Opinion issued July 3, 2003
In The
For The
NO. 01-01-00063-CR
PABLO CIENFUEGOS, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 779,383
O PINI ON
Ajury found appellant, Pablo Cienfiiegos, guilty ofthe offense ofcapital murder.' Because the State did not seek the death penalty, the trial court automatically assessed appellant's punishment atconfinement for life.2 Inten points
oferror,3 appellant contends that the trial court erred in admitting, over his objection, hearsay testimony; the evidence is legally and factually insufficient to support his conviction; the trial court erred in denying his motion to suppress identification
evidence in violation of his constitutional rights to due process4 and due course of
law;5 his conviction for capital murder under the conspiracy theory ofthe law of parties6 violated his constitutional rights to due process and due course oflaw; and the mandatory imposition of a life sentence upon his conviction for capital murder
Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 2003). Tex. Pen. Code Ann. § 12.31(a) (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (Vernon Supp. 2003). In what he designates as "point of error eleven," appellant asserts that this Court erred indenying his motion toabate this appeal. On December 6,2001, this Court denied appellant's motion to abate the appeal and remand the case to the trial court for an out-of-time motion for new trial. Subsequently, on January 31, 2002, this Court issued an order denying appellant's motion for rehearing and rehearing en banc ofhis motion toabate the appeal. Appellant's eleventh point oferror is, inessence, a further motion for rehearing. As such, it is improperly presented. TEX. R, App. P. 49.1, 49.5. U. S. Const, amend. XIV.
Tex. Const, art. I, § 13.
Tex. Pen. Code Ann. § 7.02(b) (Vernon 2003). 2 under the conspiracy theory ofthe law ofparties violated his constitutional rights against cruel and unusual punishment.7 We affirm.
Background
Perla Mercedes, the wife ofthe complainant, Teodoro Mercedes, testified that,
on the evening ofDecember 28, 1997, she drove her car, with her infant daughter in the backseat, into the parking space outside oftheir apartment and a white four-door
car, which looked similar to a police car, pulled in behind hercarand blocked herin.
As Mercedes attempted to reverse her car, two men approached her from both sides of her car. Jorge Gonzales walked up to the driver's side window and showed
Mercedes a badge around his neck, identifying himselfasa police officer. The other
man, who was never identified, tapped on the passenger's side window with a
handgun. Mercedes put the car in park and unlocked the car doors because she
thought the men were police officers.
Gonzales then pulled Mercedes by her hair out of her car, threw her into the
back seat of the white car, called Mercedes a "bitch," and demanded money. Gonzales asked the driver of the white car for handcuffs, and Gonzales then
handcuffed Mercedes' sarms behind her back. Mercedes made eye contact in the rear
view mirror with the driver, a third man, whom she later identified as appellant.
U. S. Const, amend. VIII; Tex. Const, art. I, § 13. 3 Appellant spedthe carawayfrom the apartment, andGonzales struckMercedes inthe
head and told her he was going to kill her. Mercedes pleaded for her baby and
offered Gonzales the remote control to her garage. Appellant then drove the white
car into the garage, and Gonzales pulled Mercedes out of the car and instructed
appellant to remove the white car from the garage.
After everyone was inside the garage, Gonzales then dragged Mercedes up a
staircase toherapartment door. When Mercedes complained thatthehandcuffs were
on too tight, Gonzales responded, "just wait until I put my testicles in you." The
unidentified assailant brought the baby, in her infant carrier, to the top ofthe stairs.
Mercedes then told the men that she could not remember the code to the apartment's alarm system and that she needed to punch in the code by herself. While Gonzales
and the unidentified assailant looked for something in the garage to release the
handcuffs, appellant stayed atthe top ofthe stairs with Mercedes and the baby. When the other two men returned to the top ofthe stairs, the garage door began to open and Mercedes told the men that it was herhusband. Again, appellant stayed
with Mercedes at the top of the stairs, and Gonzales and the unidentified assailant
went back down the stairs and into the garage. At this point, Mercedes heard
sustained gunfire and attempted to shield her baby from harm. After the gunfire
ceased, Gonzales ran back up the stairs and told Mercedes not to turn around or move. After Mercedes waited long enough for the men to drive away, she ran
downstairs and saw her husband bleeding to death on the garage floor.
