ROSENDO DE LEON v. THE STATE OF TEXAS--Appeal from 139th District Court of Hidalgo County

NUMBER 13-05-430-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ROSENDO DE LEON, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Yanez and Vela
Memorandum Opinion by Chief Justice Valdez

A jury convicted appellant Rosendo De Leon of the murder of Olga Lydia Garcia and assessed punishment at seventy-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Tex. Pen. Code Ann. 19.02(b)(1) (Vernon 2003). In a single issue, De Leon contends that the trial court erred in denying his request to charge the jury on the lesser-included offense of manslaughter at the guilt/innocence phase of the trial. We affirm.

I. BACKGROUND

On December 28, 2003, Pharr police found nineteen-year-old Olga Lydia Garcia dead from severe blunt trauma to her head and multiple stab wounds. Her body had been buried in an orchard located in Donna, Texas. Appellant, Olga's boyfriend, was charged and convicted with Olga's murder. (1) See id. The jury assessed appellant's punishment at seventy-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

II. LESSER INCLUDED OFFENSE

In his sole point of error, appellant contends that the trial court erred in refusing his request to include the lesser-included offense of manslaughter in the jury charge at the guilt stage of the trial. The State contends that there is no evidence in the record to support a manslaughter charge. We agree.

A. Scope and Standard of Review

We review a trial court's refusal to include a lesser-included offense in the jury charge to see if there is some evidence establishing the lesser-included offense. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1992). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). We review all the evidence presented at trial to determine if the trial court erred by failing to give a charge on a lesser-included offense. Rousseau, 855 S.W.2d at 673. When reviewing whether a trial court erred by refusing to include an instruction on a lesser-included offense in the jury charge, we do not address the weight and credibility of the defendant's version of events. See Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).

B. Applicable Law

Article 37.09 of the Texas Code of Criminal Procedure provides, among other things, that an offense is a lesser-included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged, or (2) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission. Tex. Code. Crim. Proc. Ann. art. 37.09, (1), (4) (Vernon 2006). The test for submission of a jury charge requires that (1) the lesser- included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense, or, in other words, the defendant is not guilty of the greater offense but is guilty of the lesser. Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005) (citing Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003); Rousseau, 855 S.W.2d at 672).

Appellant was charged with murder under section 19.02(b)(1) of the penal code, which provides that "[a] person commits an offense if he intentionally or knowingly causes the death of an individual." Tex. Pen. Code Ann. 19.02(b)(1) (Vernon 2003). Appellant asked that the jury be given an instruction on manslaughter under section 19.04 of the penal code, which provides that "[a] person commits an offense if he recklessly causes the death of an individual." Id. 19.04(a). A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. 6.03. The State concedes that manslaughter is a lesser-included offense of the offense of murder. Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex. Crim. App. 2000); Yanez v. State, 187 S.W.3d 724, 740-41 (Tex. App.-Corpus Christi 2006, pet. ref'd). Thus, we must determine only whether the record contains some evidence that would permit a jury to rationally find that appellant is guilty only of the lesser-included offense of manslaughter. Rousseau, 855 S.W.2d at 672-73; Yanez, 187 S.W.3d at 741. The crux of this inquiry is whether appellant caused the death intentionally or recklessly. Yanez, 187 S.W.3d at 741.

C. The Evidence

During the early morning hours of December 19, 2003, appellant received a phone call from Olga requesting that he pick her up at her place of work, located a few blocks from the Wal-Mart where appellant was employed. Appellant agreed.

1. Anna Maria Garcia

Anna Maria Garcia, mother of Olga Lydia Garcia, testified that on December 21, 2003, two days after Olga went missing, she filed a missing person's report with the Weslaco Police Department. She further testified that a friend of Olga's took her to appellant's home and they confronted him as to Olga's whereabouts. Appellant denied ever seeing Olga.

2. Ana Pequeno

Ana Pequeno, Olga's sister, testified that about two months before Olga went missing, Olga told her that she was pregnant with appellant's baby. Ana also testified that she too questioned appellant as to Olga's whereabouts and he told her that he had not seen or heard from Olga.

3. William Johnson

William Johnson, an investigator with the Weslaco Police Department, testified that he became involved with Olga's disappearance on December 23, 2003. Officer Johnson stated that he first went to appellant's home and asked him if he had seen Olga. Appellant again denied ever seeing Olga and mentioned that on the night in question, he was working at the Wal-Mart located in Pharr, Texas. Officer Johnson further stated that as he was questioning appellant, he noticed that appellant was nursing a cut on his right hand, and when questioned about the cut, appellant told Officer Johnson that he had cut himself at work with a box cutter while trying to open a box. Johnson also testified that he sought assistance from the Pharr Police Department on December 24, 2003 because Olga was last seen in Pharr and consequently, the case was in the City of Pharr's jurisdiction. Officer Johnson, however, assisted in the investigation through its entirety.

