Juan Jose Lopez Jr. v. State ( 2015 )

FILED
IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI
06/02/15
__________________________________________________________________
DORIAN E. RAMIREZ, CLERK
BY cholloway
IN THE COURT OF APPEALS RECEIVED IN
THIRTEENTH SUPREME JUDICIAL DISTRICT
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
CORPUS CHRISTI, TEXAS 6/2/2015 3:51:50 PM
__________________________________________________________________
DORIAN E. RAMIREZ
Clerk
COURT OF APPEALS NO. : 13-14-00733-CR
TRIAL COURT CASE NO.: 2013-CRN-001341-D2
__________________________________________________________________
JUAN JOSE LOPEZ, JR.
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
__________________________________________________________________
AMENDED BRIEF OF APPELLANT
__________________________________________________________________
/S/. J. EDAURDO PEÑA
J. EDUARDO PEÑA
1102 Scott Street
Laredo, Texas 78040
(956) 722-9854
(956) 722-9866 (Fax)
Bar No. 15737550
ATTORNEY FOR APPELLANT
IDENTITY OF THE PARTIES AND COUNSEL
DEFENDANT/APPELLANT:
Juan Jose Lopez, Jr.
Webb County Jail
Laredo, Texas 78040
Represented by:
Attorney J. Eduardo Peña
1102 Scott Street
Laredo, Texas 78040
(956) 722-9854
(956) 722-9866 (Fax)
State Bar No. 15737550
APPELLEE:
THE STATE OF TEXAS
Represented by:
Mr. Isidro R. Alaniz, District Attorney
& Mr. David Reuthinger, Assistant District Attorney
49th Judicial District, Webb County, Texas
Webb County Justice Center, 4Th Floor
Laredo, Texas 78040
(956) 523-4900
(956) 523-5054 (Fax)
ii
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
/S/ J EDAURDO PEÑA
J. EDUARDO PEÑA
ATTORNEY FOR APPELLANT
iii
TABLE OF CONTENTS
PAGE
1. IDENTITIES OF THE PARTIES AND COUNSEL.................................... -ii-
2. STATEMENT REGARDING ORAL ARGUMENT.................................. -iii-
3. TABLE OF CONTENTS............................................................................. -iv-
4. INDEX OF AUTHORITIES........................................................................ -v-, vi
5. STATEMENT OF THE CASE..................................................................... 1
6. ISSUES PRESENTED FOR REVIEW........................................................ 1-2
ISSUE NO. 1: Whether the evidence is legally sufficient to sustain the convictions
for murder, aggravated kidnapping, and engaging in organized criminal activity.
ISSUE NO. 2: Whether the trial court committed reversible error by refusing the
defendant’s requested jury instructions which would have included an affirmative
submission of the defensive theory of the cause of death of the alleged victim in the
jury charge.
ISSUE NO. 3: Whether the trial court erred in finding that the appellant did not have
standing to complain of the warrantless search of the home where the police found
the body of the alleged victim and in thus denying the appellant’s motion to suppress
evidence.
7. SUMMARY OF THE ARGUMENTS...................................................... 2-4
8. STATEMENT OF THE FACTS............................................................... 4-12
9. ARGUMENT AND AUTHORITIES........................................................13-30
10. PRAYER................................................................................................... 31
11. CERTIFICATE OF SERVICE.................................................................. 32
iv
INDEX OF AUTHORITIES
CASES PAGES
1. Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)……………….20
2. Brooks v. State, 323 S.W.3d 893 (Tex. Cr. App. 2010)……….2, 13, 14, 15, 20
3. Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007)………………..30
4. Druery v. State, 225 S.W.3d 491, 498 (2007)………………....................20
5. Evans v. State, 202 S.W.3d 158 (Tex. Cr. App. 2006)…………………...20
6. Garcia v. State, 126 S.W.3d 921, 927 & n. 9 (Tex. Crim. App. 2004)……30
7. Granados vs. State , 85 S.W.3d 217 (Tex. Cr. App. 2002)………………..3, 29
8. Hill v. State, 585 S.W.3d 713 (Tex. Cr. App. 1979)………………….25, 26, 27
9. Jackson v. Virgina, …………………………………………………..13
10. Rojas vs. State, 797 S.W.2d 41 (Tex. Cr. App. 1990)………………4, 29
11. Williams v. State, 235 S.W.3d 742, 750 (Tex. Cr. App. 2007)……19, 20, 23,25
12. Wong Sun v. United States, 371 U.S. 471 (1963)…………………30
CONSTITUTION OF THE UNITED STATES
Fourth Amendment ………………………………………….................4, 6, 28, 29
TEXAS RULES OF APPELLANT PROCEDURE
Rule 44.2(a) ………………………………………………………..….30, 31
Rule 44.2(b) ……………………………………………………........30
v
TEXAS PENAL CODE
Section 7.02(a)(2) …………………………………………………...2
vi
STATEMENT OF CASE
Appellant, Juan Jose Lopez, Jr. (“Lopez”) was indicted on one count of
murder, one count of aggravated kidnapping, and count of engaging in organized
criminal activity, and one count of tampering with evidence in the 111th Judicial
District Court, of Webb County, Texas. (I C.R. 77-79) A supplemental clerk’s
record consists of the defendant’s requested jury instructions. (1 Supp. C.R.) The
case was tried before a jury commencing on October 27, 2014. (1 R.R.4) On October
30, 2014, Lopez was found guilty on Counts I, II, and III, which charged him with
murder, aggravated kidnapping, and engaging in organized criminal activity,
respectively. (1 C.R. 465-467). On October 31, 2014, the jury assessed a sentence of
50 years on the murder charge, 17 years on the aggravated kidnapping charge, and
10 years on the engaging in organized criminal activity charge. (1 C.R. 472-474)
Lopez was sentenced in accordance with the verdict of the jury on October 31, 2014.
(20 R.R. 68-69) Lopez did not file a motion for new trial; on November 19, 2014, he
filed his notice of appeal. (I C.R. 481)
ISSUES PRESENTED FOR REVIEW
ISSUE NO. 1: Whether the evidence is legally sufficient to sustain the convictions
for murder, aggravated kidnapping, and engaging in organized criminal activity.
