OSCAR VALADEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 4, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01238-CR
............................
OSCAR VALADEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0734533-P
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MEMORANDUM OPINION
Before Justices O'Neill, Richter, Lang-Miers
Opinion By Justice O'Neill
        Appellant Oscar Valadez was charged with murder and pleaded no contest. The trial court found him guilty and sentenced him to life in prison. In his first two issues, he argues the evidence is legally and factually insufficient to establish he caused the death of Alma Rico by stabbing her with a knife. In his third issue, he asserts the State failed to offer sufficient evidence to support a conviction under article 1.15 of the Texas Code of Criminal Procedure. Finally, he alleges his conviction should be reversed because the trial court failed to admonish him about deportation and immigration consequences of his no contest plea. We affirm the trial court's judgment.
 
 
Withdrawal of No Contest Plea
        The standard of review of the evidence hinges on whether appellant withdrew his no contest plea; therefore, we address this issue first. Appellant argues the record shows his counsel affirmatively attempted to withdraw his no contest plea. During closing, counsel stated “there is reasonable doubt on the question of whether the offense of murder was committed, as described in the indictment. And so I would suggest to the Court that some lesser-included offense, one of-several of which I would suggest to the Court more appropriately applies in this case.” The State agrees the statement might constitute some “affirmative action” that “was tantamount to a withdrawal of the no contest plea.” We agree.
        If a guilty-pleading defendant decides mid-trial he wants to compel the trial court to evaluate the evidence under the reasonable doubt standard, he must seek to withdraw the guilty plea. McGill v. State, 200 S.W.3d 325, 331 (Tex. App.-Dallas 2006, no pet.). If he fails to do so, he is precluded from having an appellate court review the evidence against him under the traditional sufficiency analysis. Id. However, the trial court is not required to affirmatively withdraw a defendant's guilty plea before choosing to evaluate the State's evidence under a reasonable doubt standard. Id. at 330. The court may simply proceed as though it has withdrawn the guilty plea and entered a not guilty plea in its place. Id. There is no duty placed up on the trial court to inform the parties of this change. Id.
        Based on appellant's statements during closing and the State's agreement they could be construed as an affirmative act to withdraw the no contest plea, we conclude appellant withdrew his no contest plea. Therefore, we will conduct a traditional sufficiency review of the evidence. Id. Having reached this conclusion, we need not address appellant's third issue, in which he claims the evidence is insufficient under article 1.15 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 1.15 (West 2005) (upon entering a plea, the State must provide sufficient evidence to support the plea).
Sufficiency of the Evidence
        In two issues, appellant challenges the legal and factual sufficiency of the evidence. The Texas Court of Criminal Appeals has recently directed “the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010) (plurality opinion) (referring to Jackson v. Virginia, 443 U.S. 307 (1979)); see also Bell v. State, 05-08-01471-CR, 2010 WL 4192882, *3 (Tex. App.-Dallas October 26, 2010) (no pet. h.). This single standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 2010 WL 3894613, at *5 (citing Jackson, 443 U.S. at 319); Bell, 2010 WL 4192882, at *3. We defer to the trier of fact's determinations of the witnesses' credibility and the weight to be given their testimony because it is the sole judge of those matters. Id. at *5.
        Appellant contends the evidence is insufficient to establish he intentionally caused the death of Alma Rico by stabbing her with a knife. The State responds that although no one testified to seeing appellant stab Alma, the record contains incriminating, circumstantial facts to support his conviction as the murderer or a party to the murder. Based on the following evidence, we agree with the State.
        Alma Rico and Omar Laredo worked together at Burger King for several years before they started dating. At the time, Omar knew Alma had recently separated from her husband.         Around 2am on September 8, 2007, Omar picked up Alma from work, and they went to her apartment in Irving. When they opened the door, they saw appellant, who was Alma's brother-in- law, inside the apartment. Although appellant and Alma talked about generic things like how she was doing and her children, Omar testified he could tell she was nervous. After approximately ten minutes, Alma asked appellant to leave and he obliged.
        Given the situation, Omar felt uncomfortable staying at her apartment. As the couple left, Omar saw appellant hiding behind some small bushes. He said it appeared he was spying on them.
