COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00405-CR
ABEL NOE DOMINGUEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
Introduction
Shortly after moving out of the house he had lived in with Alma Garcia,
Appellant Abel Noe Dominguez returned and stabbed her to death while she
slept between their two young sons. Appellant now appeals his conviction for
capital murder. We affirm.
1 See Tex. R. App. P. 47.4. Factual and Procedural Background
Alma was the mother of four: two girls and two boys. J.J., a daughter from
an earlier relationship, was eighteen; the other daughter, N.D., was fifteen. The
boys, A. and N., were eight-year-old twins. J.J. was around eighteen months old
when she and her mother moved in with Appellant and his parents. The other
three children came later, after Alma, J.J., and Appellant had left his parents‘
home.
They moved into a house on Carnett Court in Fort Worth. Alma‘s older
sister, Blanca, had signed a mortgage on the house so that Alma and her family
could have a place of their own. Alma used the wages she and Appellant earned
from their jobs to make the monthly mortgage payments. The few times Alma
was unable to make the payments, Blanca made them for her. Approximately
half of the thirty-year mortgage was paid off at the time of Alma‘s death in March
2009.
Appellant was a jealous man. Alma took care of her appearance, which
made Appellant believe she was seeing another man. If she took too long at the
grocery store, at the gym, or anywhere else, to him it meant that she must be
having an affair. He warned her that she could not leave him until he decided he
wanted her to. More than once, when Alma had problems with Appellant, Blanca
reminded him that Blanca owned the house, and she advised him to leave Alma
and the children there in peace.
2 On February 24, 2009, following an altercation, Appellant moved out, and
Alma changed the lock on the front door.
The next week, J.J. and the twins were alone in the house when J.J. saw
Appellant in the back yard with a ladder. J.J. stayed in the boys‘ room and heard
Appellant try the back door and attempt entry through a dining room window.
She phoned her mother.
Robert McWhorter lived in the house behind and one over from Alma‘s
house, and they shared a portion of their backyard fences. Robert was in his
backyard investigating what his dogs were barking at near the corner adjacent to
Alma‘s yard when he saw Appellant near Alma‘s back door. Robert returned to
his house, and looking out the kitchen window moments later, he saw Appellant,
crouching on Alma‘s roof, apparently studying something.
Robert thought that was ―real odd . . . very out of the ordinary‖ and it struck
him ―as something that was out of place.‖ He walked around the corner to
Carnett Court and stood in front of Alma‘s house. He saw nothing unusual there,
so he returned to his own cul-de-sac and took a position between his house and
a neighbor‘s for a better view.
Appellant was still on the roof. Again, Robert walked toward Alma‘s house,
and this time Appellant passed him on the street coming from the other direction.
They nodded at each other but did not speak; Appellant continued to his car—
parked on Robert‘s cul-de-sac—climbed in, and drove away.
3 After J.J.‘s phone call, Alma pulled into the cul-de-sac to look into her
backyard. She spoke to Robert, and seemed ―real upset.‖
The following Saturday night, March 7, 2009, the house on Carnett Court
was empty. Alma and J.J. had gone to a friend‘s birthday party, the twins were
across the street with a neighbor, and N.D. was at cheerleading practice. N.D.
was the first to return home that evening; she retrieved her brothers and put them
to bed in Alma‘s room, where they usually slept. Then she retired to the room
she shared with her sister and turned on the television.
Around eleven o‘clock, N.D. heard a noise on the roof, and her dog started
barking at the window. When she looked out, she noticed that the ladder that
usually lay on its side by the house was standing up against the roof. Nothing
else appeared out of place, however, so after checking on her brothers, who had
fallen asleep, she turned off her mother‘s television set and went to bed.
Alma and J.J. had stopped at Jack-in-the-Box on their way home and were
eating in the girls‘ room when N.D. awoke briefly, saw that the time was three
a.m., and fell back asleep. After Alma and J.J. finished eating, Alma went to her
room and climbed into bed between the twins. J.J. put away the trash, said good
night to her mother, and also went to bed.
N. woke to the bed shaking. He saw his dad on top of his mother, choking
her. N. screamed, waking his brother. A. thought Appellant was punching Alma.
The boys tried to shove Appellant off but could not budge him. Appellant got up,
4 though, and exited the front door. A. locked the door behind him, returned to
bed, and he and his brother eventually drifted back to sleep.
