                                 NO. 07-07-0465-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                              SEPTEMBER 30, 2009
                        ______________________________

                            SAUL MENDEZ, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE
                      _________________________________

           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2006-414170; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
                     _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                             MEMORANDUM OPINION


      Raising five issues, appellant Saul Mendez appeals from his jury conviction for

murder and the assessment of a life sentence in the Institutional Division of the Texas

Department of Criminal Justice. We affirm.


                                 Factual Background


      On September 18, 2006, Lubbock police officers investigated a white Suburban

vehicle found burning in north Lubbock. The vehicle was registered to Ozell Craft.
Photographs show the interior of the Suburban was burned thoroughly, but officers found

several items that survived the fire, including keys to Craft’s house, a can of bleach and a

knife with “red stains on it.” Officers learned from Craft’s employer he did not come to work

that morning.


       Officers went to Craft’s house located on 42nd Street in Lubbock, where they found

his body lying face down on the floor. He had been stabbed some sixty times, and

defensive wounds, overturned furniture and splattered blood indicated his death followed

a struggle. Except for the blood splatters and other indications of a struggle, the home was

neat and clean.


       After news reports about the burning Suburban, police received a Crime Line tip

about a Hispanic male seen driving Craft’s white Suburban.


       Testimony showed appellant came to Lanny Menafee’s apartment in the early

morning hours of September 18. Although Menafee did not know the name of its owner,

he recognized the white Suburban appellant was driving. Menafee also recognized the

Suburban from television and news reports of its burning.


       Menafee told the jury appellant asked him for help cleaning up “a mess.” He

mentioned fingerprints and walls and furniture, but blood was not mentioned. Menafee

advised him to use bleach and water.


       Aretha Faye Smith testified she was living with Menafee, and was present when

appellant came to Menafee’s apartment. She remembered the visit took place earlier in


                                             2
the evening, estimating it was between 10:00 p.m. and midnight. She did not see how

appellant arrived, but Menafee later told her appellant was in the Suburban. She also

connected the Suburban she saw on the news with Craft. She made the Crime Line call,

and acknowledged she received $1000 for the information.


       Smith testified she heard appellant’s conversation with Menafee about cleaning up

fingerprints, and heard Menafee’s advice. Blood was not mentioned. Appellant said the

house where cleaning was needed was on 43rd or 42nd Street. Appellant tried to get

Menafee to help him clean, but Menafee refused.


       Smith and Menafee said appellant was wearing a white t-shirt. Menafee said

appellant had red spots of blood on his pants. Smith did not notice anything on the t-shirt

but noticed something red on the bottom of his pants. She thought at the time it was paint.


       Menafee and Smith both said Linda Sue Farmer was present at Menafee’s

apartment the same evening. Farmer testified she was acquainted with Menafee and

walked to his apartment on September 17 or 18, where she saw Menafee outside, talking

with a man she identified as appellant. A few minutes after her arrival, she left with

appellant in a white SUV,1 and accompanied him to a duplex apartment. Farmer later

showed police the duplex to which she had gone with appellant. Police later searched the

apartment and found a sock with traces of Craft’s blood.




      1
          Farmer referred to the vehicle both as a Suburban and an Expedition.

                                            3
       Appellant shortly left Lubbock, and was arrested in Chicago on September 21.

Tests showed a beer can found in Craft’s kitchen trash bore appellant’s fingerprints and

DNA, and his fingerprint and palm print were found on the bedroom door of Craft’s home.


       Appellant was indicted for Craft’s murder, and the jury found him guilty over his

contrary plea. Appellant timely filed an appeal.


                                          Analysis


Issue 1: Factual Sufficiency


       Appellant’s first issue challenges the factual sufficiency of the evidence supporting

his conviction. On direct appeal the court must begin its factual sufficiency review with the

assumption that the evidence is legally sufficient under Jackson v. Virginia, 443 U.S. 307,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Watson v. State, 204 S.W.3d 404, 406

(Tex.Crim.App. 2006); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). A

factual sufficiency review considers whether the evidence supporting guilt, though legally

sufficient, is so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or

evidence contrary to the verdict is such that the jury’s verdict is against the great weight

and preponderance of the evidence. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App.

2008); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Watson, 204 S.W.3d

at 414-15. Ultimately in a factual sufficiency review, the appellate court must answer the

single question whether, considering all the evidence in a neutral light, the jury was

rationally justified in finding guilt beyond a reasonable doubt. Grotti, 273 S.W.3d at 283,



                                             4
citing Watson, 204 S.W.3d at 415. Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).


