Hubert Foster v. The State of Texas--Appeal from 148th District Court of Nueces County

NUMBER 13-00-001-CR 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

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HUBERT FOSTER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 147th District Court
of Nueces County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

A grand jury indicted Hubert Foster, appellant, for capital murder, alleging he intentionally caused the death of Ruben Lopez by strangling him with a shirt while in the course of committing or attempting to commit robbery and kidnapping. Tex. Pen. Code Ann. 19.03 (a)(2) (Vernon 1994). After a jury trial, appellant was found guilty of capital murder and sentenced to life imprisonment. Appellant complains on appeal that the evidence was factually insufficient to prove he intentionally caused the death of Lopez. We affirm.

Lopez was found dead in a motel room in Corpus Christi on January 1, 1999. His body was discovered laying face down, with his hands tied behind his back, his feet bound together, and a shirt tied around his neck. According to Dr. Lloyd White, Nueces County Medical Examiner, Lopez died from asphyxia by ligature. Lopez also suffered abrasions, bruises, a puncture wound, and internal injuries. The motel room was ransacked and blood was found on various items in the room, including broken pieces of chairs.

On January 3, 1999, police officers in Houston arrested appellant, who was driving Lopez's car, after he led them on a car and foot chase. Appellant was transported to Corpus Christi, and there gave a confession in which he admitted struggling with Lopez in the motel room because he had refused to pay Sugar, a prostitute, for services rendered. Appellant admitted he and Sugar tied Lopez up and gagged him. He claimed he did not intend to hurt or kill Lopez, but only wanted the money owed.

In his sole issue, appellant contends the evidence is factually insufficient to support a finding that he intentionally caused the death of Lopez. When reviewing factual sufficiency, we view all of the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). We must accord proper deference to the jury's determination and avoid substituting this Court's judgment for that of the jury. Cain, 958 S.W.2d at 407.

To prove capital murder as alleged in the indictment, the State was required to prove appellant intentionally caused the death of Lopez and did so during the course of committing or attempting to commit kidnapping or robbery. Tex. Pen. Code Ann. 19.02(b)(1), 19.03(a)(2) (Vernon 1994). Appellant's challenge to the sufficiency of the evidence is limited to whether he possessed the requisite mental state. A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. 6.03(a) (Vernon 1994). Intent may be inferred from the words, actions, and conduct of appellant. Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993). It may also be inferred from the extent of the injuries and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Furthermore, the means used to cause the death may be considered in determining intent. Semento v. State, 747 S.W.2d 415, 420 (Tex. App. Dallas 1988, pet. ref'd).

The State presented evidence at trial that employees of the motel found Lopez in his room, face down on the floor next to the air conditioner, with his hands tied behind his back and a towel or piece of cloth tied around his neck. Michael Hernandez, a captain with the Corpus Christi Fire Department, testified he was the first medic on the scene. He noted the victim had his hands and legs tied. When asked about checking for Lopez's pulse, Hernandez testified:

Actually, because of the condition of the of the victim, I couldn't really check his pulse, because there was I believe there was some rope in the way. So I checked what we call "brachial artery" right here (indicating), and I couldn't feel anything. And I had to work my hand my gosh, it's been a while. But I remember there either a towel or some clothing wrapped around his face, so I had to kind of wedge my fingers up underneath his clothing to feel around his neck area.

Karen Barnes, a crime scene technician, testified there were items spread about the floor as if the room had been ransacked. The dresser drawers were open and a pair of jeans had its pockets turned out. There was a chair and broken pieces of a chair with blood on them on the carpet. Lopez's body was facing down, his wrists were tied behind his back, and he had what appeared to be a shirt wrapped around his neck and head area. A pair of gray sweatpants covered the victim's neck and head area. A leather belt and a piece of fabric from a shirt were removed from Lopez's wrists. A nylon rope or cord was removed from Lopez's ankles. He had marks on his back as if he had been injured in a struggle or fight.

