Andrade v. State

700 S.W.2d 585, 1985 Tex. Crim. App. LEXIS 1459
CourtCourt of Criminal Appeals of Texas
DecidedSeptember 25, 1985
Docket69421
StatusPublished
Cited by53 cases

This text of 700 S.W.2d 585 (Andrade v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrade v. State, 700 S.W.2d 585, 1985 Tex. Crim. App. LEXIS 1459 (Tex. 1985).

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(3). After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A. C.C.P. Punishment was assessed at death.

Conviction was under an indictment which charged in pertinent part that appellant in Nueces County, on or about the 20th day of March, 1984 “did then and there while in the course of attempting to commit aggravated sexual assault on the person of Cordelia Mae Guevara intentionally cause the death of Cordelia Mae Guevara by stabbing her with a knife ...”

In his third ground of error appellant contends the “trial court erred in imposing the death sentence because the evidence is insufficient to support the jury’s answer to the second issue under Art. 37.-071, V.A.C.C.P.”

In light of our holdings that the circumstances of the capital offense presented at the guilt stage can be considered by the jury, we review that evidence in evaluating appellant’s contentions. See Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), Mitchell v. State, 650 S.W.2d 801 (Tex.Cr. App.1983), cert. denied 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221.

Nueces County Medical Examiner Joseph C. Rupp went to the scene of the crime as well as performed the autopsy on the deceased. Dr. Rupp related his observations of the deceased, Cordelia Mae Guevara, upon his arrival at the La Chiquita Fajita, a lounge operated by Guevara. The deceased “had been dead for a number of hours” and “the general scene looked as though there had been a struggle.” The bar appeared to have “been closing up or it was closing time when all of this occurred.” The deceased “was on her back with her legs spread, her panties were not on the body, her clothing was torn, and, ... the ... legs were spread and flexed, the skirt was pulled up and torn.” Tests performed during autopsy revealed a positive finding for prostatic acid phosphate in the deceased’s vagina leaving “no doubt ... there was sexual activity involved in this crime.”

[587]*587Dr. Rupp found twelve distinct stab wounds. His findings observed “... the left lung was penetrated four times, the heart was penetrated once ... a major artery was also penetrated ... the heart was sort of penetrated twice ... and then the wound lower down here got the stomach.”

Evidence at the punishment stage reflected the appellant' was on parole, that there was an outstanding warrant for parole violation, that he had been convicted in Dallas County for burglary of a habitation and received “probation for that offense.” While he was on probation appellant was convicted for theft by receiving in Harris County.

Sergeant R.L. Garza of the criminal investigation division of the Corpus Christi Police Department testified that appellant’s reputation “for being a violent person” was bad.

Appellant presented no evidence at the guilt stage but testified in his own behalf at the punishment stage. He stated that a person at Olga’s Lounge had given him something he later “found out it was heroin” and that he did not remember what happened after he went to Chiquita Fajita. The jury could have discredited appellant’s lack of intent defense in light of the testimony of Juan Martinez that appellant remained at the lounge after everyone had departed except appellant and the deceased.

“In assessing punishment, the jury may consider all of the evidence adduced at trial on guilt or innocence. Burns v. State, 556 S.W.2d 270. The calculated nature of a defendant’s criminal act and the forethought with which he coldly planned and executed the crime is probative of his propensity to commit future acts of violence. O’Bryan v. State, 591 S.W.2d 464. The circumstances of the capital offense itself, if severe enough, can be sufficient to sustain an affirmative finding to the second special issue. Muniz v. State, 573 S.W.2d 792. Reputation testimony is probative as to future acts of violence. Ex parte Alexander, 608 S.W.2d 928. Finally, prior criminal convictions are probative of a defendant’s propensity to commit future acts of criminal violence. Felder v. State, 564 S.W.2d 776.” Hawkins v. State, supra (emphasis supplied).

We find the evidence sufficient to support the jury’s affirmative answer to the question of whether there is a probability that appellant would commit criminal acts of violence in the future which would constitute a continuing threat to society.

In his first ground of error appellant contends:

“The trial court erred in refusing to instruct the jury on the parole laws of the State of Texas during the punishment phase of the trial and in doing so denied Appellant his rights of due process under the Fourteenth Amendment to the United States Constitution and Article 1, Section 19 of the Texas Constitution and caused the imposition of the death penalty herein to violate his rights to be free of cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article 1, Section 13 of the Texas Constitution.”

After the jury began its deliberations at the punishment stage of the trial, the jury sent a note to the court which read:

“Does a life sentence include the possibility of parole? If so, after how many years?”

Appellant requested the court to give an instruction to the jury which included, “You are instructed that a person convicted of Capital Murder is not eligible for parole until he has served at least twenty calendar years....”

The court denied appellant’s requested instruction. Appellant urges that if the Texas scheme of capital punishment is to be valid, the jury must fully know what alternatives are available short of the death penalty.

Noting the difference in the death penalty from “all other sanctions in kind rather than degree” appellant argues the procedure must guide and focus the jury’s objec[588]*588tive consideration of the particular circumstances to pass muster under Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Appellant reasons, “unless the jury is fully informed of the parole laws ... they cannot make an objective decision considering the alternative of life imprisonment because they are left to speculate as to the effect of their answer.”

In Williams v. State, 668 S.W.2d 692 (Tex.Cr.App.1983) this Court was faced with an almost identical argument in an appeal from a capital murder conviction where the death penalty had been assessed. In Williams,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

David Sanchez v. the State of Texas
Court of Appeals of Texas, 2025
Terrell Delone Maxwell v. State
Court of Appeals of Texas, 2015
Jackson v. State
17 S.W.3d 664 (Court of Criminal Appeals of Texas, 2000)
Ismael Cruz v. State
Court of Appeals of Texas, 1999
Rhoades v. State
934 S.W.2d 113 (Court of Criminal Appeals of Texas, 1996)
Willingham v. State
897 S.W.2d 351 (Court of Criminal Appeals of Texas, 1995)
Smith v. State
898 S.W.2d 838 (Court of Criminal Appeals of Texas, 1995)
Dinkins v. State
894 S.W.2d 330 (Court of Criminal Appeals of Texas, 1995)
Hughes v. State
897 S.W.2d 285 (Court of Criminal Appeals of Texas, 1994)
Hathorn v. State
848 S.W.2d 101 (Court of Criminal Appeals of Texas, 1992)
State v. Lord
822 P.2d 177 (Washington Supreme Court, 1992)
Montoya v. State
810 S.W.2d 160 (Court of Criminal Appeals of Texas, 1991)
Ramirez v. State
815 S.W.2d 636 (Court of Criminal Appeals of Texas, 1991)
Trevino v. State
815 S.W.2d 592 (Court of Criminal Appeals of Texas, 1991)
Havard v. State
800 S.W.2d 195 (Court of Criminal Appeals of Texas, 1990)
Stoker v. State
788 S.W.2d 1 (Court of Criminal Appeals of Texas, 1989)
Taylor v. State
774 S.W.2d 31 (Court of Appeals of Texas, 1989)
Beets v. State
767 S.W.2d 711 (Court of Criminal Appeals of Texas, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
700 S.W.2d 585, 1985 Tex. Crim. App. LEXIS 1459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrade-v-state-texcrimapp-1985.