        Omar and Alma spent the night in a vacant apartment at a complex where he worked as a maintenance man. The next day, they picked up some food and returned to Alma's apartment. Later that afternoon, they took a nap on separate twin beds in Alma's children's room. During his nap, Omar was abruptly awakened by a man standing over him holding a box cutter to his face. He later identified the man as Alma's estranged husband Jose Valadez. He also heard Alma screaming, “Why are you doing this?” as appellant choked her. Omar struggled to get the box cutter and pushed down his attacker. He threw the box cutter on the floor before running out of the apartment to get help. The last voice he heard in the bedroom where he left Alma was appellant's.
        Omar ran to the apartment's laundry room where he borrowed a cell phone to call 9-1-1. Officer Matthew Morisak of the Irving Police Department first arrived on the scene. He talked with Omar and then waited for back up before entering the apartment. Omar was handcuffed and not allowed back inside because at the time, it was unclear of his role in the situation.
        Officers noticed the window screen by the door had been pulled off, and the window was slightly ajar. They determined this was likely how appellant and Jose entered the apartment. Officers found Alma's body in the bedroom with a kitchen knife protruding from her upper chest near her neck.         Officer Steven Hazard investigated and took pictures of the crime scene. After finding a knife similar to the murder weapon in a kitchen drawer, he determined the murder weapon came from inside the apartment. He dusted for fingerprints but did not find any. He retrieved Alma's purse, which was hanging on the bedroom door knob. Outside the apartment, they found Omar's truck with four flat tires and a scratch that said “Alma.”
        Omar was questioned at the police station. From photographs, he identified appellant as the man choking Alma and Jose as his attacker. Based on this information, Detective Boyce Wyatt later executed a search warrant at appellant's Euless apartment. Inside appellant's apartment, he found a piece of mail addressed to Alma and several family photos, which included her and her children.
        A few days later, appellant was arrested in Freestone County. Officer Curtis Chism executed a search warrant for his impounded truck. Inside his truck, he found Alma's Texas identification card. He also observed what he thought was a drop of blood on the center front console and some blood on the interior driver's side door. Officers also photographed superficial injuries on appellant's forearms and scratches on his knuckles.
        Dr. Joni McClain, deputy chief medical examiner for Dallas County, testified Alma suffered blunt force trauma to the head and neck. Alma also had abrasions on her cheek, pinpoint bruising on her neck, and bruising on her forearms and lower legs. The cause of death was a stab wound to the upper chest, which penetrated eight inches and resulted in transection of the trachea with aspirated blood.
        Appellant argues the evidence is insufficient because no one saw him with a knife or saw him stab Alma. However, circumstantial evidence, by itself, may be enough to support a guilty finding. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. 1999) (concluding evidence sufficient to support murder conviction despite no witnesses or physical evidence showing appellant's presence at the scene of the crime). Here, the trial court reasonably could conclude appellant murdered Alma. The evidence showed appellant clearly had an interest in Alma based on his uninvited presence in her apartment at 2am, spying on her from the bushes, and having possession of several photographs of her and her children. The trial court could reasonably conclude a stranger did not enter her apartment and kill her between the time Omar fled to the laundry room and the arrival of the police. A stranger killing her is further unsupported by the fact a knife from her own kitchen was the murder weapon and there was no sign of burglary. In fact, her purse was left hanging on the doorknob in the bedroom.
        Further, it appeared blood was inside appellant's truck, and he had scrapes on his hands and knuckles that the court could reasonably conclude occurred from either removing the window screen to enter the apartment or occurred during the struggle. Omar testified that when he left the apartment, the only people in the bedroom were Alma and appellant. Thus, considering all of the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 2010 WL 3894613, at *5 (citing Jackson, 443 U.S. at 319). We overrule appellant's first and second issues.
Admonishments
        In his final issue, appellant asserts the trial court committed harmful error by failing to properly admonish him regarding deportation and immigration consequences of his plea. Having concluded appellant withdrew his no contest plea, this issue is moot.
Conclusion
        Having addressed all of appellant's issues, we affirm the trial court's judgment.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
091238F.U05