Opinion issued July 3, 2003




                                    In The


                                   For The




                              NO. 01-01-00063-CR


                    PABLO CIENFUEGOS, Appellant
                                     V.

                    THE STATE OF TEXAS, Appellee

                 On Appeal from the 351st District Court
                         Harris County, Texas
                     Trial Court Cause No. 779,383


                                O PINI ON


    Ajury found appellant, Pablo Cienfiiegos, guilty ofthe offense ofcapital
murder.'    Because the State did not seek the death penalty, the trial court
automatically assessed appellant's punishment atconfinement for life.2 Inten points

oferror,3 appellant contends that the trial court erred in admitting, over his objection,
hearsay testimony; the evidence is legally and factually insufficient to support his
conviction; the trial court erred in denying his motion to suppress identification

evidence in violation of his constitutional rights to due process4 and due course of

law;5 his conviction for capital murder under the conspiracy theory ofthe law of
parties6 violated his constitutional rights to due process and due course oflaw; and
the mandatory imposition of a life sentence upon his conviction for capital murder


      Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 2003).
      Tex. Pen. Code Ann. § 12.31(a) (Vernon 2003); Tex. Code Crim. Proc.
      Ann. art. 37.071, § 1 (Vernon Supp. 2003).
     In what he designates as "point of error eleven," appellant asserts that this
     Court erred indenying his motion toabate this appeal. On December 6,2001,
     this Court denied appellant's motion to abate the appeal and remand the case
     to the trial court for an out-of-time motion for new trial. Subsequently, on
     January 31, 2002, this Court issued an order denying appellant's motion for
     rehearing and rehearing en banc ofhis motion toabate the appeal. Appellant's
     eleventh point oferror is, inessence, a further motion for rehearing. As such,
     it is improperly presented. TEX. R, App. P. 49.1, 49.5.
     U. S. Const, amend. XIV.

     Tex. Const, art. I, § 13.

     Tex. Pen. Code Ann. § 7.02(b) (Vernon 2003).
                                          2
 under the conspiracy theory ofthe law ofparties violated his constitutional rights
 against cruel and unusual punishment.7 We affirm.

                                   Background

       Perla Mercedes, the wife ofthe complainant, Teodoro Mercedes, testified that,

on the evening ofDecember 28, 1997, she drove her car, with her infant daughter in
the backseat, into the parking space outside oftheir apartment and a white four-door

car, which looked similar to a police car, pulled in behind hercarand blocked herin.

As Mercedes attempted to reverse her car, two men approached her from both sides
of her car. Jorge Gonzales walked up to the driver's side window and showed

Mercedes a badge around his neck, identifying himselfasa police officer. The other

man, who was never identified, tapped on the passenger's side window with a

handgun. Mercedes put the car in park and unlocked the car doors because she

thought the men were police officers.

      Gonzales then pulled Mercedes by her hair out of her car, threw her into the

back seat of the white car, called Mercedes a "bitch," and demanded money.
Gonzales asked the driver of the white car for handcuffs, and Gonzales then

handcuffed Mercedes' sarms behind her back. Mercedes made eye contact in the rear

view mirror with the driver, a third man, whom she later identified as appellant.

      U. S. Const, amend. VIII; Tex. Const, art. I, § 13.
                                        3
 Appellant spedthe carawayfrom the apartment, andGonzales struckMercedes inthe

head and told her he was going to kill her. Mercedes pleaded for her baby and

offered Gonzales the remote control to her garage. Appellant then drove the white

car into the garage, and Gonzales pulled Mercedes out of the car and instructed

appellant to remove the white car from the garage.

       After everyone was inside the garage, Gonzales then dragged Mercedes up a

staircase toherapartment door. When Mercedes complained thatthehandcuffs were

on too tight, Gonzales responded, "just wait until I put my testicles in you." The

unidentified assailant brought the baby, in her infant carrier, to the top ofthe stairs.

Mercedes then told the men that she could not remember the code to the apartment's
alarm system and that she needed to punch in the code by herself. While Gonzales

and the unidentified assailant looked for something in the garage to release the

handcuffs, appellant stayed atthe top ofthe stairs with Mercedes and the baby.
      When the other two men returned to the top ofthe stairs, the garage door began
to open and Mercedes told the men that it was herhusband. Again, appellant stayed

with Mercedes at the top of the stairs, and Gonzales and the unidentified assailant

went back down the stairs and into the garage. At this point, Mercedes heard

sustained gunfire and attempted to shield her baby from harm. After the gunfire

ceased, Gonzales ran back up the stairs and told Mercedes not to turn around or
move. After Mercedes waited long enough for the men to drive away, she ran

downstairs and saw her husband bleeding to death on the garage floor.

