NUMBER 13-02-00322-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JESSE JOE RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Castillo
Memorandum Opinion by Justice Hinojosa
A jury found appellant, Jesse Joe Rodriguez, guilty of the offense of capital murder, and the trial court assessed his punishment at life imprisonment. By seven points of error, appellant contends: (1) the trial court improperly denied his request for an instructed verdict; (2) the evidence is legally and factually insufficient to support his conviction for capital murder; and (3) the trial court improperly denied his request that the jury charge include an instruction regarding independent evidence to corroborate his confessions. We affirm.
A. Factual Background
At 7:30 a.m. on May 9, 2001, James Little and James Park were fishing near the Degussa Carbon Black Plant in Aransas County and noticed a car in the water near the Degussa Dock. The men called the police.
One hour later, Howard Scanlan was performing a routine inspection of the unloading dock when he noticed police officers removing a car from the water. As he approached the east side of the dock, he noticed a naked body floating face down in the water. He informed the police officers removing the car. He said that at his last inspection, the day before at 1:30 p.m., there had been no body in the water. The location where the body and car were found is about 500 yards off Highway 35. This location is not visible from Highway 35.
Inspector Matt Baird testified that there were two crime scenes in this case. The first crime scene was on a shoreline a short distance from the dock area. At this crime scene, the officers recovered two halves of a torn, white bra, two white socks, one white tennis shoe, and grey men’s boxer shorts with motorcycle designs. The bra was ripped apart between the two cups and the hooks in the back had been straightened.
The second crime scene was approximately 125 yards west of the shoreline in a laguna-type area. At this crime scene, the officers recovered one white tennis shoe (the mate of the tennis shoe recovered at the first crime scene), some hair strands, a life insurance policy belonging to the victim with droplets of blood on the envelope, shoe prints, tire tracks, and droplets of blood on the sand.
Medical Examiner Lloyd White testified that the victim’s cause of death was saltwater drowning. Criminalist Lisa Baylor testified that DNA analysis of the vaginal and anal swabs taken from the victim revealed that the appellant could not be excluded as a contributor to the semen from vaginal and anal swabs. The blood on the life insurance policy envelope was determined to belong to the victim.
Tamala Dale Weeks testified that the victim had visited her at her residence on May 8, 2001. Sometime after 6:00 p.m., appellant arrived at Weeks’ residence to visit Roland Weeks, who was also there that evening. The victim did not talk to appellant at all that evening. At approximately 11:30 p.m., the victim left the Weeks’ residence because she had to go to work on a mail route with her cousin at 4:00 a.m. the next morning. Roland Weeks told appellant that the victim might be able to give appellant a ride home. After the victim had shut the door behind her, appellant said out loud “I wonder if she’ll give me a ride” and then appellant also left the Weeks’ residence, following the victim. Neither the victim nor appellant returned that night to the Weeks’ residence.
Appellant made two written statements and one video statement which were admitted into evidence. Appellant said he asked the victim to give him a ride to his room at the Cedar Lodge Motel in Aransas Pass. During the car ride, appellant took control of the victim’s car and held her forcefully. The victim panicked and tried to get out of the car. She asked appellant to stop driving, but appellant told her that he would wreck the car if she did not allow him to drive. He drove to a location near the tracks at Carbon Black.
Next, appellant ordered the victim to move to the back seat of the car and ordered her to remove her clothing. The victim complied. Appellant grabbed the front of the victim’s bra and tore it off her body. He then sexually assaulted the victim vaginally and anally. The victim screamed for help and screamed for appellant to get off her, but appellant continued to sexually assault her. Appellant had an orgasm during the sexual assault. The victim pleaded for appellant to stop, but appellant refused to do so. The victim then threatened to report the rape, and appellant decided to kill her to prevent her from doing so.
