Thomas Vargas v. State

  Opinion issued March 31, 2005  

    In The  

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-03-00870-CR

 __________

THOMAS VARGAS, Appellant  

V.

THE STATE OF TEXAS, Appellee  

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 956240  

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 MEMORANDUM OPINION  

          A jury found appellant, Thomas Vargas, guilty of capital murder, and the trial court sentenced him to life in prison, the only possible sentence for a juvenile certified to be tried as an adult. In six points of error, appellant contends that the trial court erred (1) in admitting his statements that were involuntarily made, (2) in admitting unduly prejudicial photographs of the complainant, (3) in allowing a jury charge that commented on the weight of the evidence, and (4) in denying his request for lesser included offenses. We affirm.

Background

          In the early morning hours of August 25, 2002, volunteer firefighter Lance Taylor responded to a fire in the Pearland area. As Taylor conducted a search for victims in the burning residence, he discovered Veda Marie Sutton, age 81, face down in the kitchen. Taylor testified that it became apparent that he was dealing with more than just a fire scene when he noticed “two handles” sticking out of the victim’s back as well as “a large amount of blood.” Fearing that the roof would collapse, Taylor and the members of the Pearland Volunteer Fire Department removed Sutton’s body from the house. They placed Sutton’s body in an ambulance, where several pictures were taken to show its condition immediately after removal from the home.

          Officer Little, a Pearland patrolman at the scene, discovered that Sutton’s car was missing from her garage and called dispatch with its description. Shortly thereafter, the Alvin police located Sutton’s car, but appellant, who was driving the car, fled and was ultimately apprehended after he and his girlfriend, Patricia Ray, crashed the car, got out, ran from the police, and fell in a bayou. Ray had Sutton’s credit card and jewelry, as well as $232 cash. In appellant’s pockets, the officers discovered more than five dollars in coins, a small lock and key, two pendants, and several necklaces. Several items were found in Sutton’s car, including additional jewelry, a white t-shirt smelling of accelerants, a camera, and a rifle. Most of the recovered jewelry was identified by the complainant’s daughter as belonging to her mother.

          Appellant, who was 15 years old, and Ray, who was 16 years old, were placed in custody and taken to a juvenile detention facility in Brazoria County. A magistrate gave appellant his juvenile statutory warnings, and appellant stated that he did not understand his “right to terminate the interview.” The magistrate explained that, if at any time during his interrogation appellant did not want to talk to police, appellant had the right to remain silent. Detective Garza and Sergeant Moncrief of the Pearland Police Department (PPD) then questioned appellant for approximately two hours in a tape-recorded interview.

          In his tape-recorded statement, appellant stated that he was 15 years old and had been drinking and smoking marijuana the previous night. The crime spree began when appellant and Ray were stranded by his brother on the way home from a fishing trip; the two decided to steal a car so that they could drive the rest of the way home. Appellant recounted the events that took place at Sutton’s home, stating that he forced his way into the house after Sutton let Ray in to use the telephone, and then appellant brutally beat, stabbed, and robbed the elderly woman. The two handles Firefighter Taylor saw in Sutton’s body were the knife and ice pick appellant used as weapons. In an effort to destroy any evidence of their crime, appellant and Ray then ignited the paint thinner and other flammable liquids with which they had soaked Sutton’s body and home. Appellant and Ray used Sutton’s car to flee the burning home with the stolen items, passing emergency personnel responding to the fire on their way out of the neighborhood.

          At trial, testimony from several witnesses confirmed the details of appellant’s statements. Ray confirmed the course of criminal events throughout the night, with little discrepancy between her testimony and appellant’s statement. Officer Morton of the PPD testified about the robbery and stated that he recovered Sutton’s items both in the stolen car and on appellant’s person. Officer Bort of the PPD testified that the smell of accelerants was strong when he photographed Sutton’s body in the ambulance. Harris County Fire Marshall Petty confirmed that accelerants were detected at the scene. Assistant Harris County Medical Examiner Lopez testified, using numerous autopsy photographs, that Sutton suffered blunt and sharp force injuries as well as chemical burns consistent with the burning of flammable liquids.  

Motion to Suppress Tape-Recorded Statements

          In points of error one and two, appellant contends that the trial erred in denying his motion to suppress his tape-recorded statements. Appellant asserts that the statements were involuntarily given because (1) investigating officers continued to question him after he invoked his right to remain silent and (2) the statements were improperly induced.

