MacIas v. State

959 S.W.2d 332, 1997 WL 799588
CourtCourt of Appeals of Texas
DecidedJanuary 29, 1998
Docket14-95-01197-CR
StatusPublished
Cited by57 cases

This text of 959 S.W.2d 332 (MacIas v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacIas v. State, 959 S.W.2d 332, 1997 WL 799588 (Tex. Ct. App. 1998).

Opinions

OPINION

DRAUGHN, Justice.

Appellant entered a plea of not guilty to the offense of capital murder. Tex. Penal Code Ann. § 19.03 (Vernon 1989).1 A jury-found him guilty and assessed punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. In seven points of error, appellant contends the trial court erred (1) by depriving him of an adequate record on appeal; (2) in denying a requested jury instruction on the lesserincluded offense of murder; (3) by failing to define the phrase “in the course of committing” an offense in the jury charge; (4) in admitting evidence of appellant’s affiliation -with a gang; (5) in admitting gruesome photographs; and (6) in permitting the State to argue a plea for law enforcement during final arguments. We reverse and remand.

Around 3:30 a.m. on the morning of July 4, 1993, complainant, Raymundo Miranda, walked past the home of Edward Cantu where appellant, Cantu, Roger Vidales, Jesse Montoya and Miguel Mendez were outside drinking. Upon seeing complainant, appellant announced that he wanted to “roll” or rob complainant and struck complainant over the head with a fan. Cantu yelled at appellant and questioned why he struck complainant, but appellant just laughed. Cantu apologized to complainant and invited him to join the party. Complainant accepted the invitation and shared his bottle of tequila with the men.

Around 8:30 a.m., appellant, complainant, Vidales, Montoya and Mendez left Cantu’s house in Montoya’s ear. When the men first got into the car, Vidales expressed his desire to hit complainant with a pipe wrench, but Mendez took the wrench away from him. Montoya then drove to a bridge over Buffalo Bayou where he stopped his car. Appellant and Vidales got out of the car. Appellant said “let’s roll him” and began to go through complainant’s pockets. He found only a pack of cigarettes. Vidales then pulled complainant from the car onto the concrete and he and appellant kicked complainant repeatedly. Mendez remained in the car. Although Montoya initially remained in the car, he joined Vidales and appellant in kicking complainant after Vidales and appellant taunted and teased him for not participating in the foray. Appellant, Vidales, and Montoya then rolled complainant off the bridge.

[335]*335Appellant, Vidales, Montoya, and Mendez returned to Cantu’s house where appellant told Cantu that they had hit complainant and thrown him over a bridge. The men warned Mendez to not say anything about the incident. Several days later at another party, appellant and Vidales bragged to Leon Cantu, Edward’s cousin, about throwing an illegal alien over a bridge. Leon reported the incident to the police. Complainant’s skeletal remains were found January 27, 1994 under a bridge.

In his first point of error and in a separate motion, appellant urges this court to abate the appeal because two notes sent by the jury and the trial court’s written response are missing from the record. When the record or a portion of the record is lost or destroyed, the parties may substitute it in the trial court, and the substitution transmitted to the appellate court as in other eases. Tbx.R.App. P. 50(e). “If the appellant has made a timely request for a statement of facts, but the court reporter’s notes and record have been lost or destroyed without appellant’s fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.” Id.

The parties agreed on the content of the note at the conclusion of a hearing ordered by this court. The trial court concluded and the parties agreed that the jury sent one note with two questions to the trial court during deliberations, but the note and the trial court’s response were lost or destroyed and substitutes could not be made. The parties also agreed that in one question the jury requested the medical examiner’s photographs, which the court had admitted over appellant’s objection. The trial court sent the photographs to the jury the next morning. The parties further agreed in the second question the jury inquired whether they could convict appellant of any offense other than capital murder. In response, the trial court referred the jury to the court’s charge and informed them that they were bound by the charge. The trial court reduced its answer to writing and gave it to the bailiff for delivery the next morning.

Because the parties agree on the content of the jury’s questions and the trial court’s response, appellant’s first point of error is moot. Therefore, we overrule appellant’s first point of error.

In his second point of error, appellant contends the trial court erred in denying a requested instruction on the lesser-included offense of murder. A trial court must submit a charge on a lesser-included offense if (1) the lesser-included offense is within the proof necessary to establish the offense charged; and (2) some evidence exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993) (clarifying Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981) (opinion on reh’g) (plurality opinion)). The first prong of the test is easily met; murder is a lesser-included offense of capital murder. Robertson v. State, 871 S.W.2d 701, 706 (Tex.Crim.App.1993), cert. denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994). The dispositive issue, then, is whether some evidence exists in the record that would permit a jury to find the defendant guilty only of the lesser offense. In determining whether the record contains evidence that the defendant is guilty only of the lesser offense, we examine the entire record. Rousseau, 855 S.W.2d at 673.

The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App.1992). Therefore, if the record reflects some evidence that refutes or negates the aggravating element of the greater offense or if the evidence is subject to different interpretations, the trial court must submit a lesser-included charge to the jury. Saunders, 840 S.W.2d at 391-92. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994).

For a rational jury to find appellant guilty only of murder, the record must reflect some [336]*336evidence that appellant did not kill complainant in the course of committing or attempting to commit a robbery. See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon 1989). Appellant contends the following evidence raises reasonable doubt as to whether he was in the course of robbing complainant: (1) appellant made no statement to Cantu about taking any property although he admitted a gruesome killing; and (2) police officers found complainant’s wallet in his pants along with his skeletal remains.

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959 S.W.2d 332, 1997 WL 799588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macias-v-state-texapp-1998.