Mario Roberto Zarate v. State ( 2004 )

Opinion Issued May 20, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00183-CR

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MARIO ROBERTO ZARATE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 900207

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MEMORANDUM OPINION

          Appellant, Mario Roberto Zarate, was indicted for the offense of capital murder. The indictment alleged that appellant, while committing and attempting to commit the burglary of a habitation owned by Nohemi Garcia, intentionally caused the death of Evaristo Gonzales by shooting him with a deadly weapon.

          After a jury found appellant guilty of the offense of capital murder, the trial court sentenced him to an automatic sentence of life confinement. In three issues, appellant contends that (1) the scenario alleged in the capital murder indictment and charge was not contemplated by the Penal Code, (2) there is legally and factually insufficient evidence to prove the predicate offense of burglary, and (3) there is legally and factually insufficient evidence to support his conviction for capital murder. We affirm.

Facts

          On January 22, 2002, Evaristo, the complainant, was at home with his mother Nohemi Garcia, his sister Brenda, and his sister Leticia and her two children. Brenda and the other children were sleeping in the bedrooms of the trailer home. As Evaristo waited for his ride to pick him up for work, appellant, Leticia’s husband, appeared in the living room holding a gun. Appellant did not then, or ever, reside in the trailer home. Appellant got inside through a back bedroom window that he had forced open.

          Appellant pointed the gun at Leticia. Nohemi quickly left through the back door and went to her next-door neighbor’s trailer to call the police. As appellant pointed the gun at Leticia, Evaristo tried to grab it. Appellant and Evaristo began a fistfight. They struggled over the gun, but Evaristo was not able to grab it from appellant.

          Brenda woke up from the noise and told appellant that she was going to call the police. Appellant said not to because he was leaving. But appellant did not leave. Brenda left the trailer and went to her uncle’s trailer for help; Evaristo followed her. Appellant then locked the front door behind them.

          Appellant hit and kicked Leticia several times and said he wanted to kill her. He dragged Leticia by her hair towards the back door with the gun to her head. Before appellant got all the way out of the door, Evaristo came around the trailer and stopped in the doorway. Appellant then shot Evaristo at close range. Nohemi, who was still at her neighbor’s home, saw Evaristo leaving the trailer clutching his stomach. Brenda, who was at her uncle’s trailer across the street, also heard the shot and saw Evaristo run out of the trailer holding his stomach.

          Appellant then shoved Leticia down in a chair in the living room. When appellant went to close the back door, Leticia left through the front door. Officer Amador, a police officer with the City of South Houston was dispatched to the scene. Amador testified that Evaristo had a small bullet wound. Evaristo eventually died from the wound. Dr. Wilson, an assistant medical examiner at the Harris County Medical Examiner’s Officer determined that the cause of death was a gunshot wound to the abdomen.       

Discussion

Due Process

          In his first issue, appellant contends that the charge against him, upon which he was convicted, was not contemplated by the Penal Code and therefore his due process rights under the Texas Constitution were violated. See Tex. Const. art. I, § 10, 19. He argues that the State improperly relied on the offense of murder as the underlying felony for the offense of burglary, and then used the same murder offense to charge him with capital murder. Because one cannot be convicted of an offense not proscribed by the Penal Code, he concludes that this case should be “reversed and dismissed.”

          Appellant’s argument, that the State improperly bootstrapped the charge to elevate it to capital murder, has been rejected by the Court of Criminal Appeals. See Homan v. State, 19 S.W.3d 847, 849 (Tex. Crim. App. 2000) (capital murder convictions under Texas Penal Code section 19.03(a)(2) are upheld if evidence sufficiently establishes the underlying felony of burglary involving the commission of murder following the unlawful entry into a habitation). We are bound by the Court of Criminal Appeals’s holding.

          We overrule appellant’s first issue.

Sufficiency of Evidence: Burglary

          In his second issue, appellant contends that the evidence is legally and factually insufficient to prove the predicate offense of burglary, and thus, insufficient to support his conviction of capital murder. Appellant argues first that the evidence is legally insufficient to prove burglary because the State failed to prove that he entered the home with intent to commit a felony other than murder. He then argues that the evidence is factually insufficient to prove burglary because apparent consent was established. We address these issues separately.

          Legal Sufficiency

          We review the legal sufficiency of the evidence by viewing the evidence in a light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the factfinder. Id.

          Under the law applicable to this case, a person commits burglary if, “without the effective consent of the owner, the person . . . enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Tex. Pen. Code Ann. § 30.02 (a)(3). Under this section, the State was required to prove that appellant entered Nohemi’s home without consent and committed, or attempted to commit a felony—here, murder.

          Appellant claims that the evidence is legally insufficient to prove burglary because the State presented no proof of any other predicate felony for the burglary allegation other than the murder alleged. Under Homan, however, the State did not have to prove appellant entered the house with the intent to commit a felony other than murder. See Homan, 19 S.W.3d at 848-49.

