ERNESTO PIÑA REYES v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

ERNESTO PIÑA REYES, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–09–00286–CR

Decided: March 31, 2011

Before Justices Moseley, Bridges, and O'Neill

OPINION

Opinion By Justice Moseley

A jury convicted appellant Ernesto Piña Reyes of the capital murder of Melanie Goodwin, and the court sentenced him to life imprisonment without parole.   See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp.2010).   The jury also made a deadly weapon finding.   Appellant brings four issues on appeal, complaining of jury charge error, the sufficiency of the evidence supporting his conviction, and abuse of discretion by admitting certain evidence.   We affirm.

I. FACTUAL BACKGROUND

The record contains evidence that appellant met Goodwin at a QuickTrip on September 25, 2007.   Goodwin was driving her car on her way home from a job as a Red Bull representative and stopped at the store about 1:42 a.m. to buy food for her boyfriend.   Appellant, who had arrived at the store on foot about one and one-half hours earlier, asked her for a ride home.   A QuickTrip employee saw them leave together at about 1:44 a.m.

At about 3:00 a.m., appellant arrived at the apartment of his friend Donovan Young, in Goodwin's car.   Appellant had blood on his shirt, looked scared, and told Young he “had killed someone.”   Young looked in the car and saw Goodwin's body with her underwear pulled down and her skirt pulled up.   Appellant asked Young to help him to dispose of Goodwin's body.   Young gave him a gas can and some money and told him to leave.   Appellant bought gasoline, drove to a wooded area, threw Goodwin's body in a ditch, and burned it.   He abandoned her car in an apartment complex parking lot.

About 5:00 a.m., appellant returned to Young's apartment and went to sleep.   About noon, appellant and Young drove to the apartment complex to retrieve Goodwin's car.   En route, appellant told Young that he and Goodwin smoked marijuana together and were “messing around like they were going to hookup.”   They decided to have sex, but Goodwin's boyfriend called while they were in the back seat “having sex,” and Goodwin said she had to go home.   Appellant wanted to “finish sex,” but Goodwin did not.   After “he was finished,” he tried to get out of the car, but she pulled him back in, telling him she was going to say that he raped her.   Appellant told Young he then hit Goodwin in the face, and her nose started bleeding.   He was “trying to hold her,” but she “stopped moving.”

Appellant and Young found Goodwin's car, and Young left.   Subsequently, appellant abandoned the car after burning the inside.   Goodwin's badly burned body was found the morning of September 25:  she was identified by dental records.

II. SUFFICIENCY OF THE EVIDENCE

The charge instructed the jury that to warrant a capital murder conviction, the jury must find beyond a reasonable doubt that appellant was engaged in the commission or attempted commission of the felony offense of aggravated sexual assault of Goodwin but also during the commission of that offense or attempted commission, if any, that he caused Goodwin's death by asphyxiating or striking her with his hands or his body or an unknown object, a deadly weapon, with the intention of killing her.   Further:

Unless you find from the evidence beyond a reasonable doubt that [appellant], on said occasion, specifically intended to kill Melanie Goodwin when he asphyxiated or struck her, if [appellant] did asphyxiate or strike her, you cannot convict [appellant] of the offense of capital murder.

In his second and third issues respectively, appellant contends the evidence is legally and factually 1 insufficient to prove his guilt beyond a reasonable doubt.   Specifically, he argues the evidence failed to prove intercourse occurred without Goodwin's consent, he caused Goodwin's death, and the offense occurred “during the commission or attempted commission of” aggravated sexual assault, as charged.

