*1 mаy presume we trial court While GUEVARA, Appellant, test, James clearly in a
engaged balancing we can jury that given see from to the
its consideration of this was not evidence Texas, Appellee. STATE way Indeed, in any restricted. con- Saenz No. 04-00-00340-CR. instruction to an un- tends the amounted Texas, of Appeals Court presumption, constitutional conclusive Antonio. San which in essence instructed the beyond reasonable doubt the three Jan. 2003. occurred. waived offenses Discretionary Review Granted June is no leaving There silent record here speculate. man- this court The State
aged ample introduce on of- were
fenses that barred limitations. counsel was in his ef-
Defense thwarted requested avoid a mistrial with
forts to
instruction when the trial court denied his request. request-
initial Counsel’s second
ed instruction failed to limit the properly
jury’s consideration of the of- extraneous obviously
fense The jury evidence. issue,
questions about this very as revealed they judge. the note sent back to the
However, question there is no coun- about strategy
sel’s or lack thereof —he admitted committed egregious error. case allegations
This involves abusive conduct, swearing abhorrent but it is a
match between two There is individuals. physical allega-
no evidence to support the
tions. One of the victims recanted her
accusations. From I do this record
believe one can conclude that re- Saenz Rather, a fair trial. can only
ceived I prejudiced by
conclude Saenz was performance. deficient I
counsel’s would
reverse conviction and remand the
cause new trial. *2 Miklas, III, P. Asst. Crim. Dist.
Michael Antonio, Atty., for State. San LÓPEZ, L. Sitting: ALMA Chief *3 Justice, STONE, Justiсe, CATHERINE GREEN, Justice, B. PAUL W. SARAH DUNCAN, Justice, ANGELINI, KAREN Justice, MARION, BRYAN SANDEE Justice, HARDBERGER, PHIL Chief (retired).1 Justice Opinion Appellant’s Motion Rehearing for En Banc ANGELINI, Opinion by KAREN Justice.
A jury found guilty James wife, party to the of his murder Velia Guevara, and him in pris- sentenced to life $10,000 May and a fine. Velia died on 26,1993 multiple shot wounds. The weapon murder was never found. Gue- vara raises issues on appeal, several com- evidence, plaining sufficiency of the jury charge, prosecutorial error in the mis- conduct, and assistance ineffective of coun- sel. In an opinion judgment datеd 26, 2001, we December affirmed the trial judgment. court’s Guevara filed motions by for rehearing and for reconsideration grant the en banc court. We the motions by for rehearing and for reconsideration court, the en opinion banc withdraw our 26, 2001, judgment of December issue in its opinion judgment this place. and remand for a We reverse new trial. THE
SUFFICIENCY OF EVIDENCE challenge legal Issues one and two sufficiency and factual of the evidence that Barohn, Antonio, Nancy guilt B. Ap- supports principal2 San for as a pellant. party. and а informed the Hardberger partic- 1. Retired Chief Justice not 2. The evidence is uncontroverted that Gue- present at vara was not the time of the shoot- ipating. ing golf course. because he was at person committing person criminally respon- “A assists other jury that: 7.02(a)(2). § the con- murder. Id. sible an offense committed acting duct of another if with intent that, shows at the time of promote or assist the commission offense, involved in a Guevara was directs, solicits, encourages, affair with Minnie Salinas.3 long-standing aids, person aid thе attempts to other they told Guevara would have Salinas had offense; duty commit the their if did go separate ways something offense happen June.4 a month be- About its acting promote with intent to or assist murder, fore the Guevara and Salinas were commission, make a he fails to reasonable shooting range, they at a where both shot *4 of- prevent effort to commission of the gun. range a rented nine millimeter he fense.” had no Guevara asserts only gun available one nine millimeter and, murder; duty to to his wife’s purchаsed rent. said he a box Guevara the rely the extent the State did not on ammunition, up he picked some theory, depended upon legal duty its case spent cartridge casings shooting at the the stacking of impermissible inferences. range and them the box. the put into On murder, left the house day Guevara A. Standard review Knauss, about a.m. to meet Paul at 6:30 up, friend who never showed another the sufficiency review the We golf. Knauss recalled round of the evidence under traditional standards couple conversatiоn he had with Guevara a Virginia, review. See Jackson v. 443 U.S. shooting, the at which of months before 2789, 307, 319, 2781, 99 S.Ct. 61 L.Ed.2d researching he time said had been Guevara (1979) (legal sufficiency); Dewberry v. 560 a silencer. making information about State, 735, (Tex.Crim.App. 4 740 S.W.3d 1999) State, (same); Cain v. 958 S.W.2d a.m., 26th, May Kath- At about 8:00 (factual 404, (Tex.Crim.App.1997) suffi Cadena, property manager at the leen 126, ciency); Clewis S.W.2d complex, arrived at apartment Guevara’s (same). The 129 (Tex.Crim.App.1996) a.m., before 9:00 she re- work. Sometime the same in both standard of review is service, answering the cеived call from cases. direct and circumstantial evidence concerning several calls reported which Kutzner v. 994 S.W.2d in Apartment to the belonging car tenant apartment, which the Guevara’s was a.m., on. 9:00 Cadena lights
