Delacruz v. State

1

ISIDRO MIGUEL DELACRUZ, Appellant v. THE STATE OF TEXAS

No. AP-77,079

Court of Criminal Appeals of Texas

March 1, 2023

Do Not Publish

ON DIRECT APPEAL FROM CAUSE NO. B-14-1134-SA IN THE 119TH DISTRICT COURT TOM GREEN COUNTY

OPINION

McCLURE, J.

In April 2018, a jury convicted Appellant of capital murder for intentionally or knowingly causing the death of an individual under ten years of age. Tex. Penal Code § 19.03(a)(8). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 Sections 2(b) and 2(e), the trial court sentenced Appellant to death. See Tex. Code Crim. Proc. art. 37.071 § 2(g).

Direct appeal to this Court is automatic. Id. § 2(h). Appellant raises twelve points of error. We affirm the trial court's judgment of conviction and sentence of death.

I. BACKGROUND

Appellant and Tanya Bermea had an "on again, off again" relationship that was described at trial as turbulent and dysfunctional. On the night of September 1, 2014, Tanya put her five-year-old daughter, N.V., to bed. Tanya later received several phone calls from a number she did not recognize, but she suspected the calls were from Appellant. The two had argued a few hours earlier when Appellant did not give Tanya money that he had promised her. In the early morning hours of September 2, Tanya heard a noise in the back of the house, just outside of the bathroom window, which was partially broken and patched with duct tape. Tanya saw Appellant entering through the bathroom window. She ran out the front door, leaving N.V. asleep in her bed.

Surveillance cameras mounted outside of a business across the street from Tanya's house captured Tanya after she left the house and headed down the street. The security video was admitted into evidence and played for the jury during Tanya's testimony. The video shows Tanya passing by on the street and, about a minute and a half later, Appellant following. Then, about four and a half minutes after that, the video shows Appellant running back towards Tanya's house.

Tanya testified that after she fled the house, she called her mother, Jesusita Bermea, and asked her to pick her up. Jesusita picked Tanya up within minutes and they returned to the house. Tanya testified that when they got back to the house, the front door was locked, but Appellant came out, knocked Jesusita to the ground, and punched Tanya. Jesusita ran down the street and called the police. Dispatch received Jesusita's call at 2:30 a.m.

In the meantime, Tanya drove to Appellant's parents' house down the street to try to persuade them to get Appellant out of Tanya's house. Tanya returned to her house six to eight minutes later, unsuccessful in recruiting their assistance. Tanya testified that the front door was open when she got back, and she saw N.V. on the living room floor with bloody paper towels on her neck. Appellant shoved Tanya out the door and slammed her to the ground.

A neighbor testified to being awakened around 2:35 a.m. by a woman she later recognized as Tanya banging on the front door of Tanya's house and yelling to be let in. She then saw Tanya wrestling with a man in the front yard. The neighbor called 911.

Officer Marcus Rodriguez was the first officer to arrive at 2:37 a.m. The security video captures his arrival about fifteen minutes after Tanya initially fled the house and almost ten minutes after Appellant ran back to the house. Rodriguez found N.V. lying on the floor with blood around her neck. Rodriguez asked Appellant what happened, and Appellant responded that "she slit her throat" and he "didn't do anything." Other officers arrived and began attending to N.V., who was alive but "barely breathing." When Appellant became angry and violent with the officers attending to N.V., he was handcuffed and placed in a patrol car. An ambulance and paramedics arrived at 2:45 a.m. N.V. was transported to the hospital where doctors pronounced her dead shortly after her arrival.

Officers found Appellant's blood throughout Tanya's house, including around the bathroom window and sill, in the bathtub and sink, on walls, blinds, light switches, doorknobs and doors, closet doors, counters, furniture, and floors.^[1] The bloody trail went into N.V.'s bedroom where her bedding was saturated with her own blood. The wall by N.V.'s bed showed two "path[s]" of blood, one originating from N.V. and the other from Appellant. Appellant was wet and bloody, as was the kitchen sink. The blood in and around the kitchen sink was a mixture of Appellant's and N.V.'s blood. Officers followed a trail of blood from Tanya's driveway across the street to a field where they found a bloody knife. N.V.'s and Appellant's DNA were recovered from blood on the knife.