ISSUE NO. 2: Whether the trial court committed reversible error by refusing the
1
defendant’s requested jury instructions which would have included an affirmative
submission of the defensive theory of the cause of death of the alleged victim in the
jury charge.
ISSUE NO. 3: Whether the trial court erred in finding that the appellant did not
have standing to complain of the warrantless search of the home where the police
found the body of the alleged victim and in thus denying the appellant’s motion to
suppress evidence and allowing the State to introduce illegally obtained evidence.
SUMMARY OF ARGUMENT
ISSUE NO. 1 : Whether the evidence is legally sufficient to sustain the convictions
for murder, aggravated kidnapping, and engaging in organized criminal activity.
Considering all of the evidence in the light most favorable to the verdict, the
jury was not rationally justified in finding guilt beyond a reasonable doubt. Brooks v.
State, 323 S.W.3d 893 (Tex. Cr. App. 2010) Specifically, considering all of the
evidence in the light most favorable to the verdict, the State failed to prove beyond a
reasonable doubt that Appellant caused Vasquez’s death, that Appellant kidnapped
Vasquez, or that he engaged in organized criminal activity. Further, the State did not
present any evidence to show that Appellant acted with intent to promote or assist
the commission of the offenses, or that he solicited, encouraged, directed, aided, or
attempted to aid another person to commit the offenses. See §7.02(a)(2) Tex. Penal
Code.
2
ISSUE NO. 2: Whether the trial court committed reversible error by refusing the
defendant’s requested jury instructions which would have included an affirmative
submission of the defensive theory of the cause of death of the alleged victim in the
jury charge.
Appellant was entitled to an affirmative submission of the defensive theory
regarding the cause of death, and his properly filed requested jury charge and his
objection to the trial court’s refusal of the requested jury charge was sufficient to
preserve the issue for review. The judgment must be reversed because the issue was
raised by the evidence and the trial court erred in refusing the defendant’s requested
charge on the cause of death of the alleged victim.
ISSUE NO. 3: Whether the trial court erred in finding that the appellant did not
have standing to complain of the warrantless search of the home where the police
found the body of the alleged victim and in thus denying the appellant’s motion to
suppress evidence and allowing the State to introduce illegally obtained evidence.
Appellant established that he had a subjective expectation of privacy in a
place which society recognizes as reasonable, namely a home. Therefore, he had a
legitimate expectation of privacy in the home which was invaded by police officers.
See Granados vs. State, 85 S.W.3d 217 (Tex. Cr. App. 2002) Because the police
officers entered the home (where the body of the victim was found) without a
warrant based on an anonymous telephone call in which a woman claimed that
3
someone had been dragged into a house and was being tortured, and the police did
not know whether the caller had personal knowledge of the facts upon which the
police relied, or whether the caller was a credible person, the police lacked probable
cause to justify a warrantless entry into the home. See Rojas vs. State, 797 S.W.2d 41
(Tex. Cr. App. 1990). Since probable cause was lacking, the warrantless entry into
the home violated the Fourth Amendment to the United States Constitution, and
pursuant to the exclusionary rule, the trial court should have excluded all of the fruits
of the warrantless search.
STATEMENT OF FACTS
Ana Vasquez (“Ana”), the wife of Ricardo “Ricky” Vasquez (“Vasquez”), the
victim of the offenses charged in the indictment, testified that she last saw her
husband around 7:30 on the morning of August 29, 2013, when he dropped her off at
the school where she was employed as a teacher. (17 R.R. 27-28, 34) Ana testified
that she was not aware of any problems that existed between her husband and
Appellant, Juan Jose Lopez, Jr., (“Lopez”). (17 R.R. 34)
Officer Gustavo Sotelo (“Sotelo”) testified that on August 29, 2013, around
7:00 p.m., the police received a report of “someone being assaulted” at a house with
a brown fence where it was known that drugs were sold in that neighborhood. (17
R.R. 36-38, 55-56) The caller did not provide an address but gave a description of the
location. (17 R.R. 57) When he arrived at the “house where the witness described
4
the male being assaulted”, he saw a heavy-set male who walked away as soon as he
saw Sotelo. After walking to the rear of the house looking for the heavy-set male and
not finding him, Sotelo returned to the front of the house and opened the screen door.
(17 R.R. 39-40) Sotelo testified that, “At the time the door was opened, and I saw the
deceased on the mattress.” (17 R.R. 40, lines 12-14)
During a voir dire examination by defense counsel, Sotelo testified that at the
time that he entered the home at 2920 Napoleon Street rear he entered without a
warrant, and that the facts known to him at that time were strictly limited to the
information that the Police Department received through the 911 call. (17 R.R.
42-45) When Sotelo entered the home he discovered more evidence which was “in
plain view.” (17 R.R. 44-45) Sotelo further admitted that at the time that the police
entered the home they had no way of determining the credibility of the caller, or the
reliability of the information that was provided to the Police Department by the
anonymous 911 caller. (17 R.R. 45-46) A 2x4 board which became a vital piece of
evidence for the State was also discovered by the police as a result of the warrantless
entry. (17 R.R. 47) The heavy-set male who Sotelo saw when he first arrived at the
scene of the crime was later identified as Raul Alegria, a co-defendant, who was
picked up the following day. (17 R.R. 52)
In his trial testimony, Sotelo claimed that when he knocked on the front door
“the door opened itself, and that’s when [he] observed a body on the mattress.” (17
5
R.R. 44, lines 2-4)
Appellant filed a motion to suppress evidence on the grounds that the police
entered the home where the murder was committed without a warrant, without
consent, and in the absence of exigent circumstances, and therefore in violation of
the Fourth Amendment to the United States Constitution. (1 C.R. 107-111) The trial
court held a hearing on the sole issue of whether Lopez had standing to complain of
the warrantless entry into the premises, and Lopez testified that the owner of the
property at 2920 Napoleon Street Rear was Abel Rocha, Sr. (“Rocha, Sr.”) (a
co-defendant), and that Rocha, Sr. had given him permission to stay there. (13 R.R.
