Estrada, Kenneth Isaac v. State

• Court: Court of Appeals of Texas
• Decided: October 17, 2002
• Docket: 01-01-00893-CR
• Status: Published

Opinion

Opinion issued October 17, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00893-CR

____________

KENNETH ISAAC ESTRADA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 819856

O P I N I O N

A jury found appellant, Kenneth Isaac Estrada, guilty of capital murder, and the trial court assessed his punishment at confinement for life. In two points of error, appellant contends (1) the trial court erred in denying his motion for directed verdict because he proved his affirmative defense of duress, and (2) the evidence was factually insufficient to establish that he intended to kill the victim. We affirm.

Facts

Houston Police Officer Ronald Plotner testified that, between approximately 11:00 p.m. and 12:00 a.m. on June 7, 1999, he was dispatched to a shooting at a house. When he arrived, Officer Plotner discovered the body of Jose Martin Junco, the victim, with multiple gunshot wounds to his head, back and arm.

Jose Arenazas, appellant's friend, testified that he met appellant in February or March of 1999 and "ran with" appellant, Fernando Valdez, and Yosvanis Valle, who was considered the leader of the group. On June 7, 1999, a meeting took place at Valle's apartment between Valle, Valdez, Arenazas, a man named Flaco, and appellant. Also present were Valle's girlfriend, Christina, and appellant's girlfriend, Anna Sanchez. At the meeting, Arenazas had a .357 magnum revolver, Valle had a 9 millimeter pistol, and appellant had a small chrome .22 caliber pistol. During the meeting, Valle announced that appellant had shown some weakness, and Valle wanted to test appellant to "see if he had any heart." Appellant proposed that the men rob Junco because appellant knew Junco kept money and narcotics at his house. Valle told appellant that appellant must follow through with the plan or Arenazas would "take care of him." Arenazas took this to mean that he would have to shoot appellant. Appellant told Valle that he was committed to going through with the robbery and he would kill Junco if Junco recognized appellant.

Arenazas further testified that he was assigned as the driver of the car for the robbery and he gave his .357 revolver to appellant. Arenazas, Valdez, Flaco, Valle and appellant drove to Junco's house and honked the car's horn. Junco came outside, and appellant got out of the car, approached Junco, and asked him for an "eight-ball," or $100 worth of cocaine. When Valle got out of the car, appellant pulled out his gun and pointed it at Junco. Valdez, Flaco, Valle and appellant forced Junco back into the house. After about five minutes, Arenazas heard multiple gunshots and saw the men come running out of the house. On the drive back to Valle's apartment, Valle asked appellant if he shot Junco. Appellant showed them a sock he had on his hand with a hole in it as proof he fired his gun. Valle boasted that he shot Junco ten times, but he was angry that they only had stolen $100 and a quarter ounce of cocaine. After the men returned to the apartment, Arenazas took back the .357 revolver and saw that only one shot had been fired by appellant.

Amy Lindgren testified that she and her one-year old daughter lived at Junco's house and were present at the time of the murder. Lindgren was on the couch in the living room, her daughter was sleeping in a playpen in the back bedroom, and Junco was in the bathroom when, at about 11:00 p.m., Lindgren heard a car honk its horn, which was usually a signal that someone wanted to buy cocaine. Junco went out the front door and came back with his hands up with a man following behind with a gun to Junco's back. Junco told Lindgren not to look at the men, but she looked at one, whom she later identified as appellant. Appellant threatened Lindgren and pointed his gun at her. A pillow was placed over her head, she was moved to the floor, and a blanket was thrown on top of her. She then heard yelling, several gunshots, the men running out of the house, and a car driving away. Lindgren went to the bedroom, found her daughter unharmed, and saw Junco, still alive, kneeling by the bed with gunshot wounds to his back and neck. She then called 911.

Appellant's girlfriend, Anna Sanchez, testified that she and appellant were living with Valle at the time of the murder. During the January 7, 1999 meeting, she heard appellant suggest robbing Junco. She had previously heard Valle tell appellant that if he was going to stay in his house, he would have to rob people and do whatever Valle told him to do. Sanchez testified that appellant told her that Valle had previously threatened to kill appellant if he did not do what Valle wanted. After the shooting, appellant told Sanchez he shot his gun at Junco but was not certain that the bullet had hit Junco. After appellant was in jail, he asked Sanchez to lie about his activities on the night of the murder, make up an alibi that he was with another man, and state that she and appellant were in a common law marriage. Although he asked her to refuse to testify, she testified voluntarily. Appellant did not testify.

