ACCEPTED
12-14-00337-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
8/31/2015 2:21:27 PM
CATHY LUSK
CLERK
No. 12-14-00337-CR
FILED IN
12th COURT OF APPEALS
IN THE TYLER, TEXAS
COURT OF APPEALS 8/31/2015 2:21:27 PM
TWELTH DISTRICT OF TEXAS AT TYLERCATHY S. LUSK
Clerk
________________________________________________________________
LARRY MAPLES,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
_________________________________________________________________
APPELLEE’S BRIEF
________________________________________________________________
On appeal from Cause Numbers CR13-00334
294th Judicial District Court
Van Zandt County, Texas
________________________________________________________________
APPELLEE’S BRIEF
Van Zandt County Criminal District Attorney
Richard A. Schmidt, First Assistant
State Bar Number 24043907
400 S. Buffalo, Canton, TX 74103
903-567-4104 – 903-567-6258fx
Attorney for the State of Texas
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IDENTITIES OF PARTIES
APPELLANT:
Larry Maples
TDCJ # 01965775
Stiles Unit
3060 FM 3514
Beaumont, Texas 77705
Trial Attorneys for the Appellant:
Jeff Hass James Huggler
100 E. Ferguson, Ste. 908 100 E. Ferguson, Ste. 805
Tyler, TX 75702 Tyler, TX 75702
J. Rex Thompson
321 W. Houston St.
Tyler, TX 75702
Attorney for Appellant on Appeal: James Huggler
100 E. Ferguson, Ste. 805
Tyler, TX 75702
Attorneys for the State at trial and on Appeal:
Richard A. Schmidt Chris Martin
1st Asst. Crim. Dist. Att. Criminal District Attorney
400 S. Buffalo 400 S. Buffalo
Canton, TX 75103 Canton, TX 75103
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TABLE OF CONTENTS
PAGE
IDENTITIES OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 5
ISSUES PRESENTED 3, 6, 11
ISSUE NUMBER ONE: THE EVIDENCE WAS
LEGALLY SUFFICIENT TO FIND APPELLANT
GUILTY OF THE OFFENSE OF CAPITAL MURDER.
ISSUE NUMBER TWO: THE TRIAL COURT
ACTED CORECTLY IN DENYING APPELLANT’S
MOTION FOR DIRECTED VERDICT.
ISSUE NUMBER THREE: IT WAS NOT ERROR FOR
THE TRIAL COURT TO DENY APPELLANT’S
MOTION FOR A PERJURY INSTRUCTION.
SUMMARY OF THE FACTS 5
ARGUMENT 6
PRAYER 15
CERTIFICATE OF SERVICE 15
CERTIFICATE OF COMPLIANCE 15
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INDEX OF AUTHORITIES
CASES
Brooks v. State, 323 S.W.3d 893, 2010 Tex. Crim. App. LEXIS 1240
(Tex. Crim. App. 2010)…………………………….……………………….…..7
Ex parte Castellano, 863 S.W.2d 476, 479 (Tex. Crim. App. 1993)…….12
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)……………………………………………………………………..……….7
Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim. App. 1986)………….12
McDuff v. State, 939 S.W.2d 607, 613, 1997 Tex. Crim. App.
LEXIS 1, *12 (Tex. Crim. App.1997)………………………………………6, 8
Ramirez v. State, 96 S.W.3d 386, 396, 2002 Tex. App.
LEXIS 5402, *27-28 (Tex. App. Austin 2002)………………………….….13
Tucker v. State, 15 S.W.3d 229, 234 (Tex. App.-- Houston [14th Dist.]
2000, pet. ref'd)…………………………………………………………………12
York v. State, 342 S.W.3d 528, 530, 2011 Tex. Crim. App.
LEXIS 913, *1 (Tex. Crim. App. 2011)………………………………..……..7
STATUTES
Tex. Penal Code § 19.03(a)(2)………………………………………………….5
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TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL:
The State of Texas, Appellee, by and through her attorney of
record, Richard A. Schmidt, files this response brief on appeal:
STATEMENT OF THE CASE
Appellee accepts and adopts Appellant’s statement of the case as
outlined in Appellant’s brief.
SUMMARY OF FACTS
Appellant was charged by indictment with capital murder in that
on or about March 24, 2013, he intentionally caused the death of
Heather Maples (hereinafter referred to as “Heather”), by shooting her
with a firearm, while in the course of committing the offense of burglary
of a habitation of Moises Clemente (hereinafter referred to as “Mo”). I
CR 11; 14 RR 10-11; Tex. Penal Code § 19.03(a)(2). On March 23,
2013, Heather went to Mo’s home. 14 RR 43. In the early morning
hours of March 24, 2013, Larry Maples drove to the rural location of
Mo’s home, parked his truck three-tenths of a mile from the residence,
walked to the residence carrying a Colt .45 1911 semi-automatic hand
gun, entered through an unlocked door, crept to a bedroom where Mo
and Heather were having a conversation, without word shot Mo in the
5
abdomen, argued with Heather, shot her, argued more, shot her again,
left the bedroom, returned, placed a pillow over her head and shot her
under the chin ending her life. 14 RR 56-67 and 14 RR 154. Additional,
relevant facts will be further discussed throughout this brief.
