Daniel Lee Flores v. The State of Texas--Appeal from 106th District Court of Gaines County

Opinion filed July 19, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00088-CR

________

   DANIEL LEE FLORES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 106th District Court

Gaines County, Texas

Trial Court Cause No. 03-3303

O P I N I O N

Daniel Lee Flores appeals his conviction by a jury of the offense of capital murder by causing the death of Erica Marie Muro while in the course of an attempted or actual kidnapping. Because the State did not seek the death penalty, Flores was sentenced to life imprisonment in the Texas Department of Criminal Justice, Institutional Division. He contends in three issues that the evidence is legally and factually insufficient to support his conviction and that the failure to provide him a punishment hearing upon conviction violated his rights under the Eighth and Fourteenth Amendments of the United States Constitution. We affirm.

Flores contends in issues one and two that the evidence is legally and factually insufficient to sustain his conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. Flores concedes that he murdered the victim but insists that the evidence is legally and factually insufficient that he did so while in the course of kidnapping or attempting to kidnap the victim.

Rachel Hernandez, a friend of the victim, testified that she was the one who had originally introduced the victim to Flores. On cross-examination, she acknowledged that, hours before she was killed, the victim asked Hernandez to take her shift at McDonald=s so she could spend time on Super Bowl Sunday with Flores and his family. However, Hernandez indicated during redirect examination that what she told a police detective about the time of the shooting was that the victim had called her crying the night that she died and asked Hernandez to work for her because she and Flores had gotten into it again. Hernandez stated that her memory was better at that time than at the time of trial. On further cross-examination, she again acknowledged having made the later statement to a defense investigator that, when the victim called, she was not crying and was looking forward to spending time with Flores and his family. Hernandez recounted that the victim said three days before she died that she was going to leave Flores. Hernandez stated that, on the same day, Flores (who was very jealous) had told her that he would kill the victim if she ever left him.

Frank Reyes, the victim=s stepfather, testified that Super Bowl Sunday, January 26, 2003, was his birthday. He said that, on that morning, he told the victim he was going to go to his sister=s house later in the day. He related that the victim came to his sister=s house about 7 p.m. and that she left after he had eaten saying she would be back and did not want him to leave because she had forgotten his birthday present. He testified she never returned. Ellie Muro, the victim=s mother, testified that on the evening of the murder Flores called her and told her he had killed the victim. She said that, when he placed the phone down, she heard a Agagging kind of noise.@ She indicated that she thought the victim was gagging on her own blood.

Anthony Lopez, who was living with Flores=s mother at the time, testified that the victim was in and out of their house all the time. He stated that he spent all of Super Bowl Sunday drinking, a super bowl tradition. He said he went to bed about 9:30 p.m. He indicated he was subsequently awakened by his daughter banging on his bedroom door. He said Flores came to his bedroom carrying a shotgun and saying that he had shot the victim but that he had not meant to do it and was sorry. Lopez recounted that he Atook off out of the house@ to go use his neighbor=s phone. He recalled telling police he did not want to get trapped in the house. He said that he heard another shot go off while he was on the phone with the dispatcher.

On cross-examination, Lopez acknowledged that he thought the victim was dead and did not try to pull her out of the room where she was. He also acknowledged having told the grand jury that the victim and Flores appeared to be happy together. He said the victim never talked to him about leaving Flores.

Darrell Hobbs, a retired Seminole police officer, testified that on the night in question he was shot as he approached the back door of the residence when he responded to the call about shots fired at the residence. He said Flores knew he was a police officer because about a month before he had taken a criminal complaint from Flores.

Ronnie Pipkin, a lieutenant with the Seminole Police Department, testified that he went to the residence in question after Hobbs had been shot. He indicated that he received the call around 10:25 p.m. or 10:30 p.m. on January 26. He said he was able to talk Flores out of the house at about 1 a.m.

Chad Hallum, also a lieutenant with the Seminole Police Department, testified about the circumstances of Flores being talked out of the residence. While recalling his efforts at collecting evidence in the house, Lieutenant Hallum said that he found a clump of hair in a sofa chair in the bedroom where the victim=s body was found. Lieutenant Hallum acknowledged that the lab of the Texas Department of Public Safety was unable to determine if the hair was the victim=s or how it was removed.

Angela Rodriguez, Kathy McCord, and Aaron Fullerton, all employees of the Texas Department of Public Safety Crime Lab in Lubbock, testified as to their testing of blood and weapons recovered at the scene of the murder.

