Vincent Patrick Lucia v. The State of Texas--Appeal from 260th District Court of Orange County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00229-CR

Vincent Patrick Lucia,

Appellant

v.

The State of Texas,

Appellee

From the 260th District Court

Orange County, Texas

Trial Court No. D-030477-R

MEMORANDUM Opinion

A jury convicted Vincent Patrick Lucia of capital murder. Because the State did not seek the death penalty, the court sentenced him to life imprisonment. Lucia contends in four points that: (1) the court abused its discretion by denying his suppression motion; (2) the court erred by denying his request for an instruction on the lesser-included offense of murder; (3) he received ineffective assistance of counsel because trial counsel failed to submit a written request for an instruction on this lesser-included offense; and (4) the evidence is legally and factually insufficient to support the conviction. We will affirm.

Lucia contends in his first point that the court abused its discretion by denying his suppression motion in which he alleged that his confession is inadmissible because the police continued to question him after he invoked his right to counsel.

After the police read Lucia his statutory warnings, Lucia commented that his brother told him not to say too much without an attorney. A few moments later Lucia asked, I need a lawyer before I talk to you, right? He made two other statements on this issue as well. Whatever I tell you, whatever my lawyer tells me to say, I don t know I ve never been in this position. What would, I m not being, not being funny, but what would the use of ya ll asking me questions without in front of a lawyer just to get ya ll ball rolling on the case or what?

Interrogation must cease when an accused makes an unambiguous request for counsel. Davis v. U.S., 512 U.S. 452, 458-59, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994); Dewberry v. State, 4 S.W.3d 735, 747 n.9 (Tex. Crim. App. 1999); Lemmons v. State, 75 S.W.3d 513, 519 (Tex. App. San Antonio 2002, pet. ref d). An unambiguous request is one by which the accused articulate[s] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Davis, 512 U.S. at 459, 114 S. Ct. at 2355; Lemmons, 75 S.W.3d at 519. The mere mention of the word lawyer or attorney does not constitute an unambiguous request for counsel. Dewberry, 4 S.W.3d at 747 n.9; Lemmons, 75 S.W.3d at 519.

Courts have found that accused persons did not unambiguously request counsel where: (1) the accused asked the officers whether they thought the presence of an attorney was necessary; Russell v. State, 727 S.W.2d 573, 576 (Tex. Crim. App. 1987); (2) the accused stated, Maybe I should talk to someone ; Dinkins v. State, 894 S.W.2d 330, 352 (Tex. Crim. App. 1995); and (3) the accused asked the detective what he thought a lawyer would tell him to do; Id. at 352. In Davis, the Supreme Court held that the suspect s comment, Maybe I should talk to a lawyer, was not an unambiguous request for counsel. Davis, 512 U.S. at 462, 114 S. Ct. at 2357.

Viewed in context, Lucia s statements are similar to the ones cited, which have been found to not be unambiguous requests for counsel. Thus, we cannot say that the court abused its discretion by denying Lucia s suppression motion. Accordingly, we overrule his first point.

Lucia contends in his second point that the court erred by failing to charge the jury on the lesser-included offense of murder. He contends in his third point that he received ineffective assistance of counsel because his attorney failed to submit a written request for such a charge.

A defendant is entitled to a charge on a lesser-included offense if (1) the requested charge is a lesser-included offense of the offense charged, and (2) there is some evidence which would permit a jury to rationally find that if the defendant is guilty, he is guilty of only the lesser offense. Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004).

The indictment alleged that Lucia committed capital murder by committing murder during the course of a burglary. Lucia contends that he is entitled to a charge on the lesser-included offense of murder because there is some evidence in the record that he did not commit a burglary.

Lucia suggests that no burglary occurred because he had been dating the daughter of the victim and the victim had been giving him different medications as a result of his relationship with her daughter. Thus, he suggests that the record contains some evidence that he was invited into their home on the occasion in question.

However, the State presented testimony that the victim s daughter had ended the relationship with Lucia before the occasion in question. Lucia stated in his confession that he cut the phone lines and tried a couple of different windows before he was able to gain entry in the home through the victim s unlocked bedroom window. He armed himself with butcher knives before going to the victim s home during the early morning hours of the date in question.

Under these circumstances, no rational juror could conclude that Lucia had the victim s (or her daughter s) consent to enter their home on the occasion in question. See Laird v. State, 933 S.W.2d 707, 712 (Tex. App. Houston [14th Dist.] 1996, pet. ref d). Thus, the court did not err by refusing to charge the jury on the lesser-included offense of murder, and counsel did not render ineffective assistance by failing to submit a written request for such a charge. Accordingly, we overrule Lucia s second and third points.

Lucia contends in his fourth point that the evidence is legally and factually insufficient to prove that he committed the offense of capital murder because the evidence of his relationship with the victim s daughter could lead the jury to infer that he entered the home with the victim s consent.

As already stated, Lucia confessed that he cut the phone lines to the victim s home and tried a couple of different windows before he was able to gain entry in the home through the victim s unlocked bedroom window. He entered the home in the early morning hours while the victim was still sleeping and murdered the victim in her bed.

This evidence is legally and factually sufficient to prove that Lucia entered the victim s home without her consent. See Patrick v. State, 906 S.W.2d 481, 486-87 (Tex. Crim. App. 1995); Macri v. State, 12 S.W.3d 505, 507-08 (Tex. App. San Antonio 1999, pet. ref d). Accordingly, we overrule his fourth point.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 24, 2005

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