Luis A. Mendoza v. The State of Texas--Appeal from 341st Judicial District Court of Webb County

No. 04-97-00309-CR
Luis MENDOZA,
Appellant
v.
The STATE of Texas,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. K-96-00779-D3
Honorable Elma Teresa Salinas Ender, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 23, 1998

AFFIRMED

A jury convicted Luis Mendoza of murder and assessed punishment at life imprisonment. On appeal, Mendoza complains the trial court erroneously denied his motion to suppress, admitted hearsay and prejudicial photographs, and denied his requested charge on the law of parties. Mendoza also contends the evidence is legally insufficient to support his conviction. Finding no error and the evidence sufficient, we affirm.

Motion to Suppress

In his first four points of error, Mendoza contends the trial court erred by denying his motion to suppress both evidence and oral statements. Specifically, Mendoza argues the evidence was obtained through an illegal, warrantless search and arrest. In rebuttal, the State maintains the search was permissible under the emergency, consent, and plain view doctrines. The State also argues both the arrest and the statement were permissible under the Code of Criminal Procedure. We address the search and arrest separately.

1. Standard of Review

With respect to the trial court's findings of historical fact, we "view the evidence in the light most favorable to [its] ruling," affording almost total deference to findings supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, we review de novo the trial court's determination of the applicable law and the court's application of the law to the facts it found. Id.

2. Facts

At the suppression hearing, Officer Guillermo Perez testified he was called to a crime scene where he saw Sandoval's body in a ransacked truck. He also saw a belt and shirt that appeared to be the type worn by law enforcement. Officer Perez then followed a path of blood from the truck to Mendoza's house, where other officers had secured the perimeter. In addition to the blood, the officers also saw a black console panel in the yard that appeared to be the one missing from Sandoval's truck.

When movement was seen in the house, about two hours later, Officer Perez approached the house, announced his presence, and knocked on the door. A boy, Luis Cantu, opened the door but tried to close it. Officer Perez held the door open when he noticed Cantu's bloody pants, blood on the floor, and two small children sleeping on a mattress. Concerned for the children, other potential victims, and his own safety, Officer Perez entered the house.

Once inside the house, Officer Perez saw more blood on the floor and a bloody pair of tennis shoes. He recalled standing in Mendoza's bedroom doorway with his weapon drawn. He could not remember whether the door was open. He also saw blood on Mendoza's tennis shoes and ordered him handcuffed while he took Mendoza's common law wife, Rita Vigil, into the kitchen where he obtained her written consent to search the house. The officers then holstered their weapons and began the search. In addition to the bloody items, the officers also found handcuffs and electronics in Mendoza's room.

In contrast, Vigil testified she was sleeping with Mendoza and their children when several police officers slammed open their bedroom door. The officers had their weapons drawn and ordered her to "wake up [Mendoza's] ass." The officers immediately handcuffed Mendoza and began searching the house. According to Vigil, Officer Perez took her into the kitchen and told her she would lose her children unless she consented to the search. Vigil identified her signature on the consent form, but she said she signed only a blank piece of paper.

Officer Carlos Garcia testified he arrived at Mendoza's house after Officer Perez entered the house. Luis Cantu told him, "[I]t wasn't me, sir. I didn't do anything. I just hit him. The one that was was [sic] Luis. They were the ones." Several hours later, at the police station, Officer Garcia served Mendoza with an arrest warrant. At that time, Mendoza said, "[I]t's okay. I'll take the rap for it. The other one is a fag. He couldn't stand the beating, the damn beating . . . . If he died, he died because he was a sissy." Mendoza's oral statement was not recorded or memorialized in writing.

After the suppression hearing, the trial court entered findings of fact and conclusions of law. The court specifically found the officers had probable cause to believe a crime had been committed at Mendoza's house and that the officers acted under emergency circumstances in entering the house. The court further found that Vigil consented to the search and that Mendoza voluntarily gave his oral statement.

3. Search

Mendoza asserts that neither exigent circumstances nor consent justified the search of his house. The State disagrees, arguing that probable cause and an emergency justified the initial entry of the house and that, thereafter, Vigil consented to the search.

