Carmen Cantu Fonseca v. The State of Texas--Appeal from 180th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-98-160-CR

CARMEN CANTU FONSECA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 180th District Court

Harris County, Texas

Trial Court # 742,662

O P I N I O N

Appellant Carmen Fonseca appeals her conviction for capital murder for which she was sentenced to life in the Institutional Division of the Texas Department of Criminal Justice.

Appellant, age 40, was married to Esequiel Fonseca, Jr., the deceased, for 25 years. They had four grown children. Esequiel, also know as Zeke, worked for Crown Cork and Seal in Sugarland. Appellant and Zeke lived in the Sagemont Subdivision in Houston. Zeke had $220,000 in life insurance with Appellant as his beneficiary.

Mark Arthur, age 17, became friendly with Appellant and spent time at her house and began having an affair with her. At one point Appellant became pregnant with Arthur s child but miscarried. Zeke kicked Arthur out of the house.

In December 1996, Mark Arthur and Mason Hughes, age 16, began associating with one another. Appellant convinced Zeke to let them stay at their house because it was very cold and they had no place to go. At this time they were both on the run from the law.

On December 20, 1996, Arthur and Hughes were on the porch of Tracy Goodman when T.J. Guzman drove up. Guzman engaged in a conversation with Arthur. At one point Arthur pulled out a 9mm pistol and began shooting Guzman. Arthur and Hughes then left and drove to Appellant s house and told her what had happened.

Upstairs at Appellant s house, Arthur informed Hughes that Appellant wanted her husband dead and she wanted Arthur to do it. Arthur told Hughes that he needed him to drive the car because he could not drive and shoot at the same time. The two went downstairs and continued the conversation about killing Zeke with Appellant.

Arthur explained to Hughes that Zeke had abused Appellant and was about to be at home for a two-week vacation and that Appellant did not want him home. Appellant informed Arthur that because of the insurance policy Zeke had to be killed in the car. She said there was two-hundred thousand dollars in life insurance. Appellant told Arthur that not only would he get some of the insurance money, he would also get Zeke s car. When Arthur said he would need money to go on the run, Appellant told him that Zeke carried over a hundred dollars on him, and he should take that.

Appellant explained that a good time to kill Zeke would be when he drove home from work on the Beltway. Arthur still had the gun he used to shoot Guzman and was given more bullets by Appellant.

Arthur and Hughes went to a corner store where an elderly man drove up in a blue Cadillac. Arthur pointed his gun at the man and forcibly took the Cadillac. They kept the car that night in Appellant s garage.

The next day Arthur and Hughes stayed at Appellant s house while Zeke was at work. Appellant told them that they needed to kill Zeke tonight. Appellant said she would page Arthur and put her code 48" in his pager when she knew Zeke was on his way home. She said Zeke would be coming home on the Beltway and that they should go past the Pearland exit and wait.

That evening Zeke left work in Sugarland and headed home. He called home to let Appellant know he was on the way. Appellant immediately signaled Arthur on the pager that Zeke was on the way. Arthur and Hughes had left Appellant s house earlier driving the stolen Cadillac. Arthur drove to a cul-du-sac that connected to the Beltway, stopped and switched seats with Hughes. Hughes started up the car and five minutes later Zeke drove by. They drove behind Zeke. As Arthur cocked the gun, Hughes pulled up alongside Zeke s car and Arthur began firing his gun into Zeke s car. Zeke sped ahead causing Hughes to speed up also. Arthur began shooting again and Zeke s car crashed into the median on the Beltway. Hughes drove away despite Arthur s plea for him to get the money from Zeke s wallet. Hughes drove to the Pearland exit where he and Arthur switched seats again. From there Arthur drove to a girlfriend s house where he telephoned Appellant to meet him at the gas station. Appellant met Arthur at the gas station and gave him some money. Hughes went home.

The next morning about 7:00 a.m. Johnny Mendoza and his crew were working on construction on the Beltway. Mendoza saw a white Lincoln up against the concrete barrier on the Beltway. He saw someone slumped over the steering wheel. He called for assistance and paramedics arrived to find a Hispanic male dead in the front seat. He appeared to have been dead for a few hours. There were shell casings in the area. When Zeke did not show up for work Philip Ollmixon telephoned his home. Appellant answered and said she had no knowledge of Zeke s whereabouts.

Deputy Rossi arrived on the scene and determined the deceased s car to have been moving when he was shot. Deputy Brown also arrived at the scene and observed a Hispanic male slumped over the console with gunshot wounds in his head and neck. No wallet was found on the victim.

While Deputy Brown was at the scene, Appellant arrived. She voluntarily went with Brown to his office and gave a statement. She said she had no idea who could have done this to her husband. She claimed to be concerned with Zeke not coming home so she was retracing his drive from work when she spotted his car. She did not mention that Arthur had been at her house prior to the shooting or that she had met Arthur at the gas station afterward.

