Saul Mendez v. State ( 2009 )


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  •                                  NO. 07-07-0465-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL B
    SEPTEMBER 30, 2009
    ______________________________
    SAUL MENDEZ, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    _________________________________
    FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
    NO. 2006-414170; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
    _______________________________
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
    MEMORANDUM OPINION
    Raising five issues, appellant Saul Mendez appeals from his jury conviction for
    murder and the assessment of a life sentence in the Institutional Division of the Texas
    Department of Criminal Justice. We affirm.
    Factual Background
    On September 18, 2006, Lubbock police officers investigated a white Suburban
    vehicle found burning in north Lubbock. The vehicle was registered to Ozell Craft.
    Photographs show the interior of the Suburban was burned thoroughly, but officers found
    several items that survived the fire, including keys to Craft’s house, a can of bleach and a
    knife with “red stains on it.” Officers learned from Craft’s employer he did not come to work
    that morning.
    Officers went to Craft’s house located on 42nd Street in Lubbock, where they found
    his body lying face down on the floor. He had been stabbed some sixty times, and
    defensive wounds, overturned furniture and splattered blood indicated his death followed
    a struggle. Except for the blood splatters and other indications of a struggle, the home was
    neat and clean.
    After news reports about the burning Suburban, police received a Crime Line tip
    about a Hispanic male seen driving Craft’s white Suburban.
    Testimony showed appellant came to Lanny Menafee’s apartment in the early
    morning hours of September 18. Although Menafee did not know the name of its owner,
    he recognized the white Suburban appellant was driving. Menafee also recognized the
    Suburban from television and news reports of its burning.
    Menafee told the jury appellant asked him for help cleaning up “a mess.” He
    mentioned fingerprints and walls and furniture, but blood was not mentioned. Menafee
    advised him to use bleach and water.
    Aretha Faye Smith testified she was living with Menafee, and was present when
    appellant came to Menafee’s apartment. She remembered the visit took place earlier in
    2
    the evening, estimating it was between 10:00 p.m. and midnight. She did not see how
    appellant arrived, but Menafee later told her appellant was in the Suburban. She also
    connected the Suburban she saw on the news with Craft. She made the Crime Line call,
    and acknowledged she received $1000 for the information.
    Smith testified she heard appellant’s conversation with Menafee about cleaning up
    fingerprints, and heard Menafee’s advice. Blood was not mentioned. Appellant said the
    house where cleaning was needed was on 43rd or 42nd Street. Appellant tried to get
    Menafee to help him clean, but Menafee refused.
    Smith and Menafee said appellant was wearing a white t-shirt. Menafee said
    appellant had red spots of blood on his pants. Smith did not notice anything on the t-shirt
    but noticed something red on the bottom of his pants. She thought at the time it was paint.
    Menafee and Smith both said Linda Sue Farmer was present at Menafee’s
    apartment the same evening. Farmer testified she was acquainted with Menafee and
    walked to his apartment on September 17 or 18, where she saw Menafee outside, talking
    with a man she identified as appellant. A few minutes after her arrival, she left with
    appellant in a white SUV,1 and accompanied him to a duplex apartment. Farmer later
    showed police the duplex to which she had gone with appellant. Police later searched the
    apartment and found a sock with traces of Craft’s blood.
    1
    Farmer referred to the vehicle both as a Suburban and an Expedition.
    3
    Appellant shortly left Lubbock, and was arrested in Chicago on September 21.
    Tests showed a beer can found in Craft’s kitchen trash bore appellant’s fingerprints and
    DNA, and his fingerprint and palm print were found on the bedroom door of Craft’s home.
    Appellant was indicted for Craft’s murder, and the jury found him guilty over his
    contrary plea. Appellant timely filed an appeal.