4. Officers Jose M. Soto/Juan Miguel Garza

Officers Soto and Garza, investigators with the Pharr Police Department, testified about the progression of the case and the statements made by appellant.

a. Statement #1

Officer Soto testified that on December 26, 2003, he went to Wal-Mart and asked appellant if he was willing to speak to him at the police station. Appellant agreed. At the station, Officer Soto first read appellant his rights and had appellant initial the form indicating such. Officer Soto testified that appellant initially denied ever seeing Olga or picking her up. However, after Officer Soto informed appellant that they had obtained a video from Wal-Mart that showed appellant leaving Wal-Mart and then arriving back later with something in his hand, appellant subsequently admitted to picking Olga up from work and giving her a ride home in the early morning hours of December 19, 2003. According to Soto, appellant claimed that on the way home, the two got into a heated argument that forced appellant to pull over by a Circle K in San Juan, Texas. The two continued to argue and, at one point, appellant grabbed Olga's purse and threw it into a small ditch. Appellant claimed that he eventually left Olga at Circle K and went back to work. After appellant made this statement, he was subsequently released.

b. Statement #2

On December 27, 2003, Officers Soto and Garza went back to appellant's residence and asked him to come back to the police department. Appellant again agreed. At the station, Officer Soto again read appellant his Miranda rights and appellant initialed the form indicating such. Appellant subsequently gave a written statement that was typed out by Officer Soto and introduced as evidence in the State's case-in-chief. In his statement, appellant again admitted to getting into a heated argument with Olga that forced him to stop his vehicle somewhere between a Circle K and a funeral home located in San Juan, Texas. Appellant admitted to getting extremely upset at Olga after she allegedly called him an asshole. Appellant admitted to hitting Olga several times in the face with both fists and knocking her unconscious. Appellant further admitted to the possibility of running Olga over with his vehicle when he drove off. Appellant claimed that he then returned to work and had not seen Olga since. After giving this statement, appellant was arrested for the murder of Olga Lydia Garcia.

c. Statement #3

On December 28, 2003, Officer Soto again interviewed appellant. After his rights were read to him, appellant provided yet another statement that was typed by Officer Soto and introduced as evidence in the State's case-in-chief. In his third statement, appellant first admitted to stopping along the frontage road in San Juan, Texas. Appellant added, however, that after forcing Olga back into his vehicle, he proceeded to drive her home but, at her request, they arrived at a hunting spot frequented by appellant instead. At the hunting spot, appellant admitted to becoming very angry at Olga after she taunted him regarding his masculinity after he refused to have sex with her. Appellant stated that after Olga allegedly slapped him, he lost all control. Appellant admitted to grabbing Olga by her blouse and hitting her face with a flashlight. Once Olga fell to the ground, appellant admitted to taking out a knife from his pocket and stabbing her. In the process, appellant cut himself and began bleeding.

Appellant next admitted to dragging Olga's body towards an orchard in order to conceal her body. Appellant stated that he got in his vehicle to leave, but stopped because Olga's body was still visible. Appellant admitted to finding a hole and dragging Olga's body to the hole by her feet. Appellant stated that he put a small amount of dirt over her and then left in his vehicle. The next morning, after appellant heard his mother leave to take his nephew to school, appellant grabbed a shovel from the side of his house, ran to where Olga's body was located, and shoveled dirt to cover her up. Appellant finally drew a map for the officers to show the location of Olga's body.

5. Dr. Fulgencio Salinas

Dr. Fulgencio Salinas, a pathologist, performed the autopsy. Dr. Salinas testified that he immediately noticed the blunt trauma injuries to the head and multiple stab cuts through different parts of the body. Dr. Salinas found twenty-six main stab wounds and three defensive stab wounds on Olga's body. Dr. Salinas further testified that the extensive depressed fracture to Olga's head indicated that greater force was used to cause that type of fracture. Dr. Salinas testified that any type of object such as a bat, pipe, or flashlight could have caused that type of fracture. Dr. Salinas concluded that death was caused by: (1) blunt trauma to the forehead causing extensive fractures to the bones of the base of the skull, (2) extensive injury to the brain with brain hemorrhage; (3) extensive fractures to the bones of the face, and (4) multiple stab wounds to different parts of the body, causing injury to the right and left lungs, and to the kidney, causing severe hemorrhage and injury. (2)

D. Analysis

Appellant contends that his statements establish that he and Olga were in a heated argument about their relationship; that, during the course of the argument, Olga made condescending remarks to him and accused him of infidelity which caused him to be enraged. Appellant asserts that while he recalls striking Olga with his fists, stabbing her with the knife, and driving over her with his vehicle, he fully understood and appreciated his circumstances, actions, and the risk of causing Olga serious injury or death, and that he consciously disregarded the risk. In support, appellant cites to his statement, in which he stated that "[h]e believed, in his own mind, that he had not committed a crime; rather, it was an incident that was entirely accidental." Based on this evidence, appellant argues he is entitled to an instruction on the lesser-included offense of manslaughter recklessness. We disagree.