When the police enter a residence without consent, the entry constitutes a search. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). "In order for a warrantless search to be justified, the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances which made the procuring of a warrant impracticable." Id. Probable cause exists when the police have trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed an offense. Guzman, 955 S.W.2d at 87. Exigent circumstances exist when the police are responding to an emergency, pursuing a fleeing suspect, or preventing the destruction or removal of contraband. Vale v. Louisiana, 399 U.S. 30, 35 (1970); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. 1979).

Consent is an exception to the rule requiring both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Juarez v. State, 758 S.W.2d 772, 776 (Tex. Crim. App. 1988). If the State relies on consent to legitimate a warrantless search, it must prove by clear and convincing evidence that the consent was freely and voluntarily given. Reyes v. State, 741 S.W.2d 414, 430 (Tex. Crim. App. 1987). If the State can prove consent, any deficiencies in the search are cured and the results of the search are admissible. Reyes, 741 S.W.2d 414. Whether there was consent, and whether the consent was voluntary, are questions of fact to be determined under the totality of the circumstances. Schneckloth, 412 U.S. at 227; Juarez, 758 S.W.2d at 775.

The facts leading to the entry of Mendoza's house are essentially uncontested. We therefore review de novo the trial court's conclusions of law. Given the blood and other evidence linking the house with Sandoval's death, the investigating officers had sufficient evidence to believe a crime had been committed in or near the house. When Luis Cantu opened the door and Officer Perez saw the children in a bloody room, the officer reasonably believed that an emergency existed. Thus, the warrantless entry of the house was permissible.

If the warrantless entry of the house was not permissible, any deficiency could be cured if Vigil voluntarily consented to the subsequent search. Because the facts surrounding Vigil's consent were contested,(1) we must defer to the trial court's fact findings, which discount Vigil's version of the facts. In reviewing the application of the facts to the law, we hold the consent voluntary and the search permissible. Additionally, any evidence in plain view was legitimately seized incident to a warrantless emergency search. Rangel v. State, 972 S.W.2d 827, 831 (Tex. App.--Corpus Christi 1998, pet. filed).

4. Arrest

Mendoza claims his warrantless arrest was illegal and, therefore, his oral statement must be suppressed. The State concedes Mendoza was arrested without a warrant when handcuffed in his house. The State maintains, however, the arrest was justified by article 14.03(a)(1) of the Code of Criminal Procedure, regarding commission of a felony in a suspicious place.

Generally, the police must obtain an arrest warrant before taking someone into custody or placing them under arrest. See DeJarnette v. State, 732 S.W.2d 346, 349 (Tex. Crim. App. 1987). However, in certain circumstances authorized by statute, arrests may be procured without a warrant. Boyington v. State, 738 S.W.2d 704, 707 (Tex. App.--Houston [1st Dist.] 1985, no pet.). Under article 14.03(a)(1) of the Code of Criminal Procedure, the State must show (1) it had probable cause to arrest Mendoza, and (2) Mendoza was in a suspicious place. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 1998).

Given the bloody path from Sandoval's truck to Mendoza's house, the police could have reasonably concluded Mendoza was in a suspicious place. Because Mendoza himself had blood on his shoes, the police had probable cause to arrest him. Given the totality of the circumstances, we hold Mendoza's arrest was legal and the admission of his oral statement was not error.(2) Because the trial court did not abuse its discretion in finding both the warrantless search and arrest legal, we overrule Mendoza's first four points of error.

Admission of Evidence

In his seventh and eighth points of error, Mendoza complains the trial court erred by admitting both hearsay and prejudicial photographs. The State contends the evidence was admissible. We agree with the State.

1. Standard of Review

We review the trial court's admission of evidence with the abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). In applying this standard, we decide whether the trial court's decision was made without reference to any guiding rules or principles, or whether the decision was arbitrary or unreasonable. See id. at 380. We will not disturb the trial court's ruling as long as it falls within a "zone of reasonable disagreement." Id. at 391 (op. on reh'g); Gottson v. State, 940 S.W.2d 181, 187 (Tex. App.--San Antonio 1996, pet. ref'd).

