Harry Anthony Bargas v. State ( 2007 )

NUMBERS 13-06-372-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

HARRY ANTHONY BARGAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Calhoun County, Texas

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Garza

A jury found appellant, Harry Anthony Bargas, guilty of capital murder in the course of committing or attempting to commit aggravated sexual assault or burglary of a habitation. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2006). The State did not seek the death penalty. The trial court assessed punishment at life imprisonment. By three issues on appeal, appellant claims: (1) the evidence is legally insufficient to identify him as the perpetrator, (2) the evidence is legally insufficient to support a finding that he committed burglary and aggravated sexual assault, and (3) the trial court erred in refusing to submit a charge on the lesser-included offense of murder. We affirm.

I. Factual and Procedural Background

Appellant and Georgina Villegas started dating in 2002. They lived together off and on from 2002 up until the time of Georgina's death on March 13, 2004. They had a "roller-coaster" relationship during that period. According to appellant, he went over to Georgina's residence on March 9, 2004 to tell her that their relationship was over. According to Georgina's family and friends, Georgina did not want to have anything to do with appellant, but appellant would not leave her alone. Georgina's parents found her dead in her home on the morning of March 13. It appeared that someone had broken in through a back door and it also appeared that Georgina had been strangled and sexually assaulted. Port Lavaca police officers conducted an investigation, and after speaking to appellant and after examining appellant's body, officers arrested and subsequently charged appellant with capital murder in the course of committing or attempting to commit burglary and in the course of committing and attempting to commit aggravated sexual assault. Appellant pleaded "not guilty." A jury found appellant guilty, and the trial court sentenced appellant to life imprisonment. This appeal ensued.

II. Legal Sufficiency

By his first and second issues, appellant claims the evidence is legally insufficient to (1) identify him as the perpetrator, and (2) support the jury's finding that he committed the murder in the course of committing or attempting to commit burglary and aggravated sexual assault.

a. Standard of Review

When there is a challenge to the legal sufficiency of the evidence to sustain a criminal conviction, we consider whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981). It is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). We consider even erroneously admitted evidence. Id. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Reconciliation of any conflicts in the evidence is within the exclusive province of the jury. Id. In a legal sufficiency of the evidence review, the essential elements of the offense are those of a hypothetically correct jury charge for the offense in question. Hooper, 214 S.W.3d at 14 (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Where the indictment and the trial court's charge authorize the jury to convict on more than one legal theory, as they did in this case, the verdict of guilt will be upheld if the evidence is sufficient on any of the theories possible. Id. ⁽¹⁾

b. Applicable Law

A person commits the offense of capital murder if the person commits murder as defined under section 19.02(b)(1) of the Texas Penal Code and he intentionally commits the murder in the course of committing or attempting to commit burglary or aggravated sexual assault. Tex. Penal Code Ann. § 19.03(a)(2). Under the provisions of section 30.02(a) of the Texas Penal Code, a person commits the offense of burglary if that person enters a habitation, without the effective consent of the owner (1) with intent to commit a felony, theft, or an assault or (2) commits or attempts to commit a felony, theft, or an assault. Id. § 30.02(a)(1), (3) (Vernon 2003). A person commits the offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another; intentionally or knowingly threatens another with imminent bodily injury; or intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other person will regard the contact as offensive or provocative. Id. § 22.01(a)(3) (Vernon Supp. 2006). A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means without that person's consent. See id. § 22.021(a)(1)(A)(i) (Vernon Supp. 2006).