A. Standard of Review

In reviewing the sufficiency of the evidence to support a conviction, we view all evidence in the light most favorable to the judgment to determine 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);  see Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.).   We consider all evidence, whether properly or improperly admitted.   See McDaniel v. Brown, 130 S.Ct. 665, 672 (2010) (per curiam);  Lockhart v. Nelson, 488 U.S. 33, 41–42 (1988);  Jackson, 443 U.S. at 319.   It is the responsibility of the fact finder to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences.  Jackson, 443 U.S. at 319;  Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).   The standard of review is the same for direct and circumstantial evidence cases;  circumstantial evidence may be as probative as direct evidence in establishing the guilt of an actor.  Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

B. Applicable Law

As applicable here, a person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.   See Tex. Penal Code Ann. § 19.02(b)(1), (2) (West 2003).   And, as applicable here, a person commits the offense of capital murder if the person 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” aggravated sexual assault.   See id. § 19.03(a)(2);  see also id. § 22.021(a)(1)(A)(i), (a)(2)(A)(i), (iv) (West Supp.2010) (setting out relevant elements of the offense of aggravated sexual assault).   The element of “in the course of committing or attempting to commit” means “conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense.”   See Garrett v. State, 851 S.W.2d 853, 856 (Tex.Crim.App.1993) (quoting Riles v. State, 595 S.W.2d 858, 862 (Tex.Crim.App.1980)).

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.   See Tex. Penal Code Ann. § 6.03(a) (West 2003);  Cook v. State, 884 S.W.2d 485, 490 (Tex.Crim.App.1994) (intentional murder is a “result of conduct” offense).   Intent is almost always proved by circumstantial evidence.   Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App.1999) (Meyers, J., concurring) (citing Robles v. State, 664 S.W.2d 91, 94 (Tex.Crim.App.1984)).   A jury may infer intent from any facts that tend to prove its existence, including the method of committing the crime and the nature of wounds inflicted on the victim.  Id.

A hand is not a deadly weapon per se, but can become a deadly weapon if it is used in a manner that is capable of causing death or serious bodily harm.   Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. [Panel Op.] 1983);  see Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp.2010).   If a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill.  Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App.1993).

C. Discussion

1.  Intercourse without Goodwin's consent

Appellant admitted to Young that he and Goodwin had sexual intercourse.   On appeal, appellant argues there is no evidence their intercourse was nonconsensual.   We disagree.   Young testified appellant told him that Goodwin did not want to “finish sex with him” and that she told him she would say he “raped” her.  (There was also evidence that appellant described Goodwin's death under different circumstances, including that Young was in the car with Goodwin and appellant and was responsible for the murder.   However, we must defer to the jury's resolution of conflicting evidence.   See Clayton, 235 S.W.3d at 778.)

2. Intentionally caused Goodwin's death

Appellant argues the evidence fails to prove that he caused Goodwin's death.   In light of Young's testimony that appellant told Young he hit Goodwin in the face, she started bleeding, and then she “stopped moving,” we construe his argument to be, as does the State, that the evidence failed to prove he intentionally caused her death.

The record includes the testimony of Jeffrey Barnard, M.D., who conducted Goodwin's autopsy.   Pertinent to appellant's argument, Barnard said that there were visible injuries on her head:  bruising on the front of the chin, right forehead, right temple, left side of the head near the top, and the back of the head.   Barnard said these injuries were the result of blunt force trauma, like those resulting from being struck by a hand, while she was alive.   There was also bruising and hemorrhaging in the lower part of the neck, which is common in strangulation.   There was bleeding from both eyes, which was “totally consistent with strangulation.”   Barnard said that “significant force” was applied to cause the injuries, and the injuries were consistent with a person using hands or fists on the victim.   He said the injuries were “more consistent with manual strangulation than anything else” and described the conduct and time needed to cause death by manual strangulation.

Barnard also testified that a chest injury showed either a person on top of the victim with that person's knees in the victim's chest while strangling her or a person kicking or punching her, driving “with the body weight with enough speed and force.”   Barnard agreed that the object used was capable of causing death or serious bodily injury and was therefore a deadly weapon.   Over appellant's objections, the jury observed autopsy photographs during Barnard's testimony.

Based on this circumstantial evidence, a jury could reasonably infer that appellant had the conscious objective or desire to cause Goodwin's death.   See Tex. Penal Code Ann. §§ 1.07(a)(17)(B), 6.03(a);  Manrique, 994 S.W.2d at 649;  Cook, 884 S.W.2d at 490;  Adanandus, 866 S.W.2d at 215;  Turner, 664 S.W.2d at 90.   We reject appellant's argument to the contrary.