2. Hearsay

Mendoza contends the trial court erred by admitting Cantu's out-of-court statement. Because Mendoza failed to provide record references for this statement, he failed to preserve error. See Tex. R. App. P. 38.1(h); Adams v. State, 969 S.W.2d 106, 112 (Tex. App.--Dallas 1998, no pet.). We note, however, that the remark was admissible as an excited utterance because Officer Garcia described Cantu as "nervous" when he said, "I didn't do anything. I just hit him with my hands. It was Luis and Isidro." See Tex. R. Evid. 803(2); Tejeda v. State, 905 S.W.2d 313, 316 (Tex. App.--San Antonio 1995, pet. ref'd); Hunt v. State, 904 S.W.2d 813, 816 (Tex. App.--Fort Worth 1995, pet. ref'd). Accordingly, we overrule Mendoza's seventh point of error.

3. Photographs

Mendoza argues the trial court erred by admitting inflammatory and prejudicial photographs.(3) We disagree.

Rule of Evidence 403 permits a relevant photograph to be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403; see also Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991). In making this determination, we consider the number of exhibits offered, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up shots, whether the body is naked or clothed, the availability of other means of proof, and other circumstances unique to the individual case. Long, 823 S.W.2d at 272. Gruesomeness by itself does not make a picture more prejudicial than probative. Hicks v. State, 860 S.W.2d 419, 426 (Tex. Crim. App. 1993).

The photographs in this case are color and measure 4 x 6 inches. State's Exhibit 6 is the least graphic, depicting Sandoval's clothed body lying face down in the bed of his pickup. State's Exhibit 4 is a variation of Exhibit 6, focusing on Sandoval's face as it lay in a pool of blood. State's Exhibit 16 shows Sandoval's bruised and bloody face as it appeared when his body was turned over.

Although gruesome, these photographs illustrate the perpetrator's state of mind and the violent nature of the crime. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995); Ventroy v. State, 917 S.W.2d 419, 423 (Tex. App.--San Antonio 1996, pet. ref'd). They are also consistent with the evidence that Sandoval was beaten. See Tidrow v. State, 916 S.W.2d 623, 631 (Tex. App.--Fort Worth 1996, no pet.). In other words, the probative value of the photographs was not substantially outweighed by unfair prejudice. We cannot say the trial court abused its discretion in admitting the photographs. Accordingly, we overrule Mendoza's eighth point of error.

Jury Charge

In his ninth point of error, Mendoza maintains the trial court's jury charge misapplied the law of parties to the facts of his case. Specifically, Mendoza contends the charge improperly focused on him by failing to name the other actors. In rebuttal, the State contends that Mendoza's requested charge was substantially the same as the one given. We agree with the State.

To convict a defendant as a party, the law of parties must be incorporated into the jury charge's application paragraph, even if the charge contains an abstract instruction on the law of parties. Biggins v. State, 824 S.W.2d 179, 180 (Tex. Crim. App. 1992). However, an abstract application of the law of parties is harmless error if the evidence supports conviction as a primary actor. See Todd v. State, 601 S.W.2d 718, 727 (Tex. Crim. App. 1980). Furthermore, no harm results when the trial court fails to give a requested charge that is substantially the same as the given charge. See Smith v. State, 502 S.W.2d 133, 134 (Tex. Crim. App. 1973); Williamson v. State, 716 S.W.2d 591, 596 (Tex. App.--Corpus Christi 1986, pet. ref'd n.r.e.).

The court's application paragraph referred to two, unnamed juveniles:

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt, that on or about the 20th day of July, 1996 in Webb County, Texas, the Defendant, LUIS A. MENDOZA, acting together with two (2) juveniles, did then and there, intending to cause serious bodily injury to an individual, ANDRES SANDOVAL, JR., commit an act clearly dangerous to human life, to wit: by striking the said ANDRES SANDOVAL, JR., repeatedly on the head and body with his hands and with a black pipe, thereby causing the death of the said ANDRES SANDOVAL, JR., as alleged in the indictment, then you will find the Defendant, LUIS A. MENDOZA, guilty of Murder.

