James Edward Probst v. State

Opinion issued March 29, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00151-CR

———————————

James Edward Probst , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1163334

MEMORANDUM OPINION

A jury found appellant guilty of capital murder,

and, because the State did not seek the death penalty, the trial court assessed

punishment at confinement for life. See Tex.

Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2011); Tex. Code Crim. Proc. Ann. art. 37.071

§1 (Vernon 2006). In two issues on

appeal, appellant contends that (1) his recorded statement was involuntary, and

(2) the evidence is legally insufficient to support his conviction. We affirm.

BACKGROUND

On April 14, 2008, Jesus Garcia and

Cesar Alvarado Cruz drove together after work to cash their paychecks at a

check-cashing store in a nearby shopping center. After getting their money, Cruz got in the

driver’s seat and Garcia got in the front passenger seat. As Cruz was putting his key in the ignition

and closing the door, a man came up to the car, grabbed the top of the car

door, pointed a gun over the door at Cruz, and demanded his money. Garcia testified that the gunman had the

lower part of his face covered with a red cloth, but Garcia was able to see

tattooed lettering on his cheeks.

Garcia also testified that Cruz did not move toward the victim in any

way or make any move to grab the gun.

Instead, the gunman started shooting at Cruz. Immediately, Garcia threw himself out of the

car onto the ground, got up and started running. When Garcia stood up, the gunman shot him in

the back.

Through an anonymous tip, police

officers developed appellant, his mother, Debbie Probst, and his girlfriend,

Elizabeth “Libby” Smith, as suspects.

All three were eventually arrested and charged with capital murder.

After appellant was arrested, he was

interrogated by Sergeant M. Ynosencio and gave a written statement. Ynosencio read appellant his rights, which

he stated he understood and waived. Ynosencio did not threaten or coerce appellant

into speaking with her, and appellant was given drinks and bathroom breaks as

needed.

Initially, appellant denied any involvement

with the shooting or even being at the scene of the crime. Ynosencio then used an interrogation

technique she referred to as giving the suspect “an out.” Specifically, she told appellant that there

were witnesses who saw the victims “come after him” and struggle for the gun,

even though, in fact, no such witnesses existed. Ynosencio testified that appellant “took the

out” she offered and stated that “the guy got out [of the car] and they

struggled and the guy shot himself.”

Appellant said that he was attacked by both Cruz and Garcia as he

attempted to get their money.

Ynosencio also told appellant that

Smith was “putting all the blame” on him in an effort to get appellant to

provide more details about the offense.

At a hearing on appellant’s motion to suppress his statement, the

following exchange took place:

[Prosecutor]: Now, during the course of this second statement, does the

Defendant ever ask you for anything?

[Ynosencio]: I think towards the middle of the conversation when I had

told him that his—the female that he was with was putting all the blame on him,

he wanted to get together because he wanted the whole truth to come out.

[Prosecutor]: Whenever he said

that he wanted to get together, what did you do?

[Ynosencio]: I told him I would

try to make it happen.

[Prosecutor] Did you ever promise him anything in exchange for his

testimony?

[Ynosencio]: No.

[Prosecutor]: Did you ever tell him I will arrange this only if you tell

me what’s going on?

[Ynosencio]: No.

[Prosecutor] At any time did Mr. Probst say I will not continue to speak

with you unless this is arranged?

[Ynosencio]: No.

[Prosecutor]: And based on the general context of Mr. Probst’s question

to you, what was your feeling that his request meant?

[Ynosencio]: I know he—to me, I thought he wanted the people—the other

people that were involved in this to be there so that he could show us

that that was—-what they were saying,

blaming him. He wanted them to talk

about their part, also, he wanted it all to come out in the open.

[Prosecutor]: Okay. Did you feel

like it was more to confront them since you had put Libby’s name out on the

table?

[Ynosencio]: That’s exactly what I thought it was.

[Prosecutor] Did you at any point unequivocally offer him a benefit in

exchange for any arrangements or anything that you could possibly have done for

him?

[Ynosencio]: No.

At trial, Ynosencio further testified on the issue as follows:

[Prosecutor]: Whenever he’s asking you about setting up the meeting, what

is your understanding of what he’s wanting to do?

[Ynosencio]: He wanted to confront

them about what—he was like, “I wasn’t there by myself. They knew what was going on. The truth needs to be told. I’m going to tell the truth on them, too,”

you know. So, I think it was more he

wanted to confront them about—he was pretty much mad because they were—you

know, they told on him. So, he wanted to show them that I’m going to tell the

truth on you, too.

[Prosecutor] If he’s going down, everybody’s going down?

[Ynosencio]: Exactly.