Mercedes then ran for help and a neighbor assisted her in calling 9-1-1. She
returned to the garage, took her husband's keys and opened the apartment door,
allowing the home alarm to go off. She then contacted the alarm company, informing it that her husband had been shot and was dying.
The record reveals that, subsequent to the shooting, Houston Police officers
found an unfired, loaded 9millimeter handgun under thecomplainant and recovered
sixteen shell casings from the scene, all of which had been fired from the same gun.
Officers also found, on the driver's side window of Mercedes's car, a latent
fingerprint that belonged toGonzales. Based on aphotographic array, Mercedes later
identified Gonzales as the man with the badge. After arresting and speaking with Gonzales, investigators came to suspect appellant as the driver ofthe white car and
a man named "Conde" as the unidentified assailant who tapped on Mercedes's car
window with a handgun.
Pursuantto further investigation, officers saw a white, four-door FordCrown
Victoria parked outside of appellant's home. The car was owned by appellant and
matched Mercedes's description of the white car driven by appellant on the evening
ofthemurder. OnApril 1,1998, officers arrested appellant near his home as he was driving a red Isuzu sedan, in which officers found an envelope with the name
"Conde" and a telephone number written on it. Mercedes subsequently identified
appellant in a live lineup as the man who drove the white car on the night of the
murder.
The charge in this case authorized the jury to convict appellant under three
theories of capital murder: (1) as a principal, (2) as a party, or (3) as a conspirator.
In regard to the conspiracy theory, the application paragraph of the charge reads as
follows:
Now, if you find from the evidence beyond a reasonable doubt that... the defendant, Pablo Cienfuegos, and Jorge Alberto Gonzales and an unknownHispanicmaleentered into an agreementto committhe felony offense of kidnapping of Perla Mercedes, and pursuant to that agreement, if any, they did carry out their conspiracy and that... in the courseofcommittingsuch kidnappingofPerla Mercedes, Jorge Alberto Gonzales and an unknown Hispanic male intentionally caused the death of Teodoro Mercedes by shooting Teodoro Mercedes with a deadly weapon, namely a firearm, and that the death ofTeodoro Mercedes was an offense that the defendant should have anticipated as a result of carrying out the conspiracy, then you will find the defendant guilty of capital murder, as charged in the indictment.
After being so charged, the jury returned a general verdict finding appellantguilty of
capital murder.
Hearsay Testimony
In pointoferrorone, appellant contends thatthe trialcourterred in admitting,
6 over his objection, the "inadmissible hearsay" testimony ofa police officer. After the
police obtained Gonzales's fingerprint from Mercedes's car and Mercedes positively
identified Gonzales as one ofthe assailants, Houston Police Officer U. P. Hernandez
arrested and interviewed Gonzales. Following that interview, appellant became a
suspect in the case.
On appeal, appellant argues that "Hernandez' [sic] testimony told the jury that
what Gonzales told him provided enough probable cause to get a warrant for
[appellant's] arrest." Appellant contends that the "State's intention was to inform the
jury of the contents of the statements without calling the declarant, Gonzales, as a
witness, presenting a clear hearsay problem." He asserts that "the cumulative and
damaging effect ofthis hearsay deprived him ofhis constitutional right to a fair trial
and to confront and cross-examine his accusers."
Appellant complains of the following testimony:
[State]: All right, now before I ask you any further questions, Officer Hernandez, I want to advise you as I will advise counsel and, Your Honor, out of an abundance of caution to the Court, I am not asking to you [sic] say anything that anybody said to you, okay?
[Officer]: Okay.
[State]: But once Jorge Gonzales was arrested, did you personally come into contact with him? Did you
7 personally see him and come into contact with him?
[Officer]: Yes, I did.
[State]: Okay. Did you talk to him?
[Officer]: I did.
[State]: I don't want to go into what you talked about, but at this point in your investigation after arresting Mr. Gonzales and talking to him, did you proceed to do something else with regards to the investigation?
[Officer]: Yes, sir, I did.
[State]: What did you do next after all of that?
[Officer]: Ifollowed up some information that I received.
[Appellant]: Excuse me, back door hearsay.
[State]: No—I'm not, I'm being very careful. I'm sorry [appellant's counsel], I didn't.
[The Court]: Ladies and gentlemen, please retire to the jury room.
