Juan Jose Lopez Jr. v. State ( 2015 )

ACCEPTED
13-14-00733-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/8/2015 9:44:07 AM
CECILE FOY GSANGER
CLERK
IN THE THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
7/8/2015 9:44:07 AM
COURT OF APPEALS NO. : CECILE FOY GSANGER
13-14-00733-CR
Clerk
TRIAL COURT CASE NO. : 2013CRN001341 D2
JUAN JOSE LOPEZ, JR.,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
STATE’S BRIEF
ISIDRO R. ALANIZ
DISTRICT ATTORNEY
49TH JUDICIAL DISTRICT
By: David L. Reuthinger, Jr.
Assistant District Attorney
Webb County, Texas
1110 Victoria St., Ste. 401
Laredo, Texas 78040
(956) 523-4900
(956) 523-5070 (Fax)
dreuthinger@webbcountytx.gov
Bar No. 24053936
ATTORNEY FOR THE STATE
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
JUAN JOSE LOPEZ, JR.
Represented by:
J. EDUARDO PEÑA
1102 Scott Street
Laredo, Texas 78040
(956) 722-9854
(956) 722-9866 (fax)
jpena84@att.net
STATE:
THE STATE OF TEXAS
Represented by:
ISIDRO R. ALANIZ
District Attorney, 49th Judicial District
By: David L. Reuthinger, Jr., Assistant District Attorney
Webb County Justice Center, 4th Floor
1110 Victoria St., Suite 401
Laredo, Texas 78040
(956) 523-4951
(956) 523-5070 (Fax)
dreuthinger@webbcountytx.gov
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................... 2
TABLE OF AUTHORITIES ........................................................................ 4
STATEMENT REGARDING ORAL ARGUMENT .................................. 7
GENERAL SUMMARY OF THE ARGUMENT ....................................... 8
GENERAL STATEMENT OF FACTS ..................................................... 10
A. The Victim ...................................................................................... 10
B. The Scene ........................................................................................ 13
C. The Suspects .................................................................................... 16
D. The Motive ...................................................................................... 18
E. The Appellant .................................................................................. 20
ISSUES PRESENTED ............................................................................... 24
RESPONSE TO ISSUE 1 (Sufficiency of the Evidence): ...................... 24
SUMMARY OF ARGUMENT ........................................................... 24
ARGUMENT AND AUTHORITY..................................................... 25
A. Standard of Review ...................................................................... 25
B. Application.................................................................................... 27
RESPONSE TO ISSUE 2 (Cause of Death Instruction): ....................... 33
SUMMARY OF ARGUMENT ........................................................... 33
ARGUMENT AND AUTHORITY..................................................... 34
A. The Requested Instruction Was Not Based on a Defensive Issue 34
B. The Requested Instruction Was An Incorrect Statement of the
Law ................................................................................................... 37
RESPONSE TO ISSUE 3 (Motion to Suppress): ................................... 38
SUMMARY OF ARGUMENT ........................................................... 38
STATEMENT OF FACTS .................................................................. 38
ARGUMENT AND AUTHORITY..................................................... 41
A. The Procedural Posture and Scope of the Record....................... 41
B. Standard of Review ..................................................................... 43
C. Applicable Law ............................................................................. 44
D. Application, Part 1: Appellant Failed to Establish Standing at the
Suppression Hearing or Through His Offer of Proof....................... 46
E. Application, Part 2: Appellant’s Probable Cause Argument
Ignores the Rochas’ Waiver and the Emergency Exception ............ 51
PRAYER ..................................................................................................... 54
CERTIFICATE OF COMPLIANCE .......................................................... 55
CERTIFICATE OF SERVICE ................................................................... 55
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TABLE OF AUTHORITIES
Cases
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994) ................ 36
Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.—Fort Worth 2001, pet.
ref'd)......................................................................................................... 27
Black v. State, 776 S.W.2d 700, 701 (Tex. App.—Dallas 1989) ............... 48
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) ........... 26, 31
Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App. 1988) ....... 44, 48
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) 43, 44, 50
Corbin v. State, 85 S.W.3d 272, 275-76 (Tex. Crim. App. 2002) .............. 44
Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992) ...................... 27
Crowell v. Housing Authority of City of Dallas, 495 S.W.2d 887 (Tex.
1973) ........................................................................................................ 49
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ..................... 26
De La Fuente v. State, 432 S.W.3d 415, 422 (Tex. App.—San Antonio
2014, pet ref’d) ................................................................25, 26, 27, 28, 31
Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App.1996) ............... 27
Dunne v. State, 263 S.W. 608, 616 (Tex. Crim. App. 1923) ...................... 36
Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006)........................... 29
Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671
(Tex. 2008) .............................................................................................. 49
Garza v. State, 126 S.W.3d 79, 81–82 (Tex. Crim. App. 2004) ................ 42
Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002) .............. 45
Green v. State, 566 S.W.2d 578, 584 (Tex. Crim. App. 1978) .................. 37
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ................... 43
Hill v. State, 585 S.W.3d 713 (Tex. Crim. App. 1979) .............................. 36
Hinojosa v. State, 433 S.W.3d 742, 756 (Tex. App.—San Antonio 2014)
........................................................................................................... 31, 37
Jackson v. Virginia, 443 U.S. 307, 319 (1979) .......................................... 25
James v. Fulcrod, 5 Tex. 512, 520 (1851) .................................................. 49
Jester v. State, 64 S.W.3d 553 (Tex. App.—Texarkana 2001) .................. 35
Kennedy v. State, 385 S.W.3d 729, 729 n. 1 (Tex. App.—Amarillo 2012,
pet. ref'd) .................................................................................................. 25
Laney v. State, 117 S.W.3d 854, 862 (Tex. Crim. App. 2003)................... 52
Luna v. State, 268 S.W.3d 594, 602 (Tex. Crim. App. 2008) .................... 46
Mendoza v. State, 88 S.W.3d 236, 238 (Tex. Crim. App. 2002) ................ 36
Mincey v. Arizona, 437 U.S. 385, 392 (1978) ............................................ 52
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Orellana v. State, 381 S.W.3d 645, 651 (Tex. App.—San Antonio 2012) 30
Penry v. State, 903 S.W.2d 715, 748 n.30 (Tex. Crim. App. 1995) .......... 37
Pesina v. State, 949 S.W.2d 374, 382–83 (Tex. App.—San Antonio 1997,
no pet.) ..................................................................................................... 30
Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (opinion on
reh'g) ........................................................................................................ 27
Robinson v. State, 368 S.W.3d 588 (Tex. App.—Austin 2012) ................. 30
Showery v. State, 678 S.W.2d 103, 109 (Tex. App.—El Paso 1984)......... 37
Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001) ................ 35
State v. Henry, 25 S.W.3d 260, 262 (Tex. App.—San Antonio 2000, no
pet.) .......................................................................................................... 42
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) ................. 43, 44
State v. Simmang, 945 S.W.2d 219, 233 (Tex. App.—San Antonio 1997) 52
State v. Wolfe, 440 S.W.3d 643 (Tex. App.—Austin 2010)....................... 42
Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985) ............ 27
Villarreal v. State, 893 S.W.2d 559, 561 (Tex. App.—Houston [1st Dist.]