A. was the first to awaken in the morning. He saw his mother lying on the
side of the bed; she did not look okay. He thought N. was dead because there
was blood on N.s‘ face and clothes, and he did not wake up easily. Eventually,
N. woke up, and when he touched his mother—she felt frozen. The boys ran to
their sisters‘ room.
J.J. did not believe them when they told her that they thought their mother
was dead. But after looking in on her and finding her cold, J.J. called 911.
Officers arrived and taped off the driveway, yard, and part of the street.
Inside the house, they found bloodstains on the front door. In the master
bedroom, they discovered Alma‘s body partially on the bed. She had multiple
wounds on her chest and neck. Some were not very deep, surface-type wounds.
Others were penetrating, ―incise wounds made by a very sharp object.‖ Beneath
her shoulder, the officers found a kitchen knife with blood on it—the blade slightly
bowed, and the tip bent.
Outside, on the roof where earlier Robert had seen Appellant crouching,
officers noticed that the wooden slats that normally would cover the gable had
been removed, leaving a space large enough for a person to squeeze through
into the attic. Inside the attic, a beam on the floor ran directly to a plywood panel
that covered an opening into the boys‘ room, which had been converted from the
garage some time before.
5 In the boys‘ room, the panel was in its place in the ceiling. But dust and
bits of insulation matching the attic insulation were on the floor around a dresser
that sat directly below the panel, close enough so that a person climbing out of
the attic could use the dresser as a step. In the dust on top of the dresser,
officers observed a ―shoe transfer impression.‖ And from the dust on the floor in
front of the dresser, the officers lifted a partial right shoeprint.
While those officers were investigating the scene on Carnett Court, others
were dispatched to a reported attempted suicide nearby. When the officers
arrived, they found Appellant on a stretcher inside an ambulance, with his wrists
cut. His wounds were serious, though not life-threatening, and he was
transported to the hospital. Appellant asked an officer if his kids were okay and
said that his wife had left him for another man.
Officers arrested Appellant for murder. Among his effects they seized
were a pair of black K-Swiss tennis shoes and a key ring with seven keys. None
of the keys on the key ring fit any of the locks at the house on Carnett Court. The
general design, size, and tread pattern of Appellant‘s right tennis shoe, however,
were indistinguishable from those of the print lifted from the floor of the boys‘
room.
The medical examiner ruled Alma‘s death a homicide, having determined
that its cause was two wounds made with a sharp object that had transected the
left common carotid artery and the vein next to it.
6 The State waived the death penalty, and Appellant was tried for capital
murder. At the close of the State‘s evidence, Appellant moved for a directed
verdict, which the trial court denied. The jury found Appellant guilty, and the trial
court sentenced him to life.
Issues One and Two: Denial of Appellant’s Motion for Directed Verdict
In his first two issues on appeal, Appellant challenges the trial court‘s
denial of his motion for directed verdict. A challenge to a trial court‘s ruling on a
motion for directed verdict is actually a challenge to the sufficiency of the
evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex.
Crim. App. 1990), cert. denied, 499 U.S. 954 (1991); Velasquez v. State, 815
S.W.2d 842, 845 (Tex. App.—Corpus Christi 1991, no pet.). In reviewing the
sufficiency of the evidence to support a conviction, we view all of the evidence in
the light most favorable to the verdict to determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Issue One: “Stabbing” versus “Cutting”
In his first issue, Appellant contends that the trial court erred by denying
his motion for directed verdict because the indictment alleged that he killed Alma
by ―cutting‖ her, but the evidence showed that the fatal wounds were caused by
―stabbing.‖ In other words, Appellant would have us reverse his conviction for
7 capital murder and render a judgment of acquittal because he managed to stab
Alma to death without cutting her.
Stabbing by definition involves cutting. Merriam–Webster defines ―cut‖ as
―to penetrate with or as if with an edged instrument.‖ Merriam-Webster Online
Dictionary, http://www.merriam-webster.com/dictionary/cut (last visited Nov. 22,
2011). Further, it defines ―stab‖ as ―to wound or pierce by the thrust of a pointed
weapon.‖ Id., http://www.merriam-webster.com/dictionary/stab (last visited Nov.
22, 2011).