(Jury retired.)
[The Court]: Officer Hernandez, so it's clear as I can possibly make it, you cannot make any reference to anything he said, you can't talk about anything he said. You can't vaguely refer to anything he said.
And when you're asked what you did, he's asking you what did you physically do. Okay? I want to make that as clear as I can possibly make it. You know, in no way, shape or form, can you refer in any way to what Mr. Gonzales said.
[State]: For the record, we've have [sic] talked about that before he testified and I want the record to reflect and I know counsel knows me, I'm not trying to do any backdoor hearsay. I stopped it there and I want to go on.
[Appellant]: Again, I object to the question. I object to the response, not the question.
[The Court]: / understand. All right, let's go ahead and take a bathroom break since we have them out.
(Short recess taken.)
[Appellant]: Again, we're stipulating that there is nothing wrong with the arrest of the Defendant. Therefore, any mention of him going out and arresting the Defendant is not relative to any material issue. And, in fact, it should not be considered as evidence of guilt.
And the reason that's put in the Charge is that, obviously, the jury will imply some prejudice without the instruction. But we're not contesting the legality ofthe arrest, even the legality ofputting him in the lineup. There was a contesting ofthe nature of the lineup.
But as far as I'm concerned and, of course, the State already knows this, they put him in a lineup and we object to going into even the arrest.
[The Court]: Overrule the objection. Let's go.
9 [Appellant]: Can we have a running objection to any testimony about the arrestfrom this officer?
[The Court]: Absolutely. Yes, you can.
(Emphasis added.) The record reveals that the State then elicited testimony from
Officer Hernandez regarding the actual facts and circumstances surrounding
appellant's arrest. Appellantdirects us to no other testimony by Hernandez, andwe
have found none, concerning what Gonzales may have told Hernandez. Nor does
appellantpoint out anyothertestimony byHernandezfrom whichany inference could
possibly be made that Gonzales implicated appellant.
As set out above, appellant made two very different objections at different
times. First, appellant objected to "backdoor hearsay" when Officer Hernandez
testified that he "followed up some information that I received" after he spoke with
Gonzalez. The record reveals that, after the State explained its position outside the
presence ofthejury and appellant re-urged hisobjection to Hernandez's response, the
trial court did not rule on the objection.8 The trial court noted, "I understand," and
took a shortrecess. To preserve error for appeal, a complaining party must not only
object, but must also obtain an adverse ruling on the record, unless the trial court
refuses to rule onthe objection andthe complaining partyobjectsto the refusal. TEX.
The record does not support the concession made by the State in its brief that "the trial court overruled appellant's objection."
10 R, APP. P. 33.1. Here, appellant neither obtained an adverse ruling nor objected to
the trial court's ambiguous response. Thus, appellant failed to preserve error in
regard to his "backdoor hearsay" objection.
Second, after the recess, appellant changed tactics and, instead ofobjecting to
hearsay, objected that any discussion of appellant's arrest was unot relative to any
material issue." After the trial court overruled this objection, appellant asked for "a
running objection to any testimony about the arrest" from Officer Hernandez.
Although appellant obtained a ruling on his relevance objection, this objection does
not comport, on appeal, with his point of error that the trial court erred in admitting
hearsay testimony. TEX. R. APP. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.
Crim. App. 2002).
We overrule point of error one.
Sufficiency of the Evidence
In points of error two and three, appellant contends that the evidence was
legally and factually insufficient to support his conviction for capital murder. In
point of error six, appellant contends that the evidence was factually insufficient to
prove his identification.
We review the legal sufficiency ofthe evidence by viewing it in the light most
favorable to the verdict to determine if any rational fact finder could have found the
11 essential elements ofthe crime beyond a reasonable doubt. Kingv. State, 29 S.W.3d
556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence
presented attrial, we may not re-weigh the evidence and substitute ourjudgmentfor
that of the fact finder. Id.
The factual sufficiency of the evidence is reviewed by examining all of the
evidence neutrally and asking whether the evidence, both for and againstthe finding,
demonstratesthat the proofofguilt is so obviously weak as to undermine confidence
in the jury's determination, or the proof of guilt, althoughadequate iftaken alone, is
greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1,11 (Tex. Crim.
App. 2000).
