Opinion

Palacios, Anthony v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Aug 29, 2002
Status
Published
Cited by
0 cases
Authority
More cited than 35.1%

The opinion

Opinion issued August 29, 2002

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-00-01301-CR

____________

ANTHONY PALACIOS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause Nos. 818,792

O P I N I O N

The jury found appellant, Anthony Palacios, guilty of murder and assessed

punishment at life imprisonment and a $9,500 fine. See Tex. Pen. Code Ann. §

19.02 (Vernon 1994). Appellant brings four points of error, challenging the

voluntariness of his written custodial statement, the trial court's refusal of an

instruction on the lesser-included offense of manslaughter, and the legal and factual

sufficiency of the evidence. We affirm.

Facts

Jamie Adams, appellant's neighbor, was present at a party at appellant's house.

Adams saw appellant and the complainant using dope and drinking. When Adams

returned the next day, appellant was high on dope and began bragging that he struck

a man with a baseball bat, threw the man in the back of a pickup truck, wrapped him

with plastic, drove the truck to an undisclosed location, and disposed of the body.

Appellant told Adams the man was alive and gasping for air when appellant put him

in the pickup truck. Appellant also told Adams that he unwrapped the man and cut

his throat. Appellant showed Adams the place on appellant's back porch where he

hit the man and a place in the yard where appellant said there was blood.

The abandoned pickup truck, with the complainant's body wrapped in plastic,

was recovered by the Harris County Sheriff's Department. The medical examiner

stated that the complainant had been struck on the head with a hard object and that

these injuries could have been caused by blows from a baseball bat. After obtaining

a search warrant, Harris County Sheriff's deputies searched appellant's house and

found blood on a van, a baseball bat, and plastic material similar to that in which the

complainant's body was wrapped. Forensic DNA tests later identified the

complainant's blood on the baseball bat.

After the deputies arrested appellant, he made a written custodial statement.

Appellant said that, on the night of the party, he saw the complainant standing over

appellant's girlfriend, who had passed out. The complainant's pants were pulled

down. Appellant then grabbed the complainant by his hair, dragged him through the

house to the front yard, and hit the complainant with a board. Two other men at the

party then began hitting the complainant, and they helped appellant roll the

complainant in plastic and put him in the back of the complainant's pickup truck.

Appellant rode in the pickup truck with the two men over to a bayou, where they

abandoned the complainant and the truck.

Voluntariness of the Confession

In point of error one, appellant contends the trial court erred in overruling his

motion to suppress his written custodial statement because it was made involuntarily.

Specifically, appellant claims the statement was involuntary because the police

officers obtained his confession by coercing him into giving the statement by

threatening to charge him with capital murder if he did not give a statement.

When a motion to suppress is presented, the trial court is the sole judge of the

witnesses' credibility and the weight to be given their testimony. Guzman v. State ,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The appellate court's only role is to

decide whether the trial court improperly applied the law to the facts. Williams v.

State , 937 S.W.2d 23, 26 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). Unless

the trial court clearly abused its discretion, we will not disturb its findings. Rivera

v. State , 808 S.W.2d 80, 96 (Tex. Crim. App. 1991); Williams , 937 S.W.2d at 26 .

Further, we afford nearly complete deference to the trial court's rulings on mixed

questions of law and fact when the resolution of those questions turns on an

evaluation of credibility and demeanor. Guzman , 955 S.W.2d at 89 . Accordingly,

we review the evidence in the light most favorable to the ruling of the trial court. Id. ;

Taylor v. State , 945 S.W.2d 295, 297 (Tex. App.--Houston [1st Dist.] 1997, pet.

ref'd).

Although appellant contends he was coerced into making his written statement,

there was testimony at the hearing on the motion to suppress that the interrogating

officers did not coerce appellant. Two police officers testified for the State, and

appellant was the sole defense witness. The record of the suppression hearing

presents conflicting evidence regarding whether any officer coerced appellant into

giving a statement involuntarily by threatening to charge him with capital murder.

Appellant testified that Detective C.E. Leithner threatened him and Detective

Leithner testified that he made no such threat. Officer Craig Thomas also testified.

He stated that neither he nor Leithner threatened appellant or promised him anything.

After hearing evidence from both appellant and the State, the trial court found

appellant's written statement was free and voluntary and that there was no coercion,

threats, promises, or duress. Reviewing the evidence as we must, we conclude the

trial court did not abuse its discretion in overruling the motion to suppress.

We overrule point of error one.

Lesser-Included Offense

In point of error two, appellant claims the trial court erred in refusing to give

an instruction on the lesser-included offense of manslaughter. To determine if a

defendant is entitled to a lesser-included-offense instruction, a two-prong test is

applied: (1) the lesser-included offense must be included within the proof necessary

to establish the offense charged; and (2) some evidence must exist in the record that

would permit a jury to rationally find that if the defendant is guilty, he is guilty only

of the lesser-included offense. Rousseau v. State , 855 S.W.2d 666, 672-73 (Tex.

