Joe Louis Cuellar v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00286-CR

Joe Luis CUELLAR,

Appellant

v.

The STATE of Texas ,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-8104

Honorable Sid Harle , Judge Presiding

Opinion by: Catherine Stone , Justice

Sitting: Alma L. L pez , Chief Justice

Catherine Stone , Justice

Sandee Bryan Marion , Justice

Delivered and Filed: August 2, 2006

AFFIRMED

Joe Luis Cuellar was convicted of murder and sentenced to prison for sixty years. On appeal, Cuellar brings four points of error. We affirm the trial court's judgment.

Factual and Procedural Background

On January 4, 1992, Mark McFaul was found dead in the parking lot of the Acacia Building located near the intersection of Fredericksburg and Callaghan Roads. McFaul was found lying on his back, in the rain, directly outside his vehicle. An autopsy revealed the cause of death was internal bleeding resulting from two gunshot wounds to the back with a .22 caliber firearm.

One year after McFaul's death and with no progress made on the investigation, the case was transferred to Cold Case Squad (CCS). Detective George Saidler was the CCS officer assigned to the McFaul investigation. In November of 2000 the Texas Department of Criminal Justice-Institutional Division (TDC) provided CCS with a lead that Cuellar was involved with McFaul's death. This information was originally provided by Jesus Morales, a.k.a. Chuy, who was Cuellar's cellmate in the Ramsey II Unit of TDC. Chuy provided the information voluntarily for the purpose of obtaining a Crime Stoppers reward.

In an attempt to gather more information on McFaul's death, Chuy and TDC officers created a story that Chuy was working as a hit man for a person named "Dad." Because Cuellar wanted to be hired as a hit man, he provided Chuy with details of several former crimes he claimed to have committed. After Chuy was paroled from TDC, he met with Detective Saidler and provided a sworn statement regarding the information Cuellar had told him in prison. After further inquiry, Saidler chose to pursue a direct investigation of Cuellar for McFaul's murder. To facilitate the investigation, Saidler decided that Chuy should visit Cuellar in TDC while officers recorded their conversation. On September 9, 2001, Chuy visited Cuellar at the Wynne Unit of TDC. Their conversation was recorded; however, due to the very poor quality of the tape, Chuy provided a sworn statement concerning the content of the conversation. He testified that Cuellar admitted to killing a white man on Fredericksburg and 410 with a .22 caliber gun. Chuy stated that Cuellar wanted him to "check out" this information in order to be hired by "Dad."

Due to the poor quality of the tape, Saidler determined he wanted Chuy to meet with Cuellar again. On October 20, 2001, Chuy met with Cuellar in the Hughes Unit, but this time a different taping procedure was used which yielded a high-quality recording. Again, Cuellar provided the same information to Chuy regarding McFaul's death.

After further investigation, Cuellar was indicted by a grand jury for the murder of McFaul. Following a trial by jury, Cuellar was found guilty and sentenced to sixty years in prison. Cuellar brings four issues on appeal: 1) the evidence was insufficient; 2) the trial court erred by denying his motion to suppress Cuellar's statements to Chuy; 3) the trial court erred in admitting extraneous offense evidence; and 4) the trial court erred in denying Cuellar's motion for mistrial.

Evidentiary Insufficiency

In his first issue, Cuellar challenges the sufficiency of the evidence. Specifically, he contends that "[b]ut for [his] statements, there was no other evidence linking [him] to the murder of Mark McFaul." Absent any evidence that McFaul's death was caused by a criminal act, Cuellar contends the verdict must be reversed and an acquittal ordered pursuant to the corpus delicti rule.

In light of Cuellar's prayer for an acquittal and his statement that "no other evidence" was present, we will review Cuellar's argument as a challenge to the legal sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126, 133-34 (Tex. Crim. App. 1996) (stating that a reversal based on legal sufficiency must result in an acquittal while a reversal due to factual insufficiency requires a remand for a new trial).

