Opinion
No. 05-09-00700-CR
Opinion issued May 27, 2011. DO NOT PUBLISH Tex. R. App. P. 47.2(b)
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F09-00547-HI.
Before Justices MORRIS, MOSELEY, and MYERS.
OPINION
Ismael Q. Moreno was indicted for the capital murder of Xenia Wilson while in the course of committing or attempting to commit obstruction or retaliation against Wilson. The jury found Moreno guilty as charged in the indictment and the trial court assessed punishment at life imprisonment. In six issues, Moreno argues the evidence was insufficient to prove he committed or attempted to commit obstruction or retaliation (issues two and three), the state failed to corroborate accomplice witness testimony (issue one), the trial court erred by denying his motion to quash the indictment (issue four), the trial court erred by failing to narrow the application paragraph of the charge to the legal theories raised by the evidence (issue five), and the State failed to prove venue (issue six). We affirm the trial court's judgment.
Background
There is evidence in the record that Moreno supplied methamphetamine to several people, including Wilson and her friend Tristan Hodge, who either used or resold the drugs. Several weeks before Wilson was killed, Mesquite police were investigating Moreno for selling narcotics and had his house under surveillance. After leaving the house, Moreno's brother was stopped for a traffic violation; he was arrested on outstanding warrants and narcotics officers found over $100,000 in cash in the vehicle. When Moreno left the house later that day, police arrested him on outstanding warrants after a traffic stop. A civil proceeding was initiated to forfeit the cash and Moreno's vehicles as proceeds of narcotics transactions. Early the next morning, February 10, 2006, police arrested Wilson in the parking lot of an apartment complex for possession of marijuana, methamphetamine, and drug paraphernalia. Wilson was transferred to Dallas County jail on misdemeanor warrants and released later that day on bond. No one from the Mesquite narcotics unit talked to Wilson while she was in custody and she did not provide any information to the narcotics unit. That evening (February 10, 2006), the narcotics unit executed a search warrant on Moreno's house and seized fifteen pounds of marijuana, firearms, several vehicles, and over $4,000 in cash. A forfeiture proceeding was initiated against this property as well. According to one officer, Moreno cooperated on the forfeiture proceeding and signed an agreed order in that proceeding. Hodge testified that he and Wilson were drug dealers and also used drugs themselves. He also testified that Moreno supplied Wilson with methamphetamine. After Moreno's arrest in February, Hodge heard Moreno threaten to kill Wilson several times because Moreno believed she had "snitched" on him and was responsible for the raid on his house. Hodge described an incident that took place after Moreno's arrest in February. Hodge, Moreno, Jeremy Hanson, and Steven Jarrell were at Jarrell's house drinking and using drugs. Hodge confronted Moreno about Wilson. Hodge said Moreno "believed that she was an informant and she was untrustworthy and that he had to do something about it." When Wilson parked outside the house, Moreno went to the window and pointed a gun at her car. He made several profane remarks about Wilson's "ratting" on him and said something needed to be done "right now." Hanson testified he heard Moreno say he was "going to kill that bitch." Jarrell intervened and told everyone to leave. Hodge went out, got in Wilson's car, and they left without a confrontation. Hanson testified that on another occasion, he heard Moreno say he was going to kill Wilson because she "snitched on him." Another witness, Kama Brooks, testified Wilson bought drugs from various people, including Moreno and J.J. Verduzco. Brooks testified there was a rumor that Wilson was a snitch because she was released quickly after she and Moreno had been arrested on the same day. Wilson was with Brooks and Hodge on March 25, 2006, the night before she was killed. Wilson talked with Verduzco on the phone and at a gas station. According to Hodge, Wilson argued with Verduzco about his failure to deliver to her a pound of marijuana. Brooks said they returned to Wilson's house from the gas station, but Wilson left later that evening without her shotgun or purse, which was unusual. Wilson said she was going to pick up Verduzco and would be back shortly. Wilson did not return. Roberto Rojas testified he was a drug dealer and Moreno supplied him with methamphetamine. Rojas was with Moreno on March 25, 2006, the day before the shooting, when Moreno traded an ounce of methamphetamine for an AR-15 assault rifle. Later that evening, Rojas, Moreno, and a man named Luis took the AR-15 rifle and a 9mm pistol and drove to north Dallas to discuss a drug deal. After that, Moreno called Verduzco and told him to meet them at Verduzco's house. Verduzco