Jerry Douglas Spencer testified that he was a forensic pathologist and the medical examiner of Lubbock County. He indicated that the authorities in Gaines County asked him to perform an autopsy on the remains of the victim. He indicated that he found soot residue in the area of her right ear or temple, which usually indicated that the weapon used had been in contact or very close to the body part where the entrance wound was located. He said the trajectory appeared to be somewhat downward. He indicated that an entry wound to the back of her head also appeared to track downward. He acknowledged that he was not able to tell whether she was in an upright position at the time the shots were fired. He identified the cause of the victim=s death as shotgun wounds to the right temple and back of the head.

On cross-examination, Dr. Spencer testified that, after the first of the two gunshot wounds, the victim would have clearly been unconscious but could have survived for a couple of hours. On redirect examination, Dr. Spencer indicated that, if either of the two shotgun wounds entered the hole in the wall that was about twelve inches off the floor, it would have been consistent with the victim being in a sitting or kneeling position. When the prosecutor suggested that, if the victim were standing up, whomever fired the shot would have to have had their hand Amighty high in the air,@ Dr. Spencer responded, AOr standing on a ladder.@

Mickey Browne testified that he is the chief of police for the City of Seminole. He said he had four years of experience as a homicide investigator before becoming chief of police. He indicated he had been chief for about sixteen years. He said that, when the victim=s mother talked to Flores on the phone while they were waiting for him to come out, she told him that she could hear moaning in the background and that Flores asked her, ACan you hear your baby dying?@ He testified that he found three holes in the room where the victim was found: one in the ceiling, one in the wall, and one in the floor. He related that, while he found no projectile as one would have expected if the holes in the ceiling or floor had resulted from the shooting, he did find a projectile outside the house near the outside location of the same hole that was observed in the interior wall. He expressed his opinion, based upon all of his observations and in light of his years of training, that the victim was in a kneeling or sitting position at the time she was shot.

On cross-examination, Chief Browne acknowledged that the victim=s mother also told him that Flores had earlier called her at her house and told her that he had killed the victim. He also stated that in his opinion the first shot would have resulted in instantaneous incapacitation.

Flores contends that the evidence is insufficient to show that he murdered the victim while in the course of committing kidnapping. A person commits capital murder if he or she commits murder in the course of committing or attempting to commit kidnapping. Tex. Penal Code Ann. '19.03(a)(2) (Vernon Supp. 2006). A person commits kidnapping by intentionally or knowingly abducting another person. Tex. Penal Code Ann. ' 20.03(a) (Vernon 2003). AAbduct@ means to restrain a person with intent to prevent his liberation by secreting or holding him in a place he is not likely to be found or by using or threatening to use deadly force. Tex. Penal Code Ann. ' 20.01(2) (Vernon Supp. 2006). ARestrain@ means to restrict a person=s movements without consent so as to interfere substantially with the person=s liberty by moving the person from one place to another or by confining the person. Tex. Penal Code Ann. ' 20.01(1) (Vernon Supp. 2006). There is no requirement for the State to prove that a defendant moved his victim a certain distance or that he held him or her a specific length of time before he or she can be found guilty of kidnapping. Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. 2002).

A jury could reasonably determine from the evidence that Flores restrained the victim by using or threatening the use of deadly force when he approached her at close range with the shotgun and that Flores, rather than seek medical treatment for the victim, continued to restrain her until she died, shooting her again somewhat later, shooting one officer coming to her aid, and holding others at bay for several hours before surrendering. We hold that the evidence is legally and factually sufficient to show that Flores kidnapped the victim, restraining her by using or threatening the use of deadly force.

Flores contends that the evidence is factually insufficient to show kidnapping because: (1) the victim lived with him at his mother=s home; (2) the victim, though unmarried, had moved in with him; (3) Lopez, the man who lived with his mother, never saw Flores and the victim fight and said that they appeared to him to be happy; (4) the victim was looking forward to spending super bowl with Flores and his family and called to get someone to cover her at McDonald=s so she could be with him; and (5) in examining the victim=s body, there was no way to determine her position when the shotgun was fired, such as whether she was kneeling or sitting.

Flores=s argument does not mention earlier testimony by Hernandez that she had told a detective that the victim was crying when she called the evening of the murder to ask her to fill in for her at McDonald=s, indicating that she and Flores had gotten into it again and that her memory was better then than at trial. None of the matters Flores mentions, even if true, would prevent a fact- finder from reasonably determining that Flores committed the murder while in the course of kidnapping or would cause us to conclude that the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the conflicting evidence. We overrule issues one and two.

Flores urges in issue three that the imposition of the mandatory sentence of life imprisonment in the Texas Department of Criminal Justice, Institutional Division, rather than affording him a punishment hearing, violates the Eighth and Fourteenth Amendments to the United States Constitution. A mandated life imprisonment does not violate the Eighth Amendment prohibition against cruel and unusual punishment. Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991). We overrule issue three.

The judgment is affirmed.

PER CURIAM

July 19, 2007

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

Panel consists of: Wright, C.J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.