c. Evidence

Rebecca Vargas testified that she worked with Georgina and that Georgina "was more like a sister to me than a friend." Vargas testified she knew Georgina for about ten years, and they had worked together for five years. Vargas testified that she knew about Georgina's relationship with appellant. Vargas described the relationship as "okay" in the beginning, but "very roller coaster" and "off and on" towards the end. Vargas stated that appellant would call Georgina at work anywhere from "five to twenty times a day." Vargas testified that on March 9, 2004, Georgina was upset because appellant called her and told her he was going to kill himself. That evening, Vargas, Georgina, Georgina's children, Georgina's sister-in-law, and Georgina's sister-in-law's children, had dinner at Georgina's home. Vargas explained that they did not talk about appellant's suicide threat that night. Instead, they ate burgers, talked, and went home early. Vargas testified that the next day, on March 10, Georgina told her that, after they left Georgina's house the night before, appellant had come over and wanted to talk. Georgina told Vargas that she did not open the door, but, instead, called the police because her son was scared. Vargas also testified that Georgina was excited that week because she was going to take that Thursday and Friday off to go to Corpus Christi. Vargas stated that Georgina had her nails done that week. Vargas testified that Georgina called her at work on the morning of March 11. Vargas explained that Georgina was upset, even "hysterical and crying," because appellant had gone to her house, wanting his TV, DVD player, and engagement ring. Vargas agreed that things between Georgina and appellant had gotten worse that week. Vargas testified that Georgina told her that appellant threatened to become violent if he caught Georgina with another man. Vargas spoke to Georgina on Friday, March 12, after 4:30 p.m., after Georgina returned from Corpus Christi. Georgina went to Vargas' home around 7:00 or 7:30 p.m. that Friday night. After staying at Vargas' home for a while, at around 9:00 p.m., Georgina went to appellant's house because he wanted to talk to her. Vargas testified that she went to buy drinks for her home and that on her way, she took a detour by appellant's house to see if Georgina was there. Vargas did not see Georgina's vehicle there. However, shortly after Vargas drove by appellant's house, Georgina called Vargas and told her she was on her way home. Vargas went over to Georgina's house around 10:00 or 10:15 that evening. Vargas and Georgina then went over to Vargas' home before 11:00 p.m. Vargas and Georgina then drove to Whataburger shortly after midnight. On their way to Whataburger, Georgina said, "[o]h, hell." Vargas looked up and noticed appellant's vehicle "backing up fast." Georgina then called appellant. Vargas heard Georgina say, "what are you doing, what are you doing" and "leave me alone, just leave me alone already." Vargas testified that Georgina was upset and that Georgina stated, "I know he's never going to leave me alone." The Whataburger receipt reflects that their order was placed at 12:21 a.m. on March 13, 2004. Vargas and Georgina took their food back to Vargas' house. Georgina left Vargas' house at about 1:00 a.m. Vargas testified that Georgina's nails were in good shape and were without damage that night.

Port Lavaca Police Officer Eric Hart testified that he received a call for service at about 3:00 a.m. on March 10. When he arrived, appellant was near the front door of Georgina's house. Appellant was asked to leave and he complied. Hart described appellant as "calm and very compliant."

Elizabeth Venecia testified she saw appellant on Friday, March 12, at "Venecia's Bar" around 9:00 p.m., and he stayed until about 10:30. Venecia and her husband then went to another bar, "High Tides," after 10:30 p.m. They saw appellant there with his friends. Appellant did not appear upset. Venecia and her husband left at about 11:45 p.m., and appellant was still there when they left.

Port Lavaca Police Officer Peter Nessa testified that he was on patrol from Friday March 12 at 6:45 p.m. until 7:00 a.m. on March 13. Nessa testified that, at about 2:26 a.m. on March 13, he noticed a vehicle coming from the direction of Georgina's home. Nessa observed the vehicle's tires strike the lane markers on the street. He explained this indicated a possible intoxicated driver. Nessa called in the license plate of the vehicle. The licence plate results indicated that the vehicle belonged to appellant. Nessa followed the vehicle to an apartment complex, where he observed the driver "hurriedly" walk toward the apartment door. Nessa explained that the individual appeared to be "trying to conceal who he was, what he was doing. He didn't want to see me, he didn't want me to see what he was doing." Nessa did not arrest or detain the individual because "there was no violation of the law."

Michelle Morales, Georgina's ex-sister-in-law, testified that Georgina visited her in Corpus Christi on March 11. She testified that Georgina received numerous telephone calls from appellant. Morales testified that Georgina ignored the calls. At about 1:30 or 2:00 a.m. on Friday, March 12, Georgina received a phone call from appellant. At that time, Georgina asked appellant to stop calling and to leave her alone. Georgina received three more calls that night. Morales testified that she observed bruises and bite marks on Georgina and that Georgina attributed them to appellant. Morales further stated that Georgina told her that appellant wanted anal sex but she would not allow it. Morales also testified that on Thursday night, March 11, while they were out dancing and drinking beer at "Roper's" night club in Corpus Christi, appellant called Georgina's cell phone. However, Georgina did not answer; instead, a guy sitting at the table with them answered the phone and said, "'look, dude, she doesn't want to talk to you' and hung the phone back up."