testified he talked to Wilson the evening of March 25, 2006, and told her to call him later and they could smoke some marijuana. Around midnight, Moreno called Verduzco and set up a meeting at Verduzco's house. Verduzco walked over to Moreno's truck, which was parked near Verduzco's house. Moreno, Rojas, and Luis were in the truck; Rojas was loading an AR-15 rifle. Moreno told Verduzco he (Moreno) was ready to kill Wilson and instructed Verduzco to call Wilson and tell her to come over to the house. Verduzco did as he was instructed and called Wilson and told to her to come to his house to smoke marijuana. Verduzco then drove to his girlfriend's home, returned, and parked across the field from his house. He got out of his car and walked up to see what was happening. A few minutes later, Wilson drove up and parked in front of Verduzco's house. Moreno got out of his truck with the assault rifle, crouched down, and began walking over to Wilson's car. Rojas got out with the 9mm pistol, but turned back. When Moreno stood up, Rojas heard Wilson say "Please don't, Cucuy." (Cucuy is Moreno's nickname.) Verduzco heard Moreno say "Bitch, you didn't think I was going to get you." Rojas testified Moreno broke out the car window with the rifle butt and fired eight or nine rounds at Wilson, who was still in her car. Moreno returned to the truck and they drove off. Verduzco heard glass breaking followed by several shots. He ran back to his car and left. A short time later, Moreno talked to Verduzco on the phone and told him to "get rid of her body, burn it." Rojas heard Moreno tell Verduzco to take whatever property was in Wilson's car and they would split it between them later. Verduzco returned to the house, pushed Wilson's body onto the passenger floorboard, and drove the car away from his house. He parked the car, took Wilson's two cell phones, doused the car with gasoline, and set it on fire. Meanwhile, Moreno asked Rojas where they could take the guns and Rojas suggested they take them to his cousin, Anthony Espinoza. They drove to Espinoza's house and left the AR-15 rifle and the 9mm pistol with him. They then drove to a club where Moreno arranged for a person to be his alibi. Espinoza testified that he received a phone call from Rojas around 1:30 or 2:00 a.m. on March 26, 2006. Later, a truck drove up to Espinoza's house with Rojas in the front passenger seat. Espinoza could not see the driver or other passengers. He talked to Rojas and heard the name "Cucuy" mentioned during the conversation. Rojas handed Espinoza an AR-15 rifle and 9mm pistol and asked him to hold them overnight. When Espinoza heard about the shooting later that morning, he called Rojas and told him to come pick up the guns, which Rojas did. Rojas testified he picked the guns up from Espinoza and took them to another cousin's house, one or two houses down from Espinoza's house. Police and firefighters arrived at the scene of Wilson's burning car early on the morning of March 26, 2006. Wilson had died as a result of multiple gunshot wounds. Police recovered broken glass and several shell casings at the scene of the shooting. On March 27, 2006, police recovered an AR-15 rifle and a 9mm pistol from a house near Espinoza's house. A firearms examiner testified the AR-15 rifle had fired some of the shell casings found at the scene of the shooting and fired the bullet fragment recovered from Wilson's body. When Hodge learned about the shooting the next day, he and Hanson went to Verduzco's house believing he had been involved in Wilson's murder. They fired a shotgun at the house, for which they were later convicted of aggravated assault. Rojas testified that several days after the shooting, Hanson drove Rojas to Moreno's house where Moreno accused Rojas of "snitching" on him and pulled out a hunting rifle. Rojas began crying, and Moreno let the matter slide because Rojas had children. Hanson testified that several days after Wilson's death, he drove Rojas to Moreno's house. Hanson did not hear what was said, but Moreno pulled out a shotgun and Rojas started crying.Sufficiency of the Evidence
Moreno's second and third issues challenge the sufficiency of the evidence to prove he was acting in the course of committing or attempting to commit obstruction or retaliation. In reviewing the sufficiency of the evidence, we consider all the record evidence in the light most favorable to the jury's verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of all of the elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). We measure the sufficiency of the evidence against a hypothetically correct jury charge for the case. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).The indictment alleged that on or about March 26, 2006 Moreno