    Analysis
    Issue 1: Factual Sufficiency
    Appellant’s first issue challenges the factual sufficiency of the evidence supporting
    his conviction. On direct appeal the court must begin its factual sufficiency review with the
    assumption that the evidence is legally sufficient under Jackson v. Virginia, 
    443 U.S. 307
    ,
    
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979). Watson v. State, 
    204 S.W.3d 404
    , 406
    (Tex.Crim.App. 2006); Clewis v. State, 
    922 S.W.2d 126
    , 133 (Tex.Crim.App. 1996). A
    factual sufficiency review considers whether the evidence supporting guilt, though legally
    sufficient, is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or
    evidence contrary to the verdict is such that the jury’s verdict is against the great weight
    and preponderance of the evidence. Grotti v. State, 
    273 S.W.3d 273
    , 283 (Tex.Crim.App.
    2008); Marshall v. State, 
    210 S.W.3d 618
    , 625 (Tex.Crim.App. 2006); 
    Watson, 204 S.W.3d at 414-15
    . Ultimately in a factual sufficiency review, the appellate court must answer the
    single question whether, considering all the evidence in a neutral light, the jury was
    rationally justified in finding guilt beyond a reasonable doubt. 
    Grotti, 273 S.W.3d at 283
    ,
    4
    citing 
    Watson, 204 S.W.3d at 415
    . Circumstantial evidence is as probative as direct
    evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
    sufficient to establish guilt. Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex.Crim.App. 2007).
    Although an appellate court’s authority to review factual sufficiency permits the court
    to disagree with the fact finder’s determinations, even to a limited degree those concerning
    the weight and credibility of the evidence, the appellate court must accord them due
    deference. 
    Marshall, 210 S.W.3d at 625
    ; Johnson v. State, 
    23 S.W.3d 1
    , 9 (Tex.Crim.App.
    2000). See also Steadman v. State, 
    280 S.W.3d 242
    , 246-47 (Tex.Crim.App. 2009). Our
    analysis must include a consideration of the evidence that, according to the appellant, most
    undermines the jury's verdict. Lasiter v. State, 
    275 S.W.3d 512
    , 518 (Tex.Crim.App. 2009);
    Sims v. State, 
    99 S.W.3d 600
    , 603 (Tex.Crim.App. 2003).
    Reiterated, the jury heard evidence that appellant’s finger and palm prints were found
    on an interior door of Craft’s house; that appellant’s DNA was found on an empty beer can
    left in the kitchen trash; that, during the night of September 18, appellant visited Menafee’s
    home, asking for help cleaning up a mess and mentioning a location on 42nd or 43rd Street;
    Craft lived on 42nd Street; appellant was advised to clean with bleach and rags, and police
    officers found bleached rags in Craft’s kitchen sink;2 appellant was driving Craft’s suburban
    when he visited Menafee’s home; Menafee and Smith saw blood stains on appellant’s pants;
    appellant picked up a female at Menafee’s home and took her to a duplex apartment in which
    he had resided and that was otherwise unoccupied; a sock with a small amount of Craft’s
    2
    Despite the presence of the bleach and rags, police could see no indication that
    any attempt had been made to clean the splattered blood from the home.
    5
    blood was found on the floor of the duplex apartment; a witness saw a Hispanic male fitting
    appellant’s description in the area where the burning Suburban was found; a knife with blood-
    like stains was found in the vehicle, along with a bleach can; appellant shortly left Lubbock
    and traveled to Chicago.
    Correctly acknowledging that the evidence, and reasonable inferences from it, allow
    the conclusion appellant was around Craft’s body after his murder, appellant nonetheless
    contends it is factually insufficient to show appellant committed the murder. In support of his
    contention, appellant points out there is no evidence of blood on the white t-shirt he was
    wearing when he visited with Menafee and Smith, and argues the great amount of splattered
    blood found at the scene and the apparent violence of Craft’s death would not have left
    Craft’s assailant with a clean shirt. He further argues the evidence of Craft’s blood on
    appellant’s sock and pants, and that he sought to clean up Craft’s home, simply show his
    presence at the murder scene and a desire to remove the evidence of his presence.3
    Appellant further points out Craft was a large man and had defensive wounds, further
    indicating his death involved a violent struggle, but appellant exhibited no cuts or other
    indications he had engaged in such a struggle. Appellant points to the medical examiner’s
    statement that knife slippage associated with violent stabbing sometimes produces cuts to
    an assailant’s hands. We note, however, the medical examiner also said such injuries occur
    3
    He also suggests the evidence could indicate appellant simply was helping the
    actual murderer. Elsewhere appellant notes the jury was not charged on the law of parties.
