Domingo Soto v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

No. 04-96-00901-CR
Domingo SOTO,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th District Court, Bexar County, Texas
Trial Court No. 95-CR-4769-B
Honorable Pat Priest, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 30, 1998

AFFIRMED

Domingo Soto appeals his conviction for capital murder on the ground that one of several lesser included offenses should have been included in the jury charge. We disagree and affirm the trial court's judgment.

Factual and Procedural Background

Soto and three other young men, Johnny Moten, Daniel Soto, and Jorge Corea, approached the Gutierrez Family Store during the late afternoon. As they stood just outside the store, Moten handed Soto a gun, at which point Soto, Moten, and Daniel Soto entered the store while Corea stayed outside. After going in, two of the boys asked the clerk, Kareem Moiz, for some chips and a pickle. As Moiz reached for a pickle, the boys shot him. Corea testified he turned when he heard the shots and saw Soto standing in front of the counter with the gun. Soto later admitted to his girlfriend he shot at Moiz twice; Soto claimed the first shot missed but was unsure about the second. Soto also told his girlfriend Moten took the gun away from him and fired three more shots at Moiz. After they fatally shot Moiz, each of the boys in the store took money from the cash register and ran out of the store. Corea also went into the store and picked up some money off the ground.

Soto was charged with capital murder under section 19.03(a)(2) of the Texas Penal Code, which provides: "A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and the person intentionally commits the murder in the course of committing or attempting to commit robbery." Tex. Pen. Code Ann. 19.03(a)(2) (Vernon 1994). During the charge conference, Soto requested charges on the lesser included offenses of murder and aggravated robbery. The court denied Soto's request, and Soto was subsequently found guilty of capital murder.

Discussion

Soto argues the trial court erred in denying his requested submission of the lesser included offenses of murder, felony murder, and aggravated robbery. We disagree.

A charge on a lesser included offense is required if (1) the lesser included offense is "included within the proof necessary to establish the offense charged," and (2) there is "some evidence . . . in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense." Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). To determine whether the trial court erred in failing to submit a lesser included offense to the jury, we look at "all of the evidence presented at trial." Id.

Soto meets the first prong of the test with respect to each requested offense because murder, felony murder, and aggravated robbery are all lesser included offenses of capital murder as charged in this case. See Thomas v. State, 701 S.W.2d 653, 656 (Tex. Crim. App. 1985) (murder); Livingston v. State, 739 S.W.2d 311, 336 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210 (1988) (felony murder); Broussard v. State, 642 S.W.2d 171, 173 (Tex. Crim. App. 1982) (robbery). However, Soto fails to meet the second prong of the Rousseau test because there is no evidence upon which a jury could rationally find that if guilty, he is guilty only of the lesser included offenses. Soto argues there was some evidence that Soto had the requisite mental state for each of the lesser included offenses but not the intent required for capital murder.

A murder charge under section 19.02(b)(1) of the Texas Penal Code requires the State to prove the defendant acted either intentionally or knowingly. Tex. Pen. Code Ann. 19.02(b)(1) (Vernon 1994). Under a felony murder charge, the State need only prove the defendant possessed the required mental state for the underlying offense--robbery--to fulfill the mens rea requirement. Id. at 19.02(b)(3). Finally, robbery and aggravated robbery require the State to prove the defendant acted with the intent to obtain or maintain control of the stolen property and either intentionally, knowingly, or recklessly caused bodily injury to another, or intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death. Id. at 29.02, 29.03. Soto admitted to his girlfriend he shot at Moiz twice, which is sufficient to create an almost irrebuttable inference he intended to kill Moiz. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994). Thus, even though there was some evidence Soto had the mental state required for the offenses of murder, felony murder, and aggravated robbery, there is no evidence that he did not also intend to kill Moiz.

Soto is correct there is some evidence Moten, not Soto, actually fired the shot that killed Moiz. Soto thus argues he had the requisite mental state for robbery, and he should not have anticipated that Moten would kill Moiz. See Tex. Pen. Code Ann. 7.01-.02(b) (Vernon 1994). However, the record contains no evidence demonstrating Soto should not have anticipated Moten's killing of Moiz. Rather, the uncontradicted evidence shows Soto should have anticipated the shooting death of Moiz because he and Moten exchanged the gun both before and during the robbery, and Soto himself fired two shots at Moiz before Moten did. Thus, while Soto is correct there is some evidence showing he committed lesser included offenses of capital murder, there is no evidence that would permit a jury to rationally find that, if Soto is guilty, he is guilty only of a lesser included offense. We therefore overrule Soto's points of error and affirm the trial court's judgment.

Sarah B. Duncan, Justice

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