intentionally and knowingly cause[d] the death of an individual, namely: Xenia Wilson, by shooting the said Xenia Wilson with a deadly weapon, namely: a firearm, and the said defendant did then and there intentionally cause the death of the said Xenia Wilson while the said defendant was then and there in the course of committing and attempting to commit Obstruction or Retaliation upon the said Xenia Wilson. . . . As applicable to this case, a person commits capital murder if he intentionally or knowingly causes the death of an individual and intentionally commits the murder in the course of committing or attempting to commit obstruction or retaliation. Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (West 2011). A person commits 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 public servant, witness, prospective witness, informant, or person who has reported or who the actor knows intends to report the occurrence of a crime. Tex. Penal Code Ann. § 36.06(a)(1). A person commits obstruction if he intentionally or knowingly harms or threatens to harm another by an unlawful act to prevent or delay the service of another as a public servant, witness, prospective witness, informant, or person who has reported or who the actor knows intends to report the occurrence of a crime. Id. § 36.06(a)(2).Moreno contends the State failed to prove that Wilson was a witness, prospective witness, informant, or person who had reported or who the actor knows intends to report the occurrence of a crime. Therefore, he argues, the State failed to prove he harmed her by an unlawful act in retaliation for or on account of her service or status in one of those capacities, or to prevent her serving in one of those capacities. A central purpose of the retaliation statute is to encourage a specified class of citizens (including public servants, witnesses, prospective witnesses, and informants) to perform vital public duties without fear of retribution. Cada, 334 S.W.3d at 771. Through several amendments to the statute, the "legislature [has] attempted to account for every category of person who might possess information regarding criminal activity which may lead to the apprehension of a criminal offender. We can conceive of no existing gap in the persons protected under section 36.06." Id. at 772 (quoting Morrow v. State, 862 S.W.2d 612, 615 (Tex. Crim. App. 1993)). While there is some overlap among the categories of persons protected, "each category is nevertheless distinct." Id. (quoting Morrow, 862 S.W.2d at 615). Where the state pleads several alternative elements, proof of any one will support a general verdict. See Cada, 334 S.W.3d at 771 ("Thus an indictment might contain allegations that the defendant retaliated against the complainant because he was `a public servant, witness, prospective witness, and informant,' and if the proof shows any one of those statutory alternative elements beyond a reasonable doubt, then the evidence is sufficient to support a conviction.") (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991)). A "prospective witness" is any person who may testify in an official proceeding. See Morrow, 862 S.W.2d at 614. Formal proceedings need not be initiated. See id. Any person who is involved in an offense with a defendant, who sees the defendant committing an offense, or who hears the defendant discuss committing an offense is a prospective witness in the prosecution of that defendant because the witness may testify. See Ortiz v. State, 93 S.W.3d 79, 86 (Tex. Crim. App. 2002). Whether one is a prospective witness must be judged from the standpoint of the one accused of retaliation. See Solomon v. State, 830 S.W.2d 636, 637 (Tex. App.-Texarkana 1992, pet. ref'd). Where a defendant anticipates that a person will be called as a witness against him and threatens to harm that person if she testifies, the offense is complete even if the person is not called as a witness or there was no charge pending against the defendant at the time of the threats. Id. There is evidence that Wilson was involved with Moreno in the offense of delivery of a controlled substance, methamphetamine. The evidence indicates that Moreno threatened to kill her because he believed, albeit incorrectly, that she had or would inform on him. From Moreno's perspective, Wilson had knowledge about his criminal activities. Thus she had the status of a prospective witness in any proceeding against Moreno. See Ortiz, 93 S.W.3d at 86. Moreno could anticipate she might testify in any official proceeding against him, even though criminal proceedings had not been initiated. See Morrow, 862 S.W.2d at 614. A jury could reasonably conclude that Moreno believed Wilson was not trustworthy and that he threatened to kill and killed her on account of her status as a prospective witness or to prevent her service as an informant, prospective witness, or witness in the future. Therefore, considering all the evidence (including that summarized above) in the light most favorable to the verdict, we conclude a rational trier of fact could have found the accused guilty of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95. Thus, we decide Moreno's sufficiency issues against him. We overrule Moreno's second and third issues.