    6
    in “a minority of cases,” and opined that the absence of injuries on an assailant’s hands
    “doesn’t mean anything.”
    We agree the evidence does not compel the inference appellant was Craft’s assailant
    but we find the jury reasonably could have drawn an inference of appellant’s guilt from the
    evidence it heard. Considering the role of the jury to draw reasonable inferences from the
    evidence, 
    Hooper, 214 S.W.3d at 15-17
    , and viewing the entire record in a neutral light, we
    do not find the evidence favoring guilt is so weak that the jury’s verdict seems clearly wrong
    and manifestly unjust or that, giving due consideration to the evidence contrary to the verdict,
    the great weight and preponderance of all the evidence contradicts the jury’s verdict. The
    evidence is factually sufficient. Appellant’s first issue is overruled.
    Issue 2: Motion to Suppress
    In his second issue, appellant asserts the trial court erred by denying his request to
    suppress evidence obtained in the duplex apartment despite written consent to search given
    by the landlord. Appellant’s argument is founded on the holding that a landlord typically
    cannot validly consent to the search of a house that he has rented to another. See Maxwell
    v. State, 
    73 S.W.3d 278
    , 282 n.3 (Tex.Crim.App. 2002), citing Chapman v. United States, 
    365 U.S. 610
    , 
    81 S. Ct. 776
    , 
    5 L. Ed. 2d 828
    (1961). We review a trial court's ruling on a motion to
    suppress evidence for an abuse of discretion by the court. Villarreal v. State, 
    935 S.W.2d 134
    , 138 (Tex.Crim.App.1996). In this review we give almost total deference to the trial court's
    determination of historical facts and review the court's application of search and seizure law
    de novo. Guzman v. State, 
    955 S.W.2d 85
    , 88-89 (Tex.Crim.App. 1997). Therefore, we will
    7
    review the evidence in a light most favorable to the trial court's ruling and assume that the trial
    court made implicit findings of fact supported by the record. Carmouche v. State, 
    10 S.W.3d 323
    , 327-28 (Tex.Crim.App. 2000) (citations omitted). To find error, the court’s judgment
    must be “outside the zone of reasonable disagreement” or not “reasonably supported by the
    record.” State v. Dixon, 
    206 S.W.3d 587
    , 590 (Tex.Crim.App. 2006).
    At the hearing on the motion to suppress, the State presented testimony from a police
    officer and photographs of the apartment. Appellant’s uncles Alfred and Efrain Mendez, and
    appellant, testified for appellant. Although they were not introduced, there was some
    testimony about the contents of written statements Alfred and Efrain Mendez gave police a
    day or two after the search. In the exercise of its fact-finding role, the trial court reasonably
    could have determined, from testimony at the hearing, that no one was living in the apartment
    on September 20; that appellant and his common-law wife previously had rented the
    apartment but had paid only part of August’s rent and no rent for September; that the
    common-law wife was residing in another place; that the apartment was owned by Efrain
    Mendez and his sister; that they intended to re-rent the apartment as soon as it was cleaned
    up; that the apartment was not rented to appellant; and that appellant had left town. On those
    facts, the trial court reasonably could have concluded Efrain Mendez, the apartment’s owner,
    had actual authority to consent to its search. See People v. Superior Court of Santa Clara
    County, Respondent, Christopher Eugene Walker, Real Party in Interest, 
    49 Cal. Rptr. 831
    (Cal.App. 2006) (owners of property may consent to police search when no other persons are
    legitimately occupying it). See also People v. Carr (1972) 
    8 Cal. 3d 287
    , 298, 
    104 Cal. Rptr. 705
    , 
    502 P.2d 513
    (same).
    8
    Issue 3: Article 38.23 Jury Instruction
    In his third issue appellant maintains the trial court erred in denying his request for an
    instruction under article 38.23(a) of the Texas Code of Criminal Procedure because the
    evidence raised a fact issue on whether the consent to search the apartment was legally
    obtained. By appellant’s view of the evidence, there existed a fact issue on the reasonableness
    of the officer’s belief appellant’s uncles Alfred and Efrain Mendez had authority to consent to
    search of the apartment. We disagree, and overrule the issue.
