Opinion
NO. 14-15-00887-CR
03-30-2017
JUAN MANUEL LOPEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas
Trial Court Cause No. 1482873
MEMORANDUM OPINION
A jury convicted appellant Juan Manuel Lopez of capital murder following a jury trial and, because the State did not seek the death penalty, he was automatically sentenced to life in prison. He asserts that the evidence is legally insufficient to support his conviction, the prosecutor made improper remarks during opening statements that amounted to reversible error, and the trial court erred by admitting a photograph of an unrelated assault. We affirm.
Background
Appellant murdered the decedent, Jimmy Ray Boyd. Boyd lived on a property on Waverly Road in Harris County. Boyd's step-grandchildren, Carino Ratcliff and Cierra Jacobs, lived with him at the time of his death. Appellant was the father of Jacobs' children and also occasionally stayed at Boyd's house. Shortly before his murder, Boyd planned to transfer his property to his sister, Sandee Carr, because Boyd was unable to afford the property taxes. Carr informed appellant, Ratcliff, and Jacobs that they would have to move off the property within a week.
A few days before Boyd's death, Ratcliff asked appellant if appellant wanted to kill Boyd. The day of Boyd's murder, Boyd and Carr were to meet and proceed with transferring Boyd's property to Carr. Boyd had been staying at a friend's house because appellant was staying at Boyd's home; Boyd was afraid that appellant would "make him disappear." But the night before Boyd was murdered, he returned to his home so he would be there to meet his sister the next morning. When Carr arrived at Boyd's home so the two could complete the property transfer, Boyd was not there and did not answer his cell phone. Shortly after she arrived, appellant, Ratcliff, and Jacobs drove up in appellant's car. Carr notified police that day that Boyd was missing under suspicious circumstances.
Several days after Boyd disappeared, appellant and Ratcliff provided statements to police. After providing three different stories to police, appellant admitted that he and Ratcliff killed Boyd by strangling him, putting a bag over his head, and hitting him with a hammer. According to appellant, he strangled Boyd while Ratcliff hit Boyd over the head with the hammer. Appellant, Ratcliff, and Jacobs initially left Boyd's body in some nearby woods. After hiding appellant in the woods, appellant and Ratcliff sold Boyd's "brand new" generator to a local pawnshop for $65. The two also attempted to pawn a rifle. Later, appellant, Ratcliff, and Jacobs moved Boyd's body farther away to a culvert in a retention pond. Ratcliff lead police officers to Boyd's body. Boyd's wallet was discovered behind appellant's mother's home.
Appellant was indicted for capital murder, and a jury found him guilty of that offense. Because the State did not seek the death penalty, the trial court sentenced appellant to life in prison without parole. See Tex. Penal Code § 12.31(a)(2). He timely filed this appeal.
Analysis
A. Sufficiency of the evidence to support the capital murder conviction
In his first issue, appellant challenges the sufficiency of the evidence to support his capital murder conviction.
1. Standard of review
Reviewing courts apply a legal-sufficiency standard in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). Under this standard, we examine all the evidence adduced at trial in the light most favorable to the verdict to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). This standard applies to both direct and circumstantial evidence. Criff, 438 S.W.3d at 137. Accordingly, we will uphold the jury's verdict unless a rational fact finder must have had a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). With this standard in mind, we next review the governing law relevant to the element of the offense appellant challenges.
2. Application of the standard of review to the evidence
As applicable here, a person commits capital murder if he intentionally causes the death of another "in the course of committing or attempting to commit" robbery. Tex. Penal Code § 19.03(a)(2). Appellant does not dispute he murdered Boyd; he contends his conviction cannot stand because there is no evidence that he killed Boyd in the course of committing or attempting to commit robbery. As used in section 19.03(a)(2), the phrase "in the course of committing" the robbery means "conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the [robbery]." Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993); McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989). For a murder to qualify as capital murder, the intent to rob must be formed before or at the time of the murder. Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002). In contrast, proof of a robbery "committed as an afterthought and unrelated to the murder is not sufficient." Id.; see White v. State, 779 S.W.2d 809, 815 (Tex. Crim. App. 1989 (explaining that point at which defendant formed his intent is critical to distinguishing between the commission of capital murder in the course of a robbery or a lesser offense). Generally, the intent element is established if State proves that the murder occurred to facilitate the taking of the property. Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App. 1992); Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986).
