Nelson Escolero v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County
Nos. 04-02-00331-CR & 04-02-00332-CR
The STATE of Texas,
From the 379th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2000-CR-4110 & 2000-CR-4111
Honorable Bert Richardson, Judge Presiding
Opinion by: Sarah B. Duncan, Justice
Sitting: Catherine Stone, Justice
Sarah B. Duncan, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: October 15, 2003
Nelson Escolero appeals the trial court's judgments in two cases, tried together, convicting him of aggravated kidnapping and sentencing him to sixty-five years and twenty-five years imprisonment, to run concurrently. We hold that the jury's implicit finding that Escolero was not insane at the time of the offense is not so against the great weight and preponderance of the evidence as to be manifestly unjust; and the trial court did not abuse its discretion in denying Escolero's motion for new trial. We therefore affirm the trial court's judgments.Factual and Procedural Background
At approximately 10:00 a.m. on June 28, 2000, Escolero met Roman Catholic Archbishop Patrick Fernandez Flores outside his chancery in San Antonio. Because Escolero claimed to have "something very important" to discuss with Archbishop Flores, the Archbishop invited Escolero to go with him to his office. According to Archbishop Flores, once the two arrived at his office, Escolero "immediately told me that I was going to have to help him get some documents back ... they were immigration papers." Archbishop Flores explained that the chancery had a separate office in charge of immigration matters, but Escolero insisted that he wanted the Archbishop to "talk in his behalf[.]" When Archbishop Flores attempted to give Escolero the proper number to call for help in obtaining his immigration papers, Escolero "shoved" him and he "fell behind [his] desk."
Escolero threatened Archbishop Flores, telling him that he had a hand grenade and that if the Archbishop refused to help him he would "explode it" killing everyone in the chancery. One of the Archbishop's secretaries, Carmen Ireugas, left the office to call the police; however, Escolero refused to allow the Archbishop's other secretary, Myrtle Sanchez, to leave. Escolero then produced a list of names and phone numbers for the Archbishop to call, including United States Attorney General Janet Reno and Texas Governor George W. Bush.
On Escolero's behalf, Myrtle dialed phone numbers from Escolero's list, answered incoming telephone calls, and frequently checked the fax machine for possible incoming faxes. At approximately 12:30 p.m., law enforcement extricated Myrtle from the Archbishop's office. However, Escolero continued to confine the Archbishop in his office while he negotiated with law enforcement in an attempt to "go to Cuba because Cuba is the only country that's okay." Escolero eventually surrendered to law enforcement at approximately 7:00 p.m.
Escolero was charged with the aggravated kidnapping of Archbishop Flores and Myrtle Sanchez. Escolero pled not guilty by reason of insanity and supported his insanity plea with the testimony of three expert medical witnesses: Dr. Edward Brown Gripon, Dr. Caesar Garcia, and Dr. John C. Sparks. All three doctors opined that at the time of the offense Escolero suffered from a severe mental illness, namely delusional disorder, which prevented Escolero from knowing that his conduct was wrong. Additionally, Dr. Gripon and Dr. Garcia noted that Escolero had suffered from delusional disorder dating as far back as 1997. Dr. Gripon also described Escolero as "actively psychotic." Escolero also supported his defense with a tape made during the incident, translated at trial, that recorded some of his conversation with the hostage negotiator. During the conversation, Escolero explained that he wanted to go to Cuba because of his dislike of the United States government and based upon his belief that the criminal justice system was corrupt. Moreover, Escolero made frequent biblical references and described himself as "the last prophet of life."
The State did not dispute Escolero's mental illness but rather focused on whether he knew his conduct was wrong at the time of the incident. In fact, the State's medical expert, Dr. Richard E. Coons, agreed that delusional disorder was a "fair diagnosis." Nevertheless, Dr. Coons opined that Escolero's mental illness was not so severe as to prevent him from understanding that his conduct was illegal. Additionally, the State presented the lay testimony of Dr. John Steven Price, a psychologist working with the crisis negotiation unit of the San Antonio Police Department on the date of the incident. Based on his experience, Dr. Price testified that, although Escolero seemed mentally ill during the negotiations, he was not actively psychotic. Dr. Price further opined that because Escolero planned the encounter, threatened the Archbishop, asked the negotiators not to upset his family, and sought a way "to get extricated from the situation to a safe place," he knew his actions were wrong.