Appellant concedes that Alma died from wounds: ―The evidence was that
the stabbing wounds were what were fatal.‖ A ―wound‖ is ―an injury to the body
(as from violence, accident, or surgery) that typically involves laceration or
breaking of a membrane (as the skin) and usually damage to underlying tissues.‖
Id., http://www.merriam-webster.com/dictionary/wound (last visited Nov. 22,
2011). Thus, a wound, by definition, involves a cutting. So the English language
does not support Appellant‘s contention.
Neither does the evidence. Dr. Gary Sisler, the medical examiner who
performed the autopsy, testified that of the nineteen sharp force injuries that
Alma sustained, wounds that he numbered eleven and twelve were fatal because
they transected her carotid artery.
Q. [by the State] In wounds number 11 and 12, the two fatal injuries, when you did your internal examination, did you discover whether the tracks of those two injuries actually injured some part of Ms. Garcia‘s — well, we would call it her throat, somewhere located
8 inside her neck where it appeared that something had potentially hit it?
A. I found transections of the carotid artery, internal jugular artery, and the track ended in the trachea.
(Emphasis added).
―Transect‖ means ―to cut transversely.‖ Id., http://www.merriam-
webster.com/dictionary/transect (last visited Nov. 22, 2011). In other words, a
transection is a cutting.
Finally, on cross-examination by Appellant, Dr. Sisler specifically testified
that the fatal stab wounds cut Alma‘s trachea:
Q. [By defense counsel] . . . [T]his particular knife, did it damage the trachea?
A. It lacerated it, sir.
Q. Lacerated, that means what?
A. Made a cut in it.
Because neither the English language nor the evidence supports
Appellant‘s contention, we overrule his first issue.
Issue Two: Home Ownership
In his second issue, Appellant contends that the trial court erred by
denying his motion for directed verdict because the evidence did not show that
Alma had a greater right to possess the house that Appellant broke into than he
did. Since she did not have the greater right of possession, the argument goes,
9 he could not have committed burglary—the element that raised the offense to
capital murder—because he could not burglarize his own home.
Under the penal code, a person commits burglary if, without the effective
consent of the owner, the person enters a habitation and commits a felony, theft,
or an assault. Tex. Penal Code Ann. § 30.02(a)(3) (West 2011). ―Owner‖ is
defined in the penal code in three different ways: a person is an owner if she has
(1) ―title to the property,‖ (2) ―possession of the property, whether lawful or not,‖
or (3) ―a greater right to possession of the property than the actor.‖ See id.
§ 1.07 (a)(35)(A).
The jury charge tracked the penal code definitions of owner. Given the
charge, therefore, the jury was authorized to find that Alma was the owner if she
had title, lawful or unlawful possession, or a greater right to possession. Viewed
in the light most favorable to the verdict, the evidence supports a reasonable
juror‘s belief beyond a reasonable doubt that Alma was the owner because the
evidence shows that she had a greater right to possession than Appellant and
that at the time he entered the house without her effective consent, she had
possession of the house, lawfully or otherwise.
The evidence showed that Alma had a greater right to possession than
Appellant because Blanca testified that she signed the mortgage ―for Alma‖ and
reminded Appellant on numerous occasions that Blanca owned the house and
that Appellant should leave Alma and the children there in peace. See Mack v.
State, 928 S.W.2d 219, 223 (Tex. App.—Austin 1996, pet. ref‘d) (holding that
10 because the appellant had moved out of the apartment he shared with a
girlfriend, the girlfriend was the ―owner‖ within the meaning of the burglary statute
despite the fact that the appellant‘s name remained on the lease).
Moreover, whether or not the evidence showed that Alma had a greater
right of possession, it showed that at the time of the offense she had possession
of the house, lawfully or not, and that Appellant did not.2 ―Possession‖ was
correctly defined in the jury charge as actual care, custody, control, or
management. See Tex. Penal Code Ann. § 1.07(a)(39). The evidence showed
that Appellant moved out of the house more than a week before the murder, that
Alma changed the locks, that Appellant did not have a key that fit, that he was
seen skulking around the backyard and on the roof, that he tried to get in the
house by coming in a window, and that he eventually did get in by climbing onto
the roof, going through a gable, and then dropping down into the boys‘ room
through the attic access. Thus, viewed in the light most favorable to the verdict,
a reasonable juror could have concluded that at the time Appellant broke into the
2 To the extent that Appellant also appears to argue that he acquired possession, lawful or not, under section 30.02 when he entered the house so he could not have committed burglary, we note that this view of the offense leads to the absurd result that a person who breaks into a home immediately takes possession of it and becomes the owner, who then gives himself effective and retroactive consent to break in and therefore cannot be found guilty of burglary. We are confident that this is not the result the legislature intended when it passed the burglary statute, and that to avoid this absurd result, possession must be determined immediately prior to and not during the break-in. In other words, the legislature cannot have intended to allow one to acquire possession as against another already in possession, lawfully or not, by one‘s own unlawful entry.