with its At theory aiding B. Conviction based call, Shelley similar received another Seizor, leasing agent, took another call the criminally responsible person A is told minutes later. Cadena about fifteen if is party as a to an offense the offense Velia. Seizor contact conduct, by by committed his own by office crimi a woman came another for which is Cadena said conduct of he yet was not about a.m. The office nally both. at 8:45 responsible, Tex. Pen. 1994). 7.01(a) (Vernon 9:15 so returned between per open, § A the woman Code Ann. a.m., asking phone. to use criminally for the con and 9:30 responsible son phone, if the office but intentionally aids Cadena offered duct of another he testify; this information taken Salinas did not testify; his statement 3. Guevara did po- Guevara's comes from statement at trial. police, wаs read to lice. a pay phone. woman asked for Cadena Medical Examiner estimated Chief died four to before her Velia six hours pay phone directed the woman body (anytime discovered at p.m. 4:00 the back club woman house. The noon). 10:00 a.m. and between time, gone for a short then came back through leasing stop- Stengel, office Richard the State’s firearm and without bullet expert, toolmark examined the taken Garza, ping. George the maintenance body bullets from from Velia’s and the two man, seeing also recalled the woman. all apartment, and concluded three Cadena and Garza later identified nine and had bullets were millimeters been a.m., woman At as Salinas. about 10:00 Stengel the same exam- gun. fired from leasing say to the her Velia came office to fifty casings ined the from the box recov- car lights not on. were ered and the apartment casings four from the loose recovered golf until 1:00 or played about and car. concluded apartment Stengel all p.m., spent 2:00 then three next fifty-four casings were nine millimeters Light San Antonio hours at the career and had been fired from four different nine pursuing services prospective office em- *5 guns. Stengel’s millimeter most incrimi- ployment opportunities. At about 4:00 testimony nating casing was that the from p.m., apartment, he returned where couch, apartment casings the from two he found his wife inside apartment, the car, thirty casings and the in Guevara’s of lying the hallway dead on There floor. fifty the of from box were all fired the was no sign entry. of forced Velia gun. casing samе The third from the car three gunshot wounds to the abdomen. casings fifty and ten of the from the box of One body, bullet was recovered from her gun. were fired from the same one bullet was found on the floor also Stengel compared a nine millimeter office5 computer, near the and bullet one a casing that detective shot from the was found a door by entryway. behind the range’s shooting gun rental nine millimeter A casing cartridge from the recovered casings the bullets and from the crime couch in the office. A police tеsti- officer car. Stengel requested scene and later fied logical that a deduction would be that gun, the actual and a received Smith and ejected this casing had been mur- the shooting Wesson nine millimeter from the weapon. der A full fifty, box of nine spent range. He determined that the rented cartridge millimeter casings, of various gun any casings did not fire found in brands, in un- was found the office closet car, scene, the or the at crime from the car, pile der a of clothes. Inside Guevara’s fifty. box of pawn shop officers found a for a receipt Salinas, Lopez, Tina Marie a friend of gun, nine millimeter and three car- spent late-night during testified that a conversa- tridge casings in the front console. Gue- day murder, tion the the Salinas asked vara had nine put gun lay- a millimeter on her at Lopez to meet a restaurant so that away at the pawn shop, but he never give Lopez twenty- Salinas could Salinas’s picked scene, the up. it At crime Guevara gun. two Lopez caliber refused meet did appear emotional or upset. Salinas.6
5. apart- juiy testimony had a Guevaras two-bedroom fore the the cited the —all ment, argument State its brief at one of which was used as an office. in and oral took Therefore, place jury's presence. the outside appeal, portions argument appeal, 6. On State contrary the refers to other to the State's on Lopez’s testimony, none of was be- there no direct evidence that Guevara which
554 ings fifty in the box of were all fired from party,
To convict Guevara
a
that, at
time
gun;
thе evidence had to show
the
or
the same
none of
bullets
cas-
acting
parties
were
ings
from the crime
retrieved
scene
together,
contributing
part
some
to
each
car had been fired from the
Guevara’s
pur
of their common
wards
execution
gun;
played golf at the
rented
374,
pose. Pesina v.