       Although an appellate court’s authority to review factual sufficiency permits the court

to disagree with the fact finder’s determinations, even to a limited degree those concerning

the weight and credibility of the evidence, the appellate court must accord them due

deference. Marshall, 210 S.W.3d at 625; Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App.

2000). See also Steadman v. State, 280 S.W.3d 242, 246-47 (Tex.Crim.App. 2009). Our

analysis must include a consideration of the evidence that, according to the appellant, most

undermines the jury's verdict. Lasiter v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009);

Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


       Reiterated, the jury heard evidence that appellant’s finger and palm prints were found

on an interior door of Craft’s house; that appellant’s DNA was found on an empty beer can

left in the kitchen trash; that, during the night of September 18, appellant visited Menafee’s

home, asking for help cleaning up a mess and mentioning a location on 42nd or 43rd Street;

Craft lived on 42nd Street; appellant was advised to clean with bleach and rags, and police

officers found bleached rags in Craft’s kitchen sink;2 appellant was driving Craft’s suburban

when he visited Menafee’s home; Menafee and Smith saw blood stains on appellant’s pants;

appellant picked up a female at Menafee’s home and took her to a duplex apartment in which

he had resided and that was otherwise unoccupied; a sock with a small amount of Craft’s

       2
        Despite the presence of the bleach and rags, police could see no indication that
any attempt had been made to clean the splattered blood from the home.

                                              5
blood was found on the floor of the duplex apartment; a witness saw a Hispanic male fitting

appellant’s description in the area where the burning Suburban was found; a knife with blood-

like stains was found in the vehicle, along with a bleach can; appellant shortly left Lubbock

and traveled to Chicago.


       Correctly acknowledging that the evidence, and reasonable inferences from it, allow

the conclusion appellant was around Craft’s body after his murder, appellant nonetheless

contends it is factually insufficient to show appellant committed the murder. In support of his

contention, appellant points out there is no evidence of blood on the white t-shirt he was

wearing when he visited with Menafee and Smith, and argues the great amount of splattered

blood found at the scene and the apparent violence of Craft’s death would not have left

Craft’s assailant with a clean shirt. He further argues the evidence of Craft’s blood on

appellant’s sock and pants, and that he sought to clean up Craft’s home, simply show his

presence at the murder scene and a desire to remove the evidence of his presence.3


       Appellant further points out Craft was a large man and had defensive wounds, further

indicating his death involved a violent struggle, but appellant exhibited no cuts or other

indications he had engaged in such a struggle. Appellant points to the medical examiner’s

statement that knife slippage associated with violent stabbing sometimes produces cuts to

an assailant’s hands. We note, however, the medical examiner also said such injuries occur




       3
        He also suggests the evidence could indicate appellant simply was helping the
actual murderer. Elsewhere appellant notes the jury was not charged on the law of parties.


                                              6
in “a minority of cases,” and opined that the absence of injuries on an assailant’s hands

“doesn’t mean anything.”


       We agree the evidence does not compel the inference appellant was Craft’s assailant

but we find the jury reasonably could have drawn an inference of appellant’s guilt from the

evidence it heard. Considering the role of the jury to draw reasonable inferences from the

evidence, Hooper, 214 S.W.3d at 15-17, and viewing the entire record in a neutral light, we

do not find the evidence favoring guilt is so weak that the jury’s verdict seems clearly wrong

and manifestly unjust or that, giving due consideration to the evidence contrary to the verdict,

the great weight and preponderance of all the evidence contradicts the jury’s verdict. The

evidence is factually sufficient. Appellant’s first issue is overruled.


Issue 2: Motion to Suppress


       In his second issue, appellant asserts the trial court erred by denying his request to

suppress evidence obtained in the duplex apartment despite written consent to search given

by the landlord. Appellant’s argument is founded on the holding that a landlord typically

cannot validly consent to the search of a house that he has rented to another. See Maxwell

v. State, 73 S.W.3d 278, 282 n.3 (Tex.Crim.App. 2002), citing Chapman v. United States, 365

U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). We review a trial court's ruling on a motion to

suppress evidence for an abuse of discretion by the court. Villarreal v. State, 935 S.W.2d

134, 138 (Tex.Crim.App.1996). In this review we give almost total deference to the trial court's

determination of historical facts and review the court's application of search and seizure law

de novo. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). Therefore, we will


                                                7
review the evidence in a light most favorable to the trial court's ruling and assume that the trial

court made implicit findings of fact supported by the record. Carmouche v. State, 10 S.W.3d

323, 327-28 (Tex.Crim.App. 2000) (citations omitted). To find error, the court’s judgment

must be “outside the zone of reasonable disagreement” or not “reasonably supported by the

record.” State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006).