Standard of Review

          We generally review a trial court’s ruling on a motion to suppress for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Chiles v. State, 988 S.W.2d 411, 412 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Appellate courts afford almost total deference to a trial court’s determination of facts supported by the record, particularly when those findings are based on the credibility and demeanor of a witness. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Curry v. State, 965 S.W.2d 32, 34 (Tex. App.—Houston [1st Dist.] 1998, no pet.). However, appellate courts review mixed questions of law and fact de novo when resolution does not turn on an evaluation of credibility or demeanor. Guzman, 955 S.W.2d at 89, Curry, 965 S.W.2d at 34.  

Invocation of the Right to Remain Silent

          The Fifth Amendment privilege against self-incrimination is protected during custodial interrogation by certain procedural safeguards delineated in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). These “safeguards” have been codified in the Texas Code of Criminal Procedure and in the Texas Family Code as they pertain to the interrogation of children. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2004); Tex. Family Code Ann. 51.095 (Vernon 2002). Within these statutes, the “right to terminate a custodial interrogation” is a “critical safeguard” of the right to remain silent. See Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326 (1975). No formal invocation of this right is necessary. Watson v. State, 762 S.W.2d 591, 597 (Tex. Crim. App. 1988). If the suspect indicates “in any manner” that he invokes the right to remain silent, the interrogation must stop. Miranda, 384 U.S. at 473-474, 86 S. Ct. at 1627. However, any indication that the suspect wishes to remain silent must be unambiguous, and interrogating officers are not required to clarify wishes that are ambiguous. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). An officer’s failure to stop custodial interrogation after an unambiguous invocation of the right to remain silent renders any subsequently obtained statements inadmissible. Id.

          The issue presented in point of error one is whether appellant unambiguously invoked his right to remain silent and terminate the interview. In determining whether the right to remain silent was unambiguously invoked, courts must look to the totality of the circumstances. Watson, 762 S.W.2d at 597. An ambiguity exists where a statement or action is subject to more than one reasonable interpretation under the circumstances. Cf. Dowthitt, 931 S.W.2d at 257 (holding that appellant’s statement, “I can’t say more than that. I need to rest,” was ambiguous and indicated only that appellant believed that he was physically unable to continue) But cf. Watson, 762 S.W.2d at 599 (holding that appellant’s silence and refusal to speak during repeated rounds of questioning was conduct that unambiguously communicated appellant’s desire to invoke his right to remain silent); Cooper v. State, 961 S.W.2d 222, 226 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that “I’m not answering any questions” was an unambiguous invocation of the right to remain silent).

          Here, during appellant’s tape-recorded interrogation, the following exchange took place:

[Garza]:                 Tell the truth this lady did nothing to you Thomas.

[Appellant]:           I didn’t.

[Garza]:                 Why did you kill her?

[Appellant]:           I did not kill anybody.

[Garza]:                 Why did you kill this lady?

[Appellant]:           I don’t want to do this.

[Garza]:                 She begged you.

[Appellant]:           I don’t want to do this, I didn’t kill no lady.

[Garza]:                 You don’t want to do what? You don’t want to tell the truth?  

[Appellant]:           I’m trying to tell the truth.

[Garza]:                 No you’re not! Tell us the truth Thomas.

[Appellant]:           I didn’t touch her.

(Emphasis added.) Appellant argues that, when he twice stated “I don’t want to do this,” he unambiguously invoked his right to remain silent, at which point the interview should have ended. The interview continued, however, and, as a result, appellant complains that any subsequently obtained statements were in violation of his right to remain silent.

          We evaluate this argument in light of the totality of the circumstances surrounding appellant’s interrogation. At the time, appellant was 15 years old, an average to good student in the ninth grade, with good communication skills and an IQ of over 100. Initially, appellant failed to understand his right to terminate the interview, but the magistrate further explained the right. In his testimony at the suppression hearing, appellant insisted that, pursuant to the magistrate’s instructions, appellant’s statement, “I don’t want to do this,” was intended to stop the interview. However, Detective Garza, an experienced investigator with more than 17 years of service to the department, testified that he understood the statement to mean only that appellant did not want to re-live the “gruesome details” of the complainant’s death. Detective Garza, though not required to do so, even asked appellant to clarify what he did not want to “do,” thereby demonstrating that the meaning of appellant’s statement was unclear at the time.