A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code § 29.02(a)(1)-(2). Theft is the unlawful appropriation of property with the intent to deprive the owner of the property. Id. § 31.03. Appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1).
The requisite intent may be inferred from the actions or conduct of the defendant. See Robertson, 871 SW.2d at 705; McGee, 774 S.W.2d at 234; Dawkins v. State, 495 S.W.3d 890, 895 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Thus, in this case, we must determine whether any rational fact finder could have found beyond a reasonable doubt from the evidence that appellant murdered Boyd and that appellant formed the intent to take Boyd's property before or at the same time as Boyd's murder. See Robertson, 871 S.W.2d at 705; White, 779 S.W.2d at 815; Dawkins, 495 S.W.3d at 895.
Appellant claims his motive to kill Boyd arose from anger and ill will, not from a desire to take Boyd's property. Although the record indicates that appellant expressed his desire to see Boyd dead and that Boyd was scared of appellant, the jury was entitled to disbelieve appellant's stated motive. See, e.g., Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (jury may believe some testimony and disbelieve other testimony); Adams v. State, 502 S.W.3d 238, 242 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) ("The jury may choose to believe or disbelieve any portion of the witnesses' testimony."). For example, in Nelson v. State, the Court of Criminal Appeals determined that the evidence was sufficient to establish the required nexus between the murder and the taking of the victim's property despite the defendant's asserted motivation of rage based on the victim's having looked at him "in a lustful way." Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992) (plurality op.). The court stated that the jury was not required to find the defendant's theory reasonable, nor was it required to believe he was motivated to kill only for that reason. Id.
Here, although appellant denied he had any sort of "plan" to rob Boyd, he acknowledged that his co-defendants were planning to rob and kill Boyd:
Q. Cierra [Jacobs] was planning on robbing him and killing him, right? Carino [Ratcliff] was planning on robbing him and killing him, right? . . . That's the direction it's kind of been going on cross-examination.Yet, as noted above, the jury was free to disbelieve appellant's claim that he had no part in his co-defendants' plan. E.g., Nelson, 848 S.W.2d at 132.
A. Yes.
Q. All right. So everyone else in this group was part of a capital murder scheme except you, even though you are the one that actually did the killing.
A. I never said I had planned to - you are trying to say that I was planning it, but I never planned nothing.
Further, the Court of Criminal Appeals has held numerous times that the capital murder "aggravating element is sufficiently proven if the State proves the robbery occurred immediately after the commission of the murder." McGee, 774 S.W.2d at 234 (citations omitted). Thus, a robbery occurring immediately after a murder will support an inference that the murder was committed in the course of committing the robbery. See Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002) (robbery case following McGee, 774 S.W.2d at 234); Ibanez, 749 S.W.2d at 807 (nexus requirement for capital murder involving murder in course of robbery same as nexus requirement in robbery offense between assault and theft). Even in the absence of any other evidence of a nexus between murder and robbery, the "natural inference allowed by McGee" will support a conviction. See Cooper, 67 S.W.3d at 224. The inference is not overcome by the accused's evidence of an alternative motive if such evidence could rationally be disregarded by the jury. Id.
Appellant claimed that he had "no part" in the "plan" to kill or rob Boyd. Yet, the record reflects that appellant, Jacobs, and Ratcliff were about to be evicted from Boyd's property. Appellant was unemployed and had not worked for about a month. Appellant stated that he, Ratcliff, and Jacobs were angry with Boyd and that he and Ratcliff killed Boyd after having "discussions about some things." Boyd's wallet was discovered discarded behind appellant's mother's home. On the day Boyd was killed, appellant pawned Boyd's generator and attempted to pawn a gun. He even acknowledged that the sale of the generator shortly after Boyd was killed made it appear that doing so was part of a "plan."