[Prosecutor]: Did you ever feel

that by him asking to set up the meeting and you said you would try that he was

implying that he would not talk to you unless the meeting occurred?

[Ynosencio]: No, because he never

said that.

[Prosecutor]: Okay. And did he

ever at any point indicate that he was going to stop talking, not talk if that

didn’t happen?

[Ynosencio]: No.

[Prosecutor]: In fact, he does continue to talk?

[Ynosencio]: Right, he does.

Appellant’s recorded statement was

subsequently admitted at trial.

Elizabeth Smith, who was also charged

with capital murder, testified at trial in accordance with a plea agreement

that reduced her charge to aggravated robbery and capped her punishment at 25

years. Smith testified that she,

appellant, and appellant’s mother, Debbie, agreed to “hit a lick,” or rob

someone. They drove to a check cashing

store and waited until two men came out.

Appellant got out of the car and walked toward the two men. Smith did not see the shooting or hear any

gunshots because her radio was turned up, but appellant soon returned to the

car and said, “Drive. Go. I shot him.” Appellant

never mentioned anything to Smith about Cruz grabbing the gun.

Cruz died from a bullet entering his

left side, puncturing arteries in his lung, and exiting his right side. Garcia was shot in the back, but

survived. When Garcia returned to the

car after running away from the gunman, he found Cruz slumped over in the driver’s

seat of the car dead. Forensic evidence showed that Cruz’s wounds were

consistent with a person who was seated with his arm outstretched toward the

car door and who was shot by a person standing over him. Three spent .22

caliber casings were recovered outside the car, one spent .22 caliber casing

was recovered from inside the car, and one .22 caliber bullet was recovered

from inside the car.

After trial, the jury was charged on

both capital murder and the lesser-included offense of felony murder. The jury found appellant guilty of capital

murder, and the trial court assessed punishment at confinement for life. This appeal followed.

MOTION TO SUPPRESS

In his first issue on appeal,

appellant contends the trial court erred by denying his motion to suppress his

recorded statement. Specifically,

appellant argued that his statement was involuntary because Officer Ynosencio

falsely promised “to arrange a meeting with [his co-conspirator] Smith.”

Standard of Review

The appropriate standard

for reviewing a trial court’s ruling on a motion to suppress evidence is

bifurcated, giving almost total deference to a trial court’s determination of

historical facts and reviewing de novo

the court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). We “should afford the same amount of deference to [a]

trial court’s rulings on ‘application of law to fact questions,’ also known as

‘mixed questions of law and fact,’ if the resolution of those ultimate questions

turns on an evaluation of credibility and demeanor.” Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We conduct a de novo review when the resolution of mixed questions of law and

fact do not turn on an evaluation of credibility and demeanor. See id.

In determining whether a trial court’s

decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. See, e.g., Hardesty v. State,

667 S.W.2d 130 , 133 n.6 (Tex. Crim. App. 1984). However, this general rule is

inapplicable when, as here, the suppression issue has been consensually

re-litigated by the parties during trial on the merits. See Gutierrez v. State, 221 S.W.3d

680, 687 (Tex. Crim. App. 2007).

A pplicable Law

“A statement of an accused may be used in evidence against

him if it appears that the same was freely and voluntarily made without

compulsion or persuasion. . . .” Tex. Code

Crim. Proc. Ann. art. 38.21 (Vernon 2005). “To decide this case the

court of appeals must examine the totality of the circumstances surrounding the

acquisition of the statement to determine whether it was given voluntarily.” Creager

v. State, 952 S.W.2d 852 , 856–57 (Tex. Crim. App. 1997).

“[F]or a promise to

render a confession invalid under [a]rticle 38.21, the promise must be

positive, made or sanctioned by someone in authority, and of such an

influential nature that it would cause a defendant to speak untruthfully.” Martinez

v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004); see Sossamon v.

State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991), abrogated on other

grounds by Graham v. State, 994 S.W.2d 651, 656 (Tex. Crim. App. 1999)

(explaining that “an appellate court must look to whether the circumstances of

the promises made the defendant ‘inclined to admit a crime he had not

committed’”) (quoting Fisher v. State, 379 S.W.2d 900, 902 (Tex. Crim. App.

1964)).

Analysis

Appellant challenges the trial court’s finding that

Detective Ynosencio’s statement that she would—“call the county and set up [a

meeting with Smith]”—constituted a promise that tainted appellant’s subsequent

confession to the charged offense.

The State responds first, that the statement was not an improper promise and

second, that even if Detective Ynosencio’s statement about setting up a meeting

with Smith was a promise, it neither induced appellant to confess nor depended

upon his confession.