Huy Nguyen, a forensic scientist for the Texas Department of Public Safety, performed a D.N.A. analysis of samples of blood taken from appellant, Lopez, and Sugar and compared it with blood taken from the crime scene. According to Nguyen, there was blood from all three individuals in the motel room.

Dr. White testified the cause of Lopez's death was asphyxia by ligature, and that "[t]he ligature was a shirt which had been tied very tightly around the neck." The shirt had been tied around the neck by means of a large, very hard, complex knot in the back. He was not able to insert his fingers between the ligature and the skin of the neck without great difficulty. A pair of sweat pants had also been tied loosely over the shirt. There were abrasions and bruises on the ankles and an abrasion on the back of the right heel. There were abrasions and bruises on other parts of the body as well.

In his confession, appellant stated he was with Sugar on January 1, 1999. Lopez promised to pay Sugar $150 for services rendered, but only paid her $20. When appellant asked Sugar what happened, she told him that she smoked some crack and that Lopez told her he wanted a girl who did not use dope. Around 3:30 a.m., appellant and Sugar went to the motel to collect the money owed to Sugar. They knocked on Lopez's door, Lopez opened it, and Sugar and appellant entered the room. Appellant had a rag with a rope around it. Appellant told Lopez he owed some money, to which Lopez replied, "you're right." Lopez then walked over to a table like he was going to get his wallet, but instead got a knife and said, "you ain't going to get no more money." Lopez tried to force appellant out of the room with the knife, but appellant stayed, insisting he was not leaving until Sugar got her money. The two men struggled for the knife, and Sugar helped appellant, permitting appellant to get the knife.

Eventually appellant had Lopez on the floor, with the knife to Lopez's head, throat, and genitals. Appellant begged Lopez to stop resisting because all he wanted was what Sugar had coming, and he did not want to hurt him.

Lopez then assented to give appellant the money, so appellant let him get up. Lopez then grabbed a chair and swung it at appellant, hitting him and causing him to drop the knife. Lopez picked up the chair again and hit Sugar with it, causing her to bleed. Lopez grabbed Sugar by the hair. As Lopez and Sugar were wrestling, appellant grabbed the chair and hit Lopez with it. Lopez did not let go of Sugar so appellant hit him again with the chair. This blow sent Lopez to the floor, and appellant got on his back. Sugar then hit Lopez with the chair. Appellant told Sugar to tie appellant's legs, which she did using a rope. Appellant put Lopez's hands behind his back and tied them together with a belt. Lopez did not resist. Sugar cut a shirt that was in the room and used the strips of shirt to further bind his hands. Appellant attempted to gag Lopez with a towel, but because the towel was choking him, appellant slid the towel down and gagged him with something else. Appellant told Sugar, "Let's get the hell out of here."

Sugar took the keys to Lopez's car, his wallet, and some jewelry and appellant grabbed two of his shirts. As appellant left, Lopez was mumbling and kicking the air conditioner. He was trying to yell, but was unable because he was gagged.

Appellant and Sugar left in Lopez's car and the two started crying. Appellant wanted to call the motel and let them know Lopez was there, but he was too scared. He started praying for Lopez aloud, saying "please God, let him be alright."

Sugar and appellant drove to someone's house and traded Lopez's jewelry for some narcotics. Appellant threw Lopez's cell phone out of the car because he thought it had a tracer on it and he believed the police were already looking for them. They headed for Houston. When they arrived in Houston, appellant thought the police were already looking for the car because he was sure Lopez had told the police about Sugar and they would be looking for them. Sugar and appellant got a room at a hotel, and called an acquaintance in Corpus Christi who told them of Lopez's death. They started "freaking out" and crying. Appellant could not believe Lopez was dead and wondered if Lopez died by choking on the gag or if he had had a heart attack because he was fine when appellant left the motel room.