Under the law applicable in this case, a personcommitsthe offense of capital
murderifhe intentionallycommits murderin the courseofcommitting or attempting
to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or
obstruction or retaliation. TEX. PEN. CODE ANN. § 19.03(a)(2). A person commits the
offense of kidnapping if he intentionally or knowingly abducts another person. Id.
§ 20.03(a) (Vernon 2003).
Under the law of parties, a person is criminally responsible for an offense
committed by the conduct of another if, acting with intent to promote or assist the
commission ofthe offense, he solicits, encourages, directs, aids, or attempts to aidthe
12 otherpersonto commit the offense. Id. §7.02(a)(2) (Vernon 2003). Moreover, if, in
the attempt to carry out a conspiracy to commit one felony, another felony is
committed by one ofthe conspirators, all conspiratorsare guilty ofthe felonyactually
committed, though having no intent to commit it, if the offense was committed in
furtherance of the unlawful purpose and was one that should have been anticipated
as a result of the carrying out of the conspiracy. Id. § 7.02(b) (Vernon 2003). A
person commits criminal conspiracy if, with intent that a felony be committed, he
agrees with one or more persons that they or one or more ofthem engage in conduct
that would constitute the offense. Id. § 15.02(a)(1) (Vernon 2003).
In regard to legal sufficiency, appellant agues that the evidence does not show
that he acted, as a principal, a party, or a conspirator, with the culpability requiredto
support his conviction for capital murder. He contends that there is no evidence "of
any wordor agreement" by him"to promote or assistthe conduct"ofthe principal in
committing capital murder and no evidence of "actions or words that would showan
understanding and common design to commit the forbidden act." Appellant also
argues that there is no evidence that he had a gun or that he knew anyone had a gun.
However, the evidence, viewed in a light most favorable to the verdict, amply
supports appellant's conviction under theconspiracy theory ofthelawofparties. The
recordindicates that appellant drove the whitecar used duringthe abduction ofPerla
13 Mercedes. He pulled the white car in behind her car, preventing her escape.
Appellant then waited in the white car as Gonzalez went to Mercedes's car with a
fictitious badge andtheunidentified assailant tapped onherwindow witha handgun.
After Gonzales pulled Mercedes by her hair and threw her into the white car,
Gonzales asked appellant for the handcuffs that were used to restrain Mercedes.
Gonzales also told Mercedes, in appellant's presence, that he was going to kill her.
Furthermore, appellant kept watch overMercedes and her baby when Gonzalez and
the unidentifiedassailantwent to confrontthe complainantand murderhim. After the
shooting, appellant fled the scene in the white car with Gonzales and the unidentified
assailant.
There is abundant evidence that appellant and the two other assailants agreed
to and, in fact, acted in concert to abduct Mercedes. There is also ample evidence to
support a jury finding that appellant should have anticipated that someone could be
killed as a result of carrying out the kidnapping. Moreover, it is undisputed that,
during the course of the kidnapping, Gonzales and the second man intentionally
causedthe death ofTeodoro Mercedesby shooting him with a firearm. Accordingly,
we holdthat the evidence was legally sufficientto supportappellant's conviction for
capital murder as a conspirator under section 7.02(b).
In regard to factual sufficiency, appellant merely reiterates that"therecord is
14 devoid of any facts to supporta finding ofguilt" and that Mercedes's identification
of him did not meet the standard for factual sufficiency. Mercedes positively
identified appellant, both in a live lineup and in court, as the driver of the white car
on the evening of themurder. There was alsoevidence thatappellant actually owned
a white car which matched Mercedes' description and that a piece ofpaper, found in
appellant's possession when hewas arrested, hadthename and telephone number of
another suspect written on it.
Appellant directs us to no evidence, andwehave found none, that supports his
conclusory argument that the evidence was factually insufficient to support his
identification and conviction. Based on our review of the record, and giving proper
deference to the jury's finding as the trier of fact, we hold that the evidence was
factually sufficient to support appellant's conviction for capital murder as a
conspirator under section 7.02(b).
Because the jury returned a general verdict, and because the evidence is both
legally and factually sufficient to support a finding of guiltundersection 7.02(b), the
verdict must be upheld. Rabbini v. State, 847 S.W.2d 555, 558 (Tex. Crim. App.
1992).
We overrule points of error two, three, and six.