Even assuming that Detective Ynosencio’s statement was a

promise, we agree with the State that there is no evidence that the promise

induced appellant to confess or depended upon his confession. The court of

criminal appeals has held that an “‘if-then’

relationship [is] required to establish [such] a promise.” Chambers v. State, 866 S.W.2d 9 , 20–21

(Tex. Crim. App. 1993) (quoting Freeman v. State, 723 S.W.2d 727, 731

(Tex. Crim. App. 1986)). “[T]here must be some indication that the police

“induce[d] appellant to confess by implicitly or explicitly suggesting a ‘deal,

bargain, agreement, exchange, or contingency.’” Id. (quoting Freeman,

723 S.W.2d at 731 ). In other words, it is a promise made in exchange for a

confession that is prohibited, not some free-standing promise untied to the

decision to confess. See Renfro v. State, 958 S.W.2d 880, 884 (Tex.

App.—Texarkana 1997, pet. ref’d) (finding no indication that promise of drug

treatment was given in exchange for a confession).

The evidence in this

case does not show an “if-then” relationship. There is no evidence that Officer

Ynosencio induced appellant to confess by implicitly or explicitly suggesting a

“deal, bargain, agreement, exchange, or contingency.” See Chambers, 866

S.W.2d at 20–21 (quoting Freeman, 723 S.W.2d at 731 ). The evidence

simply does not support a conclusion that Ynosencio’s free-standing promise

rose to the level of an “unequivocal conditional agreement.” See Renfro,

958 S.W.2d at 884 (quoting Chambers, 866 S.W.2d at 20 ). Ynosencio’s

statement was not so positive that it tainted appellant’s confession. See

Chambers, 866 S.W.2d at 20–21; Renfro, 958 S.W.2d at 884 . This

specific statement lacked the persuasive impact needed to show that it would

probably induce appellant to make an untruthful statement. Compare Creager,

952 S.W.2d at 856 (holding officer’s promise that he would try to obtain

charitable help for defendant’s wife and mother was not sufficient inducement

to confess to heinous crime); Jacobs, 787 S.W.2d at 400 (concluding that

promise to defendant that he would be

allowed to see girlfriend was not sufficient inducement that it would likely

cause him to confess); Smith v. State, 779 S.W.2d 417 , 427–28 (Tex.

Crim. App. 1989) (finding that when defendant wanted opportunity to take

polygraph test to prove innocence, and the police promised that he would be examined

by polygraph, the court stated, “we fail to perceive in what way ‘a promise’ of

a polygraph, without more, would operate to induce an accused falsely to

inculpate himself”); Salazar v. State, 687 S.W.2d 502 , 503–04 (Tex.

App.—Dallas 1985, pet. ref’d) (holding that promise of leniency toward other

members of theft ring was unlikely to influence defendant to untruthfully

confess to burglary) with Pitts v. State, 614 S.W.2d 142 , 142–44 (Tex.

Crim. App. 1981) (holding that defendant’s confession should be suppressed

when, among other things, police promised appellant that if he helped clear “up

any wrecking yard burglaries that he was involved in” and helped recover “all

the property possible” then they would not file charges against him as habitual

criminal); Tovar v. State, 709 S.W.2d 25 , 28–29 (Tex. App.—Corpus

Christi 1986, no pet.) (concluding that defendant’s confession should be

suppressed after police told him that if “he took the rap . . . [then his

pregnant wife] wouldn’t be filed on”).

Given the totality of the circumstances

surrounding the acquisition of appellant’s statement, see Creager, 952

S.W.2d at 856–57, we conclude that the trial court’s finding that that Ynosencio

did not “make any promises to the defendant in order to get him to waive his

rights and give any statements” was not outside the zone of reasonable

disagreement. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

2006). Therefore, we conclude that the trial court did not abuse its discretion

in denying appellant’s motion to suppress.

We overrule point of error one.

SUFFICIENCY OF THE

EVIDENCE

In his second point of error, appellant argues the evidence

was insufficient to sustain his conviction for capital murder because the State did

not prove intent. Specifically, appellant contends he should have been

convicted of felony murder because

the State failed to show that appellant intended to cause Cruz’s death.

Appellant’s theory of the case was that the gun went off accidentally when Cruz

grabbed for it.

Standard

of Review

We review a challenge to the legal sufficiency of the evidence under the standard enunciated in Jackson

v. Virginia, 443 U.S. 307 , 318–20, 99 S. Ct. 2781 , 2788–89 (1979). See

Ervin v. State, 331 S.W.3d 49 , 52–56 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893 , 894–913 (Tex. Crim.