On these facts, the jury was free to disbelieve appellant's explanation that he killed Boyd out of anger and ill will, and instead believe that appellant, Ratcliff, and Jacobs planned on robbing and killing Boyd. See Nelson, 848 S.W.2d at 132; see also Adams, 502 S.W.3d at 242 (jury is free to accept or reject any or all of a witness's testimony). Further, the jury was free to infer from the evidence that appellant killed Boyd to facilitate taking Boyd's property—specifically, Boyd's wallet, generator, and gun. See Cooper, 67 S.W.3d at 224.
Viewing the evidence in the light most favorable to the verdict, we conclude the jury could have found that appellant murdered Boyd in the course of committing robbery. We hold that the evidence is legally sufficient to support the judgment of conviction.
We overrule appellant's first issue.
B. Denial of motion for mistrial following opening statements by the State
In his second issue, appellant challenges "comments made by the prosecution during its opening statements urging the jury to consider that there was certain evidence it would not be able to provide the jury because of its inability to call the appellant's co-defendants because of their 5th Amendment rights." But as we explain below, the proper issue before this court is whether the trial court erred in denying appellant's motion for mistrial following the State's references.
1. Standard of review
A denial of a motion for mistrial is reviewed under an abuse of discretion standard, and we must uphold a trial court's ruling if it was within the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). "A mistrial is an appropriate remedy in 'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). A mistrial should be granted only when less drastic alternatives fail to cure the prejudice. Id. at 884-85.
2. Application of standard to the record
Appellant refers to the following portion of the record to support his second issue:
[Prosecutor]: Now, I also want to tell you what you are not going to hear. You are not going to hear from the co-defendants. You are not going to hear from Carino Ratcliff. You are not going to hear from Cierra Jacobs. And the reason for that is just like this defendant has a Fifth Amendment right not to take the stand and we cannot call him to the stand, so do these witnesses. And so, you're not going to hear from them. Also, the defense can't call them either. And so, neither the defense or the State can call those witnesses. And we can't play their statements because whenever someone --
[Defense]: Judge, that's a little more on the Fifth --
THE COURT: Sustained.
[Prosecutor]: So, the right to confrontation basically means that you can't put it in evidence without the sponsoring witnesses. And so, when you can't call somebody to the stand --
[Defense]: Same objection, Judge.
THE COURT: Sustained.
[Prosecutor]: So, it's important to know the things that you are going to hear. And it's just important to know the limitations of what we can bring you.
And so, I would like for y'all to keep that in mind when you are listening to the defense's theory because a lot of those theories cannot be rebutted through those witnesses.
[Defense]: Judge, I've really got to object for the fourth [sic] time on this reference to the Fifth Amendment as to these other co-defendants.
THE COURT: Sustained.
[Defense]: I would like the jury to be instructed to disregard every bit of that.
THE COURT: The jury will be instructed to disregard the statements with regard to the co-defendants.
[Defense]: I'd ask for a mistrial.
THE COURT: Denied.
The Fifth Amendment of the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. amend. V. Based on this constitutional prohibition, the State should refrain from calling a witness when it knows that witness will invoke his or her Fifth Amendment privilege to not testify. See Coffey v. State, 796 S.W.2d 157, 178 (Tex. Crim. App. 1990). But even when it is permissible to call a witness who will assert a Fifth Amendment privilege, the State could "unfairly prejudice" a defendant by asking "a series of damaging questions in such a way as to invite the jury to assume that the answers to each question would have been in the affirmative." Id. at 179 n.6. Here, the parties do not dispute that the trial court properly sustained appellant's objections to the prosecutor's statements.