949
382-
S.W.2d
murder;
he
time of the
he told Knauss
83
Antonio
(Tex.App.-San
pet.).
no
silencer;
a
he
researching making
may
This
be done with either direct
appear upset
did not
at
crime scene.
Pesina,
circumstantial
evidеnce.
police
to the
Guevara’s two statements
a
determining
at
In
whether
S.W.2d
383.
during
were admitted
the State’s case-in-
a
an offense as
participated
defendant
statement,
chief.
In
first
may
examine the
party,
court
events
shotgun
a
owning only
admitted
before,
occurring
during, and after
revolver,
twenty-two
having
caliber
may rely
offense
gun
layaway
pawn
at
nine millimeter
show an un
actions
the defendant that
shop.
shooting
He further admitted to
design
and common
to commit
derstanding
range,
gun
buy-
nine
at the
millimeter
offense. Ransom
S.W.2d
bullets,
ing
picking up empty
a box of
The ac
range,
at the
some of
casings
he is
in the
assisting
cused must know that
However,
in his car.
casings
those
Pesina,
commission of the
offense.
day
next
he made
statement to the
another
may
Intent
be inferred
S.W.2d
began
statement
police.
second
from circumstantial evidence such as
being
admission
that he “was not
total-
acts, words, and conduct of the accused.
*6
in
After
ly honest”
the first statement.
(Tex.
State,
481,
Patrick v.
906 S.W.2d
Salinas,
admitting
long
affair with
he
a
determining
Crim.App.1995). In
the suffi
trip
gun
his
with her to the
described
ciency
appel
of
to show an
the evidence
a
range. He
he rented
nine
also said
intent,
with
lant's
and faced
a record that
bought a box of ammunition
millimeter and
inferences,
must
supports conflicting
we
range.
gun
while at the
presume
affirmatively
if it does not
—even
in the record —that the trier of fact
appear
these
jury
compare
was left
in
the
any such conflict
favor of
resolved
examination,
Stengel’s
statements with
prosecution, and
must
to that
we
defer
one
the
only
of
three
which revealed
State,
resolution. Matson v.
819 S.W.2d
in
and
the box
casings found in the car
ten
gun, but none
were fired from the same
from the
nine millimeter
were fired
rented
case,
In this
Guevara’s intent to assist
couch,
Yet,
casing from the
two
gun.
the
may
in-
the murder of his wife
be
with
car,
from the box were
thirty
from the
and
He
in-
from the evidence.
was
ferred
pawn shop
A
gun.
all
from the same
fired
long-standing
in
affair
volved
a
with Sali-
receipt
gun
nine millimeter
for a
nas;
a
he
shot nine millimeter
and Salinas
illogical
It is not
in
car.
found Guevara’s
gun
shooting range
at a
about one month
a
that was
now
jury
for a
to conclude
it
murder;
the
the
before the
bullets
kill
gun
used to
unaccounted-for
that was
crime scene were nine millimeters and
casing
the
only explanation
casing Velia.