Accomplice Witness Testimony
The trial court instructed the jury that Rojas and Verduzco were accomplices as a matter of law. (Both pled guilty to Wilson's murder pursuant to plea agreements.) Moreno's first issue argues the State failed to corroborate their testimony. A conviction cannot stand on accomplice testimony unless there is other evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14. "The corroborating evidence under article 38.14 need not be sufficient, standing alone, to prove beyond a reasonable doubt that a defendant committed the offense." Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). "All that is required is that there is some non-accomplice evidence tending to connect the defendant to the offense." Id. "The appellant's liability as a principal or under a parties theory is of no relevance under an Article 38.14 analysis. The question is whether some evidence `tends to connect' him to the crime; the connection need not establish the exact nature of his involvement (as a principal or party)." Id. The non-accomplice evidence in the record indicates Moreno repeatedly threatened to kill Wilson because she was an informant. He said he had to do something about it. He pulled a gun and threatened to kill Wilson at Jarrell's house, but Jarrell stopped him. The night before the shooting, Moreno picked Rojas up in a dark-colored Tahoe or Suburban around midnight. Rojas came to Espinoza's house early on March 26, 2006 in a blue or green Tahoe and asked if he could leave an AR-15 rifle and a 9mm pistol at his house. Espinoza heard Moreno's nickname mentioned before Rojas handed him the guns. We conclude that considering all the non-accomplice evidence together, a rational jury could find this evidence tends to connect Moreno to the offense. See Simmons v. State, 282 S.W.3d 504, 511 (Tex. Crim. App. 2009). We overrule Moreno's first issue.Motion to Quash the Indictment
Moreno's fourth issue contends the trial court erred by denying his motion to quash the indictment. He argues the indictment failed to give him adequate notice of the manner in which the State alleged he was committing or attempting to commit obstruction or retaliation. He contends he was entitled to notice of whether the State would seek to prove that Wilson was an informant, a prospective witness, a person who reported a crime, or a person Moreno knew intended to report a crime. In capital murder cases, the court of criminal appeals has "repeatedly held that an indictment need not allege the constituent elements of the underlying offense which elevates murder to capital murder." Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App. 1995) (indictment alleging defendant committed murder in the course of committing or attempting to commit burglary) (citing cases). The State was not required to allege the constituent elements of obstruction or retaliation-the underlying offenses. Thus the trial court did not err by denying the motion to quash the indictment. We overrule Moreno's fourth issue.Jury Charge
Moreno's fifth issue argues the trial court erred by failing to limit the application paragraph of the jury charge to the legal theories raised by the evidence. His trial counsel objected to the jury charge on the basis that it allowed the jury to convict on "any combination of the 12 or more different ways that retaliation or oppression could occur. . . ."The jury charge authorized a conviction for capital murder if the jury found beyond a reasonable doubt that
on or about March 26, 2006, in the County of Dallas and said State, [Moreno], either acting alone or with another as a party to the offense, did then and there intentionally or knowingly cause the death of an individual, namely: [Wilson], by shooting the said [Wilson] with a deadly weapon, namely: a firearm, and [Moreno] did then and there intentionally cause the death of the said [Wilson] while [Moreno] was then and there in the course of committing and attempting to commit obstruction or retaliation upon the said [Wilson]. . . .The jury charge instructed the jury that
A person commits the offense of obstruction or retaliation if he intentionally or knowingly harms or threatens to harm another by unlawful act to prevent or delay the service of another as a witness, prospective witness or informant or person who has reported the occurrence of a crime or person who the actor knows intends to report the occurrence of a crime; or 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 witness, prospective witness or informant or person who has reported the occurrence of a crime or person who the actor knows intends to report the occurrence of a crime.Moreno argues the jury charge authorized a conviction on a legal theory of retaliation or obstruction when there was no evidence to support a conclusion that Wilson was a witness, a prospective witness, an informant, a person who reported a crime, or a person who Moreno knew intended to report a crime, and no evidence to support a conclusion that Moreno obstructed Wilson's service as one of those persons or that he retaliated against her because of her status or service as one of those persons. Moreno cites Watson v. State, in support of his argument. In Watson, the court of criminal appeals held it was error to instruct the jury that it could convict if it found Watson committed burglary "either acting alone or as a party" where there was no evidence he acted alone, but that the error was harmless under the some harm standard. See Watson v. State, 693 S.W.2d 938, 941-42 (Tex. Crim. App. 1985) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). As discussed herein, the evidence is sufficient to support the theory that Moreno murdered Wilson in retaliation for her status as a prospective witness or to prevent her service as an informant, prospective witness, or witness in the future. We conclude there was at least some evidence of the constituent elements of capital murder-obstruction or retaliation-to support submission of both theories to the jury. See Gardner v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009) ("the gravamen of capital murder is intentionally (or knowingly) causing a death, plus any one of various different types of aggravating elements, and we most recently concluded `that our holding in Kitchens applies equally to all alternate theories of capital murder contained within [Penal Code] § 19.03, whether they are found in the same or different subsections, so long as the same victim is alleged for the predicate murder.'" (quoting Gamboa v. State, 296 S.W.3d 574, 583-84 (Tex. Crim. App. 2009)), cert. denied, 131 S. Ct. 103 (U.S. 2010); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) ("[i]t is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted"). We overrule Moreno's fifth issue.