    There are three requirements to warrant an article 38.23 instruction: (1) the evidence
    heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively
    contested; and (3) the contested factual issue must be material to the lawfulness of the
    challenged conduct in obtaining the evidence.        Madden v. State, 
    242 S.W.3d 504
    , 510
    (Tex.Crim.App. 2007). The requirement for establishing a factual dispute is simply that an “issue
    [is] raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached,
    or contradicted, and even when the trial court thinks that the testimony is not worthy of belief.”
    Walters v. State, 
    247 S.W.3d 204
    (Tex.Crim.App. 2007). The evidence presented is viewed in
    the light most favorable to the requested instruction. Bufkin v. State, 
    207 S.W.3d 779
    , 782
    (Tex.Crim.App. 2006). However, only the testimony heard by the jury can be considered to
    determine whether an article 38.23 instruction should be given. 
    Madden, 242 S.W.3d at 510
    .
    Evaluating the evidence bearing on the reasonableness of the officers’ search based on
    consent, we focus on the facts available to the them at the time. See Brimage v. State, 
    918 S.W.2d 466
    , 481 (Tex.Crim.App. 1994), citing Illinois v. Rodriguez, 497 U.S.177, 189, 
    110 S. Ct. 9
    2793, 
    111 L. Ed. 2d 148
    (1990) (discussing apparent authority). Although appellant, and his
    uncles Alfred and Efrain Mendez testified at the hearing on the motion to suppress, none of
    them testified before the jury. As noted, case law holds a landlord typically cannot validly
    consent to the search of a house that he has rented to another. 
    Maxwell, 73 S.W.3d at 282
    n.
    3. Limiting our consideration to the evidence heard by the jury, we see no evidence affirmatively
    contesting the State’s evidence the apartment was not rented when Alfred and Efrain Mendez
    gave police consent to search it on September 20. In particular, we do not agree the impression
    Officer Sutton formed on the previous day, before the officers’ contact with appellant’s uncles,
    constitutes such evidence. See 
    Madden, 242 S.W.3d at 513
    (discussing affirmative evidence
    requirement).
    Issue 4: Ineffective Assistance of Counsel
    In his fourth issue appellant asserts his trial counsel provided inadequate assistance
    because he did not request a sudden passion instruction on punishment.
    To prevail on a claim of ineffective assistance of counsel, a defendant must establish by
    a preponderance of the evidence that his lawyer's performance fell below an objective standard
    of reasonableness and that there is a “reasonable probability” the result of the proceeding would
    have been different but for counsel's deficient performance. Strickland v. Washington, 
    466 U.S. 668
    , 693-94, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984); Mallett v. State, 
    65 S.W.3d 59
    , 62-63
    (Tex.Crim.App. 2001). A reasonable probability is a probability sufficient to undermine
    confidence in the outcome of the trial. Hernandez v. State, 
    726 S.W.2d 53
    , 55
    (Tex.Crim.App.1986). The purpose of this two-pronged test is to judge whether counsel's
    10
    conduct so compromised the proper functioning of the adversarial process that the trial cannot
    be said to have produced a reliable result. Thompson v. State, 
    9 S.W.3d 808
    , 812-13
    (Tex.Crim.App.1999).
    During the punishment phase of trial, a defendant may argue that he caused the death
    while under the immediate influence of sudden passion arising from an adequate cause.
    McKinney v. State, 
    179 S.W.3d 565
    , 569 (Tex.Crim.App. 2005); see Tex. Penal Code Ann. §
    19.02(d) (Vernon 2003). “Sudden passion” is “passion directly caused by and arising out of
    provocation by the individual killed or another acting with the person killed which passion arises
    at the time of the offense and is not solely the result of former provocation.” Tex. Penal Code
    Ann. § 19.02(a)(2) (Vernon 2003). “Adequate cause” is “cause that would commonly produce
    a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render
    the mind incapable of cool reflection.” Tex. Penal Code Ann. § 19.02(a)(1). Sudden passion is
    a mitigating factor that, if found by the fact finder to have been proven by a preponderance of
    the evidence, reduces the offense from a first-degree felony to a second-degree felony. See
    Tex. Penal Code Ann. § 19.02(c)-(d).