22-24) Lopez testified that he used to stay there with the permission of Rocha, Sr.,
and that he used to sell drugs there. (13 R.R. 26) Rocha, Sr., and the co-defendants
in this case also had access to the house. (13 R.R. 27) Other friends would enter the
house only if Lopez was there, or if Rocha, Sr., gave them permission to go in. (13
R.R. 28) The trial court held that Lopez did not have a reasonable expectation of
privacy for the purposes of having standing to complain of the Fourth Amendment
violation. (13 R.R. 29)
Olga Martinez (“Olga”), the sister of Candelario Hernandez (“Hernandez”), a
co-defendant in the case, testified that on August 29, 2013, she dropped off
Hernandez at the house located at 2920 Napoleon Street, where the crimes in
question occurred, between 12:00 p.m. and 1:00 p.m. (17 R.R. 116-117) Olga was
6
aware Hernandez was a drug user. (17 R.R. 119-120)
Edward Flores, a detective for the Laredo Police Department testified that a
missing persons report was filed on August 8, 2013, regarding an individual named
Abelardo Rocha, III (“Abelardo”), and another individual named Carlos Edmund
Gamboa (“Carlos”). (17 R.R. 206) Abelardo and Carlos were last seen on August 7,
2013, after they were dropped off at the International Bridge and they walked across
the bridge into Mexico to collect some money. (17 R.R. 207, 210)
Raul Alegria (“Alegria”), a co-defendant in this case, told Richard Reyes, Jr.,
a detective, (“Det.. Reyes”), that the motive for the murder was extortion. (17 R.R.
214) According to Alegria, Abel Rocha, Sr. (“Rocha, Sr.”), another co-defendant,
blamed Vasquez for extorting money and a vehicle from the Rocha family to return
or attempt to return Abelardo. (17 R.R. 214-217) Abelardo is the nephew of Rocha,
Sr., who posted bail and absconded, possibly to Mexico. (17 R.R. 214, 217)
Alegria further told Det. Reyes that Rocha, Sr., directed a group of men to
torture and kill Vasquez, and that he “brandished a buck knife and slashed the
victim’s throat and cut off a portion of his ear”. (17 R.R. 215, lines 13-14) Alegria
told Det. Reyes that while Vasquez was being tortured, Rocha, Sr., stated, “This is
probably what they’re doing to my nephew in Mexico, right now.” (17 R.R. 215,
lines 19-20) The State did not present testimony from either Alegria or any other
co-defendant to show that Lopez was among the group of men who Rocha, Sr.,
7
directed to torture and kill Vasquez.
According to Det. Reyes, the investigation revealed that there were 6 suspects
in the case besides Alegria: Juan Jose Lopez, Jr., Appellant herein, Roberto Sanchez,
Candelario Hernandez, Abel Rocha, Sr., Abel Rocha, Jr., and Sergio Garcia. (17
R.R. 214) Alegria and the other 6 suspects in the case were all indicted for the
kidnapping and murder of Ricardo Vasquez. (1 C.R. 77-80)
Dr. Ray Fernandez (“Dr. Fernandez”), the Nueces County Medical Examiner
who performed an autopsy on the body of the victim, testified that he found blunt
force trauma, multiple abrasions, lacerations, and contusions on different parts of the
body. (17 R.R. 130, 143) The body also exhibited stab wounds and incise wounds.
(17 R.R. 144) The autopsy further revealed a slash wound around the left side of the
neck, and a slash wound around the right side of the neck, and a slice of the left ear.
(17 R.R. 144) Dr. Fernandez also found hemorrhage under the scalp, indicating that
Vasquez was hit on that area of his body, and a fracture of the skull beneath an injury
to the upper forehead. (17 R.R. 145) These injuries are consistent with blunt force
trauma. (17 R.R. 145) Vasquez also sustained three fractures along the ribcage
consistent with blunt force trauma with blood in the surrounding tissues, which
indicates that “the person is still alive, the heart is still beating, and you fracture the
rib and it causes bleeding around that structure.” (17 R.R. 146, lines 9-12)
In response to a question by defense counsel as to whether “the blunt force
8
injury [would] have caused the death of Ricardo Vasquez independently of the sharp
force injury”, Dr. Fernandez stated: “The blunt force trauma caused bruising on the
brain. It was part of the sharp force trauma. It did not – it didn’t cause a significant
amount of bleeding on the brain. So, probably the blunt force trauma by itself would
not cause the death.” (17 R.R. 154, lines 19-23) According to Dr. Fernandez, the
laceration to Vasquez’s neck, which the State alleged was inflicted by Rocha, Sr.,
“cut through the two major veins there, the jugular veins.” (1 C.R. 78, 79) (17 R.R.
155, lines 6-7; 215)
Detective David Carmona (“Det. Carmona”), testified that the police believed
that the 2x4 “might have been the possible weapon used in the death of the victim”.
(18 R.R. 60-61, 64) Det. Carmona saw the injuries sustained by Vasquez and
testified that Vasquez had “deep lacerations to the neck”, but the police did not
recover the weapon that might have been used to inflict such injuries. (18 R.R.
64-65) Det. Carmona interviewed Lopez on August 30, 2013, and testified that
when he questioned Lopez about Vasquez’s murder Lopez stated that he had heard
what had happened, but denied knowing who the victim was. (18 R.R. 106-107)
Lopez also admitted that he had seen Roberto Sanchez (“Sanchez”), Candelario
Hernandez (“Hernandez”), and Alegria (co-defendants) on the date of the murder, at
the house where the murder occurred, between the hours of 10:00 A.M. and 2:00
P.M. (18 R.R. 108-110) Lopez claimed that he hadn’t seen Vasquez “in a while”. (18
9
R.R. 111)
Det. Carmona further testified that he interviewed Hernandez, and that
Hernandez stated that the victim had gotten loose and he “went after him with a 2x4
and started striking him, and in turn he took the 2x4 away from him and hit him back
in self-defense. (18 R.R. 116-117)
Under cross-examination, Det. Carmona admitted that police officers
discovered the body of the deceased upon opening the door, and also discovered
other items of evidence as a result of a warrantless entry into the home, including the
2x4 board which the State alleged Lopez used to strike Vasquez thus causing his
death. (18 R.R. 119-120) Det. Carmona said that the person who made the
anonymous 911 call that led to the discovery of the victim’s body was afraid of her
identity being disclosed because she feared for her life. (18 R.R. 125)
Kimberly Lander (“Lander”), a forensic scientist with the Bexar County
Criminal Investigation Laboratory, testified that swabs of a blood-stained 2x4 board
recovered from the scene of the crime showed that neither Lopez nor Vasquez could
be excluded as contributors of a DNA sample obtained from the board. (18 R.R.
