Summary
holding that defendant's flight from scene of purported suicide, statement "I didn't do it," and hiding the gun is consistent with a finding of guilt
Summary of this case from Stoernell v. StateOpinion
No. 14-09-00060-CR
Opinion filed August 31, 2010. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 54th District Court, McLennan County, Texas, Trial Court Cause No. 2007-1314-C2.
Panel consists of Justices FROST, BOYCE, and SULLIVAN.
MEMORANDUM OPINION
A jury found appellant Frank Christopher Sustaita guilty of murder and sentenced him to fifty-five years in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises the following issues on appeal: (1) the trial court erred in overruling appellant's objection to the State's alleged misstatement of law during its closing argument and (2) the evidence of appellant's intent to commit the offense is factually insufficient. We affirm.
I. BACKGROUND
Appellant and his girlfriend, Jennifer, lived with her aunts, Renee Alderete and Jennie Macias, and her cousins. Appellant and Jennifer shared the back bedroom of the house. On June 2, 2007, appellant and Jennifer returned to the house after visiting his family. Jennifer reportedly walked into the house, slammed the door behind her, and said, "I swear, I hate him." Afterwards, appellant entered the house. That same day, Alderete and Macias watched Jennifer pace back and forth from the back to the front of the house with appellant following behind her. According to them, she "seemed to be pretty upset." Later, Appellant and Jennifer retired to their bedroom where Jennifer took a nap. While they were in there, Alderete and Macias heard two loud noises. Thereafter, appellant ran out of the bedroom and yelled, "I didn't do it." Alderete and Macias ran to Jennifer, who was bleeding profusely from her head. Alderete left the room to call 9-1-1. Macias took Jennifer's hand and said, "I need to know if he did this to you. . . . if he did, . . . I need you to squeeze my hand twice." According to Macias, Jennifer squeezed her hand twice. At that point, appellant ran to the dresser, grabbed something, and ran out of the house. Alderete reentered the room while still on the phone with 9-1-1, and Macias told Alderete that appellant shot Jennifer twice. An ambulance took Jennifer to Hillcrest Hospital. There, an emergency room physician retrieved a bullet from her skull. Due to the severity of Jennifer's injuries, she was life-flighted to Scott and White Hospital in Temple, Texas. She died eleven days later. At trial, Dr. Randall Smith, a trauma surgeon at Scott and White Hospital, testified that a bullet entered Jennifer's forehead and exited above her right ear. He also testified that Jennifer had what looked like another entrance wound in her right eyebrow, but he could not conclusively determine how many times she was shot. Dr. Jill Urban, a forensic pathologist at the Dallas County Medical Examiner's Office, testified "that [Jennifer] died as a result of gunshot wound or wounds of the head." Dr. Urban could not discern with certainty how many times Jennifer was shot because many of the injured areas had been removed during surgery. Frank Sustaita, appellant's father, testified that appellant ran to his house and asked him to hide him. He testified that appellant told him two different versions of how Jennifer was shot. At one point, appellant told him, "the gun went off. It was an accident. I did not do it." At another point, appellant told him that Jennifer "had been trying to commit suicide all day." Frank also testified that appellant was very familiar with guns and carried them for protection. He personally taught appellant how to load and handle a gun and about gun safety generally. He told his son always to have the safety on, never to leave a loaded gun, and never to point a gun at people and pull the trigger — even if unloaded — because doing so was dangerous. Waco Police Officer Fernando Flores testified he went to Frank's home to arrest appellant. At that time, appellant told him that Jennifer was shot when he pulled his gun out of his waistband and the gun went off. Waco Police Officer Michael Alston testified that he interviewed appellant at the police station, and that appellant told him multiple versions of how Jennifer was shot. At first, appellant told him "it was an accident." Jennifer was lying on the bed, appellant pulled his gun out of his waistband, and it went off. Officer Alston told appellant that, if that account were true, he would have expected that Jennifer's wounds would have had different entry and exit paths. At that point, according to Officer Alston, appellant changed his story and told him that "he pulled the pistol out of his pants[,] . . . pointed it at [Jennifer,] and pulled the trigger." He stated his actions were part of a game he and Jennifer would play. He and Jennifer "would point the pistol at each other . . . and they would pull the trigger with it loaded and the safety on." Officer Alston asked who could verify that they played this game, and appellant did not have an answer. Appellant's cousin testified he had seen Jennifer and appellant play the game three times, but the version of the game varied significantly. Appellant's cousin testified that of those three times, he never saw the game played with bullets in the gun, neither person ever pointed the gun at the other's head, and neither person ever pulled the trigger. Rather, appellant's cousin testified that they would point the pistol at each other and say, "I'll pistol whip you." The cousin testified appellant carried the gun for protection when riding with his friends. Macias testified that in the several weeks prior to the shooting, "[t]hings hadn't looked right between [Jennifer] and [appellant]." Macias testified that she had started to notice changes in Jennifer and appellant's relationship, and she was concerned about appellant's possessiveness. The court charged the jury on murder and manslaughter. The jury subsequently convicted appellant of murder, and he was sentenced to fifty-five years' imprisonment. This appeal ensued.II. DISCUSSION
A. Improper Jury Argument Claim
In his first issue, appellant contends that during the State's closing argument, the State made several improper statements to the jury about the correct procedure for considering a lesser-included offense. Specifically, appellant takes issue with the State's statements during argument that the jury could not consider the lesser-included offense of manslaughter unless the jurors unanimously found appellant not guilty of murder. Before closing arguments, the court read the following charge in relevant part:Unless you so find beyond a reasonable doubt, that the Defendant is guilty of murder under the instructions given you herein, or if you have a reasonable doubt thereof, you will acquit the Defendant of murder and next consider the lesser included offense of manslaughter.During its closing argument, the State made the following allegedly improper arguments:
[Counsel for the State]: [ Y] ou can't even consider manslaughter until every last one of you agrees he's not guilty of murder. And it is only until that time —
[Counsel for Appellant]: Your Honor, that's a misstatement of the law. I'm going to object that that's a misstatement of the law.
The Court: Overruled.
[Counsel for the State]: It is only at that point that you can even move to manslaughter. Okay. It says right here. Unless you so find beyond a reasonable doubt that the Defendant is guilty of murder under the instructions given herein, or if you have a reasonable doubt thereof, you will acquit the Defendant of murder and next consider the lesser included offense of manslaughter. So you don't get to manslaughter until all of you say not guilty of murder.Then, during rebuttal, the State added:
[Counsel for the State]: You must find that he is not guilty of murder to consider the lesser included [offense] of recklessly causing her death of manslaughter. And that is a lesser included, a second-degree felony, as we talked about in voir dire. So you have to unanimously believe that he did not murder her before you consider that offense.Counsel for appellant objected to the first alleged misstatement, but did not object to the second or third. To complain on appeal about an improper jury argument, a defendant must object to the argument at trial and pursue his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Johnson v. State, 233 S.W.3d 109, 114 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Additionally, under current Texas law, a defendant must object each time an improper argument is made, or he waives his complaint, regardless of how egregious the argument. Valdez v. State, 2 S.W.3d 518, 521-22 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd); Wilson v. State, 179 S.W.3d 240, 249 (Tex. App.-Texarkana 2005, no pet.) (citing Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). Here, appellant did not object each time the argument was made. Therefore, under existing Texas law, we are compelled to conclude he has waived his right to complain about the arguments on appeal. See Valdez, 2 S.W.3d at 521-22. Accordingly, we overrule appellant's first issue.