1994), aff'd, 935 S.W.2d 134 (Tex. Crim. App. 1996) ........................... 48
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)....... 44, 45
Will. v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) ........ 26, 29
Statutes
TEX. PENAL CODE ANN. § 7.01(a) ............................................................... 26
TEX. PENAL CODE ANN. § 7.02(a)(2) .......................................................... 26
TEX. PENAL CODE ANN. § 19.02(b)(1) ........................................................ 25
TEX. PENAL CODE ANN. § 20.04(2)(b) ........................................................ 25
TEX. PENAL CODE ANN. § 71.02 ................................................................. 25
TEX. CODE CRIM. PROC. ANN. art. 36.14 .................................................... 36
TEX. CODE CRIM. PROC. ANN. art. 38.14 ..................................................... 28
TEX. GOV'T CODE ANN. § 73.001 ................................................................ 25
Rules
TEX. R. APP. P. 41.3 .................................................................................... 25
Treatises
Dix & Schmolesky, 43 TEX. PRAC., CRIMINAL PRACTICE AND PROCEDURE
§ 43:32 (3d ed.)........................................................................................ 35
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Other Authorities
Appellant's Brief ....................................................................... 28, 41, 47, 51
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STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
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TO THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT
OF TEXAS:
This brief is filed on behalf of Appellee, The State of Texas, by
David L. Reuthinger, Jr., Assistant District Attorney.
GENERAL SUMMARY OF THE ARGUMENT
Appellant’s first issue, asserting insufficiency of the evidence,
should be overruled because there was evidence to show that Appellant
was guilty under the law of parties. Evidence was presented that
Appellant’s clothing, as well as one of the weapons used to torture the
victim to death was a 2x4 board, upon which Appellant’s DNA was found
along with that of the victim and another codefendant. Appellant’s clothing
and shoes were splattered with the victim’s blood as well. The defense
conceded as much in closing. (19 RR 120).1 This was sufficient evidence
to elevate Appellant’s role above mere presence. And this physical
evidence was further corroborated by the testimony of the codefendants,
who identified Appellant as directly aiding the commission of the murder.
Appellant’s second issue, asserting that he was entitled to what he
terms a “cause of death” jury instruction, should be overruled because this
instruction did not relate to a defensive issue, but rather to an element of
1
The reporter’s and clerk’s records are herein cited as ([Volume] [RR or CR] [Page]).
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the offense which the State had to prove; there is no entitlement to such
instructions, which generally constitute an impermissible comment on the
state of the evidence. Moreover, the requested instruction was legally
incorrect because it disregarded the law of parties. As such, the trial court
acted properly in refusing to give the instruction.
Appellant’s third issue, asserting that the trial court erred by denying
his motion to suppress the evidence taken from the Napoleon Street house,
should be overruled because Appellant failed to establish that he had
standing to contest this search. Appellant gave inconsistent testimony
about his living arrangements and his right to be in the house, which was
later definitively controverted by real estate records. The trial court was
well within its discretion in finding that a local drug dealer was not the
landlord of the premises and had no authority to rent the house to
Appellant for the consideration of Appellant vending drugs. Further, the
initial entrance of the house by the police was not a warrantless search; it
was an emergency aid action intended to save the life of the victim. Once it
became clear that the victim was deceased, consent to search was obtained
from the true owners, eliminating the need for a warrant.
Accordingly, the conviction should be affirmed.
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GENERAL STATEMENT OF FACTS
A. The Victim
Ana Vasquez was riding in the family car on August 29, 2013. Her
husband, Ricardo Vasquez, was driving her to the school where she
worked as a teacher. (17 RR 27-28). It was the usual family routine; Mr.
Vasquez would drive Ana to work and their son to his grandmother’s
house which was next to the school that their son attended. (17 RR 28).
Then Ricardo would go to work. But today things would be a little
different, Ricardo explained to Ana as he dropped her off. Today, Ricardo
would be bringing his brother-in-law with him to work. (Id.). Ana was sure
that this arrangement was fine and that she would be seeing her husband
later. (Id.) But as she watched Ricardo drive off in the family’s Nissan
Rogue at 7:30 a.m., she was unaware that this would be the last time that
she would ever see him alive. (Id.).
Although Ana was a busy teacher, she usually called Ricardo during
lunch or during the teachers’ planning block. (17 RR 29). That day, the
school was hectic and there was a meeting during the planning block, so
Ana did not get to call her husband until 4:00 p.m. (Id.) When she took her
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phone out to do that, she saw that Ricardo’s mother had made several calls
and text messages to Ana’s phone during the day. As Ana read through the
modern-day telegrams, she knew that “something was wrong. He hadn’t
responded or answered her calls all day, and she wanted to go check on
him and see if something was wrong.” (Id.).
Ana began frantically calling her husband to no avail; having no
vehicle, Ana called her mother to pick her up from the school. (Id.). She
testified, “I kept calling him. I kept calling him. And he wouldn’t answer
the phone. The phone was turned off or something, because it would go
straight to voice mail, and from there we knew something was happening.
So we called the police.” (Id.).
Ana’s mother took her to Ana’s home, and upon entering, Ana knew
something was wrong. Ricardo’s shirt and clothes that he had been
wearing earlier that day were lying in the bedroom. (17 RR 30). And “there
were other things in the kitchen that were moved or out that weren’t there
[that morning].” (Id.). Ana and her mother called the police to file a
missing-person report at “about 5:30 or 5:15 [p.m.]” (17 RR 30-31).
At around 6:00 p.m., deputies from the Webb County Sheriff’s
Office arrived to conduct the missing-person investigation. Ana’s heart
sank further as they informed her that the family’s Nissan Rogue was at a
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wrecker lot. (17 RR 31). The deputies offered to take Ana to the lot so that
she could verify the vehicle was hers, which she did. (17 RR 31-32).
The Vasquez family seemed normal, but as Ana explained to the
jury, Ricardo had problems. Ricardo was a recovering drug addict who was
a month out of rehab. (17 RR 34). As far as Ana could tell, Ricardo was on
the mend and doing very well. (Id.).
But Ricardo had one foot still in the darkness. Ana explained that
just before the fateful events on August 29, 2013, Ricardo “had just said
that a man he knew approached him to help him out to bring back his son
from Nuevo Laredo [in Mexico]. And I told him[,] just don’t get involved.
You don’t have any means to help him. And I told him, just don’t do it.
Don’t be involved with that. And he said, okay, okay, I won’t.” (17 RR 33-
34).
Ricardo honored his wife’s plea—and paid with his life.
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B. The Scene
Laredo Police officer Gustavo Sotelo was on routine patrol in a
police cruiser driving through South Laredo, when a dispatch call from 911
came in at 7:00 p.m. (17 RR 38). It was a report of an assault in progress at
a house known for drug transactions. (17 RR 37-38). He turned onto
Bismark Street, then onto Napoleon Street to the site that had been called
in to 911. (17 RR 39). At that time, he “observed one male subject like,
heavy-set[,] light-completed[,] crew cut. As soon as he saw me, he made
his way going north through the houses.” (Id.; 17 RR 50). Officer Sotelo
brought his cruiser around to that house and disembarked to follow the
man on foot, but was unable to track him. (17 RR 40).
Officer Sotelo then turned to the house in question, located at 2920
Napoleon Street Rear. (17 RR 42). It was owned by the Rocha family. (17
RR 53). The screen door of the house was unlocked, so Officer Sotelo
knocked on the front door. It opened by itself. (17 RR 44, 46, 48). There,
on a mattress in front of him, was the body of Ricardo Vasquez. “It was
face up, gagged, and his hands were tied with an extension cord [and]
bloody. … He was wearing shorts, I believe, blue jeans, shorts, and a red
T-shirt … boxers tucked a little bit out. And he was wearing a multicolored
shirt, heavy-set, light completed, crew cut” (17 RR 49). After sweeping the
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rest of the house, Officer Sotelo called in Officer Ugarte and Detective
Carmona to triage the crime scene. (17 RR 49).