170-174) Hernandez, also could not be excluded as a donor of a mixture of DNA
recovered from an area of the 2x4 that a person would hold if he swung the board
like a bat. (18 R.R. 169, 172-173, 211) A cutting from Lopez’s t-shirt and a cutting
from his shorts tested positive for the possible presence of blood, and DNA
10
comparison testing showed that Vasquez “was not excluded as a contributor of the
DNA on both the cutting from the orange T-shirt and the cutting from the shorts”.
(18 R.R. 180-183, 190-193) Further, according to Lander, Vasquez was not excluded
as a contributor of DNA from a swab of Lopez’s Nike shoes. (18 R.R. 194-195)
Vasquez could not be excluded as a donor of DNA obtained from a swab of
Sanchez’s Adidas shoes, or from a cutting of the shoe laces of Hernandez’s shoes.
(18 R.R. 184-185, 187-188)
Under cross-examination Lander stated that Lopez’s orange T-shirt had “small
stains” which tested positive for the possible presence of blood (18 R.R. 180-181,
200) Lopez’s shorts also had “blood droplets” and “reddish-brown soiling to the
entrance of the pocket.” (18 R.R. 201) Landers clarified that she did not have the
ability to determine from her examination of the stains on Lopez’s clothes whether
he was a bystander or a participant in the murder. (18 R.R. 202)
Defense counsel asked Lander: “You were talking about the combined
probability index, and you mentioned with regards to swab number 2, from the 2x4
board, if you randomly select 36 people from the population, one of those would
have the same genetic profile as Juan Jose Lopez and could not be excluded as the
source of the DNA in that item, correct?” (18 R.R. 202-203)
Landers responded, “[I]t’s partly correct, but partly incorrect…The CPI, what
that indicates is that there’s a mixture of DNA, not a single source…The CPI
11
number indicates that, were I to have 36 people, and if I were to test all of them, I
would expect, based on the frequency of alleles and the evidence, the DNA markers
observed on the same evidence, not that the same person is the same profile as Juan
Jose Lopez or Ricardo Vasquez or Candelario Hernandez, but their markers are part
of what I’m seeing.” (18 R.R. 203)
Landers agreed that “touch DNA” can be transferred from one item to another
during the process of collecting evidence at the scene of the crime if the correct
procedure is not followed. (18 R.R. 206) Landers could not determine the time when
the DNA was deposited on the 2x4. (18 R.R. 206) Landers agreed that the DNA
sample that she obtained from the 2x4 board was “a mixed sample of DNA [which]
may contain background DNA, crime-related DNA, or after-the-crime
contamination”. (18 R.R. 210)
Tammi Sligh (“Sligh”), a forensic scientist with the Bexar County Crime Lab
testified that she did a comparative analysis of footprint impressions which is a
subdiscipline of tool marks and firearms identification. (19 R.R. 36) Sligh’s opinion
was that a red Nike shoe which was identified as belonging to Lopez made a
footwear impression that was in a photograph of the crime scene. (18 R.R. 32; 19
R.R. 51-52)
Lopez elected not to testify at his trial.
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ARGUMENT AND AUTHORITIES
ISSUE NO. 1 : Whether the evidence is legally sufficient to sustain the convictions
for murder, aggravated kidnapping, and engaging in organized criminal activity.
In Brooks v. State, 323 S.W.3d 893 (2010), the Court of Criminal Appeals did
away with factual sufficiency review announcing that “the Jackson v. Virgina,
legal-sufficiency standard is the only standard that a reviewing court should apply 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.” In the instant
case, the State alleged in Count I of the indictment that “Raul Alegria, Abel Rocha
Jr., Juan Jose Lopez Jr., Roberto Sanchez, Jr., Candelario Hernandez Jr., Sergio
Garcia-Garza and Abel Rocha did then and there intentionally cause the death of an
individual, namely Ricardo Vasquez, by striking him with a blunt object causing
blunt trauma to his body, and/or head, and/or face, and/or by causing a laceration
to his neck.” (1 C.R. 77) Count III, which charged all of the defendants with the
offense of engaging in organized criminal activity, alleged as overt acts that: “On or
about August 29, 2013, Juan Jose Lopez struck Ricardo Vasquez at 2920 Napoleon
Street…On or about August 29, 2013, Abel Rocha cut Ricardo Vasquez’s throat and
stabbed Ricardo Vasquez’s throat at 2920 Napoleon Street.”. (1 C.R. 78, 79)
Therefore, the State’s theory of the case was clearly that Abel Rocha intentionally or
knowingly cut and stabbed Vasquez in the throat, and that Lopez intentionally or
13
knowingly struck Vasquez with the 2x4 board, and that the beating with the 2x4
board, and/or the cuts and stab wounds to Vasquez’s neck, caused his death. The
State also alleged in the indictment that “On or about August 13, 2013, Candelario
Hernandez struck Ricardo Vasquez at 2920 Napoleon Street…”. (1 C.R. 78, 79) The
alleged role of each of the other co-defendants in the murder and kidnapping of
Ricardo Vasquez was described in the overt acts of Count III in the indictment. (1
C.R. 78-79) Therefore, under the Brooks standard of legal sufficiency review, the
appellate court must determine “whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable
doubt.” Brooks v. State, 323 S.W.3d 893 (2010). To make this determination, the
reviewing court must inquire whether "[c]onsidering all of the evidence in the light
most favorable to the verdict, was a jury rationally justified in finding guilt beyond a
reasonable doubt." Id. More specifically, the question is whether the evidence is
sufficient to support the implied jury finding that Juan Jose Lopez, Jr., caused the
death of Ricardo Vasquez by striking him with a blunt object as alleged in the
indictment and by the State during the trial. (1 C.R. 77; 17 R.R. 24; 19 R.R. 113) In