15 Identification
In points of error four and five, appellant contends that, in violation of his
constitutional rights to due process and due course of law, the trial court erred in
denying his motion to suppress both Mercedes' pretrial lineup identification and her
in-court identification of appellant as the driver of the white car. Appellant argues
that the pretrial lineup identificationprocedurewas impermissibly suggestive because
he was the only person in the lineup wearing a red shirt and because ofthe disparity
in the ages, weights and appearances of the other lineup participants.
The standard of review on a claim that an in-court identification should not
have been admitted due to the taint of an impermissibly suggestive pretrial
identification procedure is set forth in Loserth v. State, 963 S.W.2d 770 (Tex. Crim.
App. 1998). The standard of review depends upon the type of question presented to
the reviewing court. Id. at 772. First, as a general rule, we must give almost total
deference to a trial court's determination of historical facts supported by the record,
especially when the trial court's fact findings are based on an evaluation of the
credibility and demeanor ofthe witnesses. Id. Second, we give the same amount of
deference to the trial court's rulings on "application of law to fact questions," also
known as "mixed questions oflaw and fact," ifthe resolution ofthose questions turns
on an evaluation ofcredibility and demeanor. Id. Finally, we review de novo "mixed
16 questions of law and fact" that do not fall within the second category. Id. In this
case, the question of whether an identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of misidentification is a
mixed question of law and fact that does not turn on an evaluation of credibility and
demeanor. Id. at 772-73. Accordingly, we apply a de novo standard of review.
A pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial would deny
the accused due process of law. Simmons v. United States, 390 U.S. 377, 384, 88 S.
Ct.967,971 (1968); Barley v. State, 906S.W.2d 27,32-33 (Tex. Crim. App. 1995).
We apply a two-step analysis to determine the admissibility of an in-court
identification and ask (1) whether the pretrial identification procedure was
impermissibly suggestive and, ifso, (2) whether the improperly suggestive procedure
created a very substantial likelihood of irreparable misidentification. Simmons, 390
U.S. at 384,88 S.Ct. at 971; Barley, 906 S.W.2d at 33. Ifa court finds thata pretrial
identification procedure was impermissibly suggestive, it must then consider the
factors enumerated inNeil v. Biggers to determine whether thesuggestive procedure
gave rise to a substantial likelihood of irreparable misidentification. 409 U.S. 188,
17 199, 93 S. Ct. 375, 382 (1972).9 A defendant bears the burden of establishing by
clear and convincing evidence that the pretrial identification procedure was
impermissibly suggestive. Barley, 906 S.W.2d at 33-34.
In regard to the first step, we note that suggestiveness may be created by the
manner in which a pretrial identification procedure is conducted. Id. at 33. For
example, a police officer may point out the suspect or suggest that a suspect is
included in a lineup or photographic array. Id. The content of a lineup or
photographic array itselfmay be suggestive ifthe suspect is the only individual who
closely resembles the description given by the witness. Id. Furthermore, an
individual procedure may be suggestive or the cumulative effect of procedures may
be suggestive. Id.
In a pretrial identification procedure, while the better practice may be to use
asmany individuals as possible who fitthedefendant's description, itis notessential
that all the individualsbe identical in appearance. Buxton v. State, 699 S.W.2d 212,
216 (Tex. Crim. App, 1985). Neither due process nor common sense requires such
exactitude. Id. Although the individuals need not be identical in appearance to the
These factors are: (1) the witness's opportunity to view the criminal, (2) the witness's degree of attention, (3) the accuracy of the witness's description of the suspect, (4) the level of certainty at the time of confrontation, and (5) the time between the crime and confrontation. Id., 409 U.S. at 199-200, 93 S. Ct. at 382.
18 defendant, their similarities in appearance should provide a reasonable test for the
witness's capacityto reliably identify the perpetrator. Fordv. State, 794 S.W.2d 863,
866 (Tex. App.—El Paso 1990, pet. ref d).
Appellantchallenges the lineup assuggestive,citing discrepancies between the
ages, heights, and weights of appellant and the other individuals used in the lineup.
