Carlos Reyes Gonzales v. State

Carlos Reyes Gonzales

  IN THE

TENTH COURT OF APPEALS

No. 10-98-003-CR

     CARLOS REYES GONZALES,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 96-683-C

O P I N I O N

      A jury convicted Carlos Gonzales of capital murder. Tex. Pen. Code Ann. § 19.03 (Vernon 1994). The State did not seek the death penalty, and Gonzales was automatically sentenced to life imprisonment. Id. § 12.31 (Vernon 1994); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (Vernon Supp. 1999). He appeals on eight issues, complaining of charge error and constitutional violations. We will affirm the judgment.

BACKGROUND

      Gonzales was indicted for intentionally causing the deaths of two individuals, Johnny Vela and Pedro Ybarra. The shooting occurred in Vela's Bar on July 20, 1996.

      Prior to the shooting, on the night of July 17, Gonzales' adopted son, Michael, had gone to Vela's Bar with his girlfriend and another friend. An altercation ensued between Michael, Vela, and Ybarra. After Michael was injured in the fight, he left the bar and went to his father's home. Gonzales, a long-term chronic alcoholic, testified that he “went into shock” when he saw Michael's appearance. He said that he began to drink heavily and continued to do so through the day of the shooting.

      The afternoon after the fight, Gonzales went to Vela's Bar to retrieve Michael's eye glasses. Alovio Vela, father of one of the victims, testified that Gonzales wanted to know what had happened to his son. He testified that Gonzales said, “I will take care of this matter myself. I will take care of you, Johnny and Pete.” Gonzales denied making these statements.

      On July 20, Gonzales went into Vela's Bar around 9:30 or 10 p.m. He ordered a beer from Johnny Vela, who was working behind the counter. Gonzales drank the beer, then he pulled a gun and shot Ybarra in the back and Vela in the abdomen. Witnesses testified that Gonzales, still holding the gun, backed out of the bar and drove away. The police found him at his home, where the weapon was later recovered from the rain gutter.

      Gonzales testified that he had no recollection of going into Vela's Bar the night of the offense or of shooting Vela and Ybarra. Dr. Daniel Price, a psychologist, testified about Gonzales' chronic alcoholism and the effect of “alcoholic blackouts.”

ISSUES

      We turn to the eight issues Gonzales presents.

lesser included offenses and jury instructions

      In issue one, Gonzales complains that the court erred in failing to charge the jury on the lesser included offenses of murder, manslaughter, and criminally negligent homicide. In issues two and three, he complains that the court erred in failing to charge the jury with the definitions of “recklessly” and “criminal negligence.” Issues two and three have merit only if a charge on a lesser offense involving either definition should have been submitted.

      In determining whether a jury must be instructed concerning a lesser included offense, a two-step analysis must be applied. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Id. at 672. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense. Id. (clarifying the test of Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981)). The second prong of the test preserves the integrity of the jury as the factfinder by ensuring that the jury is instructed as to a lesser included offense only when that offense constitutes a valid, rational alternative to the charged offense. Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997). If a jury were instructed on a lesser included offense even though the evidence did not raise it, the instruction "would constitute an invitation to the jury to return a compromise or otherwise unwarranted verdict." Id.

      Gonzales argues that the intense stress he felt in reaction to his son's injuries raises a question of whether he intended to kill Vela and Ybarra. When asked whether he remembered going into the bar with the intent to kill the men, Gonzales testified that he “never had any kind of intentions.” He testified that he did not remember the events that took place in the bar. Dr. Price testified that it was “possible” that Gonzales went into the bar with the intent to harm the men but not to kill them. Gonzales argues that this is some evidence of a lesser mental state and thus raises the issue of a lesser offense than capital murder.

      The State argues that although murder, involuntary manslaughter and criminally negligent homicide are lesser included offenses of capital murder, a defendant is not entitled to an instruction on the lesser included offense unless there is evidence that, if Gonzales was guilty, he was guilty only of the lesser included offense. Rousseau, 855 S.W.2d at 672-73. Thus, for an instruction on murder, there must be evidence that Gonzales intended to cause serious bodily injury and did not intend to kill either victim. Tex. Pen. Code Ann. § 19.02(b)(2) (Vernon 1994). An instruction on manslaughter would require evidence that he was aware of, but consciously disregarded, a substantial and unjustifiable risk that the result would occur. Id. §§ 6.03(c), 19.04 (Vernon 1994). Finally, an instruction on criminally negligent homicide would require evidence that Gonzales ought to have been aware of a substantial and unjustifiable risk created by his conduct. Id. §§ 6.03(d), 19.05 (Vernon 1994). There must also be some evidence showing that Gonzales was unaware of the risk. Id. § 6.03(d); Mendieta v. State, 706 S.W.2d 651, 653 (Tex. Crim. App. 1986).

      The State responds that Gonzales' inability to recall his actions because of his alcoholism is no evidence that he did not intend to kill. Furthermore, the State characterizes Gonzales' reliance on his chronic alcoholism as an attempt to circumvent section 8.04 of the Penal Code which states: “Voluntary intoxication does not constitute a defense to the commission of a crime.” Tex. Pen. Code Ann. § 8.04 (Vernon 1994).