the State’s opening statement, the prosecution told the jury: “The evidence will show
you, at the end of it all, that Juan Jose Lopez is guilty beyond a reasonable doubt of
what we’ve read on the indictment.” (17 R.R. 24, lines 3-6) In closing arguments the
State argued: “All of that evidence has to be placed together so that you can make the
14
reasonable inference that Juan Jose Lopez, as a party, struck and murdered Ricardo
Vasquez.” (19 R.R. 113, lines 3-6) The “Charge Of The Court” included an
instruction on “Law Of Parties”, but the State did not present any evidence at all to
show that Lopez either solicited, encouraged, directed, aided, or attempted to aid
another person to commit the offense. (1 C.R. 451) Therefore, to convict Lopez of
murder, the jury had to find beyond a reasonable doubt that Lopez caused the death
of Ricardo Vasquez by striking him with the 2x4 board. (1 C.R. 77; 17 R.R. 24; 19
R.R. 113) To make this determination, the reviewing court must inquire whether
considering all of the evidence in the light most favorable to the verdict, was the jury
rationally justified in finding beyond a reasonable doubt that Lopez caused the death
of Ricardo Vasquez by striking him with a 2x4 board. Brooks v. State, 323 S.W.3d
893 (2010)
The evidence linking Lopez to the murder and kidnapping of Ricardo
Vasquez consisted of:
1. Statements made by Alegria and Garcia to Det. Reyes from which he
concluded that Lopez, along with Roberto Sanchez, Candelario
Hernandez, Abel Rocha, Sr., Abel Rocha, Jr., Raul Alegria, and Sergio
Garcia were suspects in the case. (17 R.R. 213-214)
2. Lander’s expert witness testimony that swabs of a blood-stained 2x4 board
recovered from the scene of the crimes showed that neither Lopez nor
15
Vasquez could be excluded as contributors of a DNA sample. (18 R.R.
170-174)
3. Lander’s expert witness testimony that DNA comparison testing showed
that Vasquez “was not excluded as a contributor of the DNA on both the
cutting from the orange T-shirt and the cutting from the shorts”, or from a
swab of Lopez’s left Nike shoe. (18 R.R. 180-183, 190-195)
4. Sligh’s expert witness’s opinion that a red Nike shoe which was identified
as belonging to Lopez made a footwear impression that was in a
photograph of the crime scene. (18 R.R. 32; 19 R.R. 51-52)
5. Lopez’s statement to police investigators that he had heard what had
happened, but did not know who the victim was. (18 R.R. 106-107)
A review of the evidence, in the light most favorable to the verdict, will show
that the jury was not rationally justified in finding beyond a reasonable doubt that
Lopez caused the death of Ricardo Vasquez, that he participated in the kidnapping
of Vasquez, or that he engaged in organized criminal activity.
Although Det. Reyes testified that he interviewed Alegria and Garcia, and that
the investigation revealed that Lopez and the other co-defendants were suspects in
the case, the State did not present testimony from Alegria, from Garcia, or from any
other co-defendant, to show that Lopez participated in striking Vasquez with the
board.
16
Det. Carmona, testified that he interviewed Hernandez, and that Hernandez
stated that the victim had gotten loose and he “went after him with a 2x4 and started
striking him, and in turn he took the 2x4 away from him and hit him back in
self-defense.” (18 R.R. 116-117) Thus, the State’s own evidence showed that a
co-defendant confessed to striking Vasquez with the 2x4 board which the State
alleged was one of the murder weapons used to kill Vasquez. (18 R.R. 60-61, 64,
116-177) If there was no evidence that another individual struck Vasquez with the
board, certainly it would be more logical to infer that Lopez struck Vasquez with the
board, based on Lander’s testimony that Lopez could not be excluded as being a
donor of the mixture of DNA obtained from the board. But this is not a case where
there is no other suspect who could have committed the crime that the defendant is
charged with; there were six other co-defendants in the case, and one who actually
confessed to having struck the victim with the 2x4 board in question. (18 R.R. 60-61,
64, 116-177)
The testimony from the State’s expert witness, Kimberly Lander (“Lander”),
a forensic scientist with the Bexar County Criminal Investigation Laboratory, was
that swabs of the blood-stained 2x4 board recovered from the scene of the crime
showed that neither Lopez nor Vasquez could be excluded as contributors of a DNA
sample obtained from the 2x4 board. (18 R.R. 170-174) But consistent with his own
admission that he struck Vasquez with the 2x4 board, Hernandez, also could not be
17
excluded as a donor of a mixture of DNA recovered from an area of the 2x4 that a
person would hold if he swung the board like a bat. (18 R.R. 169, 172-173, 211)
Under cross-examination, Lander clarified that she did not mean that the DNA
sample which was obtained from a swab of the 2x4 board matched the genetic
profile of Lopez, but rather that the “mixture of DNA” contained genetic markers
which matched Lopez’s genetic markers, and which would match the genetic
markers of 1 out of every 36 people randomly selected from the population. (18 R.R.
202-203)
Lander also agreed that “touch DNA” can be transferred from one item to
another during the process of collecting evidence at the scene of the crime if the
correct procedure is not followed. (18 R.R. 206)
Further, Lander could not determine the time when the DNA was deposited
on the 2x4. (18 R.R. 206)
Lander also agreed that the DNA sample that was obtained from the 2x4
board was “a mixed sample of DNA [which] may contain background DNA,
crime-related DNA, or after-the-crime contamination”. (18 R.R. 210) Thus, the
DNA evidence presented by the State is inconclusive with regard to whether Lopez
directly deposited his touch DNA on the 2x4 board during the commission of the
crime, before the commission of the crime, or after the commission of the crime.