    A defendant seeking a jury instruction on sudden passion must prove there was an
    adequate provocation; that a passion or an emotion such as fear, terror, anger, rage or
    resentment existed; that the homicide occurred while the passion still existed and before there
    was reasonable opportunity for the passion to cool; and there was a causal connection between
    the provocation, the passion, and the homicide. McKinney v. State, 
    179 S.W.3d 565
    , 569
    (Tex.Crim.App. 2005); Trevino v. State, 
    100 S.W.3d 232
    , 238 (Tex.Crim.App. 2003). In
    11
    reviewing a case involving a sudden passion jury charge, it is our duty to focus on the evidence
    supporting that charge, not on the evidence refuting it. 
    Trevino, 100 S.W.3d at 239
    . On appeal,
    appellant supports his argument he was entitled to a sudden passion instruction by first
    contending the beer can with his DNA found at the scene supported a reasonable inference he
    had been a welcome guest at Craft’s home at some point before the murder. Second, he
    argues that music playing in the house when police arrived, the presence of a pornographic
    DVD in the player, the belief expressed by Larry Menafee that Craft was bisexual, and the
    notation by police that the button at the waist of Craft’s pants was unbuttoned when his body
    was found all support a reasonable inference that Craft had attempted some sort of sexual crime
    on appellant, inciting appellant’s rage and leading to the murder. Third, appellant highlights the
    nature of the crime, noting (1) Craft was stabbed at least sixty times and, as the forensic
    pathologist testified, this indicated rage on the part of his killer; (2) Craft’s bedroom appeared
    to have been ransacked; (3) the door to the bedroom appeared to have been forced open; and
    (4) appellant’s fingerprints were on the doorhandle. Appellant argues all these facts indicate “a
    cause that would commonly produce a degree of . . . rage . . . [or] terror in a person of ordinary
    temper, sufficient to render the mind incapable of cool reflection” and further, support a
    reasonable inference of the adequate cause of the rage and murder.
    The State acknowledges the forensic pathologist’s testimony that the number and cluster
    of wounds on the victim’s back, when the victim may not have been offering resistance, was a
    sign of rage motivating the killer.    But, the State contends, the remainder of appellant’s
    evidence is entirely speculative, and we must agree. Appellant argues the presence of his beer
    can indicates a social visit with Craft. However, there was no alcohol in Craft’s blood at the time
    12
    of his death, and no evidence shows whether appellant drank the beer before or after Craft’s
    death. Further, we cannot agree the facts that a heterosexual pornographic movie was playing
    in the DVD player, that Craft’s pants were unbuttoned, and that one witness thought Craft was
    bisexual or gay permit a reasonable inference Craft attempted to perpetrate a sexual crime on
    appellant, inciting his rage and leading him to murder. See Hooper v. State, 
    214 S.W.3d 9
    , 16
    (Tex.Crim.App. 2007) (distinguishing inference from speculation).
    The evidence supporting a sudden passion instruction fails for at least two reasons.
    Although the pathologist testified that the manner of the killing indicated rage, neither his
    testimony nor any other evidence addressed the adequacy of the supposed sexual advance to
    produce such rage in a person of ordinary temper. Evidence is thus lacking that appellant’s rage
    arose from an adequate provocation. 
    McKinney, 179 S.W.3d at 569
    . Second, because of the
    speculative nature of the evidence, it does not show the required causal connection between the
    provocation, the passion and the stabbing. 
    Id. Combined, the
    missing elements are of evidence
    the asserted provocation would have produced a degree of rage in a person of ordinary temper
    sufficient to cause that ordinary person to lose his sensibilities and respond by stabbing the victim
    sixty times. If the evidence demonstrates no legally adequate cause, as is the case here, no
    amount of subjective passion will justify submission of a sudden passion instruction. See Willis
    v. State, 
    936 S.W.2d 302
    , 308 (Tex.App.–Tyler 1996, pet. ref’d) (defendant not entitled to a
    reduced sentence for murder when his emotional responses are aberrational according to
    societal norms).
