Steven Ceceilio Torres v. State ( 2012 )

Concurring opinion issued August 16, 2012
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-10-00176-CR
01-10-00177-CR
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STEVEN CECEILIO TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1246750 & 1246751
CONCURRING OPINION
I agree that the trial court’s judgments should be affirmed. Unlike the
majority, however, I would hold that Torres has waived his first issue, in which he
contends trial court denied him due process of law in erroneously denying his
request for a jury charge on murder, rather than capital murder. I question whether
the charges in these cases are correct. Accordingly, I concur in this Court’s
judgments.
Torres’s trial complaint was that because the indictments only charged him
with murder, not capital murder for remuneration, the trial court erred in denying
his requested jury charges on murder:
The Defendant submits that the State’s indictments herein, in effect,
allege that the manner and means whereby Defendant caused the
death of Jose Perez was by 1) employing either Peter Quintanilla or
Michael Belmarez, for remuneration of the promise of remuneration
(money), and 2) by shooting Jose Perez with a deadly weapon,
namely, a firearm. The indictments, however, do not allege what
Quintanilla or Belmarez were to do after being employed by the
Defendant. For example, were they to be look-outs, were they to lure
Perez to his death, or were they to be get-a-way drivers? Neither
indictment alleges conduct on the part of either Quintanilla or
Belmarez other than a passive employment relationship with the
Defendant. What the indictments do allege, in a common sense
reading is that the Defendant caused the death of Jose Perez by the
Defendant shooting Perez with a deadly weapon namely a Firearm.
On appeal, Torres cites to one case that he claims contained a similarly erroneous
capital-murder charge. Robinson v. State, 266 S.W.3d 8, 10–13 (Tex. App.—
Houston [1st Dist.] 2008, pet. ref’d). The charge in Robinson instructed the jury as
follows:
Now, if you find from the evidence beyond a reasonable doubt that in
Harris County, Texas, on or about the 5th day of September 1991, the
defendant, Ronald Robinson, did then and there unlawfully,
intentionally or knowingly cause the death of Jimmy Sims, by
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employing Robert Mason for remuneration or the promise of
remuneration, to-wit: money and/or a firearm, to shoot Jimmy Sims
with a deadly weapon, namely, a firearm; or
If you find from the evidence beyond a reasonable doubt that the
defendant, Ronald Robinson and Robert Mason entered into an
agreement to commit the felony offense of aggravated assault of
Jimmy Sims, and pursuant to that agreement, if any, they did carry out
their conspiracy and that in Harris County, Texas, on or about the 5th
day of September 1991, while in the course of committing such
aggravated assault of Jimmy Sims, Robert Mason intentionally caused
the death of Jimmy Sims by shooting Jimmy Sims with a deadly
weapon, namely, a firearm, and the murder of Jimmy Sims was
committed in furtherance of the conspiracy and was an offense that
the defendant should have anticipated as a result of carrying out the
conspiracy, then you will find the defendant guilty of capital murder,
as charged in the indictment.
Id. at 11. We reversed because the second paragraph did not require the jury to
find an aggravating factor that properly charged the defendant with capital murder.
Id. at 15.
Torres does not discuss on appeal the first paragraph of the Robinson charge,
which included the appropriate aggravating factor, and differs substantively only
that Robinson used the words “to shoot [the victim]” after the phrase “for
remuneration or the promise of remuneration, to-wit, money” whereas the charges
in these appeals use the words “by shooting [the victim].” Id. at 11.
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In his brief Torres contends that “[t]his case is similar to Robinson.” I
disagree. The first paragraph of the Robinson charge was a correct capital-murder
charge and has no applicability here.
Torres neither makes any substantive argument nor cites any authority
applying to similar situations for why using the words “by shooting [the victim]”
instead of the words “to shoot [the victim]” mandated that the trial court submit a
jury charge on murder, rather than capital murder. Texas Rule of Appellate
Procedure 38.1(i) requires that an appellant’s brief contain “clear and concise
argument for the contentions made” and “appropriate citations to authorities.” See
Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). Such briefing is
absent in these cases, and I would decline to construct the appellant’s arguments
for him.
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The question that Torres is not asking is whether the trial court improperly
charged him on capital murder. I understand that Torres wants to be charged for
murder under the indictments so he can argue that he did not personally cause the
Perez’s death by shooting Perez with a firearm. But the fact that this Court affirms
the judgments should not give any comfort to those who might try to argue that the
charges in these cases are correct. At best, the charges—and the indictments as
well—are confusing as to who shot whom. My judgment as to whether this
confusion rises to the level of reversible error must await a case in which it was
preserved.
Jim Sharp
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Justice Sharp, concurring.
Publish. TEX. R. APP. P. 47.2(b).
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