       At the hearing on the motion to suppress, the State presented testimony from a police

officer and photographs of the apartment. Appellant’s uncles Alfred and Efrain Mendez, and

appellant, testified for appellant. Although they were not introduced, there was some

testimony about the contents of written statements Alfred and Efrain Mendez gave police a

day or two after the search. In the exercise of its fact-finding role, the trial court reasonably

could have determined, from testimony at the hearing, that no one was living in the apartment

on September 20; that appellant and his common-law wife previously had rented the

apartment but had paid only part of August’s rent and no rent for September; that the

common-law wife was residing in another place; that the apartment was owned by Efrain

Mendez and his sister; that they intended to re-rent the apartment as soon as it was cleaned

up; that the apartment was not rented to appellant; and that appellant had left town. On those

facts, the trial court reasonably could have concluded Efrain Mendez, the apartment’s owner,

had actual authority to consent to its search. See People v. Superior Court of Santa Clara

County, Respondent, Christopher Eugene Walker, Real Party in Interest, 49 Cal.Rptr. 831

(Cal.App. 2006) (owners of property may consent to police search when no other persons are

legitimately occupying it). See also People v. Carr (1972) 8 Cal.3d 287, 298, 104 Cal.Rptr.

705, 502 P.2d 513 (same).


                                                8
Issue 3: Article 38.23 Jury Instruction


       In his third issue appellant maintains the trial court erred in denying his request for an

instruction under article 38.23(a) of the Texas Code of Criminal Procedure because the

evidence raised a fact issue on whether the consent to search the apartment was legally

obtained. By appellant’s view of the evidence, there existed a fact issue on the reasonableness

of the officer’s belief appellant’s uncles Alfred and Efrain Mendez had authority to consent to

search of the apartment. We disagree, and overrule the issue.


       There are three requirements to warrant an article 38.23 instruction: (1) the evidence

heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively

contested; and (3) the contested factual issue must be material to the lawfulness of the

challenged conduct in obtaining the evidence.        Madden v. State, 242 S.W.3d 504, 510

(Tex.Crim.App. 2007). The requirement for establishing a factual dispute is simply that an “issue

[is] raised by the evidence, regardless of whether the evidence is strong, feeble, unimpeached,

or contradicted, and even when the trial court thinks that the testimony is not worthy of belief.”

Walters v. State, 247 S.W.3d 204 (Tex.Crim.App. 2007). The evidence presented is viewed in

the light most favorable to the requested instruction. Bufkin v. State, 207 S.W.3d 779, 782

(Tex.Crim.App. 2006). However, only the testimony heard by the jury can be considered to

determine whether an article 38.23 instruction should be given. Madden, 242 S.W.3d at 510.


       Evaluating the evidence bearing on the reasonableness of the officers’ search based on

consent, we focus on the facts available to the them at the time. See Brimage v. State, 918

S.W.2d 466, 481 (Tex.Crim.App. 1994), citing Illinois v. Rodriguez, 497 U.S.177, 189, 110 S.Ct.


                                                9
2793, 111 L.Ed.2d 148 (1990) (discussing apparent authority). Although appellant, and his

uncles Alfred and Efrain Mendez testified at the hearing on the motion to suppress, none of

them testified before the jury. As noted, case law holds a landlord typically cannot validly

consent to the search of a house that he has rented to another. Maxwell, 73 S.W.3d at 282 n.

3. Limiting our consideration to the evidence heard by the jury, we see no evidence affirmatively

contesting the State’s evidence the apartment was not rented when Alfred and Efrain Mendez

gave police consent to search it on September 20. In particular, we do not agree the impression

Officer Sutton formed on the previous day, before the officers’ contact with appellant’s uncles,

constitutes such evidence. See Madden, 242 S.W.3d at 513 (discussing affirmative evidence

requirement).


Issue 4: Ineffective Assistance of Counsel


       In his fourth issue appellant asserts his trial counsel provided inadequate assistance

because he did not request a sudden passion instruction on punishment.


       To prevail on a claim of ineffective assistance of counsel, a defendant must establish by

a preponderance of the evidence that his lawyer's performance fell below an objective standard

of reasonableness and that there is a “reasonable probability” the result of the proceeding would

have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S.

668, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mallett v. State, 65 S.W.3d 59, 62-63

(Tex.Crim.App. 2001). A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the trial. Hernandez v. State, 726 S.W.2d 53, 55

(Tex.Crim.App.1986). The purpose of this two-pronged test is to judge whether counsel's


                                               10
conduct so compromised the proper functioning of the adversarial process that the trial cannot

be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13

(Tex.Crim.App.1999).


       During the punishment phase of trial, a defendant may argue that he caused the death

while under the immediate influence of sudden passion arising from an adequate cause.

McKinney v. State, 179 S.W.3d 565, 569 (Tex.Crim.App. 2005); see Tex. Penal Code Ann. §

19.02(d) (Vernon 2003). “Sudden passion” is “passion directly caused by and arising out of

provocation by the individual killed or another acting with the person killed which passion arises

at the time of the offense and is not solely the result of former provocation.” Tex. Penal Code

Ann. § 19.02(a)(2) (Vernon 2003). “Adequate cause” is “cause that would commonly produce

a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render

the mind incapable of cool reflection.” Tex. Penal Code Ann. § 19.02(a)(1). Sudden passion is

a mitigating factor that, if found by the fact finder to have been proven by a preponderance of

the evidence, reduces the offense from a first-degree felony to a second-degree felony. See

Tex. Penal Code Ann. § 19.02(c)-(d).


       A defendant seeking a jury instruction on sudden passion must prove there was an

adequate provocation; that a passion or an emotion such as fear, terror, anger, rage or

resentment existed; that the homicide occurred while the passion still existed and before there

was reasonable opportunity for the passion to cool; and there was a causal connection between

the provocation, the passion, and the homicide. McKinney v. State, 179 S.W.3d 565, 569

(Tex.Crim.App. 2005); Trevino v. State, 100 S.W.3d 232, 238 (Tex.Crim.App. 2003). In



                                                11
reviewing a case involving a sudden passion jury charge, it is our duty to focus on the evidence

supporting that charge, not on the evidence refuting it. Trevino, 100 S.W.3d at 239. On appeal,

appellant supports his argument he was entitled to a sudden passion instruction by first

contending the beer can with his DNA found at the scene supported a reasonable inference he

had been a welcome guest at Craft’s home at some point before the murder. Second, he

argues that music playing in the house when police arrived, the presence of a pornographic

DVD in the player, the belief expressed by Larry Menafee that Craft was bisexual, and the

notation by police that the button at the waist of Craft’s pants was unbuttoned when his body

was found all support a reasonable inference that Craft had attempted some sort of sexual crime

on appellant, inciting appellant’s rage and leading to the murder. Third, appellant highlights the

nature of the crime, noting (1) Craft was stabbed at least sixty times and, as the forensic

pathologist testified, this indicated rage on the part of his killer; (2) Craft’s bedroom appeared

to have been ransacked; (3) the door to the bedroom appeared to have been forced open; and

(4) appellant’s fingerprints were on the doorhandle. Appellant argues all these facts indicate “a

cause that would commonly produce a degree of . . . rage . . . [or] terror in a person of ordinary

temper, sufficient to render the mind incapable of cool reflection” and further, support a

reasonable inference of the adequate cause of the rage and murder.


       The State acknowledges the forensic pathologist’s testimony that the number and cluster

of wounds on the victim’s back, when the victim may not have been offering resistance, was a

sign of rage motivating the killer.    But, the State contends, the remainder of appellant’s

evidence is entirely speculative, and we must agree. Appellant argues the presence of his beer

can indicates a social visit with Craft. However, there was no alcohol in Craft’s blood at the time


                                                12
of his death, and no evidence shows whether appellant drank the beer before or after Craft’s

death. Further, we cannot agree the facts that a heterosexual pornographic movie was playing

in the DVD player, that Craft’s pants were unbuttoned, and that one witness thought Craft was

bisexual or gay permit a reasonable inference Craft attempted to perpetrate a sexual crime on

appellant, inciting his rage and leading him to murder. See Hooper v. State, 214 S.W.3d 9, 16

(Tex.Crim.App. 2007) (distinguishing inference from speculation).


       The evidence supporting a sudden passion instruction fails for at least two reasons.

