In the Court
of Criminal Appeals of Texas
Gilmar Alexander Guevara,
The State of Texas
Appeal from Harris Coounty
Meyers, J., delivered the
opinion of the Court in which Keller, P.J., Price, Johnson,
Keasler, Hervey, Holcomb, and Cochran, J.J., joined.
Womack, J., concurred.
O P I N I O N
In May 2001,
a jury convicted appellant of capital murder. Tex. Penal Code Ann.
? 19.03(a). Pursuant to 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 judge sentenced appellant to
death. Art. 37.071, ? 2(g). (1) Direct appeal to this
Court is automatic. Art. 37.071, ? 2(h). Appellant raises three
points of error. Because appellant challenges the sufficiency of
the evidence at punishment, we will set out the pertinent facts.
STATEMENT OF FACTS
a.m. on June 2, 2000, officers responded to a reported burglary
and shots fired at a convenience store on Ranchester Street in
Houston. Upon arrival, they discovered the bodies of Tae Youk and
Gerardo Yaxon lying inside the store. Both had been shot and were
dead. On June 10, the police arrested appellant in Texas City
pursuant to a warrant. Shortly thereafter, they obtained his
consent to search his Texas City apartment and his vehicle.
Officers also obtained appellant's wife's consent to search the
search of appellant's car, officers recovered three pullover masks.
(2) From appellant's apartment, officers recovered a .40-caliber
Smith & Wesson pistol, a .380-caliber Bersa pistol, a box of .40-caliber
ammunition, and a box of .380-caliber ammunition. The firearms
examiner testified that the Smith & Wesson pistol recovered at
appellant's apartment fired the bullets recovered at the crime
scene. The examiner also testified that the manufacturer who made
the .40-caliber ammunition recovered from appellant's residence
also made the bullets recovered at the crime scene. DNA samples
recovered from one of the masks matched both appellant's and one
of his co-defendant's DNA samples.
subsequently gave an audiotaped statement to the authorities
explaining the events on the evening of the murders. In his
statement, appellant stated that he was riding around in his van
with some friends that evening when someone said, "[L]et's go to
the store there." Appellant and two others approached the store to
"get the money." When appellant first entered the store, one of
the store attendants hit him. At that time, one of his co-defendants
told him to "shoot, shoot, shoot," and appellant shot at the
attendant. Appellant claimed that he did not remember how many
shots he fired but that he did not want to hurt anyone. Appellant
and his accomplices left the store without taking anything.
SUFFICIENCY OF THE
EVIDENCE AT PUNISHMENT
In his third
point of error, appellant claims that the evidence presented at
trial was legally insufficient to support the jury's finding that
he would be a continuing threat to society. See Art.
37.071 ? 2(b)(1). In reviewing the sufficiency of the evidence at
punishment, this Court looks at the evidence in the light most
favorable to the verdict to determine whether any rational trier
of fact could have believed beyond a reasonable doubt that
appellant would probably commit criminal acts of violence that
would constitute a continuing threat to society. See Jackson
v. Virginia, 443 U.S. 307 (1979); Allridge v. State,
850 S.W.2d 471 (Tex. Crim. App. 1991), cert. denied, 510
U.S. 831 (1993). The facts of the crime alone can be sufficient to
support the affirmative finding to the future dangerousness
special issue. Allridge, 850 S.W.2d at 488. In addition
to the circumstances of the case, other evidence, such as prior
bad acts and uncharged conduct, prior criminal record, psychiatric
evidence, and character evidence may support the finding.
Hayes v. State, 85 S.W.3d 809, 814 (Tex. Crim. App. 2002).
presented at trial demonstrates appellant's complete disregard for
the sanctity of human life. In his statement to the police,
appellant told the police that the reason he shot one of the
victims was because he was urged to do so by a co-defendant. The
State also presented evidence revealing appellant's lack of
remorse over the murders. During the punishment phase of the trial,
the State presented evidence, that within hours after committing
the instant double homicide, appellant shot and killed an
apartment security guard for the sole purpose of taking his gun.
State presented evidence of a number of prior crimes appellant had
committed. On May 5, 1994, appellant was arrested for unlawfully
carrying a weapon. On December 19, 1994, appellant was arrested
for driving a stolen vehicle. In January 1995, appellant was
arrested for selling a stolen vehicle to undercover police
officers working an auto-theft sting operation. As briefly
discussed below in point of error two, on February 11, 2000,
appellant and another masked man robbed Ahmed Fraz and two of his
friends. During this incident, Fraz stated that appellant put a
gun to his head and pulled the trigger, but the gun did not
discharge. Appellant then beat him and one of Fraz's friends with
his pistol, causing very serious and permanent injuries to the
friend. Appellant subsequently announced to friends that he had
robbed and beat up "some Ghandis [sic]." Finally, appellant used a
credit card that he had taken from Fraz to purchase items at an
adult ware store.
testing also connected appellant to a robbery that occurred on May
20, 2000, at a Houston convenience store. During this incident,
two masked individuals entered the store with guns in hand. One of
the individuals placed his gun to an employee's head, and the
victim heard him chamber a round as if he was getting ready to
fire. The owner of the store then distracted the man, and the
perpetrator advanced toward him. Shortly thereafter, both
assailants opened fire, and the owner was shot in the arm.
