Lopez v. State

565 S.W.3d 879

Belisario I. LOPEZ, Appellant

v.The STATE of Texas, Appellee

NO. 14-17-00205-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed December 20, 2018

Martha Hill Jamison, Justice

Appellant Belisario I. Lopez challenges his capital murder conviction and the assessment of certain court costs against him. Concluding that the evidence is legally sufficient to corroborate accomplice witness testimony, counsel was not ineffective for failing to object during the State’s closing argument, and the court costs assessed against appellant are constitutional, we affirm.

Background

Three armed men—Jose Rivera ("Capo"), Fernan Santiago Vargas ("Bulto"), and Johnny Enamorado—entered the 45 Smoke Shop. Each carried a loaded weapon. Their plan was to steal drugs and money that Capo believed the shop owner kept at the store.

The men left the store without any drugs. But Bulto came out with an additional gun stolen from the store owner, and Enamorado came out with a gunshot wound to his leg that continued to bleed as he entered the getaway car—a blue Hyundai. The store owner was shot five times and died.

Video evidence shows the three men walk into the store with guns. Enamorado testified that appellant cased out the 45 Smoke Shop before the robbery, planned the heist with Capo, and acted as the getaway driver.

Cell phone records show that appellant was at or near the 45 Smoke Shop a week before the murder and that he communicated with Capo many times that day. Similar cell phone record evidence shows appellant’s whereabouts the day of the murder. Appellant admitted he had a business relationship with Capo and sold the Hyundai to Bulto.

At trial, appellant presented an alibi that he was with his wife Jeydee Gomez on the day he was allegedly "casing" the 45 Smoke Shop and that he was with his friend Crandall "Troy" Jones, who wanted to borrow his car, on the night of the murder. Gomez and Jones testified that appellant was with them on the respective nights.

During closing arguments, the State attacked the credibility of appellant’s alibi and made several statements suggesting that appellant or his counsel or both had asked Gomez and Jones to lie. During closing argument, the State argued: "[A]s I'm sure you've suspected, you've ... been lied to today. Let’s talk about Jeydee Gomez, who of her own volition or of being asked by the defendant, she got on that stand and she lied to you."

Later, during the rebuttal portion of the State’s closing argument, the prosecutor argued:

Belisario’s credibility. You know, it’s a good story that these individuals decide to frame him because they owed him a thousand dollars. But the problem is Belisario and Jeydee and Troy tried just too hard to explain everything. Right? They needed to explain the calls on the 3rd so they put up Jeydee. Let’s be truthful here. The 3rd doesn't really matter. I mean, it doesn't. No offense happened on the 3rd. There’s communication on the 3rd but no offense happened on the [3]rd. Why put Jeydee up there to lie?

At the end of the rebuttal portion of the State’s closing argument, the State argued:

And ladies and gentlemen of the jury, I submit to you beyond a reasonable doubt that the reason he lied is because he knows he’s guilty. Because he doesn't want to go to prison. And the best way to avoid that is to take the stand and lie and ask your wife to lie and ask Troy who works for you and depends on you for a living to lie. And that’s what he did. And now that you see hard evidence of that lie, you should be disgusted with him. Disgusted that he would take the stand and take that oath and flat out lie. Regardless of trying to save himself, flat out lie under oath. It’s ridiculous, and you all should feel the same disgust that I feel for that.

Appellant’s trial counsel did not object to these statements, ask the trial court to instruct the jury to disregard them, or move for a mistrial. The jury found appellant guilty. Appellant received a mandatory sentence of life imprisonment without the possibility of parole.