       Mercedes then ran for help and a neighbor assisted her in calling 9-1-1. She

returned to the garage, took her husband's keys and opened the apartment door,

allowing the home alarm to go off. She then contacted the alarm company, informing
it that her husband had been shot and was dying.

      The record reveals that, subsequent to the shooting, Houston Police officers

found an unfired, loaded 9millimeter handgun under thecomplainant and recovered

sixteen shell casings from the scene, all of which had been fired from the same gun.

Officers also found, on the driver's side window of Mercedes's car, a latent

fingerprint that belonged toGonzales. Based on aphotographic array, Mercedes later

identified Gonzales as the man with the badge. After arresting and speaking with
Gonzales, investigators came to suspect appellant as the driver ofthe white car and

a man named "Conde" as the unidentified assailant who tapped on Mercedes's car

window with a handgun.

      Pursuantto further investigation, officers saw a white, four-door FordCrown

Victoria parked outside of appellant's home. The car was owned by appellant and

matched Mercedes's description of the white car driven by appellant on the evening

ofthemurder. OnApril 1,1998, officers arrested appellant near his home as he was
driving a red Isuzu sedan, in which officers found an envelope with the name

"Conde" and a telephone number written on it. Mercedes subsequently identified

appellant in a live lineup as the man who drove the white car on the night of the

murder.


       The charge in this case authorized the jury to convict appellant under three

theories of capital murder: (1) as a principal, (2) as a party, or (3) as a conspirator.

In regard to the conspiracy theory, the application paragraph of the charge reads as

follows:


            Now, if you find from the evidence beyond a reasonable doubt
      that... the defendant, Pablo Cienfuegos, and Jorge Alberto Gonzales
      and an unknownHispanicmaleentered into an agreementto committhe
      felony offense of kidnapping of Perla Mercedes, and pursuant to that
      agreement, if any, they did carry out their conspiracy and that... in the
      courseofcommittingsuch kidnappingofPerla Mercedes, Jorge Alberto
      Gonzales and an unknown Hispanic male intentionally caused the death
      of Teodoro Mercedes by shooting Teodoro Mercedes with a deadly
      weapon, namely a firearm, and that the death ofTeodoro Mercedes was
      an offense that the defendant should have anticipated as a result of
      carrying out the conspiracy, then you will find the defendant guilty of
      capital murder, as charged in the indictment.

After being so charged, the jury returned a general verdict finding appellantguilty of

capital murder.

                                Hearsay Testimony

      In pointoferrorone, appellant contends thatthe trialcourterred in admitting,


                                           6
over his objection, the "inadmissible hearsay" testimony ofa police officer. After the

police obtained Gonzales's fingerprint from Mercedes's car and Mercedes positively

identified Gonzales as one ofthe assailants, Houston Police Officer U. P. Hernandez

arrested and interviewed Gonzales. Following that interview, appellant became a

suspect in the case.

      On appeal, appellant argues that "Hernandez' [sic] testimony told the jury that

what Gonzales told him provided enough probable cause to get a warrant for

[appellant's] arrest." Appellant contends that the "State's intention was to inform the

jury of the contents of the statements without calling the declarant, Gonzales, as a

witness, presenting a clear hearsay problem." He asserts that "the cumulative and

damaging effect ofthis hearsay deprived him ofhis constitutional right to a fair trial

and to confront and cross-examine his accusers."


      Appellant complains of the following testimony:

      [State]:            All right, now before I ask you any further
                          questions, Officer Hernandez, I want to advise you
                          as I will advise counsel and, Your Honor, out of an
                          abundance of caution to the Court, I am not asking
                          to you [sic] say anything that anybody said to you,
                          okay?

      [Officer]:          Okay.

      [State]:            But once Jorge Gonzales was arrested, did you
                          personally come into contact with him? Did you


                                          7
                  personally see him and come into contact with him?

[Officer]:        Yes, I did.

[State]:          Okay. Did you talk to him?

[Officer]:        I did.


[State]:          I don't want to go into what you talked about, but at
                  this point in your investigation after arresting Mr.
                  Gonzales and talking to him, did you proceed to do
                  something else with regards to the investigation?