gun;
been fired from the same
the
his
matching those in
couch,
casings
found on the couch
from the
two
apartment
inno-
car,
of
cas-
car that is consistent with
thirty
from Guevara’s
the
one,
gun
gave to
a
he did
own
he
it
Salmas.
owned nine millimeter
if
many
jury
is
the
plication paragraph
cence
so
instructed
Guevara—
neatly
that if it found Guevara had acted “alone
casings placed
casings
some
the
—
box,
car,
in
with another
in commit-
together
party”
in the
two
the
dropped
murder,
coincidently
offense of
then it
dropped
ting
then
one in the less
the
must
spot
guilty.
in a
the
find him
pile
laundry
obvious
casing ejected
couch where a
the
from
the
The State admits that
definitional
landed,
gun might
although
killer’s
have
that Guevara
paragraph indicated
could
efficiently
the killer
retrieved all the cas-
party
have
to his wife’s murder if
beеn
Yet,
actually
un-
ings
fired.
Guevara was
duty
abrogated
legal
he had
his
to her with
single casing
able
collect even
to farther the commission of the
intent
rented
fired at
shooting
Thus,
concedes the
murder.
State
find,
range. We
that based
this evi-
charge
jury
might have contained
error
dence, a jury could have
con-
reasonably
legal duty
if
did not
have
cluded that
who plans
someone
crimes
protect
wife from Salinas. See Medra
guns
invincibly
ignorant
is
(Tex.Crim.
no v.
612 S.W.2d
experts.
science
firearms
toolmark
(without
duty
App.1981)
arising to
of an
Although the
supporting
Gue-
conduct).
circumstantial,
original
is
it
there is no criminal
On
vara’s conviction
submission,
legally
factually
sup-
both
we held that the
sufficient to
error
could
port
verdict. Because we
harmless because the
have
conclude
guilty
aiding
evidence was sufficient to
found Guevara
under
the
support the ver-
theory,
not the
aiding
ory
duty
dict under the
and the evi
theory, we do not
support
sufficient to
a convic
address whether the evidence
dence was
supports
theory.
legal duty
aiding
conviction under
tion
theory.
under
However,
light
in
this court’s
recent
JURY CHARGE
opinion Bagheri
We first determined because in a the jury During arguments submitted both theories before charge question. we not which single could know the ex- question, panel, the State twice used venire jury a rea- theory beyond the persuaded bodyguard stepping away of ample doubt; thus, argument the State’s sonable allowing as an to be harmed Id. Be- appeal was irrelevant. at 660. be a to a example party of how one could supporting impair- the cause the evidence again example used the crimе. The State that theory did alone establish ment not closing arguments. a bodyguard during of retro- admitting in the flawed the error prosecutor defendant’s ex- highlighted harmless, theory grade extrapolation Salinas, argued tramarital affair with the harm issue under Texas we considered thing “perhaps [the that the most horrible 44.2(b) Appellate Rule of Procedure arrange away to be did defendant] test by the set forth the Court Criminal murder, taking time one little bit the Appeals in Solomon v. 49 S.W.3d away, [Sali- because we know protection Id. aрartment and go never into an nas] would 44.2(b) provides Rule that nonconstitu- actually kill with him there.” We [Velia] it disregarded must unless tional error be the theory persuaded which cannot know rights.” affects a defendant’s “substantial doubt, after beyond a reasonable jury Tex.R.App. 44.2(b). The court P. Solomon record, we cannot conclude a review of the rights are not affect- held that “substantial not “fair that the error did assurance” admission of evidence ed the erroneous or effect. jury slight influence the had but court, the examining ‘if thе after appellate whole, record has fair assurance as COMPLAINT CONSTITUTIONAL jury, the error did influence issue, argues In his fourth ” reviewing effect.’ After slight but that, convicted of to the extent he was Bagheri, record in we concluded that party or a principal murder either as sufficiency support re elements less than all essential theory was not relevant impairment law, unconsti quired conviction was a ‘fair way “it in no leads us to because tutionally argues also obtained. Guevara (in admitting that the assurance error Malik of the so-called application evidence) retrograde extrapolation did not burden rule7 decrease State’s slight jury, had but a influence the of the crime on essential elements proof noted at 660. effect.’” 87 S.W.3d We conclu- Except for these unconstitutional. ex- placed retrograde the State remarks, appeal sory Guevara’s brief on by an trapolation evidence before this argument; not elaborate on does “touted” expert witness that State *8 therefore, comрlaint is waived. this Tex. in the leading experts with studied RApp. 38.1(h). P. field, the evidence was not cumulative we Accordingly, Id. of other evidence. MISCONDUCT PROSECUTORIAL harmless, reversed held was not the error attorney as a former A. Guevara’s and remanded judgment, the trial court’s witness State’s Id. for a new trial. complains fifth issue case, Guevara’s analysis. apply