They were joined by Investigator Andy Perez, who knew this house
well; it was “known to [be used to] sell drugs in that neighborhood. And
[he had] personally stopped vehicles leaving there[,] … intervened in drug
transactions and also search warrants [there] ….” (17 RR 56, 58). On this
occasion, the officers had obtained the consent of the owners of the
Napoleon Street house—Ricardo Rocha and his wife, Zenaida Sanchez
Rocha—to begin searching the house for evidence after it had been
cleared. (18 RR 17-19).
The entrance to the residence was darkened by bloody footprints that
led into a room with a table, a bloody wooden 2x4 board, and a blood-
soaked mattress on which Ricardo’s body lay. (17 RR 93, 98-99).
Elsewhere in the house was painter’s tape, also bloody. (Id.; 17 RR 108)
The officers carefully documented the rufous shoe impressions throughout
the house. (17 RR 100, 104). Outside the house was a blood-soaked rag.
(17 RR 104-05).
A full autopsy of Ricardo Vasquez’s body identified lacerations and
bruises, copious evidence of blunt-force trauma. (17 RR 139-44). There
were also stab wounds. (17 RR 146). His hands had been bound with an
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electrical cord—so tightly that the cord had to be cut. (17 RR 200). The
only conclusion was that Ricardo was tortured to death. (17 RR 155). His
death was caused by multiple sharp force and blunt force injuries. (17 RR
146). However, shortly before his death, he had taken heroin—as indicated
by the short-lived opiate metabolites which were detected in his blood. (17
RR 149). The house was scattered with needles of the type used by heroin
addicts. (18 RR 86).
The reason why the mattress was so bloody was that Ricardo
Vasquez was still alive when his face was sheared by a sharp object. Each
pump of his heart then splattered blood on that bed. (17 RR 151). And one
of the lacerations cut the jugular vein of his neck—causing the curtain on
Ricardo’s life to fall within fifteen minutes. (17 RR 157, 152). Officer
Gerardo Gonzalez swabbed the bloody mattress, the 2x4 board, and the
blood-stained floor for additional DNA testing. (17 RR 124-26).
Fingerprints were also lifted from virtually every moveable object at the
scene—soda cans, bottles, cups, anything. (18 RR 43-45, 83). The mattress
itself was taken to the city warehouse for storage and subsequent testing,
including DNA testing. (Id.; 18 RR 57). The bloody shoe impressions were
likewise sampled and sent to the Bexar County crime lab. (18 RR 84).
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Detective David Carmona turned his attention to that 2x4 board; it
was leaning in a corner next to Ricardo Vasquez’s body. (18 RR 64). The
officers suspected that this board was a weapon, an instrument of torture;
though some of Ricardo’s wounds were consistent with the use of sharp
objects, the board was the only weapon found at the scene. (18 RR 65).
The board was also tested for DNA; but recovered DNA would not be of
much use without having some suspects to compare it to.
C. The Suspects
While Officer Sotelo and company were searching the grisly torture
chamber, Investigator Samuel Reyes was also on scene, interviewing
witnesses, including a member of the Rocha family—who fingered Raul
Alegría as being involved. (17 RR 71). Alegría was the man who had
scrambled away from the house when Officer Sotelo arrived. (7 RR 53).
Investigator Reyes confronted Alegría, whose nervousness gave him away;
Alegría was thereafter transported to the police station to be interviewed.
(17 RR 75). Alegría’s shirt, jeans, and white Lacrosse shoes were sent to
the DNA lab. (17 RR 181-83); (18 RR 24). The officers also swabbed his
mouth for DNA with his consent. (17 RR 38-39).
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Officer Sotelo found no other potential witnesses besides the man
who ran north when he parked his cruiser; even the local ice-cream vendor
saw nothing. (17 RR 41). The officer did remember seeing a black Dodge
Avenger with a female driver and male passenger leaving the area as he
arrived, and he suspected that it had driven out from the house while
Ricardo’s body lay in repose. (17 RR 52).
In conjunction with the other officers, Officer Carlos Hernandez also
canvassed the neighborhood looking for witnesses. (17 RR 77). It was now
after midnight, 12:30 to be exact; at that time, a woman from the
neighborhood, Olga Martinez, approached him; she was concerned by the
police activity. (17 RR 79). Moreover, she was looking for a family
member that frequented the house where Ricardo Vasquez had died. She
claimed that a “family member was a known drug user that would
frequently go out there to shoot up. And because the crime scene was in
that vicinity, she was just worried [about] making sure that he was not
involved.” (17 RR 79-80). That family member was her brother:
Candelario “Cande” Hernandez, a known heroin user who frequently shot
himself up at that house. (17 RR 80). She stated that Cande had just been at
the house at 12:30, just a moment before she approached Officer
Hernandez. (Id.).
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Testifying, Ms. Martinez explained that her brother had asked her
for a ride to a house on Napoleon Street earlier that day. (17 RR 117). She
dropped him off at 2920 Napoleon. (Id.). And she had just returned to
where she had left him because of the news that someone had been hurt
there. (Id.). According to Ms. Martinez’s mother, Cande had left the
mother’s house earlier in the evening, 30 minutes before news of the
homicide broke. (17 RR 118-19, 121). She confirmed that, sadly, Cande
was another drug user. (17 RR 120).
D. The Motive
So far, the list of suspects included Cande and Alegría. The police
searched their intelligence to finger other persons with a connection to this
dungeon of a house who could have been there at the time. A series of
missing-persons reports were filed concerning people with such
connection. One of them was Abelardo Rocha, III—of the same Rocha
family who owned the death chamber at 2920 Napoleon. (17 RR 206).
Checking customs records and security video at the Mexican border, the
police were able to confirm that Abelardo Rocha, III crossed into Mexico
on August 7, 2013 at approximately 8:37 p.m., along with some other men.
(17 RR 209). That was a little more than two weeks before Ricardo
Vasquez was murdered.
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Detective Richard Reyes interrogated Alegría about the role of
Abelardo Rocha, III, and Alegría confirmed that “the motive for the
murder [of Ricardo Vasquez] was extortion. He explained that a group of
people were being extorted for money and a vehicle in exchange for
locating a family member who was kidnapped.” (17 RR 214). Abelardo
Rocha, III was that family member. (Id.).
So the pieces came together: Abelardo Rocha, III had been
kidnapped and forcibly taken into Mexico by drug cartel goons who were
owed money. (Id.; 17 RR 210). Said goons demanded money and a vehicle
from the Rocha family as ransom. (17 RR 214). Recall the testimony of
Ricardo Vasquez’s wife Ana—just before he was murdered, Ricardo “had
just said that a man he knew approached him to help him out to bring back
his son from Nuevo Laredo [in Mexico].” (17 RR 33-34). Ana demanded
that Ricardo refuse to comply with that request; she begged her husband to
stay out of the underworld he had fought so hard to leave.
The man who had made the request was Abelardo Rocha, Sr., also
known as “Pantera”2—the uncle of the abductee, and the father of
Abelardo Rocha, Jr. “Pantera” believed that Ricardo Vasquez owed money
to him from the time in his life that he was a drug user. (17 RR 217). At
2
Or “the panther.”
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Ana’s insistence, Ricardo Vasquez had rejected the loan modification
agreement—rescue the nephew—so “Pantera” decided to foreclose.