Immediately following the application paragraph, a specific instruction about the law of parties appeared, which substantially tracked Mendoza's proposed language by naming the juveniles:

You are further instructed that if the offense of Murder, if any, was committed by Jose "Joey" Cantu, Rigo Ayala, Arnulfo "Huco" Arreola, and other persons when the Defendant, LUIS A. MENDOZA, was present; but you believe, or have a reasonable doubt, that LUIS A. MENDOZA did not know of Jose "Joey" Cantu, Rigo Ayala, Arnulfo "Huco" Arreola, and other persons['] intent to commit the offense, or that LUIS A. MENDOZA did not with intent to promote or assist the commission of the offense, if any, solicit, encourage, direct, aid or attempt to aid Jose "Joey" Cantu, Rigo Ayala, Arnulfo "Huco" Arreola, and other persons in the commission of the offense, if any, then you will find LUIS A. MENDOZA "not guilty" and so say by your verdict.(4)

We hold the court's charge adequately applied the law of parties to the facts of the case. See In re J.F., Jr., 948 S.W.2d 807, 812 (Tex. App.--San Antonio 1997, no pet.) (noting that application paragraph may refer to other portions of the charge); Green v. State, 930 S.W.2d 655, 659 (Tex. App.--Fort Worth 1996, pet. ref'd) (holding that specific names are not required in the charge); Vaughn v. State, 888 S.W.2d 62, 72 (Tex. App.--Houston [1st Dist.] 1994, no pet.) (explaining that charge need not identify the bad acts). In addition, the court's charge was substantially the same as Mendoza's proposed charge. Accordingly, we overrule Mendoza's ninth point of error.

Legal Sufficiency of the Evidence

In his fifth and sixth points of error, Mendoza challenges the legal sufficiency of the evidence. Specifically, he argues the evidence is legally insufficient because he and his wife both testified at trial that he was ransacking Sandoval's truck at the time of the beating. Mendoza also relies on the scientific evidence, which failed to link him to the incident.

In reviewing legal sufficiency of the evidence, we view the evidence in the light most favorable to the judgment and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). In doing so, we note the testimony of Jacinta Ayala, Sandoval's girlfriend, who said she saw Mendoza beating Sandoval. This testimony was corroborated by Cantu, who told the police that Mendoza was involved. Finally, Mendoza himself told the police, "I'll take the rap for it. . . . He couldn't stand the beating. He died because he was a faggot." This evidence is legally sufficient to support Mendoza's conviction for murder, either as a primary actor or as a party. See Smith v. State, 968 S.W.2d 452, 462 (Tex. App.--Amarillo 1998, no pet. h.); Soliz v. State, 961 S.W.2d 545, 549 (Tex. App.--San Antonio 1997, pet. ref'd). Accordingly, we overrule Mendoza's fifth and sixth points of error.

Conclusion

Having overruled Mendoza's points of error, we affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Unless the parties consensually relitigate the suppression issues at trial, the scope of our review is limited to the suppression hearing. In re A.D.D., 974 S.W.2d 299, 305 (Tex. App.--San Antonio 1998, no pet.). In this case, the jury charge indicates the parties relitigated the issue of consent, but the evidence adduced at trial was substantially the same as that offered at the suppression hearing.

2. The State contends the statement was admissible under article 38.22 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22, 3(c) (Vernon 1998) (permitting unrecorded oral statements that contain true factual assertions). We decline to discuss this contention because the issue was not preserved at trial or raised by Mendoza on appeal.

3. We limit our discussion to those photographs for which Mendoza gives record references: State's Exhibits 4, 6, and 16. Furthermore, we presume Mendoza's trial objections based on "gruesomeness" and "repetitiveness" are sufficient to raise an issue of prejudice under Rule 403, but are not sufficient to raise an issue of relevance under rule 401. See Tex. R. Evid. 401, 403; Santellan v. State, 939 S.W.2d 155, 171-72 (Tex. Crim. App. 1997).

4. Mendoza's proposed application paragraph stated:

[I]f you find from the evidence beyond a reasonable doubt, that on or about the 20th day of July, 1996 in Webb County, Texas, one Jose "Joey" Cantu, Rigo Ayala, Huco Ayala and other persons present did intentionally beat Andres Sandoval with their fists, and kicking [sic] him with their feet, and strike him with rocks, bricks, and boards, and the Defendant, LUIS A. MENDOZA, in the course of such beating, kicking, and striking, if any, did then and there, with intent to promote or assist the commission of the murder, if any, of Andres Sandoval, aid or assist the said Jose "Joey" Cantu, Rigo Ayala, Huco Ayala, and other persons in the commission of said offense by beating Andres Sandoval with his fists and with a black pipe together with the said Jose "Joey" Cantu, Rigo Ayala, Huco Ayala and other persons as a direct result of such beating, then you will find the Defendant, LUIS A. MENDOZA, guilty of Murder.

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