[Officer]:        Yes, sir, I did.

[State]:          What did you do next after all of that?

[Officer]:        Ifollowed up some information that I received.

[Appellant]:      Excuse me, back door hearsay.

[State]:          No—I'm not, I'm being very careful. I'm sorry
                  [appellant's counsel], I didn't.

[The Court]:      Ladies and gentlemen, please retire to the jury room.

(Jury retired.)

[The Court]:      Officer Hernandez, so it's clear as I can possibly
                  make it, you cannot make any reference to anything
                  he said, you can't talk about anything he said. You
                  can't vaguely refer to anything he said.

                  And when you're asked what you did, he's asking
                  you what did you physically do. Okay? I want to
                  make that as clear as I can possibly make it. You
                  know, in no way, shape or form, can you refer in any
                   way to what Mr. Gonzales said.

[Officer]:         Okay.

[State]:           For the record, we've have [sic] talked about that
                   before he testified and I want the record to reflect
                   and I know counsel knows me, I'm not trying to do
                   any backdoor hearsay. I stopped it there and I want
                   to go on.

[Appellant]:       Again, I object to the question. I object to the
                   response, not the question.

[The Court]:       / understand. All right, let's go ahead and take a
                   bathroom break since we have them out.


(Short recess taken.)

[Appellant]:       Again, we're stipulating that there is nothing wrong
                   with the arrest of the Defendant. Therefore, any
                   mention of him going out and arresting the
                   Defendant is not relative to any material issue. And,
                   in fact, it should not be considered as evidence of
                   guilt.

                   And the reason that's put in the Charge is that,
                   obviously, the jury will imply some prejudice
                   without the instruction. But we're not contesting the
                   legality ofthe arrest, even the legality ofputting him
                   in the lineup. There was a contesting ofthe nature of
                   the lineup.

                   But as far as I'm concerned and, of course, the State
                   already knows this, they put him in a lineup and we
                   object to going into even the arrest.

[The Court]:       Overrule the objection. Let's go.

                                   9
      [Appellant]:        Can we have a running objection to any testimony
                          about the arrestfrom this officer?

      [The Court]:        Absolutely. Yes, you can.

(Emphasis added.) The record reveals that the State then elicited testimony from

Officer Hernandez regarding the actual facts and circumstances surrounding

appellant's arrest. Appellantdirects us to no other testimony by Hernandez, andwe

have found none, concerning what Gonzales may have told Hernandez. Nor does

appellantpoint out anyothertestimony byHernandezfrom whichany inference could

possibly be made that Gonzales implicated appellant.

      As set out above, appellant made two very different objections at different

times. First, appellant objected to "backdoor hearsay" when Officer Hernandez

testified that he "followed up some information that I received" after he spoke with

Gonzalez. The record reveals that, after the State explained its position outside the

presence ofthejury and appellant re-urged hisobjection to Hernandez's response, the

trial court did not rule on the objection.8 The trial court noted, "I understand," and

took a shortrecess. To preserve error for appeal, a complaining party must not only

object, but must also obtain an adverse ruling on the record, unless the trial court

refuses to rule onthe objection andthe complaining partyobjectsto the refusal. TEX.


      The record does not support the concession made by the State in its brief that
      "the trial court overruled appellant's objection."

                                         10
R, APP. P. 33.1. Here, appellant neither obtained an adverse ruling nor objected to

the trial court's ambiguous response. Thus, appellant failed to preserve error in

regard to his "backdoor hearsay" objection.

      Second, after the recess, appellant changed tactics and, instead ofobjecting to

hearsay, objected that any discussion of appellant's arrest was unot relative to any

material issue." After the trial court overruled this objection, appellant asked for "a

running objection to any testimony about the arrest" from Officer Hernandez.

Although appellant obtained a ruling on his relevance objection, this objection does

not comport, on appeal, with his point of error that the trial court erred in admitting

hearsay testimony. TEX. R. APP. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002).

      We overrule point of error one.

                            Sufficiency of the Evidence

      In points of error two and three, appellant contends that the evidence was

legally and factually insufficient to support his conviction for capital murder. In

point of error six, appellant contends that the evidence was factually insufficient to

prove his identification.

      We review the legal sufficiency ofthe evidence by viewing it in the light most

favorable to the verdict to determine if any rational fact finder could have found the

                                          11
essential elements ofthe crime beyond a reasonable doubt. Kingv. State, 29 S.W.3d

556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence

presented attrial, we may not re-weigh the evidence and substitute ourjudgmentfor

that of the fact finder. Id.