3. During the course of committing or attempting to commit aggravated sexual assault

Next, appellant argues the evidence fails to prove Goodwin's death occurred “during the commission or attempted commission” of aggravated sexual assault.   He argues the record evidence does not show when intercourse occurred in relation to Goodwin's death.   We disagree.   Somewhat over one hour elapsed—1:44 am to 3:00 a.m.—from the time appellant and Goodwin left the QuikTrip and appellant was at Young's apartment driving Goodwin's car, with Goodwin's body inside, her underwear pulled down and her skirt pulled up.   Young testified that appellant told him appellant hit Goodwin after they finished having sex when she said she would say he raped her.   Appellant told Young he had killed someone and requested help in disposing of the body.   The jury may consider evidence of appellant's conduct during the commission or in the immediate flight after the commission of the offense.   See Garrett, 851 S.W.2d at 856.   As to any conflicting evidence of the circumstances of Goodwin's death and subsequent events, we have already noted that we must defer to the jury's resolution of conflicting evidence.   See Clayton, 235 S.W.3d at 778.

4. Conclusion as to legal sufficiency

Viewing all the evidence in the light most favorable to the verdict, particularly that detailed above, we hold that a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense of capital murder.   The evidence is therefore sufficient to support his conviction.  Jackson, 443 U.S. at 319;  Brooks, 323 S.W.3d at 895;  Clayton, 235 S.W.3d at 778.   We resolve appellant's second and third issues against him.

III. JURY CHARGE

Appellant's first issue concerns the indictment as returned by the grand jury, a subsequent strike-out in the indictment, and the jury charge.   To place his argument in context, we set out these documents in relevant part.   The grand jury returned the following indictment:

[Appellant] did unlawfully ․ intentionally cause the death of MELANIE GOODWIN, an individual, hereinafter called deceased, by ASPHYXIATING THE DECEASED WITH THE DEFENDANT'S HANDS, A DEADLY WEAPON, AND DEFENDANT'S BODY, A DEADLY WEAPON, AND WITH AN UNKNOWN OBJECT, A DEADLY WEAPON, ․ AND BY STRIKING THE DECEASED WITH DEFENDANT'S HANDS, A DEADLY WEAPON, AND BY STRIKING THE DECEASED WITH AND AGAINST AN OBJECT OR OBJECT UNKNOWN, A DEADLY WEAPON, ․ and the defendant was then and there in the course of committing and attempting to commit the offense of ROBBERY AND AGGRAVATED SEXUAL ASSAULT of said deceased.

After a hearing, appellant's motion to quash the indictment was denied.   Neither the motion nor the argument at the hearing referred specifically to any language that had been struck out or any other change in the indictment as returned.2

After the State rested, appellant requested an instructed verdict on the underlying offense of robbery.   The State announced it was abandoning the robbery element only and would “go on the charge of the capital murder in the commission of aggravated sexual assault.”   The indictment was changed by striking through certain language as follows (showing the above indictment in relevant part), although the record is silent as to when and by whom the change was made 3 :

AGAINST AN OBJECT OR OBJECT UNKNOWN, A DEADLY WEAPON, ․ and the defendant was then and there in the course of committing and attempting to commit the offense of ROBBERY AND AGGRAVATED SEXUAL ASSAULT of said deceased.

The charge authorized the jury to convict appellant of capital murder, as set out above, or murder, aggravated sexual assault, or sexual assault.   Appellant requested a limiting instruction related to “other offenses” (as discussed on the record, drug use and tampering with evidence) be added to the charge;  the trial court denied the request.   Otherwise, appellant made no objection to the charge.

Appellant's issue states that the judgment is “fundamentally flawed where the indictment, as it appears in the record [with the strike-out], charged appellant with the offense of murder, rather than capital murder.”   Appellant's argument is that the strike-out deleted language alleging he committed murder “in the course of committing and attempting to commit the offense” of aggravated sexual assault, thus failing to track the penal code's statutory language regarding the offense of capital murder and only authorizing conviction for the offense of murder.