Appellant attempted to asphyxiate the victim by placing her face against the back seat and putting his knee against her back, with one of his hands on top of her head and the other hand pushing against the ceiling of the car so as to put great pressure on her. This attempt failed. Appellant next wanted to get rid of the car and drown the victim. First, appellant tried to sink the car in the water, but the car got stuck.
Appellant then drove to the second location, and once again tried to sink the car, but the car did not “drown.” Appellant entered the water and pulled the victim out of the car. In the water, appellant again sexually assaulted the victim vaginally and anally. The victim fought appellant, but was unable to fend him off. Appellant then held the victim’s head under water with his hand around her neck and his knee on her back. After verifying that the victim was not breathing, appellant collected his clothes and walked back to his motel. Appellant left his boxer shorts and sock at the crime scene. He arrived at his motel room at approximately 1:00 a.m.
B. Sufficiency of the Evidence
A person commits capital murder if the person commits murder as defined under §19.02(b)(1) of the penal code and “the person intentionally commits the murder in the course of committing or attempting to commit kidnapping . . . or retaliation.” See Tex. Pen. Code Ann. §19.03(a)(2) (Vernon Supp. 2004).
In this appeal, appellant does not challenge the sufficiency of the evidence of the offense of murder. Appellant contests the sufficiency of the evidence only of the underlying offenses of kidnapping and retaliation. Therefore, we will address the sufficiency of the evidence of these two underlying offenses.
1. Standard of Review
A challenge to the trial judge’s ruling on a motion for an instructed verdict is in reality a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Monterrubio v. State, 941 S.W.2d 322, 326 (Tex. App.–Corpus Christi 1997, no pet.). If the evidence is sufficient to sustain the conviction, then the trial court did not err in overruling appellant’s motion for instructed verdict. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990).
In a legal sufficiency review, we must examine the evidence presented in the light most favorable to the verdict and 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 (1979);Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of the witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. The fact finder may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence. Booker v. State, 929 S.W.2d 57, 60 (Tex. App.–Beaumont, 1996, pet. ref’d).
In a factual sufficiency review, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Evidence is factually insufficient if: (1) it is so weak as to be clearly wrong and manifestly unjust; or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. "[D]ue deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence." Id. at 9.
In conducting our review, we measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State's burden of proof or necessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Id.; see Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) ("We believe the 'law' as 'authorized by the indictment' must be the statutory elements of the offense . . . as modified by the charging instrument.").
2. Retaliation
By his first and second points of error, appellant contends the trial court erred in denying appellant’s request for an instructed verdict and that the evidence is legally and factually insufficient to show that he caused the death of the victim while in the course of committing or attempting to commit the offense of retaliation.
A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a person who has reported or who the actor knows intends to report the occurrence of a crime. See Tex. Pen. Code Ann. § 36.06(a)(1)(B) (Vernon Supp. 2004). The indictment alleged that appellant caused the death of the victim by holding her head under water and drowning her, while in the course of committing or attempting to commit retaliation against her.
a. Legal Sufficiency
Appellant said that after the first sexual assault in the back seat of the car, the victim threatened to report the rape. “[S]he was yelling she was going to file rape on me . . . she was going to get me for rape.” The victim’s threat made appellant angry and he decided to kill her so that she could not file a rape charge against him.
We conclude that any rational trier of fact could have found that appellant’s confession, combined with the physical evidence of the drowned, sexually-assaulted body of the victim, establishes the offense of retaliation beyond a reasonable doubt. Accordingly, we hold the evidence is legally sufficient to support the jury’s finding that appellant caused the victim’s death while in the course of committing or attempting to commit the offense of retaliation.
b. Factual Sufficiency
Appellant complains that the State’s only evidence of retaliation was his extrajudicial confession. Appellant contends the State’s evidence of the drowned, sexually-assaulted body of the victim is not sufficient corroboration. Appellant argues that Hartfield v. State holds that the only type of corroboration sufficient for retaliation is criminal charges against the perpetrator and public death threats. Hartfield v. State, 28 S.W.3d 69 (Tex. App.–Texarkana 2000, pet. ref’d).