According to the detective, the trustee’s sale was conducted as follows:
Pantera “directed a group of men to torture and kill the victim, Ricky
Vasquez. … Alegría explained that Rocha, Sr., brandished a buck knife
and slashed the victim’s throat and cut off a portion of his ear. … During
the torturing, Mr. Alegría stated that Rocha, Sr., said, this is probably what
they’re doing to my nephew in Mexico right now.” (17 RR 214-17).
Cande Hernandez was also interviewed, and he gave gruesome
details about how the execution was carried out, and how the victim had
tried to be escape—and that Cande struck the victim with the 2x4 board,
which the victim took and tried to defend himself with—in futility. (18 RR
117). Thereafter, Pantera promptly jumped bail and fled into Mexico. (17
RR 218). But the police were determined to find every one of his
henchmen that they could.
E. The Appellant
The police investigation in this case was so thorough that every
bloodstained footprint in the Napoleon house had to be accounted for and
checked against the known associates of Pantera. A forensic scientist
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confirmed that a red Nike shoe which belonged to the Appellant, Juan Jose
Lopez, Jr., was responsible for one of the bloody footprints in the
Napoleon house. (18 RR 32; 19 RR 51-52).
The police procured those Nike shoes worn by the Appellant on the
day of the murder. (18 RR 91). They had blood on them, blood that
matched the DNA of the victim, Ricardo Vasquez. (18 RR 159-60);
(State’s Ex. 179). The same was true for the rest of Appellant’s clothing:
his shirt and shorts (18 RR 180-82). Appellant’s shorts also had his own
DNA on them. (18 RR 183). DNA testing on the 2x4 board found that it
matched three people: Cande, who admitted to striking the victim with it;
the victim, who was so struck; and the Appellant. (18 RR 169, 172-173,
211).
During his interview, the Appellant admitted that he, in the words of
the officer, “was at the home of [Abelardo or] Abel Rocha, Sr., [also
known as] Pantera” around the time of the murder. (18 RR 105). The
Appellant claimed that his business with “Pantera” was limited to yard
work. (Id.).
Yet the Appellant had the victim’s blood all over him, and the
Appellant’s DNA was on one of the murder weapons. Accordingly, the
Appellant was indicted for the murder and aggravated kidnapping of Mr.
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Vasquez, and for engaging in the organized criminal activity of murdering
Mr. Vasquez alongside Alegría, Candelario Hernandez, Abel Rocha, Sr.
(“Pantera”), Abel Rocha, Jr., and Sergio Garcia–all of whom were also
indicted for the same three crimes.
Naturally, the Appellant sought to suppress the physical evidence—
the only admitted non-accomplice evidence that tied him to the scene.
During the motion to suppress hearing, Appellant identified Abel Rocha,
Sr., a/k/a Pantera, as the one who permitted Appellant to stay there. (13 RR
25). There was no evidence to establish that Pantera was an owner or lessor
of the house, or that he had any authority to lease the house to Appellant
on behalf of the actual owners. Appellant did not know where Pantera
lived, or how he could have given Appellant permission to stay at the
Napoleon house. (13 RR 25). Appellant further admitted that the
‘consideration’ for this arrangement was that Appellant would sell drugs
out of the Napoleon house. (13 RR 26). Appellant claimed that Pantera
was the owner of the house. (13 RR 26). Nevertheless, he admitted that
the actual owners, Ricardo Rocha and Zenaida Sanchez Rocha, never told
him he could stay there. (13 RR 27). Appellant otherwise had no lease or
title interest in the house, and he admitted that he also stayed at another
house. (13 RR 25). And after the suppression hearing, the State admitted
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Webb County Appraisal District records proving that Ricardo and Zenaida
Rocha, not Pantera, were the owners—and Appellant was just a trespasser
without a place to stay. (18 RR 40).
However, after the trial, the jury gave the Appellant a place to stay:
prison. Appellant was convicted of the three counts and given 50 years to
serve for the murder, 17 for the aggravated kidnapping, and 10 for the
criminal combination. (1 CR 500). Rent for said living arrangements was
assessed as a $30,000 fine. (Id.). Appellant now claims that the evidence
was legally insufficient to tie him to these offenses, that the jury charge
was erroneous, and that all of the evidence from the Napoleon Street house
should have been suppressed. The State responds as follows.
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ISSUES PRESENTED
RESPONSE TO ISSUE 1 (Sufficiency of the Evidence):
Whether the evidence is legally sufficient to sustain the
convictions for murder, aggravated kidnapping, and engaging in
organized criminal activity?
SUMMARY OF ARGUMENT
Appellant’s challenge to the sufficiency of the evidence hinges on
his claim that there was no evidence that Appellant Juan Jose Lopez, Jr.
committed the crime as a party. However, all that was required to establish
Appellant’s guilt was evidence establishing his presence plus proof of
suspicious activity from which a rational juror could infer a common plan
to kidnap and murder Ricardo Vasquez. That the victim’s blood was all
over Appellant’s clothing certainly is evidence of suspicious activity. As
such, a rational juror could have found that the Appellant committed the
offenses against Ricardo Vasquez as a party thereto.
- 24 -
ARGUMENT AND AUTHORITY
Appellant was charged in three counts with committing the murder
of Ricardo Vasquez by intentionally or knowingly causing his death, TEX.
PENAL CODE ANN. § 19.02(b)(1); with the aggravated kidnapping of the
same victim by intentionally or knowingly abducting him by interfering
with his liberty through the use of deadly force, Id. § 20.04(2)(b); and with
engaging in organized criminal activity by committing the said murder in a
combination with the codefendants, Id. § 71.02.
A. Standard of Review
In reviewing legal sufficiency, the Court should consider all the
evidence, both direct and circumstantial, in the light most favorable to the
verdict to determine whether any rational trier of fact could have found all
the essential elements of the offense beyond a reasonable doubt. De La
Fuente v. State, 432 S.W.3d 415, 422 (Tex. App.—San Antonio 2014, pet
ref’d) 3 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Brooks v.
3
This case was transferred from the Fourth Court of Appeals to the Thirteenth Court of
Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas.
TEX. GOV'T CODE ANN. § 73.001. As such, this Court should respectfully apply the
precedent of the transferring court. TEX. R. APP. P. 41.3; Kennedy v. State, 385 S.W.3d
729, 729 n. 1 (Tex. App.—Amarillo 2012, pet. ref'd).
- 25 -
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). It is the jury's role to
resolve conflicts in the testimony, assess credibility and weigh the
evidence, and draw reasonable inferences from the basic facts to the
ultimate facts. Brooks, 323 S.W.3d at 899. In conducting a legal
sufficiency review, the Court should defer to the jury's assessment of the
credibility of the witnesses and the weight to be given to their testimony,
rather than substitute its own judgment for that of the jury. Id.; Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Further, the Court
should resolve any inconsistencies in the evidence in favor of the jury's
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
A person may be convicted as a party to an offense if the offense is
committed by the conduct of another for which he is criminally
responsible. TEX. PENAL CODE ANN. § 7.01(a). A person is criminally
responsible for the conduct of another if “acting with intent to promote or
assist the commission of the offense, he solicits, encourages, directs, aids,
or attempts to aid the other person to commit the offense....” Id. §
7.02(a)(2); De La Fuente, 432 S.W.3d at 422. Mere presence of a person at
the scene of a crime either before, during or after the offense, or even flight
from the scene, without more, is insufficient to sustain a conviction as a
party to the offense; however, combined with other incriminating evidence
- 26 -
it may be sufficient to sustain a conviction. De La Fuente, 432 S.W.3d at
423 (citing Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App.