11 house, Alma had actual care, custody, control, or management of it and therefore
possession. Because it is reasonable to conclude from the evidence that Alma
had possession of the house, and thus was the owner as defined by the penal
code and in the jury charge, we hold that the trial court did not err by denying
Appellant‘s motion for directed verdict on this issue. See Little v. State, 567
S.W.2d 502, 504 (Tex. Crim. App. 1978) (holding that ownership was adequately
shown in man who testified that house belonged to his mother-in-law who was in
a rest home and that he had ―charge of it and power of attorney‖); Gregg v. State,
881 S.W.2d 946, 951–52 (Tex. App.—Corpus Christi 1994, pet. ref‘d) (holding
that the fact that a woman‘s parents held title to the home did not preclude her
from being considered the owner where testimony showed she lived in the
house, provided for the family, and had control over what happened in the
house); Hudson v. State, 799 S.W.2d 314, 315–16 (Tex. App.—Houston [14th
Dist.] 1990, pet. ref‘d) (holding that there was no evidence upon which the jury
could find the defendant had a greater right of possession to woman‘s apartment
where, although they once lived together, she later made him move out).
Accordingly, we overrule Appellant‘s second issue.
Issue Three: Appellant’s Requested Jury Charge Instructions
In his third issue, Appellant contends that the trial court erred by denying
his requested jury charge instructions setting out specific provisions of the family
code that govern spousal possessory rights in Texas.
12 These family code provisions were not law applicable to the case because
ownership in a criminal prosecution for burglary is defined by the penal code,
which takes precedence over civil statutes in criminal proceedings. Tex. Penal
Code Ann. § 1.07 (a)(35)(A); see Tex. R. Evid. 101(c).3 Accordingly, we overrule
Appellant‘s third issue.
Issue Four: Deadly Weapon Finding
In his fourth and final issue, Appellant complains that the judgment
erroneously reflects a deadly weapon finding when the issue of whether
Appellant used a deadly weapon was never presented for the jury‘s
determination.
The State responds by citing Polk v. State, 693 S.W.2d 391, 394 (Tex.
Crim. App. 1985) to support its position that the jury‘s verdict ―necessarily
implied‖ an affirmative deadly weapon finding. (Emphasis added.) In Polk, the
court of criminal appeals stated that ―if the indictment by allegation specifically
places the issue before the trier of fact (i.e. ‗….by stabbing him with a knife, a
3 Entitled ―Hierarchical Governance in Criminal Proceedings,‖ rule 101(c) provides:
Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes that control states under the supremacy clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules [of evidence], and the common law. Where possible, inconsistency is to be removed by reasonable construction.
Tex. R. Evid. 101(c).
13 deadly weapon....‘), then an affirmative finding is de facto made when the
defendant is found guilty ‗as charged in the indictment.‘‖ 693 S.W.2d 391, 394
(Tex. Crim. App. 1985); see also Ruben v. State, 645 S.W.2d 794, 798 (Tex.
Crim. App. 1983) (holding that trial court erred by entering a deadly weapon
finding when the jury found the appellant guilty ―as alleged in the indictment‖ and
the indictment contained no mention of a deadly weapon).
Here, the indictment contained the following ―deadly weapon finding
notice‖:
AND IT IS FURTHER PRESENTED TO SAID COURT THAT A DEADLY WEAPON, TO-WIT: A KNIFE, THAT IN THE MANNER OF ITS USE OR INTENDED USE WAS CAPABLE OF CAUSING DEATH OR SERIOUS BODILY INJURY, WAS USED OR EXHIBITED DURING THE COMMISSION OF THE FELONY OFFENSE OR FELONY OFFENSES SET OUT ABOVE OR DURING THE IMMEDIATE FLIGHT FOLLOWING THE COMMISSION OF THE ABOVE FELONY OFFENSE OR FELONY OFFENSES AND THAT THE DEFENDANT USED OR EXHIBITED THE DEADLY WEAPON OR WAS A PARTY TO THE OFFENSE AND KNEW THAT A DEADLY WEAPON WOULD BE USED OR EXHIBITED.