At the pretrial hearing on appellant'smotion, HoustonPolice Officer John Burmeister
testified as to the manner in which the lineup was compiled. Burmeister requested
five male inmates from the Houston Police Department jail who were Hispanic,
wearing civilian clothing, and had features similar to appellant's. Also, Burmeister
let appellant choose his place in the lineup. The record does reflectthe existence of
overall disparities in the ages, heights, and weights of appellant and the other
individuals used in the lineup. However, the color photograph of the lineup in the
record, labeled Defendant's Exhibit No. 6, reflects that each ofthe Hispanic men had
a moustache, wore civilian clothes, and had similar physical characteristics.
Generally, the photograph shows that the members of the lineup appear to be similar
in age, height and build, with one notable exception—a man, not appellant, who
obviously appears shorter and older than the rest of the members of the lineup. As
noted above, neither due process nor common sense requires that all the individuals
in a lineup be identical in appearance. Buxton, 699 S.W.2d at 216.
19 Appellant also challenges the lineup as suggestive because he was the only
memberofthe lineupwearing aredshirt. However, the mere fact that appellant wore
aredshirtdid not render the lineup impermissibly suggestive. SeeEpps v. State, 811
S.W.2d237,244(Tex. App.—Dallas 1991, no pet.) (holding photographic lineup was
not suggestive when defendant wore red shirt). Here, the photograph of the lineup
reveals that all ofthe men in the lineup wore short-sleeve shirts.
After our de novo reviewofthe mixed question of lawand fact presented, we
holdthatappellant has not shown by clear and convincing evidence that the pretrial
lineup procedure was impermissibly suggestive. Accordingly, we further hold that
the trial court did not err in denying appellant's motion to suppress Mercedes's
pretrial lineup identification and herin-court identification ofappellant as the driver
ofthe white car in question.
We overrule points of error four and five.
Law of Parties
In points of error seven and eight, appellant contends that his constitutional
rights to due process and due course of law were violated because, as a party to the
offense under section 7.02(b) and not the principal, his conviction was obtained
withouta showing that, atthe time ofthe offense,he possessed the specific intent to
commit murder.
20 Appellant argues that, under the applicable law, a person can be convicted of
capital murder only ifhe "intentionally commits murder" in the course ofcommitting
or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault,
arson, or obstruction or retaliation. See TEX. PEN. CODE ANN. § 19.03(a)(2). He also
notes that a person acts "intentionally, or with intent," with respect to the nature of
his conduct or a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result. See id. § 6.03(a) (Vernon 2003). Appellant
asserts that "allowing a conviction without also requiring the culpable mental state
required by the definition ofthe offense" impermissibly lowers the State's burden of
proof of a defendant's "state ofmind." He concludes that allowing a capital murder
conviction "under the guise ofthe conspiracy theory ofparties [section 7.02(b) ofthe
Penal Code]" violates constitutional due process and due course oflaw requirements
"by impermissibly dispensing with the intent required by the definition of capital
murder, in fact, by dispensing with any intent whatsoever."
It is axiomatic that due process, under the Fourteenth Amendment, and due
course oflaw, under Article I, section 13 ofthe Texas Constitution, require that every
criminal conviction be supported by evidence that a rational fact finder could accept
as sufficient to prove all of the elements of the offense beyond a reasonable doubt.
Richardson v. State, 879 S.W.2d 874, 879 (Tex. Crim. App. 1993). Moreover, the
21 most basic and fundamental concept of criminal justice is that, in order to constitute
a crime, the prohibited act must be accompanied by a mens rea. Morissett v. United
States, 342 U.S. 246, 250-52, 72 S. Ct. 240, 243-44 (1952); Cook v. State, 884
S.W.2d 485, 487 (Tex. Crim. App. 1994). It is also true that section 7.02(b) allows
for criminal responsibility to specifically apply to a defendant even though he has "no
intent to commit" the collateral offense, "the felony actually committed." TEX. PEN.
Code. Ann. § 7.02(b).
However, contrary to appellant's assertion, section 7.02(b) does not dispense
with the requirement of a culpable mental state in regard to a capital murder
conviction under the law of parties. It provides that if, in the attempt to carry out a
conspiracy to commit one felony, another felony is committed by one of the
conspirators, "all conspirators are guilty of the felony actually committed, though
having no intent to commit it, if the offense was committed in furtherance of the
unlawful purpose and was one that should have been anticipated as a result ofthe
carrying out ofthe conspiracy." Id. (emphasis added).