1985)). In determining whether a defendant participated as a party in the
commission of an offense, the jury may consider events that occurred
before, during or after the offense, and may rely on acts that show an
understanding and common design. De La Fuente, 432 S.W.3d at 423
(citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996)
(opinion on reh'g); Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.—Fort
Worth 2001, pet. ref'd) (agreement to act together in a common design is
usually proven by circumstantial evidence)).
Therefore, the test for legal sufficiency to sustain a conviction as a
party can be simply stated as some evidence from which a rational juror
could deduce Appellant’s “presence combined with other suspicious
circumstances … sufficient to tend to connect the defendant to the crime.”
De La Fuente, 432 S.W.3d at 421 (citing Dowthitt v. State, 931 S.W.2d
244, 249 (Tex. Crim. App.1996); Cox v. State, 830 S.W.2d 609, 611 (Tex.
Crim. App. 1992)).
B. Application
Appellant concedes that he was implicated in the offense by
codefendants Sergio Garcia and Raul Alegría, and that their accomplice
- 27 -
statements were corroborated by the Appellant’s DNA being present on the
2x4 board along with that of the victim and codefendant Cande Hernandez,
by the victim’s DNA being present on Appellant’s clothing and shoe, and
by the bloody shoe impression at the crime scene matching Appellant’s
shoe. (Ant. Brief at pp. 15-16) (citing 17 RR 213-14; 18 RR 32, 180-83,
190-95; 19 RR 51-52).4 But Appellant argues that this evidence establishes
only his presence at the scene, and not necessarily his participation in the
murder and kidnapping. He argues that since DNA can be transferred by
touch, it is possible that he just touched the victim at some point before the
incident—never mind that that the DNA in question came from blood
stains. The victim’s blood stains. (18 RR 180-82).
So while Appellant concedes the presence of the victim’s blood on
his clothing and shoe, he downplays the sanctity of that blood. (Ant. Brief
at pp. 15). Appellant’s argument is, essentially, that the blood-drawn
inference of his active participation in the murder and kidnapping is no
stronger than a competing inference that he just stood there as a bystander
4
Appellant has not mentioned the accomplice-witness rule, but the State will. It
provides that Garcia and Alegría are accomplices as a matter of law; accordingly, their
testimony is insufficient to sustain the conviction absent corroboration. TEX. CODE
CRIM. PROC. ANN. art. 38.14; De la Fuente, 432 S.W.3d at 421. The required
corroboration can be provided by the same evidence of suspicious circumstances that
proves up the participation of a party in the office. See id. Here, the corroborating
evidence is the victim’s blood splattered on the Appellant’s clothing and the DNA
evidence on the 2x4 board connecting Appellant to that weapon. (18 RR 170-174).
- 28 -
while everybody else kidnapped and tortured Mr. Vasquez, whose blood
then squirted him by chance.5 But the weighing of competing inferences is
for the jury, and is not part of legal sufficiency review. Jackson, 443 U.S.
at 326 (“When the court is faced with a record of historical facts that
supports conflicting inferences, it must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any such
conflicts in favor of the prosecution”). They found him guilty, a finding
entitled to deference on appeal. Brooks, 323 S.W.3d at 899. In so doing,
the jury drew a reasonable inference from the presence of the victim’s
blood on Appellant’s clothing that he acted in a common design with the
other codefendants to kidnap and kill Ricardo Vasquez. See id.; cf. De la
Fuente, 432 S.W.3d at 422-23 (defendant’s unusual behavior in driving to
murder scene, driving away from dying victim, and driving to ranch
hideout was evidence of such common design).
Therefore, the only way Appellant could succeed is if absolutely no
rational juror could draw an inference from the presence of the victim’s
blood on his clothing to the conclusion that he participated in the murder.
On the contrary, the presence of the victim’s blood is precisely the type of
5
In support of this red herring, Appellant cites inapposite opinions which did not
address party liability at all. (Ant. Brief at pp. 19-20) (citing Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007); Evans v. State, 202 S.W.3d 158 (Tex. Crim.
App. 2006)).
- 29 -
suspicious circumstance that establishes his participation; in fact, it is
enough to establish that he is guilty as the principal actor. Orellana v.
State, 381 S.W.3d 645, 651 (Tex. App.—San Antonio 2012) (blood stain
in appellant’s vehicle matched victim, establishing principal
responsibility); Robinson v. State, 368 S.W.3d 588 (Tex. App.—Austin
2012) (same result when victim’s blood in appellant’s vehicle was
combined with appellant’s possession of murder weapon and bloody
clothes, distinguishing an inapposite case).6
Finally, Appellant points out the confession of Candelario “Cande”
Hernandez that he struck the victim with the 2x4 board. (18 RR 117).
Appellant argues that Cande’s admission that he was a primary actor
absolutely excludes the Appellant from both principal and party
responsibility for the offense. This is a non sequitur, as illustrated by the
testimony that not all of the victim’s wounds were caused by that 2x4
6
Appellant’s argument might hold water if the evidence established that his
participation came after the commission of the offense, such as if he had disposed of
evidence afterwards, and there was no evidence of any previous agreement for the
Appellant to participate in the offense before or while it was committed. Pesina v.
State, 949 S.W.2d 374, 382–83 (Tex. App.—San Antonio 1997, no pet.) (acquitting
where there was no evidence of an agreement, and the jury charge restricted theory of
party liability to post-crime participation). But this is not such a case; the Appellant’s
DNA was mixed with the victim’s DNA on a murder weapon, the 2x4 board, which
was there at the scene next to the body of the deceased. (18 RR 170-74).
- 30 -
board,7 and the fact that Appellant’s DNA was found on the 2x4 board
along with that of the victim and codefendant Hernandez. Hernandez’s
confession cannot dispel the inference that Appellant was either a primary
actor or a party to the offenses. Hinojosa v. State, 433 S.W.3d 742, 756
(Tex. App.—San Antonio 2014) (holding jury was free to choose between
accomplices’ conflicting accounts of aggravated kidnapping to impose
party and principal liability among the three actors). Since the jury had the
power to choose to believe or disbelieve the testimony of any witness, it
was free to accept or disregard Candelario Hernandez’s confession in
whole or in part, and to decide how to square it with the DNA evidence to
assign party or principal liability to both Hernandez and Appellant. See id.;
De la Fuente, 432 S.W.3d at 423 (citing Brooks, 323 S.W.3d at 899). Quite
simply, the Appellant has not shown any authority for his argument that
Hernandez’s confession absolves him of party liability. There is none.
7
Appellant seems to be positing that the conviction hinged on the board being the one
and only murder weapon; this is not so. The victim sustained both blunt-force and
sharp-force wounds. (17 RR 143-44). According to an expert witness, only the former
could have been caused by the 2x4 board. (17 RR 140-44). The Appellant agrees. (Ant.
Brief at p. 9). And the indictment did not specifically plead that the either the board or a
sharp object was the sole cause of Mr. Vasquez’s death. (1 CR 77). It alleged that he
died because one or more of the codefendants struck “him with a blunt object causing
blunt trauma to his body, and/or head, and/or face, and/or [caused] a laceration to his
neck[.]” (Id.) Similarly, the aggravated kidnapping count alleged the deadly weapon
exhibited was “a blunt object and/or a sharp object….” (Id.).
- 31 -
As such, the State respectfully requests that Appellant’s first point of
error, concerning legal sufficiency, be overruled.
- 32 -
RESPONSE TO ISSUE 2 (Cause of Death Instruction):
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?