Appellant testified that, two days prior to her death, he told Georgina that if he caught her with another man, he would "rip their penis off and stuff it down their throat." Appellant also admitted to having threatened to kick Georgina's door down. Appellant had difficulty explaining and was vague as to his whereabouts between 12:30 a.m. and 8:00 a.m. on Saturday, March 13. Appellant also testified that the last time he had sexual intercourse with Georgina at his apartment was on March 9, 2004. The last time he had sexual intercouse with Georgina at her home was during the week of March 1, 2004. He denied wanting to engage in anal intercourse with Georgina.

Mary Louise Villegas, Georgina's mother, testified that she and her husband went to Georgina's house "a little bit before nine" on the morning of March 13. She and her husband found Georgina laying face down. Villegas grabbed Georgina's arm and felt that it was cold. Georgina was covered with a blanket up to her shoulders, and was wearing her pajama top. Villegas uncovered Georgina's body and saw that Georgina did not have any clothes on her lower body. Villegas attempted using the kitchen phone to call the police, but she "couldn't get through." Villegas also tried using a phone located in Georgina's bedroom, but could not get through. She tried locating Georgina's cell phone but could not find it. Villegas ran across the street to a neighbor's house and phoned the police.

Officer John Shultze testified that he was on duty on Saturday, March 13, when he received a call regarding an "unattended death." Shultze entered Georgina's residence and went to the bedroom. There, he found Georgina lying on the bed. Shultze testified that the back door "looked like it had been forcibly opened."

Detective Donald Keil testified that the telephone cord at Georgina's house had been "unplugged and cut" and there were "pry marks" on the door. He testified that the only thing missing from Georgina's house were her panties. He testified that the back door was broken in and that the door's striker plate and splinters were found on the kitchen floor. Keil testified that the evidence indicated Georgina engaged in a struggle prior to her death. Keil noted that a small piece of skin tissue was found on the necklace worn by Georgina at the time of her death. Appellant had a "scratch mark or injury" on his right thumb which "could have been caused by the necklace when [Georgina] was strangled." Keil testified that Georgina's nails were in a damaged condition. He further testified that at the time of his arrest on March 13, appellant had scratch marks on his lower back sides. Keil explained that the scratch marks were consistent with marks left by a woman's fingernails. He further elaborated that the "scratch mark" evidence was important to the case given the officers' conclusion that Georgina was "strangled from behind and during th[e] struggle could have scratched [appellant] in that area." A pillow case and bed sheets were also retrieved from Georgina's house and were sent for DNA analysis. Keil also testified that appellant's phone records showed multiple daily calls to Georgina from March 7, 2004 to March 13, 2004. Dr. Elizabeth Peacock, Deputy Medical Examiner for Travis County, testified that she first saw Georgina's body at 11:00 a.m. on March 14. She identified Georgina's cause of death as "strangulation" either manually or using ligature, perhaps both. She testified that Georgina was involved in a struggle prior to her death. Dr. Peacock further stated that her examination of Georgina's body indicated:

Dilation and tearing of the anal orifice, right at the rim, and then it showed some trauma, hyperemia is what we call it, or reddening, some damage to the mucosal layers, without perforation of the rectum, but damage to the inside of the rectum for about one-and-a-half inches above the anal ring.