       The factual sufficiency of the evidence is reviewed by examining all of the

evidence neutrally and asking whether the evidence, both for and againstthe finding,

demonstratesthat the proofofguilt is so obviously weak as to undermine confidence

in the jury's determination, or the proof of guilt, althoughadequate iftaken alone, is

greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1,11 (Tex. Crim.

App. 2000).

       Under the law applicable in this case, a personcommitsthe offense of capital

murderifhe intentionallycommits murderin the courseofcommitting or attempting

to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or

obstruction or retaliation. TEX. PEN. CODE ANN. § 19.03(a)(2). A person commits the

offense of kidnapping if he intentionally or knowingly abducts another person. Id.

§ 20.03(a) (Vernon 2003).

       Under the law of parties, a person is criminally responsible for an offense

committed by the conduct of another if, acting with intent to promote or assist the

commission ofthe offense, he solicits, encourages, directs, aids, or attempts to aidthe

                                          12
otherpersonto commit the offense. Id. §7.02(a)(2) (Vernon 2003). Moreover, if, in

the attempt to carry out a conspiracy to commit one felony, another felony is

committed by one ofthe conspirators, all conspiratorsare guilty ofthe felonyactually

committed, though having no intent to commit it, if the offense 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) (Vernon 2003). A

person commits criminal conspiracy if, with intent that a felony be committed, he

agrees with one or more persons that they or one or more ofthem engage in conduct

that would constitute the offense. Id. § 15.02(a)(1) (Vernon 2003).

      In regard to legal sufficiency, appellant agues that the evidence does not show

that he acted, as a principal, a party, or a conspirator, with the culpability requiredto

support his conviction for capital murder. He contends that there is no evidence "of

any wordor agreement" by him"to promote or assistthe conduct"ofthe principal in

committing capital murder and no evidence of "actions or words that would showan

understanding and common design to commit the forbidden act." Appellant also

argues that there is no evidence that he had a gun or that he knew anyone had a gun.

      However, the evidence, viewed in a light most favorable to the verdict, amply

supports appellant's conviction under theconspiracy theory ofthelawofparties. The

recordindicates that appellant drove the whitecar used duringthe abduction ofPerla

                                           13
Mercedes. He pulled the white car in behind her car, preventing her escape.

Appellant then waited in the white car as Gonzalez went to Mercedes's car with a

fictitious badge andtheunidentified assailant tapped onherwindow witha handgun.

After Gonzales pulled Mercedes by her hair and threw her into the white car,

Gonzales asked appellant for the handcuffs that were used to restrain Mercedes.

Gonzales also told Mercedes, in appellant's presence, that he was going to kill her.

Furthermore, appellant kept watch overMercedes and her baby when Gonzalez and

the unidentifiedassailantwent to confrontthe complainantand murderhim. After the

shooting, appellant fled the scene in the white car with Gonzales and the unidentified

assailant.


      There is abundant evidence that appellant and the two other assailants agreed

to and, in fact, acted in concert to abduct Mercedes. There is also ample evidence to

support a jury finding that appellant should have anticipated that someone could be

killed as a result of carrying out the kidnapping. Moreover, it is undisputed that,

during the course of the kidnapping, Gonzales and the second man intentionally

causedthe death ofTeodoro Mercedesby shooting him with a firearm. Accordingly,

we holdthat the evidence was legally sufficientto supportappellant's conviction for

capital murder as a conspirator under section 7.02(b).

       In regard to factual sufficiency, appellant merely reiterates that"therecord is

                                          14
devoid of any facts to supporta finding ofguilt" and that Mercedes's identification

of him did not meet the standard for factual sufficiency.         Mercedes positively

identified appellant, both in a live lineup and in court, as the driver of the white car

on the evening of themurder. There was alsoevidence thatappellant actually owned

a white car which matched Mercedes' description and that a piece ofpaper, found in

appellant's possession when hewas arrested, hadthename and telephone number of

another suspect written on it.

      Appellant directs us to no evidence, andwehave found none, that supports his

conclusory argument that the evidence was factually insufficient to support his

identification and conviction. Based on our review of the record, and giving proper

deference to the jury's finding as the trier of fact, we hold that the evidence was

factually sufficient to support appellant's conviction for capital murder as a

conspirator under section 7.02(b).