SUMMARY OF ARGUMENT
Cause of death and identity are not defensive issues, but rather, are
elements of the State’s case. As such, the Appellant was not entitled to the
requested instruction, and the trial court did not err by declining to give the
instruction. Moreover, Appellant’s requested instruction was legally
incorrect because it disregarded the law of parties. The trial court correctly
declined to charge the jury on it.
- 33 -
ARGUMENT AND AUTHORITY
Appellant urges that he was entitled to a jury instruction on the issue
of who caused the victim’s death. His theory, as stated in the charge he
requested, is that “if you [the jury] 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.” (Ant. Brief at p.
27) (quoting 1 Supp. CR 96-97). Appellant was not entitled to the
instruction for at least two reasons.
A. The Requested Instruction Was Not Based on a Defensive Issue
Though Appellant describes this as a “cause of death” instruction,
the gist of it is an instruction on identity of the primary actor. Either way,
neither the identity of the primary actor nor the cause of death are
defensive issues; rather, they are essential elements of the State’s case. To
convict Appellant of murder, the State had to prove the facts alleged in
count I of the indictment: “JUAN JOSE LOPEZ, JR. [and the
codefendants] … did then and there … cause the death of … Ricardo
Vasquez … by striking him with a blunt object causing blunt trauma
to his body, and/or head, and/or face, and/or causing a laceration to
- 34 -
his neck[.]” (1 CR 77) (emphasis added). The requested instruction
touched on both bolded elements of the offense.
Since “the 1974 Penal Code was enacted, the Court of Criminal
Appeals … appears to have taken the position that a defense or affirmative
defense must be defined in the Penal Code to warrant a separate instruction
presenting it to the jury.” Dix & Schmolesky, 43 TEX. PRAC., CRIMINAL
PRACTICE AND PROCEDURE § 43:32 (3d ed.). For example, alibi “was not
an enumerated defense in the penal code and the issue was adequately
accounted for within the general charge to the jury. Because alibi was
merely a negation of elements in the State's case, its inclusion would be
superfluous, and in fact, would be an impermissible comment on the
weight of the evidence.” Id. (quoting Solomon v. State, 49 S.W.3d 356, 368
(Tex. Crim. App. 2001)) (emphasis added).
Appellant’s requested instruction simply affirmatively negates two
of the elements of the offense, identity and manner/means; it is therefore
not a defensive-issue instruction of the type he would have been entitled to.
See Jester v. State, 64 S.W.3d 553 (Tex. App.—Texarkana 2001). The
instruction is really a comment on the weight of the evidence, assigning
magical acquitting properties to one particular reconciliation of the
- 35 -
evidence; such instructions are prohibited by statute. Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994); see TEX. CODE CRIM. PROC.
ANN. art. 36.14 (“the judge shall … deliver to the jury … a written charge
… not expressing any opinion as to the weight of the evidence, not
summing up the testimony, [nor] discussing the facts….”). There “is no
better established rule than [this]: ‘[it] is not proper for the court to single
out particular facts or specific parts of the testimony and charge thereon.
To do so would be instructing on the weight of the evidence.’” Dunne v.
State, 263 S.W. 608, 616 (Tex. Crim. App. 1923); see Mendoza v. State, 88
S.W.3d 236, 238 (Tex. Crim. App. 2002).
Moreover, the instruction is not an alternative theory as to how
Ricardo Vasquez died versus the indictment, and no other explanation for
the victim’s death other than those in the indictment was suggested by the
evidence. So even assuming arguendo that Appellant’s key case, Hill v.
State, 585 S.W.3d 713 (Tex. Crim. App. 1979), is still good law, its
superseded pre-Code rule would nevertheless be “inapplicable to the
instant case. The refusal of a defendant's requested instruction is not error
where the requested instruction is merely an affirmative submission of a
defensive issue which denies the existence of an essential element of the
State's case.” Penry v. State, 903 S.W.2d 715, 748 n.30 (Tex. Crim. App.
- 36 -
1995) (citing Green v. State, 566 S.W.2d 578, 584 (Tex. Crim. App.
1978)).
B. The Requested Instruction Was An Incorrect Statement of the Law
Further, the instruction was incorrect because it ignores the law of
parties. Even if Abel Rocha “caused the death of Ricardo Vasquez by
causing a deep laceration to his neck with a sharp instrument,” it does not
necessarily follow that the jury had to then “acquit [Appellant] Juan Jose
Lopez, Jr., of the charge of murder[.]” Rather, Appellant could have been,
and was, convicted as a party to the murder, kidnapping, and combination.
Hinojosa, 433 S.W.3d at 756. There is no entitlement to an incorrect
instruction. Showery v. State, 678 S.W.2d 103, 109 (Tex. App.—El Paso
1984).
As such, the State respectfully requests that the second part of
Appellant’s second point of error be overruled.
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RESPONSE TO ISSUE 3 (Motion to Suppress):
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
Appellant failed to establish that he was given permission to stay at
the residence by its owners, or that the person who allegedly permitted him
to stay at the house any authority whatsoever to do so. As such, Appellant
did not have standing to challenge the search and the trial court correctly
so held. Moreover, the initial police entry was done under the emergency-
aid doctrine, no warrant was required for this, and consent was obtained
from the owners after the emergency was over.
STATEMENT OF FACTS
Appellant filed a motion to suppress the evidence taken from the
Napoleon Street house on January 23, 2014. Appellant then filed a motion
- 38 -
to continue the setting on the suppression motion on August 21, 2014, to
which the State agreed. (1 CR 52, 246-50).
A cursory hearing on the motion, limited to the issue of standing only,
was held on September 11, 2014, and recorded in volume 13. The trial
court expressly limited this hearing to the question of standing. (13 RR 21-
22). Only the Appellant was permitted to testify, after which testimony the
trial court found that Appellant did not have standing to challenge the
search. An order denying the motion to suppress was entered accordingly.
(1 CR 330).
On October 16, 2014, Appellant filed an offer of proof in open court,
acknowledging that the trial court had limited the scope of the September
11 hearing to standing only, but re-urging the motion on the issue of
probable cause, and attaching Officer David I. Carmona’s complaint
affidavit as proof. (1 CR 334-503). This colloquy followed:
MR. PENA (Appellant’s counsel): … The Court found no standing,
and we just stopped right there. And so, for purposes of appeal, Your
Honor, I need to have something to show whether or not there was
probable cause and exigent circumstances to justify a warrantless search
of the premises.
THE COURT: Well, my gut instinct tells me we needed to have an
evidentiary hearing on that portion as well.
- 39 -
MR. SOSA [Counsel for codefendant Sanchez]: We join in that,
Your Honor.
THE COURT: If I remember correctly, whatever we did in court
was simply on the standing issue.
MR. PENA: Correct.
THE COURT: But if you’re telling me now that there are other
[bases] for the motion to suppress, I need to have a full evidentiary
hearing … on that.
MR. PENA: Well, the [bases] for the motion to suppress was lack of
probable cause and lack of exigent circumstances. And the [complaint]
affidavit states the facts upon which the police relied. They claimed that
the anonymous phone call provided probable cause for the entry of the
[Napoleon house] and exigent circumstances. … [The hearing] was just
basically on the standing issue. We didn’t get into any of the probable
cause … actually, there was no search warrant initially, Judge. And, in
my motion [to suppress], I alleged that the police entered the premises
at 2920 Napoleon Street Rear, based on the anonymous phone call
telling that, that the person that made the anonymous phone call and
seen somebody being dragged into this home and being tortured; and,
based on that evidence, on that call, they went prepared to investigate
and went into the home and discovered the body [of Mr. Vasquez].