          Both appellant’s and Detective Garza’s interpretation of the statement’s meaning are reasonable, and, therefore, the statement was ambiguous. See Dowthitt, 931 S.W.2d at 257. It is clear that resolution of the ambiguity hinged on the credibility and demeanor of both appellant and Detective Garza during their testimony at trial. We give almost total deference to the trial court’s resolution of these facts. See Guzman, 955 S.W.2d at 89. The trial court did not abuse its discretion in finding that appellant’s invocation of the right to remain silent was ambiguous and that his statement was therefore admissible.

          Accordingly, we overrule point of error one.  

Improper Inducement

          In his second point of error, appellant contends that his statement was improperly induced by Detective Garza’s alleged promise of a reduced sentence. Apellant’s motion to suppress his statement is nothing more than a specialized objection to its admissibility, see Holmberg v. State, 931 S.W.2d 3, 5 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d), and, as such, his right to appellate review in this Court extends only to objections made in accordance with the rules of appellate procedure. Harris v. State, 827 S.W.2d 949, 958 (Tex. Crim. App. 1992).          To preserve error for review, the record must show that a timely and specific objection was made in the trial court, and that the court either ruled or refused to rule on the objection. Tex. R. App. P. 33.1(a). “An objection stating one legal basis may not be used to support a different legal theory on appeal.” Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). In situations where a point of error does not correspond to the objection made at trial, the trial court was not afforded the opportunity to rule on the legal theory that is the basis for the appeal. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993). Consequently, nothing is preserved for appellate review. Id.

          Appellant filed a written motion to suppress, inter alia, any written or oral statements made by appellant. The motion generally asserted that appellant did not understand his legal rights at the time any statement was taken and that the police acted in reckless disregard of his constitutional and statutory rights. Even though the written motion did not include “inducement” as a ground for suppression, the issue was presented at the suppression hearing. Appellant’s counsel highlighted three statements made during the interrogation: first and second were Detective Garza’s statements “[H]elp yourself if you can,” and, “[T]hey’re not going to be in any trouble if you tell the truth,” and third was appellant’s own statement, “I don’t want to do this.” The crux of appellant’s argument was that these statements, when taken together, were evidence of the interrogation’s coercive nature and rendered any statement made by appellant involuntary.

          On appeal, however, appellant does not assert any of the three aforementioned statements as evidence of inducement. Instead, appellant contends that he was improperly induced when Detective Garza allegedly promised leniency, stating that “the only thing you can do now is, is to try to lessen how many years you are going to be in prison.” Appellant’s objections on appeal and at trial do not correspond. The trial court was never afforded the opportunity to rule, or to refuse to rule, on the issue of whether the alleged promise of a reduced sentence induced appellant’s statements. Consequently, appellant waived his objection and nothing is presented for our review. See Tex. R. App. P. 33.1(a).

          We overrule point of error two.  

Improperly Admitted Photographs

          In points of error three and four, appellant contends that the trial court erred in admitting into evidence one photograph of the complainant taken while she lay in an ambulance and numerous other photographs taken during complainant’s autopsy, because they were not relevant and were extremely prejudicial.

Standard of Review

          We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court’s ruling will not be reversed unless it falls outside the zone of reasonable disagreement. Id.   

Admission of the Photographs

          Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence to the outcome of the case more or less probable than it would be without the evidence. Tex. R. Evid. 401. In other words, evidence must satisfy two requirements in order to be relevant—materiality and probativeness. Cruz v. State, 122 S.W.3d 309, 312 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Relevant evidence is generally admissible under Texas Rule of Evidence 402; however, the admission of potentially prejudicial evidence is governed by Rule 403. Tex. R. Evid. 402, 403. In determining whether potentially prejudicial evidence was properly admitted, the appropriate inquiry is not whether the evidence was more prejudicial than probative, but rather, whether the probative value was substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence. Resendiz v. State, 112 S.W.3d 541, 545 (Tex. Crim. App. 2003).   