On December 23, 1996, Angleton officer Bracken attempted to stop the blue Cadillac for a traffic violation. The car sped away and the officer chased it for ten blocks. Eventually the car stopped and the occupants got out and fled. A search of the vehicle produced thirteen rounds of 9mm ammunition.

On December 26, 1996, Angleton officer DeLeon stopped a 1993 Saturn for a traffic violation. The vehicle had been reported stolen and Arthur was driving this car. He attempted to flee but was caught and placed under arrest. A Glock 9mm handgun with a loaded clip was found in the car.

The casings from the Guzman shooting were compared and matched with the casings from Zeke s murder scene. Deputy Brown was looking for Arthur when he found him in the Freeport jail. Deputy Brown was informed by Arthur of Hughes involvement in the killing of Zeke. Arthur gave a statement that he alone returned to Zeke s car, took his wallet and fired several more shots into Zeke. He directed police to the spot where he had thrown Zeke s wallet.

On January 16, 1997, Appellant gave another statement to the police. She claimed that Zeke had abused her; admitted that she knew Mark Arthur and became pregnant by him. She said she told Arthur she did not want her husband killed but Arthur said he would do it anyway. Appellant admitted she had paged Arthur when Zeke called her that he was on his way home. She also admitted meeting Arthur at the gas station after the murder and giving him money, and she admitted Arthur brought her Zeke s credit cards.

Appellant gave a third statement on January 17, 1997, in which she admitted that she had discussed the killing of Zeke on several occasions. She admitted she told Arthur the route Zeke took from work to his home. She admitted that she did page Arthur to let him know that Zeke had left work. She stated she told Arthur that she didn t want him to die because she was scared. She said Arthur later called her from the jail and said he had done it for her and he wanted her to do him a favor and bail him out of jail. The State made a plea bargain with Hughes in which he agreed to testify at Appellant s trial in exchange for ten years in prison.

Appellant was indicted for capital murder and tried under the law of parties. Her attorney, in closing argument, stated that Appellant didn t disagree that Mark Arthur and Mason Hughes shot and killed Zeke, but that Appellant did disagree that she intended it to happen or played a role in making it happen. The jury found Appellant guilty and punishment was assessed at life in prison. By new counsel Appellant appeals on three points of error:

Point 1: The prosecutor s reference to Appellant s in-trial demeanor is an improper comment on her failure to testify.

Point 2: The prosecutor s references to Appellant s in-court demeanor were an improper inference of guilt and outside the scope of permissible jury argument.

During the State s closing argument the prosecutor made the following remarks:

. . . and the law talks to you about accomplice witnesses and it doesn t tell you that it is unreliable. It doesn t tell you that at all. The law tells you that you can use it and all you need, if you believe it, all you need is some, any other corroborating evidence. Mason Hughes corroborates her, she corroborates him. Use your common sense. Listen to the evidence that you have heard. Don t speculate on what you didn t hear. And you can go back there and you might want to talk about who did some crying during this trial. And I suggest to you people cry for a lot reasons and it is not . . . .

Defense counsel objected to the emphasized remarks as improper argument. The court overruled the objection and the prosecutor stated she was making a response to argument of defense counsel.

The prosecutor continued:

People cry for a lot of reasons and mostly for themselves because they have been caught; because they have to look at the result of the actions with what they have done. They have to pay the piper, face the music, pay the piper. That why they cry. You didn t see any tears for Zeke Fonseca. Only tears you saw were for Carmen Fonseca. This one plan had her husband killed because she was tired of him, because he was going to be home for two weeks, because he had insurance and she wanted it. She didn t divorcing Zeke wasn t good enough. She wanted the house and she wanted the insurance and she wanted to be rid of him.

Defense counsel made no objection to the above.

The complained-of argument is not an improper comment on Appellant s failure to testify. The test is whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify. Green v. State, 640 S.W.2d 645, 648 (Tex. App. Houston [14th Dist.] 1982, no pet.).

Moreover, Appellant did not preserve the complaint. Although Appellant objected to the prosecutor s argument, she did not state on what grounds the argument was improper. Appellant did not object that the prosecutor was commenting on Appellant s failure to testify. A timely specific objection is required to preserve a complaint for appellate review. Turner v. State, 905 S.W.2d 423, 432 (Tex. Crim. App. 1994); Tex. R. App. P. 33.1. A complaint on appeal must comport with the objection lodged at trial or the complaint is not preserved. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).

Additionally, the State s argument was permissible as a response to defense counsel s prior argument.

Defense counsel argued prior to the prosecutor:

Now, think about who you need to be scared of. And think about the only emotion you saw in this court room. Think about where it came from.

Defense counsel s comments were an obvious reference to Appellant s crying or showing emotion during the trial and constituted an invitation to the State to respond. Long v. State, 823 S.W.2d 259, 269 (Tex. Crim. App. 1991).

Finally, we find beyond a reasonable doubt the prosecutor s argument neither contributed to the conviction or the punishment nor affected any substantial right of Appellant. Tex. R. App. P. 44.2.