Discussion

I. The evidence is legally sufficient to corroborate accomplice witness testimony.

In his first issue, appellant challenges the legal sufficiency of the evidence to corroborate the testimony of accomplice witness Enamorado. A conviction obtained in reliance upon accomplice testimony must be supported by sufficient corroborating evidence tending to connect the defendant to the offense committed. Tex. Code Crim. Proc. art. 38.14 ; Druery v. State , 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). When reviewing the sufficiency of the evidence to corroborate accomplice testimony, we eliminate the accomplice testimony and then examine the remaining portions of the record to see if there is any evidence that tends to connect the defendant with the commission of the offense. Malone v. State , 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) ; Smith v. State , 436 S.W.3d 353, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). The corroborating evidence need not, standing alone, rise to the level of proof beyond a reasonable doubt. Malone , 253 S.W.3d at 257 ; Smith , 436 S.W.3d at 369. Instead, the evidence simply must link the defendant to the commission of the offense and show that rational jurors could conclude that the evidence sufficiently "tended to connect" the defendant to the offense. Simmons v. State , 282 S.W.3d 504, 508 (Tex. Crim. App. 2009) ; Smith , 436 S.W.3d at 369. Accordingly, corroborative evidence need not be legally sufficient in itself to establish a defendant’s guilt. Casanova v. State , 383 S.W.3d 530, 538 (Tex. Crim. App. 2012) ; Smith , 436 S.W.3d at 369.

Taken in isolation, suspicious circumstances such as the accused’s presence at the scene of the crime, motive, or opportunity to commit the crime are not by themselves sufficient to corroborate the testimony of an accomplice witness. Smith , 436 S.W.3d at 369. But cumulative suspicious circumstances may tend to connect the accused to the charged offense, even if no circumstances are sufficient to do so individually. Id. Viewed collectively, even otherwise insignificant incriminating circumstances may tend to connect a defendant to a crime he is accused of committing. Id. Therefore, we "consider the combined force of all of the non-accomplice evidence that tends to connect the accused to the offense." Smith v. State , 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). We view the evidence in the light most favorable to the jury’s verdict. Brown v. State , 270 S.W.3d 564, 567 (Tex. Crim. App. 2008).

According to the indictment, appellant, while committing or attempting to commit robbery, intentionally caused the store owner’s death by shooting him with a firearm. A person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. Tex. Penal Code §§ 19.02(b), 19.03(a). A person may be convicted as a party to an offense if the offense is committed by the actor’s own conduct, by the conduct of another for which the actor is criminally responsible, or both. See id. § 7.01(a).

The trial court instructed the jury on the law of parties and the law of conspiracy. See id. § 7.02. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, the person solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a). If, in the attempt to carry out a conspiracy to commit robbery, capital murder is committed by one of the conspirators, all conspirators are guilty of the capital murder actually committed, though having no intent to commit it, if the capital murder was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Id. § 7.02(b).

In addition to Enamorado’s accomplice witness testimony, the following evidence was adduced at trial:

• Appellant testified that he had a preexisting relationship with Capo and Bulto, employed Capo in connection with his renovation business, and sold Bulto the blue Hyundai. Appellant admitted he communicated with Capo on the phone a lot in January, before and after the crime, although appellant claimed that this communication was related to the sale of the car.

• Two police detectives (Condon and Powell) testified that appellant’s and Capo’s phones were at or near the 45 Smoke Shop six days before the murder. This testimony was supported by phone mapping illustrations.

• Condon testified that cell phone record data shows appellant had a flurry of voice communications with Capo and exchanged four texts with Capo six days before the murder.

• Sergeant Rodriguez testified as to Gomez’s text messages extracted from appellant’s phone and translated from Spanish. The text messages conflicted with appellant’s alibi as it related to his whereabouts six days before the murder. Specifically, Gomez’s text messages to appellant during the timeframe that she stated she was with appellant were inconsistent with testimony that Gomez and appellant were together at that time and were inconsistent with the purported subject matter of their communications.

• Condon testified that cell phone record data showed appellant and Capo exchanged 25 voice calls on the day of the murder and a 1 minute, 39 second call from appellant to Capo at 8:49 p.m., which Condon testified "probably was the call right before they entered [the 45 Smoke Shop]." Condon also testified that appellant was in the general vicinity of the shop on that day.

• Powell testified that the cell phone record data, after application of Cell Hawk software, showed that (1) appellant’s cell phone was at or near a gas station near the scene of the murder shortly before the time of the crime; and (2) appellant’s cell phone was at or near the 45 Smoke Shop at the time of the murder.

• Officers testified as to

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