Corpus Delicti Rule

An extrajudicial confession alone is not enough to sustain a conviction. Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990). "'The confession must be corroborated by evidence that a crime has been committed'; that is, the corpus delicti must be proven." Gutierrez v. State, No. 13-02-534-CR, 2004 WL 1789511, at *2 (Tex. App.-Corpus Christi Aug. 5, 2004, no pet.) (mem. op.) (quoting Adrian v. State, 587 S.W.2d 733, 734 (Tex. Crim. App. [Panel Op.] 1979)). The corpus delicti of murder is established if the evidence shows: 1) the death of a person; and 2) that death was caused by the criminal act of another. Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993). However, the independent evidence need not corroborate the person who committed the criminal act. Id. The identity of the criminal may be established from the extrajudicial confession alone. Gribble, 808 S.W.2d at 70-71.

Whether the corpus delicti has been proved is important in terms of a sufficiency analysis because if unproved, the confession cannot be considered in determining the sufficiency of the evidence to support the conviction. Troncosa v. State, 670 S.W.2d 671, 679-80 (Tex. App.-San Antonio 1984, no pet.). Cuellar argues that the corpus delicti of murder has not been established because there are no witnesses to the McFaul shooting, which he claims is necessary to prove that his death was the result of a criminal act. We disagree.

The absence of witnesses to the shooting does not establish that McFaul's death was caused by the non-criminal or accidental act of another. The rule does not require a witness to the crime; rather, it requires the confession to be corroborated; thus, "so long as there is some evidence which renders the corpus delicti more probable than it would be without the evidence,...the essential purposes of the rule have been served." Gribble v. State, 808 S.W.2d at 72; see also Parker v. State, No. 04-00-00811-CR, 2002 WL 112530, at *5 (Tex. App.-San Antonio Jan. 30, 2002, no pet.) (not designated for publication) (acknowledging that no physical evidence of a gun or the ski masks was found by law enforcement, but the circumstantial evidence of the crime was sufficient).

Cuellar relies on Adrian v. State as support for his claim that the corpus delicti for murder in the present case has not been proven. In Adrian, the court of criminal appeals held that the State failed to prove the corpus delicti of arson. Adrian, 587 S.W.2d at 735. There, the defendant confessed to starting a fire, but the State did not call a single witness to testify as to the possible causes of the fire. Id. at 734. The offense of arson, however, requires that the fire be of an incendiary origin which is implicit in the requirement that the burning be intentional. Id. at 735. The court noted that there was no testimony regarding the cause of the fire, nor was there any attempt by the State "to negate the possibility that the fire resulted from defective electrical wiring, a defective water heater, spontaneous combustion or any other manner." Id.

This case is distinguishable from Adrian for several reasons. Unlike Adrian, where the State failed to provide a witness to testify as to the cause of the fire, here the State provided a medical examiner to testify about McFaul's cause of death. Furthermore, the concerns about the other possible causes of the fire in Adrian do not exist in the present case. The court of criminal appeals recognized that there are many possible causes for the source of a fire, all of which would negate that arson was committed. Id. at 735. Such is not the case here. There are few, if any, non-criminal circumstances which would result in a man being shot twice in the back in a business parking lot in the middle of San Antonio.

First, the corpus delicti of murder requires the death of a person. Fisher, 851 S.W.2d at 303. It is undisputed that the State has shown evidence of McFaul's death. Second, evidence must exist that McFaul's death was committed by the criminal act of another person. Id. Here we have a medical examiner's report which concluded that McFaul's cause of death was from either of the two .22 caliber bullets lodged in his body. See Nolden v. State, No. 04-96-00579-CR, 1997 WL 280510, at *2 (Tex. App.-San Antonio May 28, 1997, no pet.) (not designated for publication) (stating that the gunshot wounds were enough to prove the corpus delicti of murder). Based on the foregoing, the State has proved the corpus delicti of murder; therefore, Cuellar's confessions can be used in a sufficiency review. See Troncosa, 670 S.W.2d at 679-80.

Legal Insufficiency

To review a legal sufficiency challenge, this court shall "view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Johnson v. State, 23 S.W.3d 1,7 (Tex. Crim. App. 2000). When conducting a legal sufficiency review, an appellate court does not review the fact finder's weighing of the evidence. Clewis, 922 S.W.2d at 134.