In Hartfield, the defendant’s wife filed sexual assault charges against him and testified against him at trial. Id. at 71. Hartfield publicly made death threats against his wife and said he would kill her if he got out of jail. Id. Once released from jail, Hartfield strangled his wife. Id. He later gave a written statement admitting the strangling. Id. Hartfield was found guilty of capital murder, with the underlying offense of retaliation, and the appellate court affirmed the conviction. Id. at 71-72.
Appellant argues that the only type of evidence which suffices as independent corroboration of retaliation is evidence similar to that shown in Hartfield, namely criminal charges against the perpetrator and public death threats. However, neither the court in Hartfield nor the statute require criminal charges or death threats.
Here, appellant confessed that he sexually assaulted the victim, she threatened to file rape charges against him, and he drowned her to prevent her from doing so. Appellant presented no evidence at trial regarding the offense of retaliation. The evidence showed that the victim was sexually assaulted and drowned.
After reviewing all of the evidence, we conclude that the evidence is not so weak as to be clearly wrong and manifestly unjust and the verdict is not against the great weight of the evidence. Accordingly, we hold the evidence is factually sufficient to support the jury’s finding that appellant caused the victim’s death while in the course of committing or attempting to commit the offense of retaliation. Appellant’s first and second points of error are overruled.
3. Kidnapping
By his fifth and sixth points of error, appellant contends the evidence is legally and factually insufficient to show that he abducted the victim with the intent to prevent her liberation by secreting or holding her in a place where it was not likely that she would be found. The indictment alleged that appellant intentionally caused the victim’s death by holding her head under water and drowning her, while he was in the course of committing or attempting to commit the offense of kidnapping.
A person commits the offense of kidnapping if the person intentionally or knowingly abducts another person. See Tex. Pen. Code Ann. § 20.03(a) (Vernon 2003). The term “abduct” means to restrain a person with the intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found or using or threatening to use deadly force. See Tex. Pen. Code Ann. § 20.01(2) (Vernon 2003). The term “restrain” means to restrict a person’s movements without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or by confining the person. See Tex. Pen. Code Ann. § 20.01(1) (Vernon 2003).
a. Legal Sufficiency
The evidence shows that appellant restricted the victim’s movements without her consent and interfered with her liberty. Tamala Weeks and the victim’s mother both testified that the victim planned on going on a mail route with her cousin at 4:00 a.m. the next morning. Appellant forcefully held the victim against her will in the car by grabbing her so that she could not move. The victim “freaked out” and tried to get out of the car. Appellant forcefully took control of the car so that he could drive it. When the victim attempted to prevent appellant from taking control of her car, appellant threatened to wreck the car if she continued to resist. Appellant also moved the victim from one place to another.
The offense of kidnapping does not require that the kidnapper restrain the victim for any particular period of time, nor does it require that the victim be moved any particular distance. See Santallen v. State, 939 S.W.2d 155, 163 (Tex. Crim. App. 1997); Brimage v. State, 918 S.W.2d 466, 475 (Tex. Crim. App. 1994). Here, appellant moved the victim from Tamala Weeks’ residence to the Degussa Dock. The victim was last seen alive leaving Tamala Week’s residence to go home. The victim was later found dead at the Degussa Dock. The State also proved the elements of abduction. Appellant held the victim in a place where she was not likely to be found.
We conclude that any rational trier of fact could have found that appellant kidnapped the victim. Accordingly, we hold the evidence is legally sufficient to support the jury’s finding that appellant caused the victim’s death while in the course of committing or attempting to commit the offense of kidnapping.
b. Factual Sufficiency
Appellant contends that the area of the Degussa Dock is not a secluded location. Appellant asserts that the Degussa Dock is 4.5 miles from the city limits of Aransas Pass and 1.6 miles from the Palm Harbor subdivision. The State’s evidence, however, showed that the Degussa Dock is 500 yards from Highway 35 and is not visible from Highway 35.