         Because the jury returned a general verdict, and because the evidence is both

legally and factually sufficient to support a finding of guiltundersection 7.02(b), the

verdict must be upheld. Rabbini v. State, 847 S.W.2d 555, 558 (Tex. Crim. App.

1992).

         We overrule points of error two, three, and six.




                                           15
                                    Identification


      In points of error four and five, appellant contends that, in violation of his

constitutional rights to due process and due course of law, the trial court erred in

denying his motion to suppress both Mercedes' pretrial lineup identification and her

in-court identification of appellant as the driver of the white car. Appellant argues

that the pretrial lineup identificationprocedurewas impermissibly suggestive because

he was the only person in the lineup wearing a red shirt and because ofthe disparity

in the ages, weights and appearances of the other lineup participants.

      The standard of review on a claim that an in-court identification should not


have been admitted due to the taint of an impermissibly suggestive pretrial

identification procedure is set forth in Loserth v. State, 963 S.W.2d 770 (Tex. Crim.

App. 1998). The standard of review depends upon the type of question presented to

the reviewing court. Id. at 772. First, as a general rule, we must give almost total

deference to a trial court's determination of historical facts supported by the record,

especially when the trial court's fact findings are based on an evaluation of the

credibility and demeanor ofthe witnesses. Id. Second, we give the same amount of

deference to the trial court's rulings on "application of law to fact questions," also

known as "mixed questions oflaw and fact," ifthe resolution ofthose questions turns

on an evaluation ofcredibility and demeanor. Id. Finally, we review de novo "mixed

                                          16
questions of law and fact" that do not fall within the second category. Id. In this

case, the question of whether an identification procedure was so impermissibly

suggestive as to give rise to a very substantial likelihood of misidentification is a

mixed question of law and fact that does not turn on an evaluation of credibility and

demeanor. Id. at 772-73. Accordingly, we apply a de novo standard of review.

      A pretrial identification procedure may be so suggestive and conducive to

mistaken identification that subsequent use of that identification at trial would deny

the accused due process of law. Simmons v. United States, 390 U.S. 377, 384, 88 S.

Ct.967,971 (1968); Barley v. State, 906S.W.2d 27,32-33 (Tex. Crim. App. 1995).

We apply a two-step analysis to determine the admissibility of an in-court

identification and ask (1) whether the pretrial identification procedure was

impermissibly suggestive and, ifso, (2) whether the improperly suggestive procedure

created a very substantial likelihood of irreparable misidentification. Simmons, 390

U.S. at 384,88 S.Ct. at 971; Barley, 906 S.W.2d at 33. Ifa court finds thata pretrial

identification procedure was impermissibly suggestive, it must then consider the

factors enumerated inNeil v. Biggers to determine whether thesuggestive procedure

gave rise to a substantial likelihood of irreparable misidentification. 409 U.S. 188,




                                          17
199, 93 S. Ct. 375, 382 (1972).9 A defendant bears the burden of establishing by

clear and convincing evidence that the pretrial identification procedure was

impermissibly suggestive. Barley, 906 S.W.2d at 33-34.

      In regard to the first step, we note that suggestiveness may be created by the

manner in which a pretrial identification procedure is conducted. Id. at 33. For

example, a police officer may point out the suspect or suggest that a suspect is

included in a lineup or photographic array. Id.        The content of a lineup or

photographic array itselfmay be suggestive ifthe suspect is the only individual who

closely resembles the description given by the witness. Id.          Furthermore, an

individual procedure may be suggestive or the cumulative effect of procedures may

be suggestive. Id.

      In a pretrial identification procedure, while the better practice may be to use

asmany individuals as possible who fitthedefendant's description, itis notessential

that all the individualsbe identical in appearance. Buxton v. State, 699 S.W.2d 212,

216 (Tex. Crim. App, 1985). Neither due process nor common sense requires such

exactitude. Id. Although the individuals need not be identical in appearance to the


      These factors are: (1) the witness's opportunity to view the criminal, (2) the
      witness's degree of attention, (3) the accuracy of the witness's description of
      the suspect, (4) the level of certainty at the time of confrontation, and (5) the
      time between the crime and confrontation. Id., 409 U.S. at 199-200, 93 S. Ct.
      at 382.

                                         18
defendant, their similarities in appearance should provide a reasonable test for the

witness's capacityto reliably identify the perpetrator. Fordv. State, 794 S.W.2d 863,

866 (Tex. App.—El Paso 1990, pet. ref d).