          When photographs are the evidence a party is seeking to admit, it is an abuse of discretion to admit the photographs only when their probative value is small and their potential prejudice great. Burdine v. State, 719 S.W.2d 309, 316 (Tex. Crim. App. 1986); O’Neill v. State, 681 S.W.2d 663, 671 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d). A trial court must consider the factors affecting a photograph’s probative value and must balance those factors against the tendency, if any, the photograph has to encourage resolution of material issues on an inappropriate emotional basis. Salazar v. State, 38 S.W.3d 141, 152 (Tex. Crim. App. 2001) (citing Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999)). Factors such as the number of photographs offered, their gruesomeness, their detail and size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed, and any other factors unique to the case are indicative of a picture’s tendency to cause emotional decision-making. Burdine, 719 S.W.2d at 316; Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991). The availability of other means of proof and the circumstances unique to each individual case must also be considered by the court. Robinson v. State, 844 S.W.2d 925, 928 (Tex. App.—Houston [1st Dist.] 1992, no pet.). In the balancing analysis, however, there is a presumption favoring probative value over unfair prejudice or cumulative effect. See Goldberg v. State, 95 S.W.3d 345, 366 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

          Additionally, “autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself.” Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). In other words, what is depicted in the photograph must be fairly attributable to the actions of the appellant rather than to the work of the medical examiner, or else the appellant’s case is unfairly prejudiced. Id. However, when the photographs at issue are depictions of internal organs removed from the body for the purpose of illustrating the extent of the injury to the organ, the jury is not likely to attribute the removal of the organs to the appellant. See Salazar, 38 S.W.3d at 152. Accordingly, the mere fact that the organs were separated from the body in pictures shown to the jury is not, by itself, dispositive of whether the exhibits should have been admitted. Id.

          Here, appellant first contends that State’s exhibits S73, A26, and 31 additional autopsy photographs are irrelevant. The record contains black and white photocopies of the exhibits, that may or may not reflect their actual size. However, the record is more specific as to State’s exhibit S73, indicating that it is a three-by-five inch color photograph of the complainant lying in an ambulance immediately after firefighters removed her body from the burning house. Exhibit S73 is both material and probative because it established the condition of the complainant at the crime scene. State’s exhibit A26, a two-by-four inch photograph of the complainant’s face taken during autopsy, is also material and probative of the fact that the autopsy was performed on the same person removed from the crime scene by ambulance. Finally, the numerous autopsy photographs are probative of the complainant’s cause of death, a material element in the offense of capital murder. See Etheridge v. State, 903 S.W.2d 1, 21 (Tex. Crim. App. 1994) (holding that pictures depicting the nature, location, and extent of a victim’s injuries are probative). Because all of the objected-to photographs are both material and probative, they are relevant under Texas Rule of Evidence 401. Tex. R. Evid. 401.              

          Appellant next contends that the probative value of the same objected-to photographs is substantially outweighed by the danger of unfair prejudice pursuant to Rule 403. The State had several ambulance photographs, but chose to admit only S73. Exhibit S73 is undeniably gruesome, detailed, and in color, but it was not enlarged and the complainant’s body is clothed. State’s exhibit A26 is one of three facial shots introduced into evidence by the State. It is a close-up, detailed depiction of the injuries to the right side of the complainant’s face; however the picture is only two-by-four inches in size. The remaining 31 autopsy photographs are black and white in the record, and none is larger than three-by-five inches. The detail in the photographs is graphic, but each serves the purpose of illustrating the nature and extent of the complainant’s injuries. Several of the photographs depict the complainant’s internal organs removed from her body; however, as noted earlier, this is not dispositive of whether the photographs were properly admitted. Additionally, the complainant is unclothed in only one of the more than 30 photographs, and the area exposed is not of a particularly sensitive nature.   

          While there is no doubt that the photographs “are gruesome in that they depict disagreeable realities, . . . they depict nothing more than the reality of the brutal crime committed.” Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). Absent the photographs in the record, the State is left with only the oral testimony of Firefighter Taylor and Officer Bort to establish the condition of the body at the crime scene, and the testimony of Assistant Medical Examiner Lopez to explain the cause of death to the jury. Moreover, the burden of proving that the woman pictured in the autopsy was the same woman pictured at the crime scene would have been needlessly complicated. Additionally, the State narrowed its pool of approximately 150 available autopsy photographs, introducing only 50 at trial. The potential for unfair prejudice in this case is not sufficient to rebut the presumption of probative value in our Rule 403 balancing analysis. Therefore, the admitted photographs were not unduly prejudicial.   

          Appellant finally argues that the probative value of exhibit A26 and the additional 31 autopsy photographs is outweighed by the needless presentation of cumulative evidence. Neither the record nor appellant’s brief is specific as to which photographs appellant believes are cumulative; however, his objection generally asserted that the same injuries were depicted in more than one photograph. Most of the photographs are clearly unique because of their angle or distance from the injury. Close-up photographs and photographs taken from a different vantage point aid in the jury’s understanding of the nature of the injuries involved. See Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995).