The Third Court ofAppeals has held that section 7.02(b) does not lack a mens
rea requirement and is not facially unconstitutional in regard to defendants convicted
of capital murder as conspirators to commit other felonies. Gravis v. State, 982
S.W.2d 933, 938 (Tex. App.—Austin 1998, pet. ref d). The Court reasoned that:
22 While this section allows criminal responsibility for the conduct of another, thereby eliminating the necessity for proof of intentto commit the felony actually committed [capital murder], it does not excuse the state from proving a culpable mental state. In fact, the statute requires the state to show that the defendant had both the mens rea to engage in aconspiracy and the culpable mental state tocommit the underlying, i.e., the intended felony. The mental state required for the underlying felony supplies the mens rea for the felony actually committed by the co conspirator.
Id. We agree. Accordingly, we also hold that section 7.02(b) does not facially violate
the Due ProcessClauseof the Fourteenth Amendment or ArticleI, Section 19ofthe
Texas Constitution in regard to defendants convicted of capital murder as
conspirators to commit other felonies. See id.
We note that the record reveals evidence upon which a reasonable fact finder
could have found that appellant should have anticipated a murder. Here, the record
reflects thatappellant was actively involved in the kidnapping of Mercedes, and he
was present when a handgun was displayed and when Gonzales told Mercedes that
he was going to kill her. Appellant also kept watch over Mercedes and her baby when Gonzalez and the unidentified assailant went to confront the complainant.
After the shooting, in which the complainant was mortally wounded, appellant fled
the scene inthe white car with Gonzales and the unidentified assailant. Accordingly,
we further hold that section 7.02(b), as applied to appellant in this case, did not
violate theDueProcess Clause of theFourteenth Amendment or Article I, Section 19 of the Texas Constitution. See id. at 939.
We overrule points of error seven and eight.
Cruel and Unusual Punishment
In points of error nine and ten, appellant contends that the mandatory
imposition ofa life sentence for the offense ofcapital murder violated his right to be
free from cruel and unusual punishment, under theEighth Amendment, and hisright
to be free from cruel or unusual punishment, underArticle I, section 13 of the Texas
Constitution, because, as a party to the offense under section 7.02(b) and not the
principal, he lacked the specific intent to commit murder.
An individual adjudged guilty of a capital felony in a case in which the State
does not seek the death penalty "shall" be punished by imprisonment for life. TEX.
PEN.CODEANN. § 12.31(a)(Vernon2003). Undertheses circumstances, atrial judge
must sentencethe defendantto life imprisonment. TEX. CODE CRIM. PROC. ANN. art.
37.071, § 1 (Vernon Supp. 2003).
Appellant asserts that both the United States Constitution and the Texas
Constitution "require that capital punishment be based on 'individual consideration'
of the defendant's culpability." See Lockett v. Ohio, 438 U.S. 586, 602, 98 S. Ct.
2954, 2963 (1978), He also asserts that both constitutions protect against "all
punishments which, by their excessive length orseverity, are greatly disproportionate
24 to the offenses charged." See Weems v. UnitedStates, 217 U.S. 349, 371, 30 S. Ct.
544, 550 (1910). Appellant argues that under Enmund v. Florida, 458 U.S. 782, 102
S. Ct. 3368 (1982), the imposition of a mandatory life sentence for capital murder,
absent any intent to commit or knowledge ofthe crime, constitutes cruel and unusual
punishment.
In Enmund, the United States Supreme Court held that the Eighth and
Fourteenth Amendments prohibited the imposition of the death penalty on a
defendant who "neither took life, attempted to take life, nor intended to take life." 458
U.S. at 787-88, 102 S. Ct. at 3371-72. The Court noted that the Cruel and Unusual
Punishment Clause of the Eighth Amendment is directed in part, "against all
punishments which by their excessive lengthor severity are greatly disproportioned
to the offenses charged." Id, 458 U.S. at 788, 102 S. Ct. at 3372. It reasoned that:
For purposes of imposing the death penalty, Enmund's criminal culpability must be limited to his participation in the robbery, and his punishment tailored to his personal responsibility and moral guilt. PuttingEnmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just desserts.