Intent may be inferred from the actions or conduct of the appellant. Yanez, 187 S.W.3d at 742 (citing McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989)). (3) Intent may also be ascertained or inferred from the means used and the wounds inflicted. Id. at 743 (citing Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981)). The physical and medical evidence presented at trial indicated that Olga died as a result of a brutal beating. Specifically, the evidence showed that appellant hit Olga enough times and with enough force to cause severe blunt trauma to her head. The evidence also showed that Olga was stabbed twenty-nine times, three of which were defensive stab wounds located on the right side of Olga's palm. Significantly, and indicative of appellant's mental state, we note that the stab wounds were not inflicted until after appellant beat Olga with his flashlight, after she fell to the ground, and after appellant realized that he had a knife with him. Indeed, appellant admits that he initially reached into his pocket to retrieve some Kleenex to wipe his nose of blood, but upon feeling the knife, he decided instead to use it. Furthermore, the evidence showed that appellant engaged in conduct designed to cover up his actions and was dishonest with the police from the very beginning. Given appellant's conduct, the severity of blunt trauma to Olga's head, and the number of stab wounds inflicted on her body, we conclude that a jury could reasonably infer that there was physical evidence showing an intent to kill. See Womble, 618 S.W.2d at 64.

Moreover, we find no evidence in the record that would permit a rational jury to find appellant guilty only of manslaughter. When there is not enough evidence to raise an issue of reasonable doubt whether the defendant was acting other than intentionally and knowingly, then no issue on involuntary manslaughter should be given. Zepeda v. State, 797 S.W.2d 258, 265 (Tex. App.--Corpus Christi 1990, pet. ref'd.) (citing Dowden v. State, 758 S.W.2d 264, 271 (Tex. Crim. App. 1988)). We further recognize that appellant's argument that he lost all control and became enraged as a result of the heated argument and Olga's condescending comments supports a "sudden passion" instruction that was properly included in the punishment phase of appellant's trial. See Tex. Pen. Code Ann. 19.02 (d) (Vernon 2003); McKinney v. State, 179 S.W.3d 565, 569 (Tex. Crim. App. 2005). Lastly, appellant's struggle with Olga and his self-serving statement that "the incident was entirely accidental" is relevant to the defensive issues of accident and self-defense, but such evidence does not support a finding of recklessness. See Schroeder v. State, 123 S.W.3d 398, 410 (Tex. Crim. App. 2003); Gilbert v. State, 196 S.W.3d 163, 165 (Tex. App.--Houston [1st Dist] 2005, pet. ref'd).

Accordingly, we conclude the second part of the test for determining whether a defendant is entitled to an instruction on a lesser offense is not satisfied. See Rousseau, 855 S.W.2d at 672. There is no evidence that if appellant is guilty, he is guilty only of the lesser offense. Id. We further conclude that the trial court did not err when it denied appellant's request for the jury charge to include the lesser offense of manslaughter. Id.; Zepeda, 797 S.W.2d at 265. Appellant's sole issue is overruled.

III. CONCLUSION

Having overruled appellant's single issue, we affirm the judgment.

 

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 22nd day of February, 2007.

 

1. Rosendo De Leon was charged, by indictment, with the offense of murder in which it was alleged that he intentionally and knowingly caused Garcia's death by striking her with a flashlight, striking her with his hand, stabbing her with a knife, and striking her with a motor vehicle. Appellant pleaded "not guilty."

2. Dr. Salinas also testified to the possibility that Olga was struck by a vehicle, however, he was unable to identify any distinct fractures that would have indicated that Olga had been run over. Dr. Salinas further testified that he did not see any evidence to suggest that Olga was pregnant. However, because of the body's state of decomposition and because it was possible that the pregnancy had been in its early stages, he was unable to "rule out one hundred percent" that Olga was pregnant.

3. The jury may infer the requisite intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, and the method of committing the crime and from the nature of the wounds inflicted on the victims. Yanez v. State, 187 S.W.3d 724, 742 n. 13 (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (J. Meyers, concurring); Connor v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001)). If a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill. Id. (citing Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. 199. 1993); Bell v. State, 501 S.W.2d 137, 138 (Tex. Crim. App. 1973); Guerrero v. State, 655 S.W.2d 291, 292 (Tex. App.--Corpus Christi 1983, no pet.)).