          The only potentially cumulative photographs are A31 and A32, showing the complainant’s tongue removed from her throat. The State argued before the judge that the photographs show the puncture wound to the throat area from different sides of the tongue; however, there was no differentiation between the two photographs in the medical examiner’s testimony before the jury. The examiner indicated simply that both photographs showed the hemorrhaging and bleeding around the stab wound in that area. Assuming, without deciding, that one of the pictures of the tongue is cumulative and that it was error to admit one of them, there is no harm to appellant’s case, given the substantial weight of the other photographs shown to the jury.         We hold that the trial court did not abuse its discretion in deciding that the probative value of the objected-to photographs was not substantially outweighed by either the danger of unfair prejudice or the needless presentation of cumulative evidence. Accordingly, we overrule points of error three and four.  

Jury Charge

          In point of error five, appellant contends that the trial court erred by allowing, despite appellant’s objection, a jury charge that commented on the weight of the evidence. The complained-of charge contained the following instruction concerning the admissibility of appellant’s taped confession:

An oral statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made.

          No oral statement made by an accused juvenile as a result of custodial interrogation (while the accused was in jail or other place of confinement or in the custody of a peace officer) is admissible as evidence against him in any criminal proceeding unless:

. . . .

(b)     Prior to the statement but during the recording the accused is given the following warning by a magistrate:

          (1)     he has the right to remain silent and not make any statement at all and that any statement he makes may be used in evidence against him;

          (2)     he has the right to have a lawyer present to advise him prior to or during any questioning;

          (3)     if he is unable to employ a lawyer, he has the right to have a lawyer appointed to him to advise him prior to or during any questioning or interviews with peace officers or attorneys representing the state;

          (4)     he has the right to terminate the interview at any time; and

          (5)     the juvenile must knowingly, intelligently, and voluntarily waive each right stated in the warning;

. . . .

          A statement invoking one of the rights above must be clear and unambiguous. A statement is not voluntarily made if prior to or during the statement, the accused invokes one of the rights set out above.

          So in this case, if you find from the evidence, or if you have a reasonable doubt thereof, that prior to the time the defendant gave the alleged statement to Detective Armando Garza, if he did give it, the foregoing provisions were not complied with or if you find the oral statement, if any, was not freely and voluntarily made, then you will wholly disregard the alleged statement and not consider it for any purpose; if, however, you find beyond a reasonable doubt that the defendant was warned in the respects outlined above prior to his having made such statement, if he did make it, still, before you may consider such statement as evidence in this case, . . .

(Emphasis added.) Appellant specifically complains of the italicized portion of the charge.

Standard of Review   

          In reviewing a trial court’s charge to the jury, we must engage in a two-step analysis to determine: (1) whether the charge was erroneous and, if so, (2) whether the error was harmful. Gibson v. State, 726 S.W.2d 129, 133 (Tex. Crim. App. 1987); Nguyen v. State, 811 S.W.2d 165, 167 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d). The degree of harm required to reverse an individual case depends upon whether the error was preserved in the trial court. Gibson, 726 S.W.2d at 133. If the error was properly preserved at trial, any actual harm, regardless of degree, is sufficient to require a reversal of the conviction. Almanza, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Jones v. State, 962 S.W.2d 96, 98 (Tex. App.—Houston [1st Dist.] 1997), aff’d, 984 S.W.2d 254 (Tex. Crim. App. 1984). If the error is not properly preserved, the harm must be so egregious that it deprives the accused of a “fair and impartial trial.” Almanza, 686 S.W.2d at 171; Jones, 962 S.W.2d at 98. To preserve error related to the jury charge, the appellant must either object or request a charge at trial. Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996).

          Here, because appellant objected to the jury charge, the alleged error was properly preserved, and a finding of any actual harm is sufficient to reverse appellant’s life sentence. However, any harm must be evaluated in light of the entire charge, the arguments of counsel, the state of the evidence, and any other relevant information revealed by the trial record as a whole. Saunders v. State, 913 S.W.2d 564, 574 (Tex. Crim. App. 1995); Block v. State, 986 S.W.2d 389, 391 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

The Jury Charge

          The function of the jury charge is to instruct the jury on the law applicable to the case. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). The statement of the law in the charge must be correct because it is the instrument by which the jury convicts. Benson v. State, 661 S.W.2d 708, 713 (Tex. Crim. App. 1982). Generally, when evidence at trial raises a defensive issue and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002). Specifically, when evidence presented at trial raises a factual dispute over whether a defendant’s statement was voluntary, the defendant is entitled to an instruction in the jury charge advising the jury generally on the law relevant to the statement. Dinkins v. State, 894 S.W.2d 330, 353 (Tex. Crim. App. 1995). The evidence that raises the issue may be strong, weak, impeached, undisputed, or even beyond belief. Mendoza, 88 S.W.3d at 239.