ARGUMENT
ISSUE NUMBER ONE: THE EVIDENCE WAS SUFFICIENT TO
PROVE APPELLANT GUILTY OF CAPITAL MURDER.
(COMBINED)
ISSUE NUMBER TWO: THE TRIAL COURT ACTED CORECTLY
IN DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT.
Appellant complains to this Court that the record is void of legally
sufficient evidence for the jury to find the element of the crime of
Capital Murder beyond a reasonable doubt. Appellant combines his
second issue with the first and complains that the trial court erred in
not granting a directed verdict as requested at trial based on an
insufficiency claim. Since a complaint about overruling a motion for
directed/instructed verdict is in actuality an attack upon the sufficiency
of evidence to sustain the conviction, it is properly addressed together.
McDuff v. State, 939 S.W.2d 607, 613, 1997 Tex. Crim. App. LEXIS 1,
*12 (Tex. Crim. App. 1997).
6
In determining the issue of sufficiency of the evidence to sustain a
conviction, the Court of Criminal Appeals in Brooks v. State, 323 Sw3d
893, adopted the United States Supreme Court standard as outlined in
Jackson v. Virginia:
The critical inquiry on review of the sufficiency of evidence
to support criminal conviction must be not simply to
determine whether jury was properly instructed, but to
determine whether record evidence could reasonably support
a finding of guilt beyond a reasonable doubt; the relevant
question is whether, after viewing evidence in light most
favorable to prosecution, any rational trier of fact could have
found the essential element of the crime beyond a reasonable
doubt.
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979).
As is the case here, where Appellant elected to have the charges
against him tried to a jury, “[w]hen the trial judge is not the finder of
fact on the question of guilt, [s]he can direct a verdict in the defendant's
favor only if after viewing the evidence in the light most favorable to the
prosecution, [s]he cannot conclude that any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt. York v. State, 342 S.W.3d 528, 530, 2011 Tex. Crim. App. LEXIS
913, *1 (Tex. Crim. App. 2011).
7
The indictment in the instant cause included a count alleging
capital murder via murder in the course of committing and attempting
to commit burglary of a habitation. 14 RR 10-11. The jury charge
authorized conviction of capital murder if it found that appellant
intentionally caused the death of the Heather Maples in the course of
committing burglary of the habitation of Moises Clemente. 16 RR 8.
The jury returned a general verdict of "guilty of the offense of capital
murder." 16 RR 49. If the evidence is sufficient to support the
allegation of murder during the course of burglary of a habitation, then
the guilty verdict shall be upheld. McDuff v. State, 939 S.W.2d 607,
614, 1997 Tex. Crim. App. LEXIS 1, *14-15 (Tex. Crim. App. 1997).
As properly contained in the trial court’s charge to the jury, a
person commits capital murder if he intentionally or knowingly causes
the death of another while in the course of committing or attempting to
commit burglary. 16 RR 8. Further, the charge to the jury properly
states that a person commits the offense of burglary if, without the
effective consent of the owner, he enters a habitation with the intent to
commit a felony, theft or an assault or he enters a habitation and
commits or attempts to commit a felony, theft or assault.
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In the instant case, the evidence shows beyond a reasonable doubt
that during the early hours of March 24, 2013, Appellant drove his
white pickup truck to Moises Clemente’s (hereinafter referred to as
“Mo”) house located at 2641 F.M. 16 in Van Zandt County in a rural
location. 14 RR 23. He parked his truck approximately three-tenths
(3/10) miles from Clemente’s house. 15 RR 18. He entered the
residence through an unlocked door without Moises Clemente’s
knowledge or consent. Carrying a Colt 45 semi-automatic handgun, he
walked to the bedroom where Moises Clemente and the deceased
Heather Maples (herein after referred to as “Heather”) were located.
Without saying a word, Appellant shot Mo one time in the abdomen. A
short argument between Appellant and Heather ensued. Appellant
then shot Heather and she sat back down on the corner of the bed.
Appellant and Heather began to argue again. They struggled and
Appellant shot Heather again and she fell to the floor where she lay
moaning. Mo pleaded with Appellant not to shoot her again. Appellant
left the bedroom only to return a short while later, placed a pillow over
Heather’s face and shot her in the head.
14 RR 56-67 and 14 RR 154.
9
After killing Heather, Appellant left the bedroom again and began
making and or receiving telephone calls. 14 RR 68-71. Appellant’s
conversations included a conversation with his sister Pamela Galvan, in
which he stated “I did it, I killed the bitch.” 14 RR 68. Also, Appellant
spoke with his father in during which conversation he stated, “I did
what you told me not to do.” 14 RR 70. Appellant then contacted 911
and relayed to dispatch what he had done. See State’s Exhibit 51.