      The State argues that Dr. Price's testimony was merely hypothetical and did not tend to prove Gonzales' actual state of mind the night of the shooting. Dr. Price also testified that alcoholic blackouts do not mean that the alcoholic did not act with deliberation; rather, the alcoholic simply cannot remember his actions. He said that blackouts do not preclude a conscious awareness of one's actions and that nothing about alcoholism would have precluded Gonzales from knowing that he was aiming and shooting the gun.

       The State also points to evidence showing Gonzales acted intentionally. He went to the bar the day after the shooting saying he was going to “take care of the matter.” The night of the shooting, he ordered a beer from Vela and stayed at the counter for 15 to 20 minutes. He pulled the gun, shot Ybarra in the back, and then shot Vela in the abdomen. He backed out of the bar, still holding the gun. Gonzales returned home and hid the gun in the rain gutter. The gun had been wiped with oil, making the recovery of fingerprints impossible. The autopsies revealed that he had used hollow point bullets, which expand when they enter the body and cause a “larger wound track.”

      We do not find evidence which would have permitted a jury rationally to find that if Gonzales was guilty, he was guilty of only one of the lesser offenses. Rousseau, 855 S.W.2d at 672-73. Thus, the court did not err in failing to instruct on the lesser included offenses. We overrule issue one and, having done so, also overrule issues two and three.

sudden passion

      In issues four through six, Gonzales raises constitutional challenges to the capital murder statute. See Tex. Pen. Code Ann. § 19.03. He says that, as it presently exists, the statute constitutes cruel and unusual punishment, denies him due process, and has a chilling effect on his right to counsel. His seventh issue asserts that the court erred in failing to instruct the jury on “sudden passion.”

      “Sudden passion” arising from “adequate cause” is no longer a question for the guilt-innocence stage of trial in a murder case. Id. § 19.02(d). Sudden passion may be raised at the punishment phase to reduce a first-degree murder charge to a second-degree felony. Id. As applied in the capital felony sentencing context, the jury is never presented with the question of sudden passion. Tex. Code Crim. Proc. Ann. art. 37.017, § 1. In a capital murder case in which the State does not seek the death penalty, the judge “shall sentence the defendant to life imprisonment” upon a finding of guilt. Id.

      Gonzales concedes that this Court has recently determined these issues adversely to his position. In Buhl v. State, 960 S.W.2d 927 (Tex. App.—Waco 1998, pet. ref'd), we held that the mandatory life sentence does not constitute cruel and unusual punishment within the meaning of the Eighth Amendment and does not violate a defendant's right to due process. Id. at 935. We believe our analysis was correct in Buhl and apply it again. We do not find that the capital murder sentencing scheme constitutes cruel and unusual punishment or that Gonzales was denied due process. Id. We overrule issues four and five.

      Issue six asserts that the capital punishment scheme unconstitutionally chills a defendant's ability to present relevant mitigating evidence to the jury and thus denies him effective assistance of counsel. Ineffective assistance occurs when trial counsel's performance was so deficient that the defendant was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 505-06 (Tex. Crim. App. 1991). There is no suggestion here that trial counsel's performance was deficient. We overrule issue six.

      Issue seven, regarding a “sudden passion” jury instruction, is dependent on our finding error in issues four or five. Because we have overruled issues four and five, we likewise overrule issue seven.

voluntary intoxication

      In issue eight, Gonzales complains that the court commented on the weight of the evidence by including an instruction in the charge that “voluntary intoxication does not constitute a defense to the commission of a crime.” Gonzales objected to the instruction.

      Both Gonzales and the State agree that the court may not express an opinion on the weight of the evidence. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 1999). Gonzales argues that there was no evidence that he was intoxicated at the time of the offense and thus the instruction is a comment on the evidence.

      The State argues that the court must instruct the jury on the law applicable to the case. Id.; Taylor v. State, 885 S.W.2d 154, 157 (Tex. Crim. App. 1994). Gonzales testified that he began drinking heavily after seeing his son's injuries on July 17 and that he continued drinking the day of the offense. The last thing Gonzales remembered about that night was buying beer at a store for the second time that day. Witnesses in the bar testified that he ordered and drank a beer just before the shooting. Gonzales testified that he had alcoholic blackouts. Dr. Price testified extensively about alcoholism and its effects on Gonzales. He testified that, because of their high tolerance, alcoholics can appear to not be intoxicated. Price also testified about alcoholic blackouts.

      The court's instruction tracks the language of section 8.04 of the Penal Code. Tex. Pen. Code Ann. § 8.04. Given the evidence that Gonzales consumed alcoholic beverages right up to the time he shot the victims, the court did not err in instructing the jury on voluntary intoxication. We overrule issue eight.

      We affirm the judgment.

                                                                       BILL VANCE

                                                                       Justice

Before Justice Davis,

          Justice Cummings, and

          Justice Vance

(Justice Cummings not participating)

Affirmed

Opinion delivered and filed March 3, 1999

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