      Appellantchallenges the lineup assuggestive,citing discrepancies between the

ages, heights, and weights of appellant and the other individuals used in the lineup.

At the pretrial hearing on appellant'smotion, HoustonPolice Officer John Burmeister

testified as to the manner in which the lineup was compiled. Burmeister requested

five male inmates from the Houston Police Department jail who were Hispanic,

wearing civilian clothing, and had features similar to appellant's. Also, Burmeister

let appellant choose his place in the lineup. The record does reflectthe existence of

overall disparities in the ages, heights, and weights of appellant and the other

individuals used in the lineup. However, the color photograph of the lineup in the

record, labeled Defendant's Exhibit No. 6, reflects that each ofthe Hispanic men had

a moustache, wore civilian clothes, and had similar physical characteristics.

Generally, the photograph shows that the members of the lineup appear to be similar

in age, height and build, with one notable exception—a man, not appellant, who

obviously appears shorter and older than the rest of the members of the lineup. As

noted above, neither due process nor common sense requires that all the individuals

in a lineup be identical in appearance. Buxton, 699 S.W.2d at 216.

                                         19
       Appellant also challenges the lineup as suggestive because he was the only

memberofthe lineupwearing aredshirt. However, the mere fact that appellant wore

aredshirtdid not render the lineup impermissibly suggestive. SeeEpps v. State, 811

S.W.2d237,244(Tex. App.—Dallas 1991, no pet.) (holding photographic lineup was

not suggestive when defendant wore red shirt). Here, the photograph of the lineup

reveals that all ofthe men in the lineup wore short-sleeve shirts.

      After our de novo reviewofthe mixed question of lawand fact presented, we

holdthatappellant has not shown by clear and convincing evidence that the pretrial

lineup procedure was impermissibly suggestive. Accordingly, we further hold that

the trial court did not err in denying appellant's motion to suppress Mercedes's

pretrial lineup identification and herin-court identification ofappellant as the driver

ofthe white car in question.

      We overrule points of error four and five.

                                   Law of Parties


      In points of error seven and eight, appellant contends that his constitutional

rights to due process and due course of law were violated because, as a party to the

offense under section 7.02(b) and not the principal, his conviction was obtained

withouta showing that, atthe time ofthe offense,he possessed the specific intent to

commit murder.


                                         20
      Appellant argues that, under the applicable law, a person can be convicted of

capital murder only ifhe "intentionally commits murder" in the course ofcommitting

or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault,

arson, or obstruction or retaliation. See TEX. PEN. CODE ANN. § 19.03(a)(2). He also

notes that a person acts "intentionally, or with intent," with respect to the nature of

his conduct or a result of his conduct when it is his conscious objective or desire to

engage in the conduct or cause the result. See id. § 6.03(a) (Vernon 2003). Appellant

asserts that "allowing a conviction without also requiring the culpable mental state

required by the definition ofthe offense" impermissibly lowers the State's burden of

proof of a defendant's "state ofmind." He concludes that allowing a capital murder

conviction "under the guise ofthe conspiracy theory ofparties [section 7.02(b) ofthe

Penal Code]" violates constitutional due process and due course oflaw requirements

"by impermissibly dispensing with the intent required by the definition of capital

murder, in fact, by dispensing with any intent whatsoever."

      It is axiomatic that due process, under the Fourteenth Amendment, and due

course oflaw, under Article I, section 13 ofthe Texas Constitution, require that every

criminal conviction be supported by evidence that a rational fact finder could accept

as sufficient to prove all of the elements of the offense beyond a reasonable doubt.

Richardson v. State, 879 S.W.2d 874, 879 (Tex. Crim. App. 1993). Moreover, the

                                         21
most basic and fundamental concept of criminal justice is that, in order to constitute

a crime, the prohibited act must be accompanied by a mens rea. Morissett v. United

States, 342 U.S. 246, 250-52, 72 S. Ct. 240, 243-44 (1952); Cook v. State, 884

S.W.2d 485, 487 (Tex. Crim. App. 1994). It is also true that section 7.02(b) allows

for criminal responsibility to specifically apply to a defendant even though he has "no

intent to commit" the collateral offense, "the felony actually committed." TEX. PEN.

Code. Ann. § 7.02(b).