Articles 28.10 and 28.11 of the code of criminal procedure provide the State with the opportunity to amend an indictment.   See Tex.Code Crim. Proc. Ann. arts. 28.10, .11 (West 2006).   However, “[n]either the [State's] motion [to amend] nor the trial judge's granting thereof is an amendment;  rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Article 28.10.”  Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App.2000) (citation omitted).

The State supplemented the record with the indictment as returned by the grand jury.   As set out above, it tracks the statutory language.   See Tex. Penal Code Ann. § 19.03(a)(2).   At trial, the State abandoned the robbery offense as the aggravating offense.   But the State did not abandon the in-the-course-of-committing-or-attempting-to-commit language.   Accordingly, we conclude the alteration striking that language was not authorized, either by the State or by the trial court.   See Riney, 28 S.W.3d at 565.   Appellant's reliance on Teal v. State, 230 S.W.3d 172 (Tex.Crim.App.2007), is misplaced because Teal did not concern abandoning allegations and subsequently altering the indictment.   Concluding the record does not support appellant's claim that the strike-out in the indictment authorized conviction only for murder, not capital murder, we resolve appellant's first issue against him.

IV. ADMISSION OF EVIDENCE

In his fourth issue, appellant contends the trial court abused its discretion by admitting Goodwin's burned clothing as State's Exhibit 19 because any possible probative value of this evidence was substantially outweighed by unfair prejudice, contrary to rule of evidence 403.

A. Standard of Review and Applicable Law

We review the trial court's decision to admit or exclude evidence, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, under an abuse of discretion standard.  Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App.2010).   The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement.  Id.

Texas Rule of Evidence 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Tex.R. Evid. 403.  Rule 403 favors the admission of relevant evidence, and carries a presumption that relevant evidence will be more probative than prejudicial.  Martinez, 327 S.W.3d at 737.

B. Discussion

Relying on Hill v. State, 149 S.W.2d 93 (Tex.Crim.App.1941), a pre-rules of evidence case, appellant argues that because the evidence is uncontroverted that “appellant had a hand in” setting the fire that burned Goodwin, these clothes had no probative value and they were displayed “solely to influence the jury through improper and highly prejudicial means.”   We disagree.  “[I]f a verbal description of the body and scene are admissible, the clothing worn by the victim of the offense, even if bloodstained, is admissible into evidence.”  Bradford v. State, 608 S.W.2d 918, 921–22 (Tex.Crim.App. [Panel Op.] 1980) (overruling earlier cases holding it was necessary for bloody clothing to solve some disputed issue before it was admissible).   We look to the more recent Bradford ruling for guidance on the admissibility of this burned clothing.

In addition to the evidence outlined above, photographs of the body were admitted over appellant's objection on rule 403 grounds, a ruling he does not attack on appeal.   The Red Bull logo on her clothing was still visible and helped to identify the body.   In light of the factors outlined in rule 403, we cannot conclude the trial court abused its discretion in overruling appellant's rule 403 objections.   See Martinez, 327 S.W.3d at 736.   We resolve appellant's fourth issue against him.

V. CONCLUSION

Having resolved appellant's four issues against him, we affirm the trial court's judgment.

FOOTNOTES

FN1. In Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.), the court of criminal appeals held there is no meaningful distinction between the legal and factual sufficiency standards of review.   Accordingly, we analyze appellant's issues under the legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979).   See Brooks, 323 S.W.3d at 895..  FN1. In Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.), the court of criminal appeals held there is no meaningful distinction between the legal and factual sufficiency standards of review.   Accordingly, we analyze appellant's issues under the legal sufficiency standard set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979).   See Brooks, 323 S.W.3d at 895.

FN2. Appellant does not challenge the trial court's order denying his pretrial motion to quash the indictment..  FN2. Appellant does not challenge the trial court's order denying his pretrial motion to quash the indictment.

FN3. In its brief, the State surmises that the change was made just before charging the jury in an attempt to alter the indictment to comport with the State's abandoning the aggravating offense of robbery..  FN3. In its brief, the State surmises that the change was made just before charging the jury in an attempt to alter the indictment to comport with the State's abandoning the aggravating offense of robbery.

JIM MOSELEY JUSTICE

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