Peacock testified that this indicated that "there had been some penetration of the rectum." She explained that there was no "fiber matter or anything to indicate what it was, there was no, like, wood chips or paint fibers or anything to indicate that there was an object used, but I cannot rule out an object." She agreed that the penetration could have been made by a finger or a male penis. Dr. Peacock agreed that this kind of injury and trauma "can be seen with consensual anal intercourse." However, she explained, "there was a lot of hemorrhage inside [Georgina's] pelvis but outside the rectum. As I stated before, there was no penetration through the rectum but there was a lot of hemorrhage around it, which indicates some degree of force." Dr. Peacock explained this is "not the kind of injury that you can get with--or usually get with consensual intercourse. I've only seen probably about four cases in my whole career, two of which there was a history of consensual sexual intercourse or anal intercourse." Dr. Peacock elaborated that "the mucosal reddening and sluffing of the mucosa, which is the interlining, that's normal with consensual sex. But the bruising on the outside, inside the pelvis but on the outside of the rectum, you don't usually see with consensual sex." She also testified that Georgina's body had bruises and contusions caused by blunt force injury, such as "something hitting it, something squeezing it with enough pressure to break the capillaries under the skin." She stated that the bruising and contusions could be defensive injuries. Dr. Peacock explained that Georgina's bruises were very red and probably developed within a few hours before her heart stopped. Georgina exhibited visible trauma to her mouth also caused by blunt force. Dr. Peacock also indicated that Georgina suffered "a lot of contusion of the scalp and of the temporal muscle on the right side." On cross-examination, Peacock testified that the rectal tearing on Georgina's body was very recent. She further testified that the lines on Georgina's neck could indicate that a belt, or a necklace such as the one found on Georgina, was used to strangle her.

Detective Walton testified that he believed Georgina "was sexually assaulted and strangled from the rear because of the position of her body when it was discovered." He testified that Georgina's left arm was beside her and her right arm was behind her. Walton testified that he observed that the left and right side of appellant's back had "three to four long thin scrapes across the lower portions of his back." Walton believed the marks "were consistent with marks that would be left by a lady's fingernails." Walton also pointed out inconsistencies in appellant's testimony regarding his whereabouts the evening of March 12 leading up to the early morning hours of March 13.

Patricia Graham, the supervisor of the Texas Department of Public Safety Crime Laboratory in Corpus Christi, testified that she compared some exhibits submitted for analysis with appellant's blood specimen. One of the exhibits was the necklace worn by Georgina at the time of her death. Graham testified that a small piece of skin tissue extracted from the necklace was consistent with appellant's DNA profile. She explained that the probability that the DNA belonged to someone other than appellant was "one in 51.76 billion for Caucasians, one in 159.4 billion for Blacks, and one in 434.6 billion for Hispanics." Graham testified that appellant is Hispanic. Another exhibit consisted of fingernail clippings taken from Georgina's left and right hands. Graham testified that fingernail clippings taken from Georgina's right hand were consistent with a mixture from appellant and Georgina's DNA. Graham explained that the probability that the DNA recovered from this sample belonged to some one other than appellant was "approximately one in 317--317,900 for Caucasians, and one in 7,315,000 for Blacks, one in 420,300 for Hispanics." DNA results from Georgina's left-hand fingernails were also consistent with a mixture from appellant's and Georgina's DNA. The probability that the DNA recovered from this sample belonged to someone other than appellant was "[a]pproximately one in 28.69 million for Caucasians, one in 464.7 million for Blacks, and one in 83.06 million for Hispanics. A third exhibit consisted of a bed sheet and blanket removed from Georgina's bedroom. Graham testified that appellant's DNA was also present on the bed sheet and blanket and that the probability that the DNA found on the blanket belonged to someone other than appellant was "one in 79.3 trillion for Caucasions, one in 21.72 quadrillion for blacks, and one in 1.33 quadrillion for Hispanics," and for the bed sheet, "one in 125.4 million for Caucasions, one in 1.178 billion for Blacks, and one in 553.4 million for Hispanics." Graham also testified that Georgina's DNA was present on appellant's underwear and that three pubic hairs belonging to appellant were collected from the bedding. The probability that the pubic hairs belonged to someone other than appellant were "one in 1.085 quadrillion for Caucasians, one in 18.2 quadrillion for Blacks, and one in 13.77 quadrillion for Hispanics." Graham noted that appellant's DNA was not found in Georgina's vagina or anus.

d. Analysis

Viewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient for a rational jury to find the essential elements of capital murder beyond a reasonable doubt. Specifically, that appellant was the perpetrator who caused Georgina's death. We further conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant murdered Georgina in the course of committing or attempting to commit aggravated sexual assault. ⁽²⁾ Accordingly, appellant's first and second issues are overruled.