Implicitly rejecting Escolero's insanity defense, the jury found Escolero guilty. Escolero was sentenced to sixty-five years imprisonment for the aggravated kidnapping of Archbishop Flores and twenty-five years imprisonment for the aggravated kidnapping of Myrtle Sanchez. Escolero moved for a new trial, arguing that the verdict was against the great weight and preponderance of the evidence. The court denied the motion without hearing.Factual Sufficiency
Escolero first argues the evidence is factually insufficient to support the jury's implied finding that, at the time of the incident, he was not legally insane. We disagree.
"It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." Tex. Pen. Code Ann. 8.01(a) (Vernon 2003). The burden is on the accused to prove the defense by a preponderance of the evidence. Id. 2.04(d). "A defendant that establishes mental disease or defect does not necessarily establish the legal defense of insanity." McNair v. State, 75 S.W.3d 69, 72 (Tex. App.-San Antonio 2002, no pet.).
The determination of whether a defendant is legally insane is solely within the province of the jury. See e.g., Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994), cert. denied, 515 U.S. 1162 (1995); Graham v. State, 566 S.W.2d 941, 952 (Tex. Crim. App. 1978). Because "[l]egal insanity is not strictly a medical issue[,] [e]xperts may help the jury in their determination, but they cannot dictate their conclusions." Smetana v. State, 991 S.W.2d 42, 44 (Tex. App.-Tyler 1998, pet. ref'd). Hence, the jury is free "to accept or reject, in whole or in part, the opinion testimony of medical or psychological experts and can accept lay testimony over that of experts." Id.
The testifying expert witnesses and the State's lay witness all agreed that Escolero suffered from a mental illness at the time of the incident. However, the witnesses disagreed as to whether the severity of the illness resulted in his inability to know that his conduct was wrong. When presented with such conflicting evidence, "the jury can choose to believe or disbelieve witnesses or any portion of their testimony, and may believe a witness even though he is contradicted." Smetana, 991 S.W.2d at 44.
In addition to the medical expert and lay witness testimony, Archbishop Flores testified that Escolero planned to use him as a human shield against possible police attack. In the tape of the conversation between Escolero and the police negotiator, Escolero admitted "I have taken [Archbishop Flores] as a human shield, as a hostage." Moreover, Escolero told Archbishop Flores that "if he wasn't going to get the papers the right way, he would get them the wrong way, by threatening to kill [him]." Finally, after surrendering to law enforcement, Escolero told Officer Adam Soto: "Next time there will be no negotiations." See Plough v. State, 725 S.W.2d 494, 500 (Tex. App.-Corpus Christi 1987, no pet.) (jury may consider a defendant's surrender to the police as "a realization of wrongful conduct.")
After reviewing all the evidence, we hold that the jury's implied finding that Escolero knew his conduct was wrong at the time of the offense is not "so against the great weight and preponderance of the evidence so as to be manifestly unjust." Meraz v. State, 785 S.W.2d 146, 155 (Tex. Crim. App. 1990).Motion for New Trial
Escolero next argues that the trial court reversibly erred in denying his motion for new trial because he was not present when the court signed the order and did not waive his right to be present for the court's ruling. We again disagree.
A defendant's constitutional right to be present at trial includes the right to be present at a hearing on his motion for new trial. See Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989). But this principle assumes a hearing is conducted; and "the right to a hearing on a motion for new trial is not truly an 'absolute right.'" Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Rather, "an evidentiary hearing on a motion for new trial is required only when the motion raises matters extrinsic to the record." Castoreno v. State, 932 S.W.2d 597, 605 (Tex. App.-San Antonio 1996, pet. ref'd). Moreover, to be entitled to a hearing, a defendant must request it. See Tex. R. App. P. 21.6 ("The defendant must present the motion for new trial to the trial court within 10 days of filing it[.]").
The record establishes Escolero did not request, and the trial court did not conduct, a hearing on his motion for new trial; rather, the court denied Escolero's motion by written order without a hearing. This - standing alone - does not constitute an abuse of discretion. See Castoreno, 932 S.W.2d at 605.
The trial court's judgments are affirmed.
Sarah B. Duncan, Justice
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