Because the trial court sustained appellant's objections, "[t]he only adverse ruling—and thus the only occasion for making a mistake—was the trial court's denial of the motion for mistrial." Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004); see also Archie v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011). Thus, the issue before us is whether the trial court abused its discretion by denying appellant's request for a mistrial. See Archie, 340 S.W.3d at 738-39; Hawkins, 135 S.W.3d at 77.
To determine whether the trial court abused its discretion in denying appellant's motion for mistrial, we balance the following factors: (1) the severity of the misconduct—i.e., the magnitude of the prejudicial effect of the prosecutor's remarks; (2) the measures adopted to cure the misconduct—i.e., the efficacy of any instructions by the judge; and (3) the certainty of conviction absent the misconduct—i.e., the strength of the evidence supporting the conviction. Archie, 340 S.W.3d at 739; Hawkins, 135 S.W.3d at 77. "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77.
As to the severity of the misconduct, appellant claims that the prosecutor's statement that the State could not rebut appellant's defensive theories through his co-defendant's testimony was tantamount to calling a witness "solely for the purpose of having them invoke their Fifth Amendment right while the State makes its case through incriminating questions." As the record shows, the prosecutor repeated references to the co-defendants' assertion of Fifth Amendment right not to testify twice after the trial court sustained appellant's objection. To be sure, the severity of the misconduct factor likely increases when, as here, a party continues to refer to matters regarding which the court has already sustained objections. However, we disagree that the prosecutor's statement reached the high level of prejudice appellant argues.
For example, in Washburn v. State, a case relied on by appellant, the Court of Criminal Appeals determined that a defendant was unfairly prejudiced because the State called a witness and asked "fact-laden questions" detailing names, dates, and places regarding the offense, which the witness refused to answer. Washburn v. State, 164 Tex. Crim. 448, 299 S.W.2d 706, 707 (Tex. Crim. App. 1956). The court held that this questioning was improper because it permitted the State to "plant in the jury's mind full details as to how they [sic] claimed the crime was committed," and the State's "only substantive evidence . . . was the answer of the witness that he refused to answer." Id.; accord Taylor v. State, 653 S.W.2d 295, 298-301 (Tex. Crim. App. 1983) (reversing judgment because State called a witness and asked similar fact-laden questions that witness refused to answer). Here, in contrast, the State did not reference facts about the offense during opening statements. See Washburn, 299 S.W.2d at 707; Taylor, 653 S.W.2d at 298-301. Moreover, each time the prosecutor referenced the other witnesses' invoking their Fifth Amendment rights, appellant timely objected and the court sustained the objection on each occasion.
We next turn to the second factor: measures adopted to cure the misconduct. After appellant's third objection, the trial court instructed the jury to disregard the prosecutor's statements regarding the co-defendants. "The law generally presumes that instructions to disregard and other cautionary instructions will be duly obeyed by the jury." Archie, 340 S.W.3d at 741. We believe this presumption applies here. Appellant has not directed us to any part of the record, nor have we found any record evidence, indicating that the jury did not follow the court's instruction. The trial court, in sustaining appellant's objections and instructing the jury to disregard the objectionable statements, sufficiently ameliorated any potential harm. See id.
As to the third factor—the strength of the evidence supporting the conviction—we have already detailed the evidence supporting appellant's conviction above. In our view, considering the strength of the above-described evidence, "the jury would almost surely have convicted appellant regardless of the prosecutor's improper comment." See id.
After considering all three factors, we hold that the trial court did not abuse its discretion in denying the motion for new trial. We do not believe any prejudice to appellant resulting from the statements was sufficiently severe to weigh in favor of a new trial. Even assuming the first factor supports appellant, we conclude that the magnitude of the harm is outweighed by the second and third factors. Thus, consideration of all three factors supports the trial court's denial of appellant's motion for mistrial.