Crim. App. 1993). The State concedes that the elements of manslaughter are included

within the elements of proof necessary to establish murder, so the first prong of the

test has been satisfied.

The Penal Code states that a person commits the offense of manslaughter if the

person recklessly causes the death of an individual. Tex. Pen. Code Ann. §§ 6.03 (c)

(definition of reckless), 19.04 (manslaughter) (Vernon 1994). To show he is guilty

only of manslaughter, appellant (1) points to the evidence that the complainant was

gasping for air when he was being loaded into the pickup truck and (2) argues that

this evidence demonstrates that he was reckless about whether the complainant was

still alive and that he did not intend to kill the complainant.

The State correctly points out that appellant did not raise any evidence at trial

that he was acting recklessly when he hit the complainant. Instead, the record shows

the complainant's death was caused by skull fractures resulting from blunt force

trauma to the head and a knife wound to the neck. In his confession, appellant

admitted that he intentionally hit complainant on the head with a board. Adams

testified that appellant told her that he hit the complainant with a baseball bat and

then cut his throat. There was no evidence appellant recklessly engaged in any of

those acts which caused complainant's death. Appellant's argument essentially is that

he was reckless about not ascertaining whether the complainant was actually dead

before disposing of the body. Appellant cited no case law to support the argument

that a defendant's post attack, but pre-death mental state, is relevant to the issue of

the defendant's mental state when he committed the attack that caused the

complainant's death. Appellant has raised no evidence that he acted recklessly when

he inflicted the blows that ultimately caused the complainant's death. Accordingly,

we hold appellant was not entitled to an instruction on manslaughter.

We overrule point of error two.

Factual and Legal Sufficiency

In points of error three and four, appellant contends the evidence is legally and

factually insufficient to support his conviction. In reviewing legal sufficiency, we

view the evidence in the light most favorable to the verdict and ask whether a rational

trier of fact could find the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia , 443 U.S. 307, 318-19 , 99 S. Ct. 2781, 2788-89 (1979). In

reviewing factual sufficiency we examine all of the evidence neutrally, and ask

whether proof of guilt is so obviously weak or greatly outweighed by contrary proof

as to indicate that a manifest injustice has occurred. King v. State , 29 S.W.3d 556,

563 (Tex. Crim. App. 2000). In conducting a sufficiency review, we must consider

all of the evidence presented, whether properly or improperly admitted. Miles v.

State , 918 S.W.2d 511, 512 (Tex. Crim. App. 1996). Appellant's statement must,

therefore, be considered even if it was improperly admitted.

Appellant attacks both the legal and factual sufficiency of the evidence by

questioning the credibility of Adams's testimony and the voluntariness of appellant's

written custodial statement. Appellant specifically questions the weight that should

be given Adams' testimony by noting that Adams testified appellant used drugs on

the night of the offense and that Adams did not believe appellant when appellant

initially told her about hitting the complainant and disposing of the body.

Adams was present at appellant's house on the night the complainant was

killed and returned the next day. On that next day, appellant told Adams that he

struck complainant with a baseball bat, threw the man in the back of a pickup truck,

wrapped him with plastic, drove the truck to an undisclosed location and disposed of

the body. Appellant also told Adams the complainant was alive and gasping for air

when appellant put him in the pickup truck, that he unwrapped complainant and cut

his throat. Appellant showed Adams the place on appellant's back porch where he

hit the complainant and a place in the yard where appellant said there was blood.

Adams' testimony concerning appellant's admissions was corroborated by

medical evidence. The assistant medical examiner, who testified at trial, stated that

the autopsy performed on the complainant's body shows a number of skull fractures

consistent with his having been struck by a baseball bat. He also noted that the

complainant's jugular vein had been cut by a stab wound. He concluded that the skull

injuries and the severed jugular vein caused the complainant's death.

Another witness, Ernest Williams, testified that he met appellant while both

were in jail. Appellant admitted to Williams that he used a bat to kill the

complainant.

The State introduced physical evidence connecting appellant to the murder.

Police Officer David Rossi found plastic material at appellant's house that was

similar to the plastic in which the complainant's body was wrapped. He detected

blood on a van parked in appellant's drive. A bat was recovered from appellant's

kitchen. The forensic DNA analyst who examined these items determined that the

blood recovered from the van and bat matched the complainant's DNA.

Reviewing all the evidence, we conclude there was legally sufficient evidence

to support appellant's conviction. We also conclude that the evidence supporting

appellant's conviction is not so obviously weak or greatly outweighed by contrary

proof as to indicate that a manifest injustice has occurred.

We overrule points of error three and four.

Conclusion

We affirm the trial court's judgment.

Sherry J. Radack

Justice

Panel consists of Justices Mirabal, Nuchia, and Radack.

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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