The uncontroverted testimony in this case shows beyond a
reasonable doubt that Appellant intentionally caused the death of
Heather. In addition, the evidence clearly shows that Appellant did so
while in the course of committing burglary of a habitation with the
intent to commit aggravated assault. Appellant entered Mo’s
habitation without his consent, entered Mo’s bedroom, and without
word, shot Mo with a .45 caliber handgun. A rational trier of fact
could conclude beyond a reasonable doubt that by parking three-tenths
of a mile from the residence, carrying a firearm with him, entering Mo’s
residence in the dark, and by shooting Mo without struggle or
conversation, that Appellant entered the residence with the intent to
10
commit and indeed did commit aggravated assault and the in the course
of doing so intentionally caused the death of Heather.
Therefore, the evidence clearly shows the verdict is consistent
with the factual and legal weight of the evidence and that the trial court
acted without error in denying Appellant’s motion for a directed verdict.
ISSUE NUMBER THREE: IT WAS NOT ERROR FOR THE TRIAL
COURT TO DENY APPELLANT’S MOTION FOR A PERJURY
INSTRUCTION.
On Appellant’s third issue of appeal, he complains that the trial
court erred in not including a charge on perjured testimony of Moises
Clemente. 16 RR 6. In support of his contention Appellant cites several
cases which originated in the Federal system. However, upon a
thorough review of Texas precedent, the undersigned could find no
authority supporting Appellant’s contention that he was entitled to an
instruction as requested. Further, credibility of a witness and their
testimony is properly addressed in this case as the courts charge
contained the following:
“You are the exclusive judges of the facts proved, of the credibility
of the witnesses and the weight to be given to the testimony, but you
11
are bound to receive the law from the Court, which is herein given you,
and be governed thereby.” 16 RR 14.
The above notwithstanding, the issue is more properly couched as
a due process analysis and in terms of whether the State’s reliance on
perjured testimony, if indeed perjured, affected the verdict.
The State is not allowed to use perjured testimony to obtain a
conviction. Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim. App. 1986).
If the State presents false testimony which relates to an essential
element of the offense, and fails to correct its own testimony, then
reversal will be appropriate. See id. Further, the State’s knowing use of
perjured testimony violates the due process clause of the Fourteenth
Amendment to the United States Constitution. Ex parte Castellano, 863
S.W.2d 476, 479 (Tex. Crim. App. 1993). Disagreements in testimony do
not constitute the use of perjured testimony. Tucker v. State, 15 S.W.3d
229, 234 (Tex. App.-- Houston [14th Dist.] 2000, pet. ref'd).
Furthermore, even if there is a finding of perjured testimony, a due
process violation will be said to exist only if the complained-of testimony
is material. Exparte Castellano, 863S.W.2d at 485.
A violation of the prohibition of using perjured testimony requires
12
a conviction be set aside only if there “[I]s a reasonable likelihood that
the false testimony could have affected the judgment of the jury. This is
essentially the harmless error standard for constitutional error
embodied in the Texas Rules of Appellate Procedure 44.2(a)." Ramirez
v. State, 96 S.W.3d 386, 396, 2002 Tex. App. LEXIS 5402, *27-28 (Tex.
App. Austin 2002)(internal citations omitted).
At trial, evidence of DNA analysis of samples taken from the body
of Heather were submitted into evidence which showed the presence of
Mo’s DNA on or in the body of Heather. 15 RR 76-77. When questioned
about the presence of his DNA in Heather, Mo testified that he hadn’t
been intimate with Heather for some time but that it had to have come
from a dirty sex toy that they shared. Forensic Scientist, Gloria Ruiz,
testified that although unlikely, it was possible for the DNA to have
come from a sex toy. 15 RR 81-82.
Here, there has been no finding of perjured testimony on the part
of Mo or a reliance on perjured testimony by the State. There is no proof
provided by Appellant that Mo’s hypothesis or explanation regarding
the presence of his DNA inside the victim’s anal and vaginal canals was
false. Further, there is no valid assertion by appellant that the State
13
relied on the perjured testimony of Mo as far as the DNA evidence is
concerned to convict the appellant or to further the State’s case in any
way. Last, if the testimony concerning DNA given by Mo was perjured,
it is harmless error because the DNA evidence presented was explained
scientifically by Ruiz, the remainder of Mo’s testimony was corroborated
with other evidence, and the presence of his DNA in the victim was
irrelevant to the charge of capital murder and not proof of any element
of the charge. Any error by including the testimony or by not including
a perjury instruction in the charge was harmless and in no way
influenced the verdict rendered by the jury.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellee prays that
Appellant’s request for relief be in all things denied and that mandate
issue affirming the judgment and sentence rendered at trial.
Respectfully submitted,
/s/ / Richard A. Schmidt
_____________________________________
Richard A. Schmidt
S.B.N. 24043907
Assistant Criminal District Attorney
Van Zandt County
400 S. Buffalo, Canton, TX 75103
903.567.4104/903.567.6258 fx
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document
was delivered upon the Attorney for Appellant on August 31, 2015.
___/s/ / Richard A. Schmidt__
Richard A. Schmidt
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4,
specifically using 14 point Century font and in its entirety contains
2,489 words as counted by Microsoft Word.
/s/ / Richard A. Schmidt
___________________________
Richard A. Schmidt
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