In we a similar this Gamez, the calling Jesse aiding theo- about the State The jury submitted (Tex. correct hypothetically offense defined v. S.W.2d 240 In Malik held the suffi Crim.App.1997), jury charge. the court ciency against thе is measured of the evidence shooting range represented in defense a statement attorney initially him who this criminal matter in the civil mat- would be difficult con manager that it ter associated his wife’s insurance up range any at the casings picked nect policy, as a murder trial. witness his has an affir The State particular weapon. however, Gamez, was not coun- Guevara’s to the defense evi duty mative to disclose Specifically, sel at the murder trial. dence that to the defendant. is favorable Guevara contends that the State im- 83, 83 Brady Maryland, 373 U.S. S.Ct. pugned suggested integrity Gamez’s (1963). 1194, 10 prevail L.Ed.2d 215 To justice. A he tried to review of obstruct claim, appellant show that Brady must the complained-of testimony reveals the tardy nondisclo State’s disclosure or prosecutor and Gamez over tangled Ga- him. prejudiced sure Little v. produce copy mez’s reluctance to of the To S.W.2d deposition (apparently, civil to the State appellant a rea prejudice, show must show copy the State’s had depositiоn that, probability sonable had the evidence pages missing); Gamez’s reluctance to earlier, been disclosed to defense speak prosecutor to the without Gue- have proceeding result of the would been permission approv- vara’s and the court’s different. Id. at 866. record; al on the showing Gamez Here, photographs of Salinas and her brother Guevara has not shown being Cadena and Cadena not able to prejudiced. The evidence was not positively identify Salinas as the woman exculpatory state- manager’s because day who came the office on the difficulty matching ment about the cas- During prosecutor murder. closing, the ings to a particular weakens Guevara’s stated, in part referring question- to his argument that he recovered his own cas- Gamez, ing of “it people offends me when Further, ings range. argu- this don’t uphold professional standards ment have much because does not merit we expect to as attorneys them licensed a copy manag- defense counsel saw in this gets state.... This defendant file, er’s statement in the State’s but he did Jesse Games [sic] and Jesse makes a difficulty not see anything file about Anybody mistake. seen Perry who has casings. in identifying you Mason don’t out go knows and do your investigation you own work when making C. about Guevara’s statement attorney. are you get That what a silencer for, Paul you get Drake otherwise in the being embarrassing situation of called as complains seventh issue against your witness when things client in admitting the trial court erred Knauss’s way you don’t go they do.” hope him statement thаt Guevara told he researched to make a silencer for a how trial, only objection At a “sidebar” Guevara gun. During testimony, Knauss’s lodged testimony, to the witness’s which statement, objected it was arguing to the objection was overruled. Because Gue- irrelevant, hearsay, probative and lacked object testimony vara did not to Gamez’s maintains that prosecutor’s argument, appeal, or the he did not value. On *9 value preserve probative the statement had no be error. cause there no evidеnce of a silencer was Withholding Brady B. evidence used to kill and no weapon on the Velia noise, any, if when the issue com evidence about Guevara’s sixth at plains weapon that State not reveal to the Velia. did was fired 558 “invin- being de Guevara not indicted