The medical evidence showed that N.V. died from two knife wounds to her neck. One of the cuts penetrated (and almost severed) her jugular vein. The other cut nearly reached the floor of her mouth. Bruising and a cut to N.V.'s chin suggested that her head was positioned and held still as her throat was sliced. The medical examiner testified that without medical intervention, N.V. would have died from her injuries within three to seven minutes. With the application of immediate and consistent pressure to the injuries, N.V. might have survived as long as fifteen to twenty minutes.

After his arrest, Appellant gave a video-recorded statement to Detective Carlton Kolbe, an excerpt of which was published to the jury. In the video statement, Appellant said that he went to Tanya's house and she let him in the front door. He said that they had both been drinking and they argued in the living room. He was about to leave but went into N.V.'s room to kiss her goodnight. He said, "I was just going to give a hug and kiss to [N.V.] and the next thing I know I just felt something sharp on my arm and back and the next thing I know there's blood everywhere." He said Tanya then ran from the house and he tried to run after her, but returned to the house "to check myself and see what happened." He said he saw that he had a cut, saw a knife and picked it up, and saw N.V. covered in blood. He carried N.V. to the living room where he tried to stop the bleeding with paper towels. When Tanya and her mother came back and yelled at him, he told them "I didn't do nothing." He said he pushed Tanya's mother and slapped Tanya and threw the knife at her and asked her "what the fuck is wrong with her." He ran back inside to continue trying to stop N.V.'s bleeding. Appellant said that people were blaming him, but he insisted that he "didn't do nothing."

When Detective Kolbe reviewed the details of the story with Appellant, he asked, "Are you saying Tanya grabbed that knife and cut you with it?" Appellant responded, "I don't know what she did, all I know is that there's . . . it's a knife on [N.V.]'s bed, I'm bleeding. That's when I turned on the light and I saw all of that." Appellant said he turned around and saw Tanya running from the house so he chased her, but then went back to the house. He went into N.V.'s room, turned on the light, and saw that "there was so much blood."

Later, in an interview with a reporter while he was a jail, Appellant said that he had told the police what had happened, that they did not believe him, that they had the evidence, and that "it was all an accident."

II. MENS REA DETERMINATION

The jury charge instructed the jury that in order to find Appellant guilty, it must determine that he caused N.V.'s death intentionally or knowingly. Appellant objected to the charge and requested separate verdict forms to specify whether the jury found that Appellant acted intentionally or acted knowingly in causing N.V.'s death. The trial court overruled the objection and denied the request.

In his second point of error, Appellant claims that the trial court erred in failing to require a jury determination, by separate verdict forms, on whether he acted intentionally or knowingly in killing the child. He argues that this determination was necessary because only a finding of intentional conduct will satisfy the "extreme culpability" required for death eligibility. He contends that a "knowing" mens rea is a constitutionally insufficient basis for imposing the death penalty. He reasons that because "knowingly" is not the most serious mens rea under Texas law, it cannot be characterized as "extreme." Thus, he contends, by permitting a capital conviction based on "knowing" conduct, Texas law fails to ensure that his punishment was based upon a jury determination that he possessed the highest degree of culpability under state law.

Appellant cites Kennedy v. Louisiana, 554 U.S. 407, 420 (2008), Roper v. Simmons, 543 U.S. 551 (2005), and Atkins v. Virginia, 536 U.S. 304 (2002). In this trio of cases, the Supreme Court of the United States recognized the principle that "[c]apital punishment must be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution.'" Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at 319); see Kennedy, 554 U.S. at 420 (quoting same principle from Atkins). In Roper the Court held that the death penalty cannot be imposed upon juvenile offenders. In Atkins, the Court held that it cannot be imposed on intellectually-disabled individuals. The Court reasoned that juvenile and intellectually-disabled offenders had diminished personal culpability, rendering the death penalty disproportionate to their crimes. Kennedy, 554 U.S. at 420. In Kennedy, the Court vacated a death sentence for an offender who raped but did not kill a child, reasoning that the death penalty was disproportionate to the crime which did not result, or was not intended to...