          Section 51.095 of the Texas Family Code allows the statement of a child to be used as evidence only if it appears that the statement was freely and voluntarily made. Tex. Fam. Code Ann. § 51.095 (Vernon 2002). Under article 38.23, the jury shall be instructed that, if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the laws of Texas, including section 51.095, then the jury shall disregard such evidence. Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 1979). The terms of article 38.23 are mandatory. Mendoza, 88 S.W.3d at 239.   

          The instruction that “a statement invoking one of the rights above must be clear and unambiguous” does not involve a recitation of specific facts or call attention to a specific piece of evidence. Rather, it is a correct statement of the law, under Dowthitt, that cannot be construed as a comment on the weight of the evidence. See Dowthitt , 931 S.W.2d at 257.

          We overrule point of error five.

  Lesser-Included Offense

          In point of error six, appellant argues that the trial court erred by denying his request for the lesser included offenses of murder, robbery, and aggravated robbery.

Standard of Review

          A charge on a lesser included offense must be given if: (1) the lesser included offense is included within the proof necessary to establish the offense charged and (2) some evidence exists in the record that would allow a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser offense. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994); Jones v. State, 921 S.W.2d 361, 364 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). In making this determination, we must consider all of the evidence presented. Bignall, 887 S.W.2d at 23. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a charge on a lesser included offense. Jones, 962 S.W.2d at 98. However, a charge on a lesser included offense is not required when the defendant either presents evidence that he committed no offense or presents no evidence at all. Bignall, 887 S.W.2d at 24; Jones, 921 S.W.2d at 364.   

Murder, Robbery, and Aggravated Robbery

          To prove capital murder in this case, the State was required to show that appellant intentionally or knowingly caused the death of the complainant and that he intended to commit murder in the course of committing or attempting to commit the robbery of the complainant. Tex. Pen. Code Ann. § 19.03 (Vernon Supp. 2004-2005). Under this standard of proof, murder is a lesser included offense of capital murder because the same facts establish both offenses. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). For the same reason, robbery, which requires a person to intentionally, knowingly, or recklessly cause bodily injury to another in the course of committing theft, and aggravated robbery (which is “robbery” with the additional element of use or exhibition of a deadly weapon) are lesser included offenses of capital murder. Tex. Pen. Code Ann. §§ 29.02, 29.03 (Vernon 2003). As a result, the first prong of the two-prong test is satisfied.

          Under the second prong of the test, appellant was entitled to a charge on the lesser included offenses of murder, robbery, and aggravated robbery only if there was some evidence that would permit the jury to rationally find that appellant committed one of the lesser included offenses without also finding him guilty of capital murder. Appellant contends that, if the jury disbelieved the testimony of appellant’s girlfriend and chose to ignore his tape-recorded confession, then it would be rational for the jury to find him guilty only of a lesser included offense. Mere disbelief of evidence establishing the greater offense is insufficient; there must be some evidence disputing an element of the greater offense. See Johnson v. State, 84 S.W.3d 726, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). In Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994), the Court of Criminal Appeals held, “[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted.” Id. at 24.

Appellant, however, presented no evidence at trial, and, in reviewing all of the evidence in the record that would only support a lesser conviction, we find none. Even absent the testimony of appellant’s girlfriend and the tape-recorded confession, the autopsy photographs attest that the complainant was murdered and set on fire; appellant was apprehended in the complainant’s car; he had the complainant’s property on his person; and the t-shirt in the car smelled of accelerants. Given these facts, no rational trier of fact could conclude that appellant was guilty of murder, robbery, or aggravated robbery without finding him guilty of capital murder. The second prong of the test is unsatisfied, and the trial court, therefore, did not err in failing to submit jury instructions on the lesser included offenses.   

          We overrule point of error six.

Conclusion

          We affirm the judgment of the trial court.

                                                                        George C. Hanks, Jr.

                                                                        Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).