Directed Verdict

In his first point of error, appellant argues that he proved his affirmative defense of duress by a preponderance of the evidence and that the trial court erred in denying his motion for a directed verdict because Valle threatened him with death if he did not participate in the robbery.

We treat a point of error complaining about a trial court's denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). When determining the sufficiency of the evidence to disprove a defendant's statutory defense, the State is not required to affirmatively produce evidence that refutes defendant's statutory defense, but rather to prove its case beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). The jury is free to reject or accept defensive evidence. Id. at 914. Evidence is legally sufficient when, viewed in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).

Duress is an affirmative defense that applies when an accused engages in the proscribed conduct because he is compelled to do so by threat of imminent death or serious bodily injury to himself or another. Tex. Pen. Code Ann. § 8.05(a) (Vernon 1994). Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure. Shaw v. State, 874 S.W.2d 115, 119 (Tex. App.--Austin 1994, pet. ref'd). The fact that a defendant is taking an order from another is not sufficient to prove the defense of duress. Cameron v. State, 925 S.W.2d. 246, 250 (Tex. App.--San Antonio 1995, no pet.). Moreover, the defense of duress is unavailable if a defendant "intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion." Tex. Pen. Code Ann. § 8.05(d) (Vernon 1994).

The evidence presented at trial raised a fact question as to defendant's claim of duress. Although Valle ordered appellant to participate in the robbery, or Arenazas would "take care of him," the evidence revealed that it was appellant who formulated the robbery plan and was committed to proving he had "heart." Arenazas testified that appellant wanted to rob Junco because appellant knew that it would be a "lick," or an easy job. Moreover, the record indicates that appellant had already made up his mind to see the robbery through to completion and intended to kill Junco if necessary. Appellant later asked Sanchez to lie about his involvement in the murder and to make up an alibi.

A rational jury could have rejected appellant's duress defense and reasonably found beyond a reasonable doubt that appellant intended to kill Junco. Thus, we hold the trial court did not commit error in denying appellant's motion for a directed verdict.

We overrule point of error one.

Factual Sufficiency of the Evidence

In his second point of error, appellant argues that the evidence was factually insufficient to support his conviction for capital murder because a preponderance of the evidence showed appellant lacked the specific intent to kill Junco.

We review factual sufficiency by examining all of the evidence neutrally and asking whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King, 29 S.W.3d at 563. We will reverse a fact finder's determination only if a manifest injustice has occurred. Id. In conducting our analysis, we may disagree with the jury's determination, even if probative evidence supports the verdict, but we must avoid substituting our judgment for that of the fact finder. Id.

Appellant contends that he only "appeared" to participate in the robbery and his mere presence does not make him guilty as a party. Additionally, appellant contends that because he fired only one shot, compared to the multiple shots fired by Valle, his participation was minimal. Finally, appellant argues that, since he was under duress, he did not intend to kill Junco, but instead acted to save his own life.

Viewing all of the evidence neutrally, it is undisputed that Valle told appellant he had to follow through with the robbery or Arenazas "would take care of him." However, the jury could have found that appellant participated in the robbery and murder with the intention to rob and kill Junco in order to prove himself to Valle and the other members of the group. The State presented evidence that appellant chose Junco as the victim and formulated the robbery plan. Arenazas testified that appellant told Valle that he was committed to the robbery and he would kill Junco if Junco recognized appellant. Appellant knew Junco and lured him out of the house. Appellant was the first to draw his gun, and he forced Junco back into the house at gunpoint. Lindgren, Junco's girlfriend, testified that when she looked at appellant, he told her "This is what happens to a dope man's bitch," and pointed his gun at her. It is also undisputed that appellant shot his firearm at Junco.

Appellant submits that, under Reina v. State, 940 S.W.2d 770 (Tex. App.--Austin 1997, pet. ref'd), no intent to kill was shown because appellant acted not to cause the death of Junco, but only to save his own life. Reina is distinguishable from the present case because Reina acted to separate himself from a group who set fire to a homeless man, while Reina waited out of sight in his car. Here, appellant actively participated in the planning and execution of the robbery and in the shooting of Junco.

Based on the evidence, the jury could have found that appellant intended to kill Junco and was not under duress at the time of the murder. To the extent that any of the evidence in this case may be viewed as contradictory, a jury conviction is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Thus, we hold the evidence was factually sufficient to support appellant's conviction.

We overrule appellant's second point of error.Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.