          Appellant further argues that the record contains no evidence that he intended to burglarize Nohemi’s home or that he intended to kill Evaristo, and no evidence that anything was stolen from Nohemi’s trailer. However, under section 30.02(a)(3), the State was not required to prove appellant entered the home with the specific intent to commit burglary. Rivera v. State, 808 S.W.2d 80, 92 (Tex. Crim. App. 1991); Espinoza v. State, 955 S.W.2d 108, 111 (Tex. App.—Waco 1997, pet. ref’d). Rather, the requirement that a felony be committed is satisfied by the actual murder of the victim. Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995). The evidence here establishes that appellant entered Nohemi’s trailer and then shot Evaristo at close range. This satisfies the requirements of section 30.02(a)(3).

          Viewing the evidence in the light most favorable to the verdict, we conclude that a rational factfinder could have found the essential elements of capital murder, i.e., that appellant committed burglary and murder, beyond a reasonable doubt. Accordingly, we hold that the evidence was legally sufficient to support the burglary felony.

          Factual Sufficiency

          We review the factual sufficiency of the evidence by reviewing all of the evidence as a whole neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The Court of Criminal Appeals has recently stated:

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex. Crim. App. Apr. 21, 2004). In a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

          In regard to his factual sufficiency challenge, appellant argues that there is insufficient evidence to support the jury’s finding that he entered the home without consent of the owner. He argues that the evidence demonstrates that he was “neither banned nor specifically invited to the home of [Nohemi Garcia]” and that apparent consent was established because (1) his help in purchasing an air conditioner for Nohemi’s trailer was “welcomed,” (2) Nohemi allowed his children to spend nights there while Leticia worked, and (3) Leticia and his children spent the night together at Nohemi’s trailer.

          Effective consent is defined as assent in fact, whether express or apparent, and includes consent by a person legally authorized to act for the owner. Tex. Pen. Code Ann. §§ 1.07(a)(11), (19) (Vernon 2003). Here, Nohemi testified that she did not invite appellant to her home, appellant did not knock or come through the front door, she did not give appellant consent to enter her home, and she never allowed appellant to live in her home. Appellant presented no evidence that apparent consent was established. The testimony of Nohemi that she owned the trailer and that she did not give appellant permission to enter her home is sufficient evidence to establish the absence of effective consent. Ellet v. State, 607 S.W.2d 545, 550 (Tex. Crim. App. 1980).

          Accordingly, we hold that the evidence was factually sufficient to support the burglary offense.

          We overrule appellant’s second issue.

Sufficiency of Evidence: Capital Murder

          In his third issue, appellant contends that the evidence is legally and factually insufficient to prove capital murder. He reiterates his argument that the State created a capital murder charge that allowed it to convict him without first proving burglary. He also argues that “the details as to the sufficiency of the evidence in point two, apply here as well, because no reasonable trier of fact could have found sufficient evidence that [he] intended to kill the complainant.” Therefore, according to appellant, because the evidence is insufficient to prove an unlawful entry into a habitation with the intent to commit murder, the evidence is insufficient to prove capital murder.

          Legal Sufficiency

          To prove capital murder, the State was required to prove that appellant committed burglary and intentionally committed murder. Tex. Pen. Code Ann. § 19.03(a)(2). A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003).

          In regard to appellant’s argument that the State created a capital murder charge that allowed a conviction without first proving burglary, we note again that, in Homan, the Court of Criminal Appeals held that the State was not required to show that appellant formed the intent to commit the murder prior to entering the victim’s home in order to use the burglary to elevate the murder to capital murder. Homan, 19 S.W.3d at 849. Here, the evidence demonstrates that appellant intended to kill Evaristo. Leticia testified that, after appellant and Evaristo struggled over the gun and Evaristo left, appellant beat her and began dragging her by her hair towards the back door. Evaristo returned to the trailer and went to the back door to stop appellant. When appellant saw Evaristo, however, he immediately shot him at close range. Appellant died as a result. A jury could rationally believe that this evidence demonstrated that appellant entered the house and murdered Evaristo. Accordingly, reviewing the evidence in the light most favorable to the jury’s verdict, we hold that the evidence supporting appellant’s capital murder conviction was legally sufficient.

          Factual Sufficiency

          Appellant also contends that the evidence is factually insufficient to support his capital murder conviction. However, appellant fails to develop his legal argument. Rather, appellant relies on the details as to the sufficiency of the evidence in issue two, in which he asserted that the evidence was factually insufficient to support the underlying offense of burglary. Because we have already concluded that the evidence was legally and factually sufficient to support the underlying offense of burglary, appellant’s argument, that there is insufficient evidence to support his capital murder conviction because the evidence is insufficient to prove burglary, necessarily fails.

          We overrule appellant’s third issue.

Conclusion

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.4.