Finally, acknowledging that the trial court sustained his objections and instructed the jury to disregard the prosecutor's statements, appellant implies that the instruction was not sufficient because the prosecutor's statements are incurable by instruction. He cites no authority, however, and we reject his contention because an instruction to disregard is presumed to cure all but the most blatant comments. Cf. Moore v. State, 999 S.W.2d 385, 405-06 (Tex. Crim. App. 1999) (prosecutor's improper comment on appellant's failure to testify cured by instruction to disregard); Longoria v. State, 154 S.W.3d 747, 763-64 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (instruction to disregard prosecutorial comment on defendant's failure to testify cured error). See generally Perez v. State, 41 S.W.3d 712, 719-20 (Tex. App.—Corpus Christi 2001, no pet.) (no harm from co-defendant's invocation of Fifth Amendment right in presence of jury because State "asked no fact-laden questions" from which jury could have inferred defendant's guilt). The prosecutor's statement about Ratcliff's and Jacobs' Fifth Amendment rights did not rise to the level of "extreme circumstances, where prejudice is incurable" such that a mistrial was required. See Hawkins, 135 S.W.3d at 77.
We overrule appellant's second issue.
C. Admission of photograph
In his third and final issue, appellant urges that the trial court erred by admitting a photograph of Jacobs with a black eye caused by appellant assaulting her. Specifically, he asserts that any probative value of this photograph was substantially outweighed by its prejudicial effect, pursuant to Texas Rule of Evidence 403.
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. We review the trial court's decision to admit or exclude evidence under Texas Rule of Evidence 403 for an abuse of discretion. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006); Burton v. State, 230 S.W.3d 846, 849 (Tex. App.—Houston [14th Dist.] 2007, no pet.). The admissibility of a photograph rests within the trial court's sound discretion and is based on a determination of whether the exhibit serves a proper purpose in assisting the fact finder. Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex. Crim. App. 1991). Photographs are generally admissible if verbal testimony as to matters depicted in them is also admissible. Id.; see Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997).
During appellant's testimony, he stated that Jacobs had been evicted from her previous residence because of "horseplay." However, he acknowledged that he had been arrested for assaulting Jacobs immediately before she was evicted. Appellant also denied having an abusive or controlling relationship with Jacobs. Before this photograph was admitted, the trial court conducted a brief hearing outside the presence of the jury. The State urged that introduction of this photograph would show the nature of appellant's assault of Jacobs and counter appellant's claim that he was not controlling. The trial judge explained that if appellant had not attempted to "downplay that situation," the judge would not allow the photograph to come in as rebuttal evidence. But because appellant "did in his testimony seem to minimize that," the trial judge stated he would allow the photograph into evidence.
Before the photograph was admitted, the office manager of the apartment complex where Jacobs had previously lived testified. She stated that Jacobs had come into the office with a black eye. When she asked Jacobs what happened, Jacobs replied that her boyfriend—appellant—had hit her in the face. The complained-of photograph showed Jacobs with a swollen black eye.
Given the unobjected-to testimony from the office manager regarding Jacobs's black eye, as well as appellant's own admission that he had assaulted Jacobs, we do not see how this single photograph was unfairly prejudicial. Generally, any error in the admission of evidence is cured when the same evidence comes in elsewhere without objection. See, e.g., Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004); Tatum v. State, 431 S.W.3d 839, 844 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). In sum, we cannot say that the trial court's decision to admit this photograph lies outside the zone of reasonable disagreement. See, e.g., Lopez v. State, 478 S.W.3d 936, 944-47 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (in capital murder trial, trial court's admission of photograph of the appellant wearing a blue bandana, displaying a blurry gang tattoo, and holding a shotgun was not an abuse of discretion under Rule 403 ).
For the foregoing reasons, we overrule appellant's third and final issue.
Conclusion
Having overruled appellant's three issues, we affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Justices Jamison, Wise, and Jewell.
Do Not Publish — TEX. R. APP. P. 47.2(b).