After reviewing all of the evidence in a light favorable to the verdict, we conclude that the evidence was legally sufficient to support the conviction. Cuellar's confessions revealed the exact location of the death of McFaul, the estimated day he was killed, the description of the scene, the caliber of the gun used, and McFaul's race. All of this information was directly provided in Cuellar's statements, notwithstanding the fact that much of this information had not been released to the public. Testimony was also provided linking Cuellar to a .22 caliber pistol, the same caliber gun used to murder McFaul. Additionally, McFaul's girlfriend testified that McFaul wore a horseshoe diamond ring, but one was never found on his person after his death or distributed as a part of his estate. A witness named Thomas Curry testified that Cuellar bragged of a horseshoe diamond ring he had taken from some "white dude" he shot. Curry also testified that he saw Cuellar in possession of such a ring. These facts infer that Cuellar killed McFaul and then robbed him. This theory is consistent with the medical examiner's report that McFaul's face had abrasions and scrapes on it, which would be consistent with the victim falling face forward on the pavement after being shot twice in the back. However, McFaul was found by law enforcement lying on his back, suggesting he had been flipped over. Further, Cuellar's letters to Chuy consisting of comments about "Dad" and other murders (1)provided support to the jury's verdict.

From a review of the record, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the crime was committed. See id. We overrule Cuellar's first issue.

Fifth Amendment

In his second issue, Cuellar contends the trial court erred in overruling his motion to suppress the recorded statements made to Chuy. Cuellar argues that Chuy was acting as an agent of the State; therefore, as an agent, Chuy was required to provide Cuellar with Miranda warnings before a statement could be obtained. We disagree.

The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself...." U.S. Const. amend V. Accordingly, the State may not use any statement stemming from "custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444 (1966). (2) The purpose for providing these safeguards is to protect against coercive custodial questioning by law enforcement which is inherent in custodial surroundings. Id. at 445.

As support that Miranda warnings were required before Cuellar made incriminating statements to Chuy, Cuellar relies on Wilkerson v. State, 173 S.W.3d 521 (Tex. Crim. App. 2005). In Wilkerson, the court held that "only when a [Child Protective Services] investigator (or other non-law enforcement state agent) is acting in tandem with police to investigate and gather evidence for a criminal prosecution are such warnings required." Id. at 524. However, Wilkerson is distinguishable from the present case.

In Wilkerson, the issue was whether the CPS agent was an agent of the State for purposes ofMiranda, thus requiring the agent to properly warn the defendant before the investigation. Id. at 526. The CPS agent in Wilkerson interviewed the defendant concerning the removal of his three children from his home; however, this interview occurred after the defendant was arrested and still in custody. Id. The court recognized that although CPS workers and police officers, are both per se "state agents," (3) they "have a very different set of goals." Id. at 527-28. Despite the court's conclusion that the CPS worker was not an agent of the State, thus eliminating the necessity to provide Mirandawarnings, Cuellar contends the court's analysis required the trial court to conclude that Chuy was acting as an agent of the State. The court in Wilkerson recognized, "'Unless a person realizes that he is dealing with the police, their efforts to elicit incriminating statements from him do not constitute "police interrogation" within the meaning of Miranda.'" Id. at 531 n.33 (quoting State v Loyd, 425 So. 2d 710, 716 (La. 1982). Similarly, in Illinois v. Perkins, 496 U.S. 292, 110 S. Ct. 2394 (1990), the Supreme Court held that an undercover law enforcement agent posing as a fellow inmate is not required to give Miranda warnings to another inmate before asking questions which may elicit an incriminating response. Id. at 2399. The Court reasoned that the warnings were unnecessary because the concern recognized in Miranda, namely, a police-dominated atmosphere resulting in coerced confessions, is "not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate." See id. at 2397.

There is nothing in the record to suggest Cuellar was under the impression that Chuy was a person cloaked with the authority of law enforcement. See Wilkerson, 173 S.W.3d at 530-31. Alternatively, the record lacks any facts which would cause a reasonable person in Cuellar's position to believe Chuy was a state agent. Id. We overrule Cuellar's second issue.

Extraneous Offenses

In Cuellar's third issue, he complains the trial court erred when it admitted his statement regarding another murder. Specifically, Cuellar complains of the admission of three of his statements to Chuy which all refer to a murder separate from the one at issue in this case.

We review a trial court's decision to exclude or admit evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). An abuse of discretion occurs if the trial court acted without reference to any guiding rules or principles or acted in a manner deemed arbitrary or unreasonable. Id. at 380.