Sugar and appellant were driving around Houston when a police officer pulled them over. The officer walked up to the car and pointed at appellant. Appellant drove away. As the police chased them, appellant and Sugar agreed to kill themselves by crashing the car. However, the car got a flat tire, so they fled on foot. The officers found appellant in a backyard. When the officers pointed their guns at appellant, he pulled out a knife and pointed the wooden part of the knife towards them so they would think he had a gun and shoot him. The officers, however, arrested appellant.

Appellant concluded his confession by stating he never intended to hurt Lopez and was sorry he was dead. He only wanted what was owed to Sugar.

Appellant urges that the evidence shows he did not have a conscious objective and desire to cause the death of Lopez at the time he tied him up. As appellant notes, there is evidence Lopez tried to free himself. Dr. White testified some of the bruises and abrasions on appellant could have been caused by appellant trying to free himself. According to appellant, abrasions on Lopez's feet, forearm, and hand could have been caused by Lopez attempting to free himself by rubbing against the air conditioner or other object. There was blood found on the air conditioner. While this evidence may tend to show Lopez tried to free himself and was not dead when appellant left the room, it does not negate intent. The fact-finder could have reasonably inferred appellant intended to kill Lopez by leaving him to die in the room.

Appellant further directs this Court to evidence that he was afraid the police would be looking for him and Sugar because Lopez would tell them about Sugar. According to appellant, this evidence tends to show appellant did not intend to kill Lopez because he believed Lopez to be alive after he left. Appellant also notes he stated he did not wish for Lopez to die, but only wanted Sugar's money.

Appellant's admission that he prayed to God for Lopez to be alive arguably rebuts the assertion that he believed him to be fine when he left the motel room. Moreover, the jury could have reasonably inferred that appellant's concern that the police would be looking for him arose not out of fear that Lopez would talk to the police, but rather out of fear that the police would find Lopez's body and tie his death to appellant and Sugar. The trier of fact is the sole judge of the witness's credibility and may believe or disbelieve any part of a witness's testimony. Haskins v. State, 960 S.W.2d 207, 209 (Tex. App.--Corpus Christi 1997, no pet.). Furthermore, a jury need not believe all parts of a confession, it may accept one portion and reject the rest. Lee v. State, 964 S.W.2d 3, 9 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). The jury was free to disregard appellant's self-serving testimony that he believed Lopez was alive and that he did not intend to kill him, and make reasonable inferences from appellant's actions.

Appellant also maintains the evidence is conflicting as to whether the ligature around Lopez's neck was tight. Appellant contends Dr. White's testimony regarding the tightness of the ligature conflicts with the testimony of the first medic on the scene, who did not say the ligature was tight. In fact, the medic testified that at first he was unable to get a pulse, and he had to work his fingers up under the clothing to get to the neck area. We are unable to see how this testimony conflicts with Dr. White's testimony that the ligature was very tight and that he could not insert his fingers between the ligature and the skin of the neck without great difficulty.

Finally, appellant maintains the evidence supports a finding that he only intended to gag Lopez, and not kill him. Appellant contends the shirt wrapped around appellant's neck was not a device typically used to kill someone by strangulation. According to appellant, if he had intended to murder Lopez, he would have tied the nylon rope around his neck rather than the shirt. Appellant claims the shirt ligature was probably used to secure the more loosely tied garment placed over Lopez's head to gag him.

When asked whether Lopez had been gagged, Dr. White replied, ". . . with respect to whether or not something had been placed in the mouth, . . . that was not the case when I examined him." The shirt was tied around the neck by means of a large, hard, complex knot in the back. There were scratches on the front of the neck and substantial contusions and hemorrhaging around the larynx and the muscles on the side of the neck. Lopez had abrasions and bruises about his body, and was found with his feet and hands tied. Considering appellant's actions, the extent of Lopez's injuries, and the means of Lopez's death, and according proper deference to the finder of fact, we cannot say the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Appellant's sole issue is overruled.

The judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 28th day of December, 2000.