      However, contrary to appellant's assertion, section 7.02(b) does not dispense

with the requirement of a culpable mental state in regard to a capital murder

conviction under the law of parties. It provides that if, in the attempt to carry out a

conspiracy to commit one felony, another felony is committed by one of the

conspirators, "all conspirators are guilty of the felony actually committed, though

having no intent to commit it, if the offense was committed in furtherance of the

unlawful purpose and was one that should have been anticipated as a result ofthe

carrying out ofthe conspiracy." Id. (emphasis added).

      The Third Court ofAppeals has held that section 7.02(b) does not lack a mens

rea requirement and is not facially unconstitutional in regard to defendants convicted

of capital murder as conspirators to commit other felonies. Gravis v. State, 982

S.W.2d 933, 938 (Tex. App.—Austin 1998, pet. ref d). The Court reasoned that:


                                          22
       While this section allows criminal responsibility for the conduct of
       another, thereby eliminating the necessity for proof of intentto commit
       the felony actually committed [capital murder], it does not excuse the
       state from proving a culpable mental state. In fact, the statute requires
       the state to show that the defendant had both the mens rea to engage in
       aconspiracy and the culpable mental state tocommit the underlying, i.e.,
       the intended felony. The mental state required for the underlying felony
       supplies the mens rea for the felony actually committed by the co
       conspirator.

Id. We agree. Accordingly, we also hold that section 7.02(b) does not facially violate

the Due ProcessClauseof the Fourteenth Amendment or ArticleI, Section 19ofthe

Texas Constitution in regard to defendants convicted of capital murder as

conspirators to commit other felonies. See id.

      We note that the record reveals evidence upon which a reasonable fact finder

could have found that appellant should have anticipated a murder. Here, the record

reflects thatappellant was actively involved in the kidnapping of Mercedes, and he

was present when a handgun was displayed and when Gonzales told Mercedes that

he was going to kill her. Appellant also kept watch over Mercedes and her baby
when Gonzalez and the unidentified assailant went to confront the complainant.

After the shooting, in which the complainant was mortally wounded, appellant fled

the scene inthe white car with Gonzales and the unidentified assailant. Accordingly,

we further hold that section 7.02(b), as applied to appellant in this case, did not

violate theDueProcess Clause of theFourteenth Amendment or Article I, Section 19
of the Texas Constitution. See id. at 939.

      We overrule points of error seven and eight.

                         Cruel and Unusual Punishment


      In points of error nine and ten, appellant contends that the mandatory

imposition ofa life sentence for the offense ofcapital murder violated his right to be

free from cruel and unusual punishment, under theEighth Amendment, and hisright

to be free from cruel or unusual punishment, underArticle I, section 13 of the Texas

Constitution, because, as a party to the offense under section 7.02(b) and not the

principal, he lacked the specific intent to commit murder.

      An individual adjudged guilty of a capital felony in a case in which the State

does not seek the death penalty "shall" be punished by imprisonment for life. TEX.

PEN.CODEANN. § 12.31(a)(Vernon2003). Undertheses circumstances, atrial judge

must sentencethe defendantto life imprisonment. TEX. CODE CRIM. PROC. ANN. art.

37.071, § 1 (Vernon Supp. 2003).

       Appellant asserts that both the United States Constitution and the Texas

Constitution "require that capital punishment be based on 'individual consideration'

of the defendant's culpability." See Lockett v. Ohio, 438 U.S. 586, 602, 98 S. Ct.

2954, 2963 (1978), He also asserts that both constitutions protect against "all

punishments which, by their excessive length orseverity, are greatly disproportionate

                                          24
to the offenses charged." See Weems v. UnitedStates, 217 U.S. 349, 371, 30 S. Ct.

544, 550 (1910). Appellant argues that under Enmund v. Florida, 458 U.S. 782, 102

S. Ct. 3368 (1982), the imposition of a mandatory life sentence for capital murder,

absent any intent to commit or knowledge ofthe crime, constitutes cruel and unusual

punishment.

      In Enmund, the United States Supreme Court held that the Eighth and

Fourteenth Amendments prohibited the imposition of the death penalty on a

defendant who "neither took life, attempted to take life, nor intended to take life." 458

U.S. at 787-88, 102 S. Ct. at 3371-72. The Court noted that the Cruel and Unusual

Punishment Clause of the Eighth Amendment is directed in part, "against all

punishments which by their excessive lengthor severity are greatly disproportioned

to the offenses charged." Id, 458 U.S. at 788, 102 S. Ct. at 3372. It reasoned that:

      For purposes of imposing the death penalty, Enmund's criminal
      culpability must be limited to his participation in the robbery, and his
      punishment tailored to his personal responsibility and moral guilt.
      PuttingEnmund to death to avenge two killings that he did not commit
      and had no intention of committing or causing does not measurably
      contribute to the retributive end of ensuring that the criminal gets his
      just desserts.