Id., 458 U.S. at 801, 102 S. Ct. at 3378 (emphasis added). Because its holding is
limitedto the application ofthe death penalty, Enmund is inapplicable to the present
case becausehere,appellant receivedamandatory sentenceoflife imprisonment. See
25 Koonce v. State, 654 S.W.2d 705, 711 (Tex. App.—Houston [14th Dist] 1983, pet.
refd).
In Harmelin v. Michigan, the United States Supreme Court expressly refused
to extend the "individualized capital-sentencing doctrine" to an "individualized
mandatorylife in prison withoutparole sentencingdoctrine." 501 U.S. 957,995,111
S.Ct. 2680, 2701 -02 (1991). The Court held thata mandatory life sentence imposed
on a defendant for possessing 672 grams of cocaine did not violate the Eighth
Amendment. Id, 501 U.S. at 995, 111 S. Ct. at 2701. The Court noted that "[t]here
can be no serious contention . . . that a sentence which is not otherwise cruel and
unusual becomes so simply because it is 'mandatory.'" Id. Thus, the Court
re-affirmed that the United States Constitution does not require individualized
sentencing when the death penalty is not at issue. Id., 501 U.S. at 996, 111 S. Ct. at
2702.
As noted bythe concurring justicesinHarmelin, "the fixing of prison terms for
specific crimes involves a substantive penological judgment that,asa general matter,
is 'properlywithinthe province of legislatures, not courts.'" Id., 501 U.S. at 998,111
S. Ct. at 2703 (Kennedy, J., O'Connor, J., and Souter, J., concurring) (quoting
Rummell v. Estelle, 445 U.S. 263, 275-76, 100 S. Ct. 1133, 1140 (1980)). Here, the
apparent concern of the Texas Legislature is that, often, a conspiracy to commit one
26 type of felony leads to the commission of other more serious felonies, including
murder. Consistent with its authority, the Legislature decided that, if in their attempt
to carry out a conspiracy to commit one felony, another felony is committed by one
of the conspirators, "all conspirators are guilty of the felony actually committed."
Tex. Pen. CodeAnn.§ 7.02(b). Thus, the operation ofsections 19.03(a)(2), 12.31(a)
and 7.02(b) together reflects a societal decision that, when a person engages in a
conspiracy to commit a felony and a murder is committed by one of the co
conspirators, he should, where the State does not seek the death penalty, be subjected
to the serious penalty of incarceration for life. See Rummel, 445 U.S. 263, 278, 100
S. Ct. 1133, 1141.
Texas courts have consistently held that the life sentence required under section
12.31(a) of the Penal Code and article 37.071, section 1 of the Code of Criminal
Procedure is not unconstitutional as cruel and unusual punishment under the Eighth
Amendment and Article I, section 13 ofthe Texas Constitution. Barnes v. State, 56
S.W.3d 221, 239 (Tex. App.—Fort Worth 2001, pet. refd) (Eighth Amendment);
Buhl v. State, 960 S.W.2d 927, 935-36 (Tex. App.—Waco 1998, pet. refd) (Eighth
Amendment); Laird v. State, 933 S.W.2d 707,714 (Tex. App.—Houston [14th Dist.]
1996, pet. refd) (Eighth Amendment and Article I, section 13); Prater v. State, 903
S.W.2d 57, 59-60 (Tex. App.—Fort Worth 1995, no pet.) (Eighth Amendment and
27 Article I, section 13).
We are likewise convinced and further hold that the life sentence required
undersection 12.31(a) ofthe Penal Codeand article 37.071,section 1 of the Codeof
Criminal Procedure does not constitute cruel or unusual punishment, under either the
Eighth Amendment or Article 1, section 13 of the Texas Constitution, when a
defendant has been convicted of capital murder under section 7.02(b) of the Penal
Code.
In addition, because the record, as noted above, reveals evidence upon which
a reasonable fact finder could have found that appellant should have anticipatedthat,
during the course of the kidnapping, someone could be murdered, we hold that, as
applied to appellant in this case, the life sentence required under section 12.31(a) of
the Penal Code and article 37.071, section 1 ofthe Code of Criminal Procedure does
not constitute cruel or unusual punishment under either the Eighth Amendment or
Article 1, section 13 of the Texas Constitution.
We overrule points of error nine and ten.
28 Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Hedges, Jennings, and Alcala.
Publish. Tex. R. App. P. 47.2(b).