III. Jury Charge

By his third issue, appellant claims the trial court erred by failing to instruct the jury on the lesser-included offense of felony murder. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003); Tex. Code Crim. Proc. Ann. arts. 37.08, 37.09 (Vernon 2006). Specifically, appellant argues he was entitled to the instruction because the State failed to prove appellant entered Georgina's residence without consent or that appellant penetrated Georgina's anus without consent. The State responds that evidence shows that no rational jury could have found appellant guilty of felony murder.

Texas courts employ a two-prong test in determining whether an instruction on a lesser included offense must be given. Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003). Whether the instruction is requested by the defendant or the state, both prongs must be satisfied. Id.; Arevalo v. State, 943 S.W.2d 887, 890 (Tex. Crim. App. 1997). First, the court determines whether the lesser offense is a lesser-included offense of the offense charged as set forth in article 37.09. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). Second, the court determines whether there is some evidence that would permit a rational jury to find that, if guilty, the defendant is guilty only of the lesser offense. Id. In other words, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser offense. Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004).

Felony murder is a lesser-included offense of capital murder. Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). Thus, the first prong here is satisfied. With respect to the second prong, there are two ways in which the evidence may indicate a defendant is guilty only of the lesser offense. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). First, there may be evidence which refutes or negates other evidence establishing the greater offense. Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996). Second, a defendant may be shown to be guilty of the lesser offense if the evidence presented is subject to different interpretations. Id.

We must consider all the evidence introduced at trial, whether produced by the State or by appellant. Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000); Penry v. State, 903 S.W.2d 715, 755 (Tex. Crim. App. 1995). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). The evidence must establish the lesser included offense as a "valid, rational alternative to the charged offense." Arevalo, 943 S.W.2d at 889.

Here, the record shows Georgina refused to comply with appellant's request for anal sex. Although Dr. Peacock agreed that the injury sustained by Georgina as a result of the anal penetration "can be seen with consensual anal intercourse," she did explain that given the hemorrhaging inside of Georgina's rectum and the indication of force, Georgina's injury was "not the kind of injury that you can get with--or usually get with consensual intercourse." The record also contains Dr. Peacock's testimony that Georgina's body had bruises, contusions on both her body and head caused by blunt force injury, and visible trauma to her mouth also caused by blunt force injury. Given this testimony alone, we conclude the second part of the test for determining whether appellant was entitled to an instruction on the lesser-included offense is not satisfied (i.e., there must be some evidence that if the defendant is guilty, he is guilty only of the lesser included offense). Arevalo, 943 S.W.2d at 889; Schweinle, 915 S.W.2d at 19. Accordingly, we conclude the trial court did not err when it denied appellant's request for the jury charge to include the lesser-included offense of felony murder. Appellant's third issue is overruled.

IV. Conclusion

The judgment of the trial court is affirmed.

   _________________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 31st day of August, 2007.

1. Paragraph one of the indictment alleged that:

Appellant, on or about March 13, 2004, and before the presentment of this indictment, in said County and State, did then and there unlawfully, in the course of attempting to commit and committing Burglary of a Habitation owned by Georgina Villegas, did there and then intentionally commit murder by causing the death of an individual, Georgina Villegas, by then and there strangling her.

Paragraph two alleged that:

Appellant, on or about March 13, 2004, and before the presentment of this indictment, in said County and State, did then and there unlawfully, in the course of attempting to commit and committing Aggravated Sexual Assault on Georgina Villegas, did there and then intentionally commit murder by causing the death of an individual, Georgina Villegas, by then and there strangling her.

2. Because we conclude the evidence was sufficient to support the jury's finding that appellant committed murder in the course of committing or attempting to commit aggravated sexual assault, we need not address his argument as it relates to the sufficiency of the evidence supporting the aggravating factor of burglary. See Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).

In any event, we would also conclude that the evidence supporting the jury's finding that appellant committed murder in the course of committing or attempting to commit burglary is legally sufficient. When a defendant is charged under section 30.02(a)(3), as in this case, the State is not required to prove intent to commit the felony of theft at the time of the entry. Instead, the State must prove the defendant intentionally or knowingly entered the habitation without the owner's consent and, while inside, committed or attempted to commit a felony, i.e., murder. See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).