Lander’s testimony that Lopez’s touch DNA could also have been transferred
18
from another object to the 2x4 board rendered such forensic evidence even more
inconclusive with regard to the question of whether Lopez actually handled the 2x4
board, especially considering the testimony of Officer J. R. Cantu, a crime scene
investigator who collected evidence at the scene of the crime, who testified that it’s
important to change gloves often to prevent DNA from being transferred from one
object to another while collecting evidence, but that he did not recall how often he or
the other officer who collected evidence at the scene of the crime changed gloves to
avoid contamination. (17 R.R. 112-113; 18 R.R. 206, 210)
The small reddish-brown stains on Lopez’s T-shirt, shorts, and left Nike shoe
which tested positive for the presence of blood, and which yielded DNA samples
from which Vasquez could not be excluded as a contributor, together with the
footwear impression testimony, shows only that Lopez was present during, or
shortly after, the commission of the crimes, but does not support the conclusion that
he struck Vasquez with the 2x4 board. Williams v. State, 235 S.W.3d 742, 750 (Tex.
Cr. App. 2007) In fact, Lopez’s presence during, or shortly after, the commission
of the murder is practically indisputable in light of Lander’s testimony that DNA
comparison testing showed that Vasquez could not be excluded as the contributor of
the DNA obtained from the small blood stains on Lopez’s T-shirt, shorts, and Nike
shoes, and in light of Sligh’s testimony that a red Nike shoe which was identified as
belonging to Lopez made a footwear impression that was in a photograph of the
19
crime scene. (18 R.R. 32, 180-183, 190-193; 19 R.R. 51-52) But, mere presence at
the scene of a crime is not sufficient to render a person an accomplice. Druery v.
State, 225 S.W.3d 491, 498 (2007)
As the Court noted in Evans v. State, 202 S.W.3d 158 (Tex. Cr. App. 2006),
“where there are two permissible views of the evidence, the fact finder’s choice
between them cannot be clearly erroneous. (quoting from Anderson v. City of
Bessemer, 470 U.S. 564, 574 (1985). Appellant acknowledges that in reviewing
the legal sufficiency of the evidence, an appellate court must not re-evaluate the
weight or credibility of the evidence on the record, or substitute the court’s judgment
for that of the jury. Williams v. State, 235 S.W.3d 742, 750 (Tex. Cr. App. 2007) On
the other hand, however, the appellate courts must ensure that the evidence supports
a conclusion that the defendant committed the crime charged in the indictment. Id.
The problem here is that the circumstantial evidence presented by the State does not
support the conclusion that Lopez struck Vasquez with the 2x4 board, especially in
light of Hernandez’s confession that he struck Vasquez with the 2x4 board, and in
light of Lander’s testimony that DNA testing showed that Hernandez could not be
excluded as a contributor of the DNA sample obtained from the board. (18 R.R.
116-117, 169, 172-173, 211); Brooks v. State, 323 S.W.3d 893 (2010) (18 R.R.
202-203)
But more importantly, Lander testified that the DNA obtained from the 2x4
20
board was a mixed sample and that 1 out of every 36 people randomly selected from
the population, if tested, would have the same genetic markers that she found in the
mixed DNA sample. (18 R.R. 202-203) The statistical number, Lander explained, is
for the purpose of giving the trier-of-fact information that allows them “to assess
how much weight should be given to the evidence.” (18 R.R. 189) On a
“single-source profile” the forensic scientist assigns a statistical number referred to
as “the random match probability” which reflects the probability of finding a certain
DNA profile in a random population of unrelated individuals. (18 R.R. 190) As
Lander explained, the forensic scientist is looking for a genetic profile “that is very
rare, and that’s so that it allows us to say that you wouldn’t expect many people in
the population to have this profile.” (18 R.R. 190) Where there is a mixture of DNA,
as on the 2x4 board, the forensic scientist is unable to distinguish one contributor
from another, and uses a statistical number called “the combined probability of
inclusion” to measure “how many people in the population, at random if chosen,
would also not be excluded from the mixture of DNA profiles.” (18 R.R. 190) For
the blood stains found on Lopez’s T-shirt for example, Lander testified that Vasquez
was not excluded as a donor of DNA and that the combined probability of inclusion
was “once in every 599 billion 900 million individuals.” Thus, based on Lander’s
explanation of the purpose of assigning a statistical number to the results of DNA
comparison testing, it would be extremely unlikely that the DNA did not belong to
21
Vasquez, and this evidence was entitled to great weight. (18 R.R. 189-190) With
regard to the DNA comparison testing of Lopez’s shorts and left Nike shoe, which
did not exclude Vasquez as a contributor, the random match probability was “one in
every one quadrillion 219 trillion people.” (18 R.R. 194)
However, the combined probability of inclusion for the results of DNA testing
on the 2x4 board, from which Lopez could not be excluded as a donor, was only 1 in
36. (18 R.R.191-192, 202-203) Applying Lander’s explanation of the purpose of
assigning a statistical number to the results of DNA comparison testing, this
evidence should have been afforded little to no weight. (18 R.R. 189-190,202-203)
In fact, under re-direct examination Lander responded to a question regarding the
statistic of “1 out of 36” as follows: “So, the statistic is, you know, not very strong in
comparison to the other stats.” (18 R.R. 212-213, lines 5-6) This low statistical value
(1 out of 36) is of vital importance in reviewing the legal sufficiency of the evidence,
because the expert witness testimony to the effect that Lopez could not be excluded
as a donor of a sample of DNA obtained from one of the two alleged murder
weapons, the 2x4 board, was the single piece of evidence from which the jury could
conceivably make a rational finding that Lopez caused the death of Ricardo Vasquez
by striking him with a blunt instrument as alleged in the indictment. (1 C.R. 77-79)
(18 R.R. 170-174) The remainder of the evidence does nothing more than to show
Lopez’s presence at the scene of the crime. (17 R.R. 213-214; 18 R.R. 32, 180-183,
22
190-195; 19 R.R. 51-52)
The difference between a combined probability of inclusion of “once in every
599 billion 900 million individuals” and the combined probability of inclusion of 1
in 36 is so vast as to render the latter testimony as having little or no weight at all. (18