Id., 458 U.S. at 801, 102 S. Ct. at 3378 (emphasis added). Because its holding is

limitedto the application ofthe death penalty, Enmund is inapplicable to the present

case becausehere,appellant receivedamandatory sentenceoflife imprisonment. See

                                          25
Koonce v. State, 654 S.W.2d 705, 711 (Tex. App.—Houston [14th Dist] 1983, pet.

refd).

         In Harmelin v. Michigan, the United States Supreme Court expressly refused

to extend the "individualized capital-sentencing doctrine" to an "individualized

mandatorylife in prison withoutparole sentencingdoctrine." 501 U.S. 957,995,111

S.Ct. 2680, 2701 -02 (1991). The Court held thata mandatory life sentence imposed

on a defendant for possessing 672 grams of cocaine did not violate the Eighth

Amendment. Id, 501 U.S. at 995, 111 S. Ct. at 2701. The Court noted that "[t]here

can be no serious contention . . . that a sentence which is not otherwise cruel and

unusual becomes so simply because it is 'mandatory.'" Id.           Thus, the Court

re-affirmed that the United States Constitution does not require individualized

sentencing when the death penalty is not at issue. Id., 501 U.S. at 996, 111 S. Ct. at

2702.


        As noted bythe concurring justicesinHarmelin, "the fixing of prison terms for

specific crimes involves a substantive penological judgment that,asa general matter,

is 'properlywithinthe province of legislatures, not courts.'" Id., 501 U.S. at 998,111

S. Ct. at 2703 (Kennedy, J., O'Connor, J., and Souter, J., concurring) (quoting

Rummell v. Estelle, 445 U.S. 263, 275-76, 100 S. Ct. 1133, 1140 (1980)). Here, the

apparent concern of the Texas Legislature is that, often, a conspiracy to commit one

                                         26
type of felony leads to the commission of other more serious felonies, including

murder. Consistent with its authority, the Legislature decided that, if in their attempt

to carry out a conspiracy to commit one felony, another felony is committed by one

of the conspirators, "all conspirators are guilty of the felony actually committed."

Tex. Pen. CodeAnn.§ 7.02(b). Thus, the operation ofsections 19.03(a)(2), 12.31(a)

and 7.02(b) together reflects a societal decision that, when a person engages in a

conspiracy to commit a felony and a murder is committed by one of the co

conspirators, he should, where the State does not seek the death penalty, be subjected

to the serious penalty of incarceration for life. See Rummel, 445 U.S. 263, 278, 100

S. Ct. 1133, 1141.

      Texas courts have consistently held that the life sentence required under section

12.31(a) of the Penal Code and article 37.071, section 1 of the Code of Criminal

Procedure is not unconstitutional as cruel and unusual punishment under the Eighth

Amendment and Article I, section 13 ofthe Texas Constitution. Barnes v. State, 56

S.W.3d 221, 239 (Tex. App.—Fort Worth 2001, pet. refd) (Eighth Amendment);

Buhl v. State, 960 S.W.2d 927, 935-36 (Tex. App.—Waco 1998, pet. refd) (Eighth

Amendment); Laird v. State, 933 S.W.2d 707,714 (Tex. App.—Houston [14th Dist.]

1996, pet. refd) (Eighth Amendment and Article I, section 13); Prater v. State, 903

S.W.2d 57, 59-60 (Tex. App.—Fort Worth 1995, no pet.) (Eighth Amendment and

                                          27
Article I, section 13).

        We are likewise convinced and further hold that the life sentence required

undersection 12.31(a) ofthe Penal Codeand article 37.071,section 1 of the Codeof

Criminal Procedure does not constitute cruel or unusual punishment, under either the

Eighth Amendment or Article 1, section 13 of the Texas Constitution, when a

defendant has been convicted of capital murder under section 7.02(b) of the Penal

Code.


        In addition, because the record, as noted above, reveals evidence upon which

a reasonable fact finder could have found that appellant should have anticipatedthat,

during the course of the kidnapