Abdiаs Lawrence MACIAS, Appellant, v. The STATE of Texas, Appellee.
No. 14-95-01197-CR.
Court of Appeals of Texas, Houston (14th Dist.).
Dec. 23, 1997.
Rehearing Overruled Jan. 29, 1998.
332-343
Carol M. Cameron, Houston, for appellee.
Before HUDSON, J., SEARS and DRAUGHN*, JJ.
OPINION
DRAUGHN, Justice.
Appellant entered a plea of not guilty to the offense of capital murder.
Around 3:30 a.m. on the morning of July 4, 1993, complainant, Raymundo Miranda, walked past the home of Edward Cantu where appellant, Cantu, Roger Vidales, Jesse Montoya and Miguel Mendez were outside drinking. Upon seeing complainant, appellant announced that he wanted to “roll” or rob complainant and struck complainant over the head with a fan. Cantu yelled at appellant and questioned why he struck complainant, but appellant just laughed. Cantu apologized to complainant and invited him to join the party. Complainant accepted the invitation and shared his bottle of tequila with the men.
Around 8:30 a.m., appellant, complainant, Vidales, Montoya and Mendez left Cantu‘s house in Montoya‘s car. When the men first got into the car, Vidales expressed his desire to hit complainant with a pipe wrench, but Mendez took the wrench away from him. Montoya then drove to a bridge over Buffalo Bayou where he stopped his car. Appellant and Vidales got out of the car. Appellant said “let‘s roll him” and began to go through complainant‘s pockets. He found only a pack of cigarettes. Vidales then pulled complainant from the car onto the concrete and he and appellant kicked complainant repeatedly. Mendez remained in the car. Although Montoya initially remained in the car, he joined Vidales and appellant in kicking complainant after Vidales and appellant taunted and teased him for not participating in the foray. Appellant, Vidales, and Montoya then rolled complainant off the bridge.
* Justices Sears and Draughn sitting by assignment.
In his first point of error and in a separate motion, appellant urges this court to abate the appeal because two notes sent by the jury and the trial court‘s written response are missing from the record. When the record or a portion of the record is lost or destroyed, the parties may substitute it in the trial court, and the substitution transmitted to the appellate court as in other cases.
The parties agreed on the content of the note at the conclusion of a hearing ordered by this court. The trial court concluded and the parties agreed that the jury sent one note with two questions to the trial court during deliberations, but the note and the trial court‘s response were lost or destroyed and substitutes could not be made. The parties also agreed that in one question the jury requested the medical examiner‘s photographs, which the court had admitted over appellant‘s objection. The trial court sent the photographs to the jury the next morning. The parties further agreed in the second question the jury inquired whether they could convict appellant of any offense other than capital murder. In response, the trial court referred the jury to the court‘s charge and informed them that they were bound by the charge. The trial court reduced its answer to writing and gave it to the bailiff for delivery the next morning.
Because the parties agree on the content of the jury‘s questions and the trial court‘s response, appellant‘s first point of error is moot. Therefore, we overrule appellant‘s first point of error.
In his second point of error, appellant contends the trial court erred in denying a requested instruction on the lesser-included offense of murder. A trial court must submit а charge on a lesser-included offense if (1) the lesser-included offense is within the proof necessary to establish the offense charged; and (2) some evidence exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993) (clarifying Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981) (opinion on reh‘g) (plurality opinion)). The first prong of the test is easily met; murder is a lesser-included offense of capital murder. Robertson v. State, 871 S.W.2d 701, 706 (Tex. Crim.App.1993), cert. denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994). The dispositive issue, then, is whether some evidence exists in the record that would permit a jury to find the defendant guilty only of the lesser offense. In determining whether the record contains evidence that the defendant is guilty only of the lesser offense, we examine the entire record. Rousseau, 855 S.W.2d at 673.
The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). Therefore, if the record reflects some evidence that refutes or negates the aggravating element of the greater offense or if the evidence is subject to different interpretations, the trial court must submit a lesser-included charge to the jury. Saunders, 840 S.W.2d at 391-92. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim. App.1994).
For a rational jury to find appellant guilty only of murder, the record must reflect some
“It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to a lesser-included offense for the fact finder to consider before an instruction on a lesser-included offense is warranted.” Cantu v. State, 939 S.W.2d 627, 646 (Tex. Crim.App.1997), cert. denied, 522 U.S. 997, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). Here, appellant‘s evidence neither negates nor refutes other evidence that he murdered complainant while in the course of committing or attempting to commit robbery. Appellant‘s failure to mention the robbery to Cantu does not negate or refute evidence that a robbery or attempted robbery occurrеd. Likewise, his claim that complainant‘s wallet casts doubt as to whether appellant searched complainant‘s pockets does not negate the commission of a robbery or attempted robbery. The trial court did not err in denying appellant‘s request for a charge on the lesser-included offense of murder. We overrule appellant‘s second point of error.
In his third point of error, appellant contends the trial court erred by failing to instruct the jury on the meaning of the phrase “in the course of committing.” In his argument before the court, appellant maintained the definition of the phrase “in the course of committing” was necessary for a proper resolution of the case because the evidence reflected two incidents in which appellant allegedly stated an intent to rob complainant.2 Appellant argued without the definition, the jury might have confused which incident related to the murder. In reviewing a jury charge for alleged error, an appellate court must examine the charge as a whole and not as a series of isolated and unrelated statements. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim.App.), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995).
A trial court has broad discretion in submitting proper definitions and explanatory phrases to the jury. City of San Antonio v. Dunn, 796 S.W.2d 258, 263 (Tex.App. — San Antonio 1990, writ denied). Proper instructions are those which help the jury in answering the questions and which find support in the evidence and inferences to be drawn from the evidеnce. Id. Nevertheless, the trial court must define any legal phrase that a jury must necessarily use in properly resolving the issues, and provide the statutory definition if available. Nguyen v. State, 811 S.W.2d 165, 167 (Tex.App. - Houston [1st Dist.] 1991, pet ref‘d). See also Arline v. State, 721 S.W.2d 348, 352 n. 4 (Tex.Crim. App.1986) (stating “a statutorily defined word or phrase must be included in the charge as part of the ‘law applicable to the case’ “).
The phrase “in the course of committing” is not statutorily defined, although the phrase “in the course of committing theft” is defined in Section 29.01 of the Texas Penal Code. Drawing on the definition from Section 29.01, the court of criminal appeals defined the phrase “in the course of committing” under Section 19.03 as “conduct occurring in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of the offense, i.e., in this case, of robbery.” Riles v. State, 595 S.W.2d 858, 862 (Tex.Crim.App.1980). Although statutorily defined, the court of criminal appeals
[W]hen the statutory definition is not included in the charge, it is assumed the jury would consider the commonly understood meaning in its deliberations. Although error would result where the common meaning is more expansive than the statutory definition, such is not the case with the phrase ‘in the course of committing theft.’ Any possible misunderstanding of the phrase would have been more restrictive than the statutory definition, and could only have been to appellant‘s benefit.
Id. We hold the same reasoning applies to the common-law definition of “in the course of committing” robbery. Furthermore, the “failure to give an abstract instruction is reversible only when such an instruction is necessary to correct or complete understanding of concepts or terms in the application part of the charge.” Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App.1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (1997).
Here, the trial court provided the statutory elements of capital murder, robbery, and aggravated robbery in the abstract portion of the charge. In the same section the trial court defined theft, deadly weapon, the culpable mental states related to murder, and stated the law of the parties. In the application paragraph, thе trial court provided the following:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 4th day of July, 1993, in Harris County, Texas, the defendant, Abdias Lawrence Macias, did then and there unlawfully, while in the course of committing or attempting to commit the robbery of Raymundo Miranda, intentionally cause the death of Raymundo Miranda by striking Raymundo Miranda with his foot or by pushing Raymundo Miranda from a bridge to the ground, . . . then you will find the defendant guilty of capital murder as charged in the indictment.
Because the application paragraph clearly directs the jury to the alleged robbery on the bridge, the jury could not have confused the two incidents in resolving the issue before them. Even if the omission of the definition was error, the error was not so harmful as to deny appellant a fair and impartial trial. See Arline, 721 S.W.2d at 351. Therefore, the trial court did not abuse its discretion in omitting the Riles definition of “in the course of committing robbery” from the jury charge. Appellant‘s third point of error is overruled.
In his fifth and sixth points of error, appellant maintains the trial court erred in admitting over his objection numerous photographs of complainant‘s skeletal remains and clothing. Specifically, appellant complains of two groups of photographs, State‘s exhibits 11 through 15 and State‘s exhibits 16 through 19. State‘s exhibits 11, 12, and 15 are photographs of complainant‘s skull and teeth. State‘s exhibits 13 and 14 are photographs of complainant‘s clothing found on and around his skeletal remains. State‘s exhibits 16 through 19 are photographs of complainant‘s skeletal remains. Appellant argues these photographs (1) were not probative of the State‘s case on any issue and (2) were extremely prejudicial. The State contends the photographs were not particularly gruesome and probative of complainant‘s identity and his cause of death.
Photographs are generally admissible where verbal testimony about the same matter is admissible. Emery v. State, 881 S.W.2d 702, 710 (Tex. Crim.App.1994), cert. denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995). A trial court, however, may exclude relevant photographic evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
In this сase, the State offered nineteen color photographs of complainant‘s skeletal remains and clothing found at the scene.3 The photographs are not large in size. Some photographs, particularly those of complainant‘s teeth, were taken at a relatively close distance but none display great detail. None are particularly “so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty rationally deciding the critical issues of this case after viewing them.” Fuller v. State, 829 S.W.2d 191, 206 (Tex.Crim.App.1992), cert. denied, 508 U.S. 941, 113 S.Ct. 2418, 124 L.Ed.2d 640 (1993).
Plainly State‘s exhibits 11 though 15 were relevant to the State‘s case at the guilt-innocence phase because they helped to prove complainаnt‘s identity. Likewise, State‘s exhibits 16 through 19 were relevant to establish the cause of death. Moreover, the photographs added to the probative value of the State‘s case by supporting the testimony of complainant‘s brother and the county medical examiner. Complainant‘s brother identified complainant based upon the evidence depicted in State‘s exhibits 11 through 15, namely, the gold teeth, boots, and identification card recovered from the scene. An assistant medical examiner reported the autopsy findings, which reflected evidence of trauma over the chest, lumbar area, abdominal and thoracic areas as well as several fractures in the ribs, spine, аnd shoulder blade depicted in State‘s exhibits 16 though 19. He also found evidence of hemorrhage, which occurred prior to complainant‘s death. Based on his study of the bones alone, the examiner testified that complainant died as a result of blunt trauma to the chest and abdominal areas, a death consistent with being thrown off a bridge of forty to fifty feet and falling onto concrete rubble.
The trial court did not abuse its discretion in admitting the photographs over appellant‘s objection. Points of error five and six are overruled.
In his seventh point of error, appellant contends the trial court erred in permitting the prosecutor to argue a plea for law enforcement аt the guilt-innocence stage of trial. Appellant specifically complains of the following argument:
PROSECUTOR: I submit to you, ladies and gentlemen, the days of lawlessness in Houston must come to an end. You must tell these people that we‘re not going to tolerate it. Surely look at the people. You‘re going to know the results of your decision is going to be heard in that community. All the other characters out there that want to be gang members and do whatever gang members do-
DEFENSE ATTORNEY: I object. That‘s improper form of argument to the jury.
The trial court overruled the objection. The prosecutor then continued discussing gang membership.
Appellant‘s trial objection, however, does not comport with his cоmplaint on appeal. An objection stating one legal theory may not be used to support a different legal theory on appeal. Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim.App.1993) (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990)), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994). Moreover, a plea for law enforcement is one of the four permissible areas of jury argument. Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim.App.1997), cert. denied, 522 U.S. 959, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). Appellant‘s seventh point of error is overruled.
The State contends evidence of appellant‘s gang membership is relevant as same transaction contextual evidence. Same transaction evidence is evidence “where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony . . . of any one of them cannot be given without showing the others.” Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim.App.1995). Same transaction contextual evidence is an exception to Rule 404(b) where such evidence is necessary to the jury‘s understanding of the offense. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993). The State argues appellant‘s gang affiliation was necessary tо the jury‘s understanding of the murder in that all but one of the men involved in the murder were gang members.
“[A] jury is entitled to know all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacumn.” Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986). Nevertheless, same transaction evidence “is admissible only ‘when the offense would make little or no sense without also bringing in the same transaction evidence.’ ” Pondexter v. State, 942 S.W.2d 577, 583–85 (Tex. Crim.App. 1996) (quoting England v. State, 887 S.W.2d 902, 915 (Tex.Crim.App.1994)), cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997). After examining all of the facts surrounding the murder in this case, we find the evidence of appellant‘s gang affiliation had no tendency to make more probable the existence of any fact or consequence. In other words, the evidence of appellant‘s gang membership is not relevant under Rule 401. Even if the evidence were relevant, it is still not admissible as same transaction contextual evidence. Under the facts of this case, appellant‘s gang membership was an incidental aspect of appellant‘s life. Appellant‘s gang affiliation was not part of the reason for the murder or part of the explanation for why the murder occurred as it did. Undoubtedly, the State could have presented a clear and understandable case explaining the robbery and murder without interjecting the unnecessary information about appellant‘s gang affiliation. Because the testimony about appellant‘s gang affiliation was not necessary to the jury‘s understanding of the capital murder, it was not аdmissible as an exception under Rule 404(b). The trial court erred in admitting this evidence.
A finding of error mandates reversal, “unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.”
In this case, the State was the source of the error by introducing irrelevant evidence of character conformity. Unlike Pondexter, the State emphasized appellant‘s gang affiliation in its direct examination and in opening and closing arguments. Over objection, the State elicited from Mendez that some of the persons, including appellant, were members of the Brown and Proud Gang and that Cantu was the leader and disciplinarian of the gang on the north side of Houston. The State also elicited testimony from Cantu about his role as gang leader and appellant‘s gang affiliation. Over objection, the prosecutor made inflammatory remarks in closing arguments such as “[c]ouldn‘t be a member of a gang that attacks people like a gang of wolves” and “[y]ou have to tell people in the streets that want to get involved in these big groups like them and call themselves cool guys and we‘re going to get united and beat and stomp and rob and rape and anything we want to.” He further argued as follows without objection:
And listen, ladies and gentlemen. Listen to the evidence. This is a gang. Part of it is on the north side of Houston and another part of it is in Pasadena, Texas. This thing is organized so to where you have, I guess division leaders or captains and they are responsible for these people. It‘s a very large group of violent, dangerous people.
The collateral implication of the State‘s evidеnce and argument is that appellant is a criminal because he belongs to the Brown and Proud Gang. Considering the emphasis the State placed on appellant‘s gang affiliation, the State would most likely repeat the error with impunity if we were to find it harmless.
In deciding how much weight the jury may have given this testimony, we examine the other evidence introduced at trial. Pondexter, 942 S.W.2d at 584. Mendez testified he actually saw the robbery and the murder, and observed appellant and Vidales confess to Cantu that they had thrown complainant over the bridge. Cantu, and Leon Cantu also testified that appellant confessed he had thrown complainant over the bridge.
Taking all this information as a whole, we find five of the six Harris faсtors militate toward a finding of harm in this case. Appellant‘s fourth point of error is sustained. The judgment of the court below is reversed and the case remanded for further proceedings.
SEARS, Justice, concurring.
I concur with the opinion by Justice Draughn; however, I would also sustain point of error number two. There is no doubt that appellant is guilty of the murder of Raymundo Miranda. There is no doubt as to whether the murder occurred during the course of the robbery of the deceased.
There is no dispute that nothing was taken from the deceased except a partial pack of cigarettes. Also, there is no dispute that the deceased‘s wallet was still intact when his skeletal remains were discovered. I believe this undisputed еvidence would require the court to also charge appellant with the lesser-included offense of murder. See Cantu v. State, cited in the foregoing opinion. Murder is a lesser-included offense to capital murder. The evidence of a lesser-included charge was raised, the accused requested the charge, and the jury was entitled to weigh the evidence and determine whether the appellant was guilty of murder or capital murder.
The jury asked a question regarding whether they could find the accused guilty of anything less than capital murder. Although the question has been lost and is not a part of this record on appeal, the court held a hearing to reconstruct, for purposes of a reсord on appeal, the question from the jury as well as other matters. The court then filed “findings of fact” which include the following:
In another question, the jury asked whether they could convict the defendant of any offense other than capital murder. The trial court responded by instructing the jury they are referred to and bound by the court‘s charge.
HUDSON, Justice, dissenting.
It is well-established that evidence of a person‘s character is not admissible at the guilt/innocence phase of the trial to prove that he acted in conformity therewith. See
To some degree, any evidence tending to show the commission of an offense will reflect poorly upon a defendant‘s chаracter, and to this extent, his character is under attack from the moment the State commences to prove its case-in-chief. Therefore, not all evidence reflecting upon a defendant‘s character is inadmissible. If this were so, the State could never prove its case. Rather, evidence of extraneous acts and offenses is admissible if it has relevance apart from supporting the conclusion that the defendant acted in conformity with his character. Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim.App.1997). Thus, where the evidence is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, it is admissible even if it collaterally reflects upon the defendant‘s character. See
Street gangs have earned a very nasty reputation. In fact, “gang activity” has become virtually synonymous with “violent crime.”1 Gangs generally arouse negative connotations and often invoke images of criminal activity and deviant behavior. See United States v. Irvin, 87 F.3d 860, 865 (7th Cir.), cert. denied, 519 U.S. 903, 117 S.Ct. 259, 136 L.Ed.2d 184 (1996). The danger exists, therefore, that a jury may attach a propensity for committing crimes to defendants who are affiliated with gangs, and guilt by association is a genuine concern whenever gang evidence is admitted. Id. However, like other extraneous acts, gang membership may be admissible if it is relevant for some purpose other than showing the defendant‘s bad character and its probative value is nоt substantially outweighed by its prejudicial effect. Gang membership, for example, may be admissible to show a conspiracy,3 bias,4 motive,5 intent,6 or opportunity to commit the crime.7 Membership may also be admissible if its exclusion would leave a chronological or conceptual void in the story,8 such as explaining the meaning of gang graffiti.9 It is also
Here, the record reflects that four members of the Brown and Proud Gang, as well as one non-member, spied the complainant walking down the street just as they were concluding an all-night party.10 Appellant, who was a member of the gang, assaulted the complainant and attempted to rob him, but was prevented from doing so by Edward Cantu, one of the gang leaders. Later, when Cantu was no longer present, Roger Vidales, another member of the gang, produсed a pipe wrench for the purpose of hitting the complainant in the head. Miguel Mendez, who was not a member, took the wrench away from Vidales. A short time later, appellant said, “Let‘s roll him,” or “Let‘s gang him.” Vidales struck the complainant with his fist, and appellant searched his pockets. Vidales and appellant then began kicking the complainant. Jesse Montoya and Mendez did not initially participate in the beating. However, Vidales and appellant began calling Montoya names and suggesting that he should be “down” with them, i.e., an involved participant in the crime. Only then did Montoya join in kicking the complainant. The three gang members then dropped the complainant off a high bridge onto a concrete surface.
Shortly after the murder, appellant reported to Cantu what he and the other gang members had done to the complainant. Vidales, Montoya, and appellant also told Mendez not to say anything about what he had witnessed. Mendez did not report the murder to the police for fear of retaliation. When he was later contacted by police, Mendez cooperated with police, but did not initially implicate Montoya in the killing. When questioned on cross-examination about this omission, Mendez testified that he tried to protect Montoya because he felt Montoya had been forced to participate. When appellant‘s counsel asked Mendez why he had not been pressured to participate, Mendez explained that, unlike Montoya, he was not a member of the gang.
Later, appellant‘s counsel suggested during his cross-examination of Mendez that gangs have their own “language” and that when appellant said, “Let‘s gang him,” he might have been talking about assaulting the complainant, rather than robbing him. Similarly, appellant‘s counsel argued to the jury that Mendez could not have known what Vidales and appellant intended because he could not understand their coded gang language. Counsel also reminded the jury that Cantu was not the leader of a Boy Scout troop, but the leader of a gang, and that his testimony should be disregarded for that reason alone.
Edward Cantu was a significant witness because appellant admitted to him shortly after the crime that he had killed the complainant. However, without the contextual knowledge that Cantu was a leader of the Brown and Proud Gang, appellant‘s spontaneous confession seems oddly inconsistent with normal human behavior. Moreover, without knowledge of the gang relationships, it is hard to explain why Montoya, but not Mendez, was pressured to participate in the murder. Finally, Mendez was a key witness whose credibility was strongly attacked by appellant‘s counsel. Accordingly, his failure to report the murder to police was explained in large measurе by his fear of gang retaliation.
Thus, the State and defense had difficulty establishing the facts without reference to the gang relationship between appellant, Cantu, Montoya, and Vidales. Appellant‘s gang membership falls under the “same transaction contextual evidence” exception to Rule 404(b) as evidence necessary to the jury‘s understanding of the charged offense. See Nelson v. State, 864 S.W.2d 496, 498 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994). Under the record before us, I do not believe the trial court abused its discretion in admitting evidence of gang membership.
For these reasons, I respectfully dissent.
J. HARVEY HUDSON
JUSTICE