We review the trial court’s was cibly ignorant under abuse of of the science of firearms cision admit evidence an to State, experts.” He was indicted Avila v. 18 and toolmark discretion standard. 736, (Tex.App.-San Antonio for the murder his wife. Because 739 S.W.3d 2000, provе the er failed to the elements pet.). no Guevara contends State judgment of the trial court admitting in affected ror the evidence his rights jury should be reversed. substantial because the was consider the remark as evidence asked to legally Guevara claims the evidence the re of his contends guilt. State conviction, ei support insufficient to his plan to probative mark was of Guevara’s party. agree. as or as a I principal ther a with the State agree murder Velia. We as indictment Guevara Despite charging showing that intent is relevant. it is that principal, undisputed a Guevara (Tex. 453, Moreno v. S.W.2d a friend at the time of golfing was evi specifically, More Crim.App.1993). record, ra this no wife's murder. Under tendency “any “relevant” if it has dence is fact have found tional trier of could Gue any that is of to make the existence of fact Accord guilty principal vara as a actor. consequence to determination of the proceeded at trial under ingly, the State probable than probable action more or less a guilty as theory Guevara it would be without the evidence.” Tex.R. v. Vir to the murder. See Jackson party Questions of relevance should Evid. 307, 319, 99 S.Ct. ginia, 443 U.S. court, relying be left trial largely (1979). L.Ed.2d 560 experience, own its observations sufficiency re conducting When absent an abuse will not be reversed view, fact not be established may vital Moreno, at 463. discretion. 858 S.W.2d stacking inference. See upon inference court We conclude trial did abuse Richardson v. 834 S.W.2d its discretion when it determined 1992, pet. Dist.] (Tex.App.-Houston [1st relevant to a fact Knauss’s statement was ref'd) reh’g). applied As in (op. on consequence. case, intent aid or instant Guevara’s committing in assist Minnie Salinas CONCLUSION a vital fact that murder his wife is judgment We the trial court’s reverse infer by stacking cannot be established trial and remand the cause for a new guilt par prove Guevara’s as ences. To opinion. consistent with this Because we that he ty, the had to demonstrate State trial, we this cause for a new do remand in intentionally aided or assisted Salinas of whether defendant’s not reach the issue murder. The his wife’s State committing provided ineffective assistance attorney that be attempted by arguing to do this counsel. casings millimeter bullets and cause nine in the crime scene were found opinion by Dissenting CATHERINE car, re casing and because Guevara’s STONE, (joined by ALMA L. Justice was fired the crime scene covered at Justice). LÓPEZ, Chief in casings found gun the same two car, in did fact own in the agree jury I that the error further, this However, gun, nine millimeter I dis- respectfully was harmful. mur gun in fact the opinion that the never-recovered majority’s sent from infer next factually weapon. suffi- der legally evidence was question nine millimeter James that the support cient the conviction. *10 given by Guevara to Salinas for her to GRAYSON, Appellant, committing use John H. Finally, murder. had to infer that golf game staged because he knew that Dorothy GRAYSON, Appellee. H. Salinas intended to shoot his wife morning. This is a classic case of infer No. 04-02-00439-CV. stacking ence and it cannot support con Texas, Court of Appeals viction. San Antonio. Likewise, Guevara cannot be held re- sponsible any under “legal duty” theory. Feb. Code,
Under the Penal person is crimi-
nally responsible for the conduct of an- if, “having
other a legal duty prevent the offense and acting with
intent to promote or assist its commis-
sion, he fails to make a reasonable effort
to prevent its commission.” Tex. Penal 7.02(a)(3) (Vernon 1994). §
Code Ann. parties argue here about whether a
spouse has a legal duty prevent
assault or murder of spouse, the other
but issue need not be addressed.
The critical issue is whether Guevara
knew in advance of plan Salinas’ to mur-
der his wife. There is no evidence of
such knowledge; accordingly, Guevara
cannot be held to have a duty to the commission of an offense
about which he knew nothing.
Because the legally evidence is insuffi-
cient to support the conviction either as a
principal or a party, judgment
should be reversed and a judgment of
acquittal rendered.