investigation the “in ment that was consideration, for the your brought was credible,” while to the issues of irrelevant identity intent as to main issue of and case, any way did not in the contribute signature That crime sexual assault. the conviction. like the Defendant had Williams is Appellant complains next of the ar there, placed signature Manuel Con- gument: treras, he through what did. There was sexual assault on Mrs. Gar- Appellant objected prosecutor that cia. He threatened to kill her. She testi- exceeding purpose was for which fied to that. She said— admitted extraneous offense evidеnce was objected Appellant that the statement by using “to the issue of the evidence reach outside the record was because there was propensity.” disagree. prosecu- The appellant no evidence that threatened to “signature tor’s reference to crime” and above, course, kill her. We have found identity clearly prosecutor that show appellant that while “told” D. never that he asking jury to the extra- was consider her, kill he would did threaten to kill her. solely they for the purposes neous offenses argument proper The was a summation of argument proper. The were admitted. was the evidence. eighteen through twenty-three Points are complains next of this overruled. argument: burgla- judgments The trial court’s let me tell you Now reference to bur- assault, ry, injury elderly sexual and to an glary of habitation the evidence shows person The court’s are affirmed. trial coupled the intent was sexual assault reversed, Why? judgment robbery and with intent theft. Be- commit ample op- acquitted. cause this Defеndant had the appellant is ordered portunity dealing when he was with folks grew up neighbor-
that in his mama’s by Concurring Dissenting Opinion grandmother’s neighborhood. hood—his NYE, C.J. there, ingo That all he had to do was Opinion in 13-90- Concurring Cause No. him, just who did not hear cart off HINOJOSA, by 408-CR J. GILBERTO personal belongings go sell them for whatever. NYE, Justice, concurring Chief Appellant objected prosecutor that dissenting. raising extraneous offenses that were The majority affirms convic- outside the was admitted record. Evidence individual, elderly tions for to an injury to show was familiar at trial burglary, aggravated assault sexual neighborhood grand- with the because appellant acquitted but it orders mother lived about a and half from block robbery. agree I that the first three con- it, As we understand the Garcia residence. affirmed, I dissent victions should be but prosecutor’s argument appel- conviction, reversing robbery cause burglarizing intent in lant’s Garcias’ number 13-90-407-CR. just personal house was not to “cart off the ap- robbery alleged indictment because, belongings” if that'had been his placed intent, pellant threatened and the victim
only he could have done that with- argument assaulting bodily injury D. fear of imminent and death out and C. words, by but vio- only his he would kill victim not “by telling the said victim majority concedes that the evi- her.” The shows that The evidence conduct. lent dence is sufficient to show elderly man appellant woke the after the death, but it the victim with threatened husband, wife, severely he beat and his that the evidence is insufficient then holds inflicting to the head that a wound he would to show that he told victim raped He the el- many repair. stitches majority kill her. The reasons woman, to commit oral forcing her derly commu- implies “tell” oral written word gun he had a and a told them that sex and goes on to find that the nication. It then orally appellant never Although the knife. acquittal appellant is entitled to an because her, his acts and he kill told the wife would explicitly “told” the victim appellant never equally that was conveyed a threat words acquit kill her. is ludicrous to he would It spoken the meaningful if he had as I ground. would af- intro- magic The State majority’s words. firm the conviction. *14 every essential to establish duced evidence holding is based on what majority’s The Appellant’s conduct robbery. element the as a variance between perceives proved Penal The State violated the Code. a decade proof the indictment. Almost violation, found Appeals and the urged ago, I the Court Criminal Legislature to address and the State “guilty.” appellate require an
rules of law which “prohibition majority invokes the The surplus- acquit defendants when court to narrowly and then against variance rule” proved, age in the indictment has been acquit guilty “tell” to interprets the term though clearly establish- the evidence even exemplifies injus- holding This defendant. elements of the offense. es all the essential go to permits guilty defendant tice. It State, 672 S.W.2d 832- Blevins v. proved every essen- although the State free (Tex.App. Corpus Christi no — Blevins, C.J., elderly dissenting). In the offense. Two pet.) (Nye, tial element of acquitted crime, this a defendant when Court merciless are persons, victims of a particular deer in prove tо State failed majority’s appli- justice by the now denied Blevins, 672 question had a white tail. rule that is useless cation of a technical Later, in at 830. Casares S.W.2d today’s society. Casares unnecessary in (Tex.App. Corpus — Blevins, length about I wrote at ref’d), acquit- this Court pet. Christi “variance rule” and of the