(14 RR 8-11).
The State’s counsel argued that a hearing would be moot because
Appellant had not introduced any new evidence to support a suggestion
that he had standing. (Id.) Agreeing, the Appellant stood on his offer of
proof:
MR. PENA: … And, in fact, the Court heard evidence of that and
found that the Defendant doesn’t have standing. And so, this [offer of
proof] is really just to preserve the issue for appeal, Your Honor. (14
RR 13).
- 40 -
The trial court ordered the affidavit admitted as an offer of proof on
their motion to suppress. (1 CR 333; 14 RR 7). The State subsequently
filed a business records affidavit and accompanying records from the
Webb County Appraisal District, establishing that the Napoleon house was
owned not by “Pantera,” but by Ricardo Rocha and Zenaida Sanchez
Rocha; this was true at all times in 2013, up until April of 2014.8 (1 CR
310-314). The records were admitted at trial. (18 RR 40).
ARGUMENT AND AUTHORITY
A. The Procedural Posture and Scope of the Record
The Appellant’s Brief asserts that, because he was the sole witness at
the cursory standing-only hearing on September 11, 2014, “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.” (Ant. Brief at p. 28). So there is
an initial question: whether the Appellant can slam the door shut as of
September 11, 2014, and exclude the evidence as later developed at trial,
8
The Rochas were foreclosed on in April of 2014, at which time a substitute trustee
conveyed the property to Carlos Chapa. (1 CR 310-312).
- 41 -
where his testimony was thoroughly contradicted and impeached, from this
Court’s consideration.
The answer is no. A ruling on a motion to suppress is an interlocutory
decision that may be reconsidered by the trial judge. State v. Henry, 25
S.W.3d 260, 262 (Tex. App.—San Antonio 2000, no pet.) The trial judge
is not precluded from such reconsideration unless there is an interlocutory
appeal or until the judgment becomes final. See id. Therefore, the trial
court had plenary power to rehear the motion to suppress as a whole after
having the preliminary hearing on standing. See id.; State v. Wolfe, 440
S.W.3d 643 (Tex. App.—Austin 2010). The trial court could also carry
over the issue into the trial, all the way until the end; conversely, the
Appellant was free to re-urge the motion at any time. Garza v. State, 126
S.W.3d 79, 81–82 (Tex. Crim. App. 2004). Appellant chose not to do so
until he got here.
As such, the Court may properly consider everything taken into
evidence after the September 11, 2014 hearing, in addition to the
Appellant’s testimony at the September 11 hearing and the officer’s
affidavit that Appellant himself put into evidence through his offer of
proof.
- 42 -
B. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, “the trial
court is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given their testimony.” State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000). The appellate court should give “almost total
deference to a trial court's determination of the historical facts that the
record supports especially when the trial court's fact findings are based on
an evaluation of credibility and demeanor.” Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997). A similar deference should be accorded the
trial court's rulings on “application of law to fact questions,” also known as
“mixed questions of law and fact,” if the resolution of those ultimate
questions turns on an evaluation of credibility and demeanor. Id . Any
“mixed questions of law and fact” which do not rely upon an assessment of
credibility and demeanor should be reviewed de novo. Id.
Accordingly, the Court should give almost total deference to the trial
court's resolution of historical facts and review the application of the law
of search and seizure de novo. See Carmouche v. State, 10 S.W.3d 323,
327 (Tex. Crim. App. 2000). If a trial court does not file findings of fact,
the Court should assume that the trial court made implicit findings that
support the ruling, so long as those implicit findings are supported by the
- 43 -
record. Corbin v. State, 85 S.W.3d 272, 275-76 (Tex. Crim. App. 2002)
(citing Ross, 32 S.W.3d at 855). Here, the trial court did not make findings
of fact, and the Court should therefore review the evidence in the light
most favorable to the trial court's ruling. See Carmouche, 10 S.W.3d at
327-28.
C. Applicable Law
The purpose of the Fourth Amendment’s limitation on government
power “is to safeguard an individual's legitimate expectation of privacy
from unreasonable governmental intrusions.” Villarreal v. State, 935
S.W.2d 134, 138 (Tex. Crim. App. 1996). An accused has standing, under
both constitutional provisions, to contest a search only if he had a
legitimate expectation of privacy in the place searched. Villarreal, 935
S.W.2d at 138. The Appellant had the burden of proving facts establishing
a legitimate expectation of privacy. Calloway v. State, 743 S.W.2d 645,
650 (Tex. Crim. App. 1988). The Appellant may carry his burden by
proving that (a) by his conduct, he exhibited an actual subjective
expectation of privacy, i.e., a genuine intention to preserve something as
private; and (b) circumstances existed under which society was prepared to
recognize his subjective expectation as objectively reasonable. Granados v.
- 44 -
State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002); Villarreal, 935 S.W.2d
at 138.
The question here concerns factor (b), whether Appellant’s
expectation of privacy in the Napoleon Street dungeon is objectively
reasonable. The following factors are relevant in determining whether a
claim of privacy is objectively reasonable: (1) whether the accused had a
property or possessory interest in the place searched; (2) whether he was
legitimately in the place searched; (3) whether he had complete dominion
and control and the right to exclude others; (4) whether, prior to the
intrusion, he took normal precautions customarily taken by those seeking
privacy; (5) whether he put the place to some private use; and (6) whether
his claim of privacy is consistent with historical notions of privacy.
Villarreal, 935 S.W.2d at 138. “This list of factors is not exhaustive,
however, and none is dispositive of a particular assertion of privacy; rather,
[the court will] examine the circumstances surrounding the search in their
totality.” Granados, 85 S.W.3d at 223.
- 45 -
D. Application, Part 1: Appellant Failed to Establish Standing at the
Suppression Hearing or Through His Offer of Proof
First, let us assume that the Appellant is actually able to close the
door, and limit the evidence before the Court to only what was said at the
September 11, 2014 hearing, plus the officer’s complaint affidavit that
Appellant included in his offer of proof. Even with Appellant’s limits in
place, the record is against him, for the following reasons.
1. Overnight Guest?
Appellant argues that he was an authorized overnight guest and had
standing to suppress the evidence on that basis. See Luna v. State, 268
S.W.3d 594, 602 (Tex. Crim. App. 2008). Appellant claimed he got
authority to stay overnight at the Napoleon Street house from Abel Rocha,
Sr., a/k/a “Pantera”; Appellant further claimed that Pantera was the owner
of the house, and that he let it to Appellant under a rental agreement so
long as Appellant would sell drugs there. (13 RR 25-27). At the September
11, 2014 hearing, there was no evidence besides Appellant’s testimony to
establish that Pantera (Abel Rocha, Sr.) was an owner or lessor of the
house, or that he had any authority to lease the house to Appellant on
behalf of the actual owners, Ricardo Rocha and Zenaida Sanchez Rocha;
on the contrary, Appellant acknowledged that Ricardo and Zenaida Rocha
- 46 -
never told him he could stay there. (13 RR 27). Moreover, Appellant gave
contradictory testimony about where he lived overnight, admitting that he
was arrested at a house on Bismark Street. (13 RR 25). So even assuming
Appellant’s testimony was golden, the undisputed portion establishes, at
most, that Appellant was an invited guest of Abel Rocha, Sr., a/k/a
“Pantera,” who may or may not have been the landlord, and that Appellant
may or may not have stayed at the Napoleon Street death shack overnight.
(13 RR 25).
Appellant stipulates that the officer’s complaint affidavit is part of
the record from the original hearing by virtue of his offer of proof. (Ant.