R.R. 189-190, 194-195, 202-203) The disparity in the weight to be given the
evidence by the jury is even greater if we compare the random match probability of
exclusion of “one in every one quadrillion 219 trillion people” to the combined
probability of inclusion of 1in 36. (18 R.R. 194)
One can only conclude that in making an implied finding that Lopez caused
the death of Ricardo Vasquez by striking him with a 2x4 board, the jury either did
not understand Lander’s testimony, or completely ignored it in rendering their
verdict of guilty. Considering such a huge disparity in the weight of the evidence
assigned by the State’s expert witness to the DNA comparison testing of Lopez’s
T-shirt, his shorts, and his left Nike shoe, on the one hand, and the weight of the
evidence assigned by the State’s expert witness to the DNA comparison testing of
the sample obtained from the 2x4 board, on the other hand, it cannot be said that any
rational fact-finder could have found beyond a reasonable doubt that Lopez caused
the death of Vasquez by striking him with a blunt instrument. Williams v. State, 235
S.W.3d 742, 750 (Tex. Cr. App. 2007)
From the dubious conclusion that it was indeed Lopez’s DNA on the 2x4
23
board, the jury had to make another big leap in logic to reach the conclusion that
Lopez struck Vasquez with the 2x4 board as alleged by the State. (1 C.R. 78)
Assuming arguendo that the State proved beyond a reasonable doubt that Lopez’s
DNA was on the 2x4 board, in the context of all of the evidence presented by the
State, it is more probable that Lopez did not strike Vasquez with the board. The
evidence showed that Abel Rocha, Sr., had a motive to kidnap and murder Vasquez,
but there was absolutely no evidence that Lopez had a motive to beat or kill
Vasquez. (17 R.R. 206-217) The evidence further showed that Hernandez confessed
to striking Vasquez with the 2x4 board to Det. Carmona and did not claim that Lopez
also struck him. (18 R.R. 116-117) The blood stains on Lopez’s T-shirt and shorts
were described by Lander as “small reddish-brown stains”, and she was unable to
say whether Lopez was a participant or a bystander. (18 R.R. 200-202)
Then, having reached the irrational conclusion that Lopez beat Vasquez with
the 2x4 board (based on the low probability that Lopez’s DNA was on the 2x4 board
and on the assumption that his DNA was directly deposited by Lopez on the board
during the commission of the crimes, rather than before or after) the jury had to
make another inference which is contrary to the evidence: that Lopez caused the
death of Vasquez by striking him with the board. (17 R.R. 154, lines 19-23) This
implied finding of fact by the jury disregards Dr. Fernandez’s testimony that
“probably the blunt force trauma by itself would not cause the death”, and that the
24
laceration to Vasquez’s neck, which the State alleged was inflicted by Rocha, Sr.,
“cut through the two major veins there, the jugular veins.” (1 C.R. 78, 79) (17 R.R.
154, lines 19-23, 155, lines 6-7; 215) Although an appellate court must not
re-evaluate the weight or credibility of the evidence on the record, or substitute the
court’s judgment for that of the jury, an appellate court must ensure that the evidence
supports a conclusion that the defendant committed the crimes charged in the
indictment. Williams v. State, 235 S.W.3d 742, 750 (Tex. Cr. App. 2007) In the
instant case, looking at all of the evidence presented as a whole, it cannot be said that
the evidence supports the conclusion that Juan Jose Lopez, Jr., caused the death of
Ricardo Vasquez, by striking him with a blunt instrument. Id.
ISSUE NO. 2: Whether the trial court committed reversible error by refusing the
defendant’s requested jury instructions which would have included an affirmative
submission of the defensive theory of the cause of death of the alleged victim in
the jury charge.
In a criminal trial, a defendant is entitled to an affirmative submission of
every defensive theory raised by the evidence, and this rule applies equally to
defensive theories regarding the cause of death in murder trials. Hill v. State, 585
S.W.3d 713 (Tex. Cr. App. 1979) The evidence in this case clearly raised the
defensive issue that Vasquez’s death resulted from a cause other than that alleged
against Lopez in the indictment. Specifically, Dr. Fernandez testified that: “The
25
blunt force trauma caused bruising on the brain. It was part of the sharp force
trauma. It did not – it didn’t cause a significant amount of bleeding on the brain. So,
probably the blunt force trauma by itself would not cause the death.” (17 R.R. 154,
lines 19-23) This testimony of the medical examiner was in response to a question
by defense counsel as to whether “the blunt force injury [would] have caused the
death of Ricardo Vasquez independently of the sharp force injury”. (17 R.R. 154)
According to Dr. Fernandez, the laceration to Vasquez’s neck, which the State
alleged was inflicted by Rocha, Sr., “cut through the two major veins there, the
jugular veins.” (1 C.R. 78, 79) (17 R.R. 155, lines 6-7; 215) Counsel for Lopez also
argued in closing that the evidence showed that the cause of death was the deep
laceration to Vasquez’s neck which was inflicted by Abel Rocha, Sr. (19 R.R.
129-132)
Further, Lopez timely presented his request for a charge on the issue of
cause of death, and his request was refused and denied by the trial court. (1 Supp.
C.R. 93-97)(19 R.R. 17-19) Lopez objected to the trial court’s denial of his request
for an instruction on cause of death. (19 R.R. 19-20) Thus the issue was properly
preserved for appellate review. Hill v. State, 585 S.W.3d 713 (Tex. Cr. App. 1979)
In Hill, supra, the Court stated that “appellant would have been entitled to
even more specificity in the defensive charge, in that the law should have been
26
applied to the facts of the case as raised by the defensive evidence on the cause of
death.” Hill v. State, 585 S.W.3d 713 (Tex. Cr. App. 1979) In the instant case,
Appellant’s requested jury instruction on cause of death provided in pertinent part:
“Therefore, if you find from the evidence, that Abel Rocha caused the death of
Ricardo Vasquez by causing a deep laceration to his neck with a sharp instrument,
you shall acquit Juan Jose Lopez, Jr., of the charge of murder as alleged in Count I of
the indictment.” (1 Supp. C.R. 96-97)
Lopez was entitled to an affirmative submission of the defensive theory
regarding the cause of death, and his timely filed requested jury charge was
sufficient to preserve the issue for review. The trial court erred in refusing Lopez’s
requested charge on cause of death and accordingly the judgment must be reversed
and remanded for a new trial with appropriate instructions to the trial court. Hill v.