But the prosecutor did not read the deadly weapon notice to the jury when he
read the indictment at the start of trial, nor was the notice included in the jury
charge. After retiring to deliberate, the jury returned a general verdict finding
Appellant ―guilty of the offense of capital murder as alleged in the indictment.‖
Although this case is similar to Polk in some ways, at least four issues give
us pause as we consider the reasoning urged by the State. The first is that Polk
does not stand for the proposition that deadly weapon findings may be implied—
14 to the contrary, it specifically sought to eliminate them. As stated by the majority
in that case, ―No longer will a verdict ‗amount to‘ or ‗necessarily imply‘ an
affirmative finding of use or exhibition of a deadly weapon or firearm. We will no
longer look to the facts of the case to permit an ‗implied‘ affirmative finding . . . .‖
693 S.W.2d at 396. Judge Clinton seconded the majority in his concurring and
dissenting opinion, noting that the court‘s decision seeking to pull the bench and
bar out of the ―quagmire‖ of implied or inferred findings was overdue. Id. at 397
(Clinton, J., concurring and dissenting); see also Lafluer v. State, 106 S.W.3d 91,
92 (Tex. Crim. App. 2003) (reaffirming Polk‘s holding ―that there must be an
express finding of a deadly weapon when the jury is the factfinder‖ (emphasis
added)).
The second difficulty is that although Polk held that if the indictment
―specifically places the issue before the trier of fact (i.e. ‗….by stabbing [the
victim] with a knife, a deadly weapon….‘), then an affirmative finding is de facto
made when the defendant is found guilty ‗as charged in the indictment,‘‖ the
prosecutor in this case did not read the State‘s deadly weapon notice in open
court when reading the indictment, nor was the deadly weapon notice included in
the court‘s charge on guilt-innocence. See Polk, 693 S.W.2d at 394. So it
strains credulity to assert that ―the indictment by allegation specifically place[d]
the issue before the trier of fact.‖ See id.
The third concern about the State‘s reasoning is that this is a capital case
in which the punishment upon a guilty verdict is automatic: life without parole.
15 Tex. Penal Code Ann. § 12.31(a)(2) (West 2011). Polk and its progeny dealt with
affirmative deadly weapon findings in noncapital felony cases where an improper
finding potentially had a deleterious effect on when a convicted defendant would
become eligible for parole. Thus, arguably Polk does not even apply to this case.
This last issue leads us to a fourth, which is the issue of harm. Although
Appellant frames his issue as the trial court having erred by including a deadly
weapon finding in the judgment, he complains that the trial court erred to do so
because the charge lacked ―a paragraph encompassing the deadly weapon
finding notice‖ authorizing the jury to make such a finding. Thus we take his
complaint as one of error in the charge. Because Appellant did not object to this
absence of a paragraph encompassing the deadly weapon notice, assuming
without deciding that the charge thus was erroneous, we must decide whether
Appellant was egregiously harmed. See Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984).
Under the current state of the law, it appears that the only harm flowing
from an unauthorized deadly weapon finding would be its effect on when a
person convicted and sentenced to prison would become eligible for parole. But
as we have noted, this is a capital case in which the State waived the death
penalty, making Appellant‘s punishment upon a finding of guilty automatic life
without parole. See Tex. Penal Code Ann. § 12.31(a)(2). Thus, it appears that
although the judgment contains a deadly weapon finding entered by the trial
court when the charge never placed the issue before the trier of fact—and that
16 the trial court therefore lacked authority to include a deadly weapon finding in the
judgment—because the deadly weapon finding has no actual effect on
Appellant‘s punishment, we cannot hold that he was egregiously harmed.
Accordingly, we overrule Appellant‘s fourth issue.
Conclusion
Having overruled all four of Appellant‘s issues, we affirm the judgment of
the trial court.
LEE GABRIEL JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
PUBLISH
DELIVERED: December 1, 2011