    13
    Consequently, there was no reason for trial counsel to request an instruction on sudden
    passion. Appellant has failed to rebut the strong presumption that his trial counsel's decision not
    to request an instruction on sudden passion fell within the wide range of reasonable professional
    assistance. See 
    Strickland, 466 U.S. at 687
    , 104 S.Ct. at 2064; 
    Thompson, 9 S.W.3d at 814
    . We
    overrule appellant’s fourth issue.
    Issue 5: Exclusion of evidence
    Via his fifth issue, appellant contends the trial court erred by barring him from asking a
    police witness about police reports of complaints by two men in 1997 and 1998 accusing Craft
    of attempted sexual assault. Appellant suggests that questioning officers about reports of Craft’s
    possible attempted assaults would uncover potential alternative perpetrators of his murder. We
    overrule the issue.
    Responding to the State’s objection to appellant’s attempt to question the officer about the
    reports, his counsel told the court, “Your honor, I would like to go into two police reports with this
    witness that he reviewed years earlier involving Mr. Craft as a suspect into [sic] attempted sexual
    assaults. He reviewed them. He signed off on them. He felt there was credible evidence that
    the event happened. I think this is relevant to establish whether there were other suspects in this
    case considering what went on in the past regarding this . . . victim.”
    The court asked counsel, “What other suspects?” Counsel responded, “Any other
    suspects, Judge. When you have possible reports involving attempted sexual assault and you
    have this sort of activities outlined in these police reports, it’s my submission . . . that opens up
    14
    the possibility of other suspects that they could have investigated. I want to ask him if they’re
    trying to track down that line of investigation.”
    Clarifying his theory to the court, counsel then said, “I’m saying that if this individual, Mr.
    Craft, has a history of this type of behavior, then it is much more likely that there were other
    people out there with either the reason or the means to have committed this act and that’s what
    I want to ask about.”
    We initially confront the question whether counsel’s argument to the court was a sufficient
    statement of what the excluded evidence would show to preserve error. See Guidry v. State, 
    9 S.W.3d 133
    , 153 (Tex.Crim.App. 1999) (error in exclusion of evidence not presented for review
    absent statement of what excluded evidence would show). The State does not expressly
    contend error was not preserved, so we will assume, arguendo, the issue is presented for review.
    Addressing “alternative perpetrator” evidence, the Court of Criminal Appeals has noted
    that although an appellant certainly has a right to establish his innocence by showing that
    someone else committed the crime, he still must show that his proffered evidence "is sufficient,
    on its own or in combination with other evidence in the record, to show a nexus between the
    crime charged and the alleged ‘alternative perpetrator.'" Wiley v. State, 
    74 S.W.3d 399
    , 406
    (Tex.Crim.App. 2002). The nexus must include proof that the other person “committed some act
    directly connecting him with the crime.” 
    Wiley, 74 S.W.3d at 406
    n.19 (quoting State v. Woods,
    
    508 S.W.2d 297
    , 300 (Mo.App.1974)). In Wiley, the defendant identified a particular alternative
    perpetrator but the Court of Criminal Appeals held that the probative value of the defendant’s
    proffered evidence of his involvement was slight because of its speculative nature. The court
    15
    further held that even assuming the evidence had “some marginal relevance,” it would not
    withstand the balancing required by Rule of Evidence 403. 
    Wiley, 74 S.W.3d at 407
    . Here,
    appellant does not contend that his proffered evidence even identifies a particular alternative
    perpetrator, much less that the asserted perpetrator had committed some act directly connecting
    him with Craft’s murder. Compared with the requirements outlined in Wiley, the proffer consisted
    merely of “unsupported speculation that another person may have done the crime.” 
    Id. at 407.
    The trial court did not abuse its discretion by excluding it.
    Having overruled all of appellant's issues, we affirm the trial court's judgment.
    James T. Campbell
    Justice
    Do not publish.
    16