For evidence of extraneous acts to be admissible under Rule 404(b), it must have relevance for some purpose other than character conformity. Id. at 391. "Even if an extraneous offense is relevant apart from character conformity, it may still be excluded if its relevance is substantially outweighed by the danger of unfair prejudice." Brown v. State, 96 S.W.3d 508, 511 (Tex. App.-Austin 2002, no pet.) (citing Montgomery, 810, S.W.2d at 387; Johnson v. State, 932 S.W.2d 296, 303 (Tex. App.-Austin 1996, pet. ref'd); Tex. R. Evid. 403).

It is unnecessary for this court to determine whether the trial court erred in admitting the statements regarding the other murder because any error was harmless. Any error other than constitutional error which does not affect a substantial right must be disregarded. Tex. R. App. P. 44.2(b); see also Avila v. State, 18 S.W.3d 736, 741-42 (Tex. App.-San Antonio 2000, no pet.) (stating that an erroneous admission of an extraneous act does not constitute constitutional error).

Any statements admitted regarding the other murder were very brief. Cf. Peters v. State, 93 S.W.3d 347, 355 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (concluding that the summation of facts adverse to the defendant led any error to be harmless, despite the State's stress placed on the error). Further, the State provided admissible evidence to convict Cuellar, such as: 1) Cuellar's remaining recorded conversation with Chuy; 2) Chuy's sworn, written statement; 3) Curry's testimony; 4) evidence revealing Cuellar's possession of the victim's ring; 5) evidence that provided Cuellar with access to the same caliber gun which killed McFaul; and 6) Cuellar's letters to Chuy. Additionally, the jury was already aware that Cuellar was in prison, another fact which would not bode well for Cuellar's defense. There was an abundance of bad facts in evidence against Cuellar, and we cannot say that any admission of the brief comments regarding an extraneous murder had a substantial and injurious effect on the jury's decision. See id. (listing the numerous "bad facts" admitted into evidence against the defendant).

Motion for Mistrial

In his final issue, Cuellar contends the trial court erred when it overruled his motion for a mistrial. The motion was requested in regard to a statement made by Thomas Curry. The record illustrates that Curry was asked why he did not immediately go to the police with the information regarding McFaul's death; this information was obtained when Cuellar allegedly told Curry that he killed and robbed someone. Curry responded that he thought Cuellar was "full of crap until a week later [when Cuellar] robbed a place at gunpoint...."

Following the improper comment, Cuellar objected that Curry's answer was "nonresponsive," he requested an instruction to disregard, and finally he moved for a mistrial. The court sustained the objection, instructed the jury to disregard the comment, but denied the motion for mistrial.

On appeal, Cuellar states that harmful error exists when a witness testifies regarding an extraneous offense which is clearly calculated to inflame the minds of the jury or is so damning that it is impossible to remove the harmful impression it placed upon the jury. See Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). Cuellar contends that Curry's testimony was "clearly calculated" to inflame the jury; thus, he argues the trial court erred in refusing to grant his motion for mistrial. While Cuellar provides a correct statement of the law, in order to argue this issue on appeal, Cuellar was required to preserve this issue at the trial level.

To preserve error for appellate review, the record must show that the complaining party made a timely objection stating "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint...." Tex. R. App. P. 33.1(a). Here, Cuellar objected that Curry's answer was nonresponsive, which the trial court sustained. Cuellar did not object to the admission of the statement as an extraneous bad act, which is what he now attempts to argue on appeal. See In re J.G., No. 04-04-00520-CV, 2006 WL 228629, at *8 (Tex. App.-San Antonio Feb. 1, 2006, no pet. h.) (holding that a trial objection to a statement's reliability does not preserve error that the statement was an improper admission of an extraneous act). As a result, Cuellar's final argument is without merit.

Conclusion

Because we overrule each of Cuellar's issues, the judgment of the trial court is affirmed.

Catherine Stone , Justice

Do Not Publish

1. The letters actually stated the word "muriales," which testimony revealed is a slang term used in prison for murders.

2. In Texas, these procedural safeguards are listed in Article 38.22. Tex. Crim. Proc. Code Ann. 38.22 (Vernon 2005).

3. The Wilkerson court provides a detailed analysis regarding a state agent and a law enforcement state agent for the purposes of Miranda; however, we will use the term "state agent" throughout the opinion in terms of a law enforcement state agent. See id. at 527-28.