Points 1 and 2 are overruled.

Point 3: The court erred in failing to admit co-defendant s Arthur s tape recorded statement against interest exculpating Appellant.

Appellant offered a tape-recorded telephone conversation between Appellant and Arthur. Arthur was in jail on an unrelated offense but was being investigated as a prime suspect in Zeke Fonseca s death. The tape-recorded conversation is an appeal by Arthur to Appellant to secure his release on bond. During the conversation he admits shooting Zeke and robbing him. Appellant asserts the tape was offered for the portion which asked Appellant to secure his release: You owe me that much. I know you didn t promise me anything but you owe me.

Appellant contends the tape was admissible under Tex. R. Evid. 803(24) as a statement against penal interest because it inculpates Arthur and exculpates Appellant.

Tex. R. Evid. 803(24) provides that a statement against interest is not excluded by the hearsay rule. A statement against interest is: a statement which was at the time of its making so far contrary to the declarant s pecuniary or proprietary interest or so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in declarant s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

A trial court has broad discretion in determining the admissibility of evidence and that decision should not be reversed unless a clear abuse of discretion is shown. Zarychta v. State, 961 S.W.2d 455, 458 (Tex. App. Houston [1st Dist.] 1997, pet. ref d); Alldredge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991).

Arthur admitted during the conversation that he killed and robbed Zeke. However, the portion of the conversation Appellant seeks to have admitted, i.e., I know you didn t promise me anything, but you owe me that much, does not inculpate Arthur. Instead it is actually helpful to both Arthur and Appellant. Arthur and Appellant were charged with capital murder. If Arthur committed the crime for remuneration he could be guilty of capital murder. Tex. Penal Code Ann. 19.03(a)(31). Without remuneration, he could be guilty of only murder. Because it was not a statement against penal interest of the declarant, the statement does not satisfy the requisites of Rule 803(24). Since Arthur s statement tended to improve his situation rather than worsen it, the statement was outside the hearsay exception. Jefferson v. State, 909 S.W.2d 247, 251 (Tex. App. Texarkana 1995, pet. ref d).

Although there is corroboration of Arthur s guilt for killing Zeke, there is no corroboration showing that the particular statement wanted admitted was trustworthy, i.e., I know you didn t promise me anything.

There is no evidence Arthur was not promised anything by Appellant. To the contrary, Hughes testified Appellant agreed to give Arthur Zeke s car and some of the insurance money, and that Appellant told Arthur to take the money in Zeke s wallet. With ample evidence Arthur was promised remuneration by Appellant and no evidence to the contrary, the statement on the tape was not sufficiently corroborated by independent circumstances to establish its trustworthiness.

The basis for excluding such evidence is its hearsay character. Sneed v. State, 955 S.W.2d 451, 454 (Tex. App. Houston [14th Dist.] 1997, pet ref d). Even hearsay evidence falling within a recognized exception to the hearsay rule is inadmissible if it lacks the indicia of reliability sufficient to ensure the integrity of the fact finding process. Sneed at 454.

Arthur did not testify, therefore, the reliability of his statement was unable to be tested on cross-examination. A co-defendant s statement about what another defendant did or said is less credible than ordinary evidence. Zarychta at 459.

Finally, even if the tape was admissible, Appellant was not harmed by its exclusion. The indictment charged Appellant with capital murder: (1) murder during the course of a robbery; and (2) murder for remuneration or the promise of remuneration. The jury charge authorized the jury to find Appellant guilty if it believed beyond a reasonable doubt that (1) Mark Arthur, while in the course of committing or attempting to commit the robbery of Zeke Fonseca, intentionally caused the death of Fonseca by shooting him with a deadly weapon and that Appellant with the intent to promote or assist in the commission of the offense, solicited, encouraged, directed, aided or attempted to aid Mark Arthur and/or Mason Hughes to commit the offense; or (2) Appellant unlawfully for remuneration or the promise of remuneration intentionally with intent to promote or assist in the commission of the offense, encouraged, solicited, aided or attempted to aid Mark Arthur to intentionally cause the death of Fonseca by shooting him with a deadly weapon.

Under the jury charge a conviction was authorized only if the jurors believed beyond a reasonable doubt that: (1) Appellant promoted or assisted in Mark Arthur s shooting of the deceased while in the course of committing a robbery or attempting to commit a robbery; or (2) Appellant unlawfully for remuneration or the promise of remuneration promoted or assisted in the commission of the shooting death of her husband by Mark Arthur.

In light of the jury charge, whether or not Appellant promised Mark Arthur remuneration was not a pertinent issue to the jury s determination of Appellant s guilt or innocence.

Thus the statement contained in the tape recording which was excluded was not relevant to the case submitted to the jury, nor could its exclusion have harmed Appellant. Tex. R. App. P. 44.2(b).

Point 3 is overruled.

Having overruled all of Appellant s points of error, the judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Gray and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 16, 2000

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