App. 2010)). Under the Jackson standard, evidence is insufficient to support a conviction

if, considering all the record evidence in the light most favorable to the

verdict, no rational factfinder could have found that each essential element of

the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317 , 317–19, 99 S. Ct. at 2788–89; Laster

v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Evidence is

insufficient under this standard in four circumstances: (1) the record contains

no evidence probative of an element of the offense; (2) the record contains a

mere “modicum” of evidence probative of an element of the offense; (3) the

evidence conclusively establishes a reasonable doubt; and (4) the acts alleged

do not constitute the criminal offense charged. See Jackson, 443 U.S. at 314 , 318 n.11, 320, 99 S. Ct. at

2786 , 2789 & n.11; Laster, 275 S.W.3d at 518 ; Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

The Jackson

standard gives full play to the responsibility of the factfinder to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at

318–19, 99 S. Ct. at 2788–89; Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). An appellate court presumes the factfinder resolved any

conflicts in the evidence in favor of the verdict and defers to that

resolution, provided that the resolution is rational. See Jackson, 443

U.S. at 326 , 99 S. Ct. at 2793 . If an appellate court finds the evidence

insufficient under this standard, it must reverse the judgment and enter an

order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 , 102 S. Ct.

2211, 2218 (1982).

Applicable

Law

A

person commits the offense of capital murder if he intentionally commits murder

while in the course of committing a robbery. Tex.

Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2011). Felony murder is a lesser-included offense of

capital murder. Threadgill v. State , 146 S.W.3d 654, 665 (Tex. Crim. App. 2004); Fuentes

v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999). The element

distinguishing capital murder from felony murder is the intent to kill. Threadgill , 146 S.W.3d at 665 ; Fuentes,

991 S.W.2d at 272 . Felony murder is an unintentional murder committed in the

course of committing a felony, whereas capital murder includes an intentional

murder committed in the course of robbery. Threadgill ,

146 S.W.3d at 665 ; Fuentes, 991 S.W.2d at 272 .

Intent is most often proven through the circumstantial

evidence surrounding the crime. Hernandez v. State, 819 S.W.2d 806, 810

(Tex. Crim. App. 1991), overruled on other grounds, Fuller v. State, 829

S.W.2d 191 (Tex. Crim. App. 1992); Dominguez v. State, 125 S.W.3d 755,

761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). A jury may infer intent

from any facts that tend to prove its existence, such as the acts, words, and

conduct of the defendant. Hernandez, 819 S.W.2d at 810 ; Beltran v.

State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980); Dominguez, 125

S.W.3d at 761 . Additionally, intent to kill may be inferred from the use of a deadly weapon, unless it would

not be reasonable to infer that death or serious bodily injury could result

from the use of the weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex.

Crim. App. 1996); Dominguez, 125 S.W.3d at 762 . When a deadly weapon is

fired at close range, and death results, the law presumes an intent to kill. See

Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009,

pet. ref’d) (citing Childs v. State, 21 S.W.3d 631, 635 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d)).

Analysis

Here, appellant fired a deadly weapon at Cruz from close range. Thus, the law presumes an intent to

kill. Id. An intent to kill could

also be inferred from evidence showing that appellant fired the gun five or six

times. See Medina v. State,

7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (finding that evidence of multiple wounds and gunshots evinced a specific intent to kill), Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.—Houston

[14th Dist.] 1996, no writ) (same). Forensic evidence indicates that appellant

fired his gun at the complainant multiple times.

There was no evidence, other than appellant’s own statement,

that he fired the gun as he struggled with Cruz over the weapon. In fact, the surviving victim, Garcia,

testified that Cruz did not

move toward the victim in any way or make any move to grab the gun. Smith testified that appellant never said

anything to her about a struggle for the gun; he just said, “Drive. Go. I shot

him.” The evidence shows that Cruz was

shot as he sat in the driver’s seat of the car, and Garcia was shot in the back

when he bailed out of the car after the shooting started. A bullet and bullet casing were found inside

the car.

The

jury also heard appellant’s inconsistent stories about the shooting. Initially, he denied any involvement, but,

when Officer Ynosencio gave him an “out” suggesting that the victims may have

started the altercation, appellant changed his story and claimed for the first

time that Cruz and Garcia had jumped him and the gun had gone off

accidentally.

Considering all the record evidence in the light most

favorable to the verdict, a rational factfinder could have found that the

element of intent was proved beyond a reasonable doubt. See Jackson, 443

U.S. at 317 , 318–19, 99 S. Ct. at 2788–89.

We overrule point of error two.

CONCLUSION

We affirm the trial court’s judgment.

Sherry

Radack

Chief

Justice

Panel consists of Chief Justice Radack and Justices

Higley and Brown.

Do not publish.

Tex. R. App. P. 47.2( b).