Brief at p. 28). Unfortunately for him, the affidavit states:
“On Thursday August 29, 2013 at approximately 7:32pm … an
unidentified caller [stated] … that a male subject was being tortured and
dragged inside a small house with a wooden fence … [Detective] Perez
then proceeded to make contact with property owner [Zenaida]
Sanchez who identified the correct location as 2920 Napoleon St.
(Rear), and provided a written consent to search the property.”
(1 CR 336).
This statement, which Appellant adamantly wants in the record, creates
another factual dispute about who owned Blackacre, or rather, 2920
Napoleon St. Rear, at the time of the search; whether or not “Pantera” was
really the owner raises yet another issue on whether “Pantera” had
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authority to lease the premises or give permission to Appellant to stay
there.
An individual who has no possessory or proprietary interest in the
premises, but is a guest, has no clothes in the house, or other belongings,
has no legitimate privacy interest in the premises searched. Calloway, 743
S.W.2d at 650. Additionally, an individual has no valid expectation of
privacy in a home where he is simply a guest and does not control
entrances or exits from the premises. Black v. State, 776 S.W.2d 700, 701
(Tex. App.—Dallas 1989, pet. ref'd); Villarreal v. State, 893 S.W.2d 559,
561 (Tex. App.—Houston [1st Dist.] 1994), aff'd, 935 S.W.2d 134 (Tex.
Crim. App. 1996). Appellant gave inconsistent testimony as to where he
actually lived; he also admitted that he did not have exclusive control over
the doors, but supposedly shared that control with Pantera. (13 RR 28).
And the evidence that Pantera even had such control to grant was as
elusive as the Cheshire Cat.
2. Lessee?
Appellant might also be able to concoct standing if he can prove that
he is an authorized lessee of the premises. See Black v. State, 776 S.W.2d
700, 701 (Tex. App.—Dallas 1989). But, in order to elevate Pantera’s
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questionable invitation into an actual lease which could impart standing,
Appellant would have to prove the usual elements of a contractual lease,
namely consideration. Appellant described such as follows:
Q. How is it that [Pantera] gave you permission to stay there? In
what way did he give you permission to stay there?
A. Well, because I used to sell drugs there.
(13 RR 26).
So Pantera supposedly let Appellant stay at the Napoleon house
because he was selling drugs for Pantera. Pardon the flashback to 1L
Contracts class, but it goes without saying that “contracts against public
policy are void and will not be carried into effect by courts of justice [and
these] are principles of law too well established to require the support of
authorities[;] and the only question is whether the agreement set forth in
the petition be or not in violation of public policy or in fraud of the law.”
Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 671
(Tex. 2008) (quoting James v. Fulcrod, 5 Tex. 512, 520 (1851)). A
contract for an illegal purpose—‘hey man, I’ll let you stay at the death
shack if you sell drugs for me’—is void ab initio. Crowell v. Housing
Authority of City of Dallas, 495 S.W.2d 887 (Tex. 1973). Accordingly, this
‘lease’ would not be recognized by society as conferring an objectively
reasonable privacy interest. Cf. Villarreal, 935 S.W.2d at 138.
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So in Appellant’s world, where only his testimony and the officer’s
affidavit count as evidence on the motion to suppress, it is not at all clear
that “Pantera” had any authority to grant a leasehold to Appellant, that
such grant was valid, that it conferred an objectively reasonable privacy
interest, or even that Appellant actually lived at the Napoleon Street shack.
The trial court was well within its discretion to resolve these matters
against Appellant, and those resolutions are respectfully taken with
deference on appeal. See Carmouche, 10 S.W.3d at 327-28.
3. The Trial Evidence
Looking past the Appellant’s world to the evidence admitted at trial,
the State brought in records from the Webb County Appraisal District to
establish that Pantera was not the owner at the time of the search. (18 RR
40). Appellant conceded that the then-owners, Ricardo Rocha and his wife,
Zenaida Sanchez Rocha, never permitted him to stay at the Napoleon
Street house of death. (18 RR 27). They did, however, authorize the police
to search the house. (18 RR 17-19). That dispenses with the need for
probable cause and a warrant exception. But since Appellant has briefed
that issue, it will be answered next.
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E. Application, Part 2: Appellant’s Probable Cause Argument Ignores
the Rochas’ Waiver and the Emergency Exception
Assuming arguendo that Appellant somehow obtained standing from
Pantera by selling drugs for him, Appellant makes the following
substantive argument based on the same officer’s affidavit that defeated his
standing claim: “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.” (Ant. Brief at p. 29).
Accordingly, he says that all of the evidence obtained from that house
should have been excluded. (Id. at pp. 29-30).
The gist of the argument was that the “anonymous telephone call”
was not a sufficient basis for the development of probable cause, because
“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….” (Ant. Brief at p. 29). Appellant confuses anonymous tips with
anonymous distress calls. These are two different animals, distinguished
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by whether the crime involves danger to life. Compare State v. Simmang,
945 S.W.2d 219, 233 (Tex. App.—San Antonio 1997) (anonymous tip case
affirming suppression where there was no danger) with Laney v. State, 117
S.W.3d 854, 862 (Tex. Crim. App. 2003) (distress call case affirming
denial of suppression when there was danger to a child). Anonymous tips
must be corroborated. Simmang, 945 S.W.2d at 233. Distress calls need no
such corroboration per se; they are handled under a completely different
set of rules, as described below.
The Mincey emergency-aid doctrine holds that “‘[t]he need to
protect or preserve life or avoid serious injury’ [can justify] a warrantless
intrusion and limited search of a private residence.” Laney, 117 S.W.3d at
858 (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)). The key issue
is not corroboration of the anonymous call leading to the officer’s
response, but rather an objective test. “Under the emergency doctrine, the
officer [must have] an immediate, reasonable belief that he or she must act
to “protect or preserve life or avoid serious injury.” Laney, 117 S.W.3d at
861. Since the caller reported that Mr. Vasquez was being kidnapped and
tortured, the officer was justified in entering the house in order to protect
Mr. Vasquez’s life. Laney, 117 S.W.3d at 861. Although the officer was
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too late, anything found in plain sight could be then and there seized. Id.
That is exactly what happened.
Appellant also mentions the lack of a search warrant. Upon
determining that there was no longer an emergency, the police obtained a
consent to search from the owners of the property. (1 CR 336; 18 RR 18).
This obviously removed any need for a warrant.
As such, the State respectfully requests that Appellant’s third point
of error, concerning standing to contest the search, be overruled.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that the
conviction be AFFIRMED.
Respectfully submitted,
ISIDRO R. ALANIZ
DISTRICT ATTORNEY
49TH JUDICIAL DISTRICT
By:___/s/__________________
David L. Reuthinger, Jr.
Assistant District Attorney
Webb County, 49th Judicial District
1110 Victoria St., Suite 401
Laredo, Texas 78040
(956) 523-4900 / (956) 523-5070 (Fax)
Bar No. 24053936
ATTORNEY FOR APPELLEE
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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief complies with Rule 9.4,
Texas Rules of Appellate Procedure, as amended, and that the word count,
less exempt sections, is 9,635.
Date: July 8, 2015
___/s/__________________
David L. Reuthinger, Jr.
Attorney for Appellee
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and
foregoing Appellee’s Brief has been delivered to J. Eduardo Pena, attorney
for the Appellant, via eFileTexas e-Service to jpena84@att.net.
Date: July 8, 2015.
___/s/__________________
David L. Reuthinger, Jr.
Attorney for Appellee
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