After reviewing all of the evidence, we conclude that the evidence is not so weak as to be clearly wrong and manifestly unjust and the verdict is not against the great weight of the evidence. Accordingly, we hold the evidence is factually sufficient to support the jury’s finding that appellant caused the victim’s death while in the course of committing or attempting to commit the offense of kidnapping. Appellant’s fifth and sixth points of error are overruled.
C. Deadly Weapon
By his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to affirm his conviction for using or attempting to use a deadly weapon while in the course of committing kidnapping.
The indictment, however, did not charge appellant with the use or attempted use of a deadly weapon while in the course of committing kidnapping, and the trial court’s judgment does not reflect that appellant used or attempted to use a deadly weapon in the course of committing kidnapping. Therefore, appellant’s third and fourth points of error are overruled.
D. Jury Instruction on Corroboration
In his seventh point of error, appellant contends the trial court erred in denying his request that the jury charge include an instruction regarding independent evidence to corroborate his confessions.
Texas has long recognized the rule that a criminal defendant's conviction may not be based solely on his extrajudicial confession, and if such confession is obtained, there must be some independent evidence of the corpus delicti of the crime. Chavero v. State, 36 S.W.3d 688, 696 (Tex. App.–Corpus Christi 2001, no pet.). The rule does not require that the independent evidence fully prove each element of the corpus delicti, only that it tend to prove the corpus delicti. Fisher v. State, 851 S.W.2d 298, 302-03 (Tex. Crim. App. 1993). Nor does the rule require that the evidence be sufficient by itself to prove the offense. Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993). The quantum of independent evidence necessary to corroborate the corpus delicti in a criminal prosecution need not be great. Gribble v. State, 808 S.W.2d 65, 71-72 (Tex. Crim. App. 1990). So long as there is some evidence which renders the corpus delicti more probable than it would be without the evidence, the essential purposes of the rule have been served. Id. at 72.
The corpus delicti in a murder prosecution consists of two elements: (1) the body of the victim must be found and identified, and (2) it must be shown that the victim’s death was caused by the criminal act of another. Self v. State, 513 S.W.2d 832, 834-35 (Tex. Crim. App. 1974). A trial court does not need to give a jury instruction requiring independent corroboration of the perpetrator’s confession when the evidence sufficiently establishes the corpus delicti. See Honea v. State, 585 S.W.2d 681, 684 (Tex. Crim. App. 1979); Valore v. State, 545 S.W.2d 477, 479 (Tex. Crim. App. 1977); Aranda v. State, 506 S.W.2d 221, 226 (Tex. Crim. App. 1974); Engledow v. State, 407 S.W.2d 789, 791 (Tex. Crim. App. 1966); Smith v. State, 246 S.W.2d 187, 188 (Tex. Crim. App. 1952).
The State produced evidence that the victim’s sexually-assaulted body was found near the Degussa Dock; the body was conclusively identified; and the medical examiner found that she had died from saltwater drowning. The State also produced the following evidence: (1) Tamala Weeks testified that she heard appellant wonder aloud if the victim would give him a ride home; (2) Roland Weeks testified that appellant told him that he needed a ride home; (3) Roland Weeks testified he suggested that appellant ask the victim for a ride home; (4) Tamala and Roland Weeks testified that appellant followed the victim to her car and neither appellant nor the victim returned to the Weeks’ home; (5) Tamala Weeks and the victim’s mother both testified that the victim had told them she had to wake up early the next morning to go on a 4:00 a.m. mail route with her cousin; and (6) the victim’s dead body and car were found in the secluded location of the Degussa Dock.
Because the evidence produced by the State rendered the corpus delicti of murder more probable than it would be without the evidence, we hold the trial court did not err in refusing to instruct the jury on independent corroboration of appellant’s confessions. Appellant’s seventh point of error is overruled.
The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed this
the 10th day of November, 2004.