State, 585 S.W.3d 713 (Tex. Cr. App. 1979)
ISSUE NO. 3: Whether the trial court erred in finding that the appellant did not
have standing to complain of the warrantless search of the home where the police
found the body of the alleged victim and in thus denying the appellant’s motion to
suppress evidence and allowing the State to introduce illegally obtained evidence.
Appellant filed a motion to suppress evidence on the grounds that the police
entered the home where the murder was committed without a warrant, without
consent, and in the absence of exigent circumstances, and therefore in violation of
27
the Fourth Amendment to the United States Constitution. (1 C.R. 107-11) The trial
court held a hearing on the sole issue of whether Lopez had standing to complain of
the warrantless entry into the premises, and Lopez testified that the owner of the
property at 2920 Napoleon Street Rear was Abel Rocha, Sr. (“Rocha, Sr.”) (a
co-defendant), and that Rocha had given him permission to stay there. (13 R.R.
22-24) Lopez testified that he used to stay there with the permission of Rocha, Sr.,
and that he used to sell drugs there. (13 R.R. 26) Rocha, Sr., and the co-defendants
in this case also had access to the house. (13 R.R. 27) Other friends would enter the
house only if Lopez was there, or if Rocha, Sr., gave them permission to go in. (13
R.R. 28) The trial court held that Lopez did not have a reasonable expectation of
privacy for the purposes of having standing to complain of the Fourth Amendment
violation. (13 R.R. 29)
Lopez also filed “Defendant’s Offer Of Proof On Motion To Suppress
Evidence”, since the trial court limited the hearing on the motion to suppress to
testimony regarding the issue of whether Lopez had standing to complain of the
alleged Fourth Amendment violation. (1 C.R. 332-337) The Court admitted the
Defendant’s offer of proof with the pertinent parts of the “Complaint” for a warrant
that was sworn to by Det. Carmona. ( 14 R.R. 7-13) The sworn complaint states that
on August 29, 2013, an emergency call was made by an anonymous caller who
claimed that “a male subject was being tortured and dragged inside a small wooden
28
house with a wooden fence … by the 1300 Block of S. Canada next to an abandoned
demolished home”, where drugs were sold and where police had conducted raids in
the past. (1 C.R. 335) Det. Carmona’s sworn complaint continued stating, “Given the
details provided by the caller and the urgent nature of the call, Officer Sotelo with
the assistance from Officer Jose M. Ugarte and Officer Agapito Perez made their
way into the residence with the wooden fence, upon which they observed a male
subject bound and gagged possibly deceased.” (1 C.R. 335-336)
Appellant’s testimony was not contradicted or impeached, and therefore he
established that he had a subjective expectation of privacy in a place which society
recognizes as reasonable, namely a home. (13 R.R. 13-29) Accordingly, Lopez had
a legitimate expectation of privacy in the home which was invaded by police
officers. See Granados vs. State, 85 S.W.3d 217 (Tex. Cr. App. 2002) Because the
police officers entered the home (where the body of the victim was found) without a
warrant based on an anonymous telephone call in which a woman claimed that
someone had been dragged into a house and was being tortured, and the police did
not know whether the caller had personal knowledge of the facts upon which the
police relied, or whether the caller was a credible person, the police lacked probable
cause to justify a warrantless entry into the home. See Rojas vs. State, 797 S.W.2d 41
(Tex. Cr. App. 1990). Since probable cause was lacking, the warrantless entry into
the home violated the Fourth Amendment to the United States Constitution, and
29
pursuant to the exclusionary rule, the trial court should have excluded all of the fruits
of the warrantless search. Wong Sun v. United States, 371 U.S. 471 (1963)
Pursuant to Rule 44.2(a), Tex. R. App. P., “if the appellate record in a criminal
case reveals constitutional error that is subject to harmless error review, the court of
appeals must reverse a judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contribute to the
conviction or punishment.” Error that does not constitute constitutional error is
reviewed under Rule 44.2(b), which provides that: “Any other error, defect,
irregularity, or variance that does not affect substantial rights must be disregarded.”
Under Rule 44.2(b), an appellate court may not reverse for non-constitutional error
if, after examining the record as a whole, the court has a fair assurance that the error
did not have a substantial and injurious effect or influence in determining the jury’s
verdict. Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007), citing Garcia v.
State, 126 S.W.3d 921, 927 & n. 9 (Tex. Crim. App. 2004)
After examining the record as a whole, the court cannot have fair assurance
that the error did not have a substantial and injurious effect or influence in
determining the jury’s verdict. Casey v. State, 215 S.W.3d 870 (Tex. Crim. App.
2007), citing Garcia v. State, 126 S.W.3d 921, 927 & n. 9 (Tex. Crim. App. 2004)
Therefore, pursuant to Rule 42.2(a), Tex. R. App. P., the conviction and the sentence
must be reversed.
30
PRAYER
Wherefore, Appellant prays that the judgment of conviction and sentences
imposed by the trial court be reversed and that a judgment of acquittal be rendered,
or in the alternative, that the cause be remanded for a new trial.
Respectfully submitted
/S/ J. EDUARDO PEÑA
J. EDUARDO PEÑA
1102 Scott Street
Laredo, Texas 78040
(956) 722-9854
(956) 722-9866 (Fax)
jpena84@att.net
Bar No. 15737550
ATTORNEY FOR APPELLANT
31
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Appellant's Amended Brief was served on Mr. Isidro R. Alaniz, District Attorney,
49th Judicial District, Webb County, Texas, via the electronic filing system at
iralaniz@webbcountytx.gov, and on Mr. David Reuthinger, at
dreuthinger@webbcountytx.gov, Assistant District Attorney, on the 2nd day of
June, 2015.
/S/ J. EDUARDO PEÑA
J. EDUARDO PEÑA
Attorney for Appellant
32
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. P. 9.4(i)(3), the undersigned attorney for Appellant, certifies this
computer-generated appellant’s brief contains 8,449 words and that it complies with the word
limits of Tex. R. App. P. 9.4(i)(2)(B).
1. Exclusive of the portions excluded by Tex. R. App. P. 9.4(i)(1), the Amended Appellant’s Brief
contains 8,449 words.
/S/ J. EDUARDO PEÑA
J. EDUARDO PEÑA
ATTORNEY FOR APPELLANT
33