Rubio, Emilio Cordoba v. State ( 2003 )

Affirmed and Opinion filed December 16, 2003

Affirmed and Opinion filed December 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01028-CR

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EMILIO CORDOBA RUBIO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 855,410

M EM O R A N D U M   O P I N I O N

A jury found appellant Emilio Cordoba Rubio guilty of capital murder and, because the State did not seek the death penalty, the trial court automatically assessed his punishment at confinement in the Texas Department of Criminal Justice, Institutional Division, for life.  Appellant=s sole point on appeal is that the State=s use of an improper hypothetical question during voir dire deprived him of a fair trial.  We affirm.

In the early morning hours of September 10, 2000, several armed men forcibly entered a family=s apartment and shot and killed two people.  Appellant was convicted of capital murder in connection with the shooting deaths.  On appeal, appellant argues that the prosecutor gave a Aconfused@ hypothetical that misstated the law of parties under Texas Penal Code section 7.02(b), which provides as follows:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Tex. Pen. Code ' 7.02(b) (emphasis added).  In the hypothetical, the prosecutor substituted Acould@ for Ashould@:

If you=re involved in a conspiracy to commit one felony offense, aggravated robbery, and one of the participants of your conspiracy, in all those group of guys that want to rob the bank, commits a different felony in furtherance of that crime so to help protect them from being caught he shoots and fires at the security officer, all parties of that conspiracy are held to that same crime if it could be anticipated that that=s something that could have happened.

Appellant also complains the prosecutor used Acould@ again when discussing the law of parties during closing argument. Appellant contends that this substitution of Acould@ for Ashould@ dilutes the standard required under the statute from one of probability to one of mere possibility.

However, we do not reach appellant=s issue because he failed to timely and specifically object to the prosecutor=s hypothetical question on the grounds raised in this appeal, and he has therefore waived error.  See Tex. R. App. P. 33.1(a); Penry v. State, 903 S.W.2d 715, 741 (Tex. Crim. App. 1995); Draughon v. State, 331, 336B37 (Tex. Crim. App. 1992).  Appellant concedes that he failed to object, but argues that the trial court=s Aendorsement of [the hypothetical] provided a clear indication that such an objection would have been fruitless.@  We do not agree.  An objection in the trial court would have called the problem to the court=s attention and given it the opportunity to consider the issue.  Even assuming the prosecutor=s hypothetical was improper, Aa curative instruction could easily have dissipated any potential for prejudice visited upon Appellant.@  Draughon, 831 S.W.2d at 337. 

Moreover, we note that the court=s charge contained a correctly worded instruction on the law of parties. The jurors were also instructed in the charge that they must be governed by the law received in the written instructions.  We must, of course, presume that the jury followed the law as contained in the charge. See Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim. App. 1975).  We therefore overrule appellant=s issue.

The trial court=s judgment is affirmed.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed December 16, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).