Although the pathologist testified that the manner of the killing indicated rage, neither his

testimony nor any other evidence addressed the adequacy of the supposed sexual advance to

produce such rage in a person of ordinary temper. Evidence is thus lacking that appellant’s rage

arose from an adequate provocation. McKinney, 179 S.W.3d at 569. Second, because of the

speculative nature of the evidence, it does not show the required causal connection between the

provocation, the passion and the stabbing. Id. Combined, the missing elements are of evidence

the asserted provocation would have produced a degree of rage in a person of ordinary temper

sufficient to cause that ordinary person to lose his sensibilities and respond by stabbing the victim

sixty times. If the evidence demonstrates no legally adequate cause, as is the case here, no

amount of subjective passion will justify submission of a sudden passion instruction. See Willis

v. State, 936 S.W.2d 302, 308 (Tex.App.–Tyler 1996, pet. ref’d) (defendant not entitled to a

reduced sentence for murder when his emotional responses are aberrational according to

societal norms).




                                                 13
       Consequently, there was no reason for trial counsel to request an instruction on sudden

passion. Appellant has failed to rebut the strong presumption that his trial counsel's decision not

to request an instruction on sudden passion fell within the wide range of reasonable professional

assistance. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Thompson, 9 S.W.3d at 814. We

overrule appellant’s fourth issue.


Issue 5: Exclusion of evidence


       Via his fifth issue, appellant contends the trial court erred by barring him from asking a

police witness about police reports of complaints by two men in 1997 and 1998 accusing Craft

of attempted sexual assault. Appellant suggests that questioning officers about reports of Craft’s

possible attempted assaults would uncover potential alternative perpetrators of his murder. We

overrule the issue.


       Responding to the State’s objection to appellant’s attempt to question the officer about the

reports, his counsel told the court, “Your honor, I would like to go into two police reports with this

witness that he reviewed years earlier involving Mr. Craft as a suspect into [sic] attempted sexual

assaults. He reviewed them. He signed off on them. He felt there was credible evidence that

the event happened. I think this is relevant to establish whether there were other suspects in this

case considering what went on in the past regarding this . . . victim.”


       The court asked counsel, “What other suspects?” Counsel responded, “Any other

suspects, Judge. When you have possible reports involving attempted sexual assault and you

have this sort of activities outlined in these police reports, it’s my submission . . . that opens up



                                                 14
the possibility of other suspects that they could have investigated. I want to ask him if they’re

trying to track down that line of investigation.”


       Clarifying his theory to the court, counsel then said, “I’m saying that if this individual, Mr.

Craft, has a history of this type of behavior, then it is much more likely that there were other

people out there with either the reason or the means to have committed this act and that’s what

I want to ask about.”


       We initially confront the question whether counsel’s argument to the court was a sufficient

statement of what the excluded evidence would show to preserve error. See Guidry v. State, 9

S.W.3d 133, 153 (Tex.Crim.App. 1999) (error in exclusion of evidence not presented for review

absent statement of what excluded evidence would show). The State does not expressly

contend error was not preserved, so we will assume, arguendo, the issue is presented for review.


       Addressing “alternative perpetrator” evidence, the Court of Criminal Appeals has noted

that although an appellant certainly has a right to establish his innocence by showing that

someone else committed the crime, he still must show that his proffered evidence "is sufficient,

on its own or in combination with other evidence in the record, to show a nexus between the

crime charged and the alleged ‘alternative perpetrator.'" Wiley v. State, 74 S.W.3d 399, 406

(Tex.Crim.App. 2002). The nexus must include proof that the other person “committed some act

directly connecting him with the crime.” Wiley, 74 S.W.3d at 406 n.19 (quoting State v. Woods,

508 S.W.2d 297, 300 (Mo.App.1974)). In Wiley, the defendant identified a particular alternative

perpetrator but the Court of Criminal Appeals held that the probative value of the defendant’s

proffered evidence of his involvement was slight because of its speculative nature. The court


                                                    15
further held that even assuming the evidence had “some marginal relevance,” it would not

withstand the balancing required by Rule of Evidence 403. Wiley, 74 S.W.3d at 407. Here,

appellant does not contend that his proffered evidence even identifies a particular alternative

perpetrator, much less that the asserted perpetrator had committed some act directly connecting

him with Craft’s murder. Compared with the requirements outlined in Wiley, the proffer consisted

merely of “unsupported speculation that another person may have done the crime.” Id. at 407.

The trial court did not abuse its discretion by excluding it.


       Having overruled all of appellant's issues, we affirm the trial court's judgment.




                                                  James T. Campbell
                                                       Justice




Do not publish.




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