together, the facts of the instant case and appellant's history,
which shows an escalating pattern of violence, permit a rational
jury to conclude that appellant would continue to be a threat to
society. Accordingly, we hold the evidence legally sufficient to
support the jury's affirmative answer to the future dangerousness
issue. Jackson, 443 U.S. 307; Allridge, 850 S.W.2d
471. Point of error three is overruled.
MOTION TO SUPPRESS
In his first
point of error, appellant claims that the trial court reversibly
erred in overruling his motion to suppress evidence that was
obtained through the warrantless search of appellant's automobile
and apartment. Appellant correctly notes that under the Fourth and
Fourteenth Amendments a search conducted without a warrant issued
upon probable cause is "per se unreasonable . . . subject
only to a few specifically established and well-delineated
exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973)(quoting Katz v. United States, 389 U.S. 347, 357
(1967)). He also correctly recognizes that a search conducted with
the consent of the suspect is one such established exception.
Schneckloth, 412 U.S. at 219. However, for consent to be a
valid exception, that consent must be voluntary. See id.
at 223. Appellant asserts that his consent was not voluntary
because he was an immigrant from El Salvador with only a fourth
grade education and a limited grasp of the English language; thus
his ability to read and comprehend the consent to search form was
of an alleged consent to search is a question of fact to be
determined from all the circumstances. Ohio v. Robinette,
519 U.S. 33, 40 (1996); Maxwell v. State, 73 S.W.3d 278,
281 (Tex. Crim. App. 2002). The federal constitution requires the
State to prove the validity of the consent by a preponderance of
the evidence, while the Texas Constitution requires the State to
show by clear and convincing evidence that the consent was valid.
Maxwell, 73 S.W.3d at 281. At a suppression hearing, the
trial judge is the sole and exclusive trier of fact and judge of
the credibility of the witnesses and their testimony. Id.
The appropriate standard for reviewing a trial court's ruling on a
motion to suppress 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. Id.;
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
hearing on appellant's motion to suppress, the judge entered
findings of fact and conclusions of law. In her findings, which
are supported by the record, the judge found that Officer Phillip
Guerrero assisted in appellant's arrest. At the hearing, Guerrero
testified that he knew appellant from the investigation of an
unrelated case and knew that appellant spoke both English and
Spanish. Guerrero read appellant his statutory warnings in Spanish,
and appellant indicated that he understood those warnings.
Guerrero also gave appellant a Spanish-language consent to search
form requesting permission to search appellant's vehicle and his
apartment. Guerrero explained the form to appellant in Spanish and
also determined that appellant could read the form by having him
read the first sentence aloud. Guerrero also told appellant that
he had the right to refuse to consent to the search, and such a
statement appeared on the form itself. Appellant signed the form
shortly thereafter. Guerrero testified that appellant was not
threatened or coerced into signing the consent form. The judge
concluded that appellant gave his consent to search his vehicle
and his apartment knowingly, freely, and voluntarily.
all of the circumstances and giving proper deference to the trial
court's determination, we hold that the State proved by clear and
convincing evidence that appellant consented to the search of his
home and his car. (3) See generally, Martinez v.
State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000); Reasor
v. State, 12 S.W.3d 813, 819 (Tex. Crim. App. 2000). Point of
error one is overruled.
Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1996),
cert. denied, 522 U.S. 994 (1997), appellant complains in his
second point of error that the trial court reversibly erred in
overruling his objection to improper victim-impact testimony at
the punishment phase of trial. Specifically, appellant complains
about the testimony of Ahmed Fraz concerning an extraneous
aggravated robbery appellant had purportedly committed. Fraz
testified that he was with a friend, Mohammed Zubair, when they
were attacked on Club Creek Drive in Houston. During the robbery,
one of the robbers struck Zubair in the head with a gun and beat
him so badly that his injuries caused mental impairment, and
Zubair can no longer work or comprehend what he is doing. Although
Fraz could not identify appellant as one of the robbers because
they wore masks, other evidence including appellant's own
admissions confirmed that appellant was the person who beat Zubair.
prosecutor asked the witness about the personality changes Zubair
has suffered as a result of the attack, appellant objected "as to
the form of the question." The judge sustained the objection. The
prosecutor then asked Fraz what he noticed that was different
about Zubair after the attack. Appellant objected that Fraz had
not been qualified as a medical expert. The judge overruled this
objection. Appellant made no other objections to Fraz's testimony
regarding Zubair. We hold that appellant has failed to preserve
any error regarding its admission because the objection at trial
does not comport with the complaint raised on appeal. See
Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999),
cert. denied, 531 U.S. 828 (2000). Furthermore, even if
appellant had preserved error, Fraz's testimony is not the type of
evidence that was characterized as inadmissible extraneous "victim
impact evidence" in Cantu v. State, 939 S.W.2d at 637.
Point of error two is overruled.
the judgment of the trial court.
January 15, 2003
1. Unless otherwise indicated all future
references to Articles refer to the Code of Criminal Procedure.
2. In an audiotaped statement to the police,
appellant explained that he and two co-defendants were wearing
masks at the time of the alleged offense.
3. Because the State proved the validity of the
consent under the greater burden of clear and convincing evidence,
the federal burden of preponderance has also been met.