Texas rationale to failed a defendant when State ted not re- application was noted that strict a door with his shoul- prove that he broke necessary repeat every- to quired. It is not Casares, at 248-250 der. See opinions. in thing stated those that was C.J., concurring). Today, I dissent (Nye, need to inter- majority does not because the holding if majority’s narrow I believe the appel- narrowly that “tell” so pret the word law, prove unfair ultimately it becomes will acquitted. must be lant who desire to criminal defendants “communi- synonymous with “Tell” is allegations go beyond the statu- State’s question There is no cate.” holding is majority’s The tory minimum. to kill the victim communicated a threat the victim of this senseless surely unfair to This and brutal actions. through his words community where crime and to the convic- to affirm evidence is sufficient ab- produces It an was committed. crime however, appel- acquits majority, tion. The Today, gone too far. result. It has surd not commit rob- he did lant not because unjust to which is decided a case we have did not threaten bery; not because he citi- unjust of crime and the victims use victim; he did not kill but because not have of crime. We could zens accused I words, you.” kill “I will explicit urge the Court I a worse decision. reached find that the indictment would not prob- this Appeals to examine of Criminal over- here is proof. The evidence to act to cure Legislature lem and the State to establish whelmingly sufficient injustices. these to his the threat appellant communicated HINOJOSA, Justice, example, anyone’s offend For it would GILBERTO concurring. justice acquit a criminal basic sense is found to have committed defendant who agree majority opinion I with the all simply because the a heinous criminal act however, I respects. separately, write establishing guilt was obtained conclusions addrеss certain made However, illegal through an search. regarding reasoning majority’s dissent effect upon illegally for its decision and its criminal holds that obtained evidence law in this State. jurisprudence inadmissible, regardless tendency of its the of- connect the criminal defendant to majority’s dissent asserts charged. duty to fol- fense are bound holding injustice will act as an to both such if it results in the low laws even criminal defendants and victims encour- acquittal obviously guilty of an criminal aging general the state to make more alle- gations depriving in an and by indictment1 defendant. though day victims of their court even The same true here. stated holds As “appellant’s conduct the Penal violated above, agrees dissent the Law dissent, however, acknowl- Code.” aspects Texas is that all of the indictment edges require that “the rules of law ... regardless proven by state must be appellate acquit when court defendants surplusage. those elements are whether surplusage in the indictment has not been Here, proof the State failed to offer
proven, though clearly even the evidence verbally the criminal defendant threatened all the essential establishes elements *15 requires to kill the victim. That variance offense.” dissent further affirms finding us to reverse the trial court’s principle fundamental that “we are bound defendant, guilt acquit regard- and by to follow the law set out the Court of Yet, Appeals.” withstanding not less of how feel about result ob- Criminal prove obvious failure of state to tained. As with most other citizens allegations indictment, contained state, we are concerned about the victims dissent concludes that could have However, “[w]e disregarding of crime. well set- goes reached a worse decision” and then law, simply concerns, tled of these because urge “the Appeals of Criminal Court greater injustice. would be the If well Legislature the State to act to cure these wrong unjust, is settled law or then it injustices.” duty legislature higher and the it, ap- change
It is appel- fundamental intermediate courts to not intermediate pellate courts are courts of are law. We late courts. interpret by
bound to the law as enacted join I Accordingly, majority in revers- legislature developed higher or by the ing robbery. the defendant’s conviction for Although may justices courts. individual prejudices have biases and how the about parties non-parties
law affects within requires jurisdiction,
our our oath us to set prejudices such inter-
aside biases and duty is
pret the Our to follow and law.2 case, parties
apply the in this law it
regardless of their character or how
might non-parties effect in our State. specific premise alleged,
1. The dissent’s is incorrect. The State dant notice of the crime there- deciding by depriving right degree how defendant of his has a wide of latitude in criminal charge particular prepare adequate specific defense wishes make a indictment. brought against by prove the State. so al- him The rule it must the facts leged. proposed elimi- rule would dissent's permit requirement contradictory nate this the state for the courts 2. It would trial facts, bias, many merely plead prove charge jury: prejudice, the "bare “Do not let deliberations," charged. play any your sympathy part bones” of the crime This elements virtually would render the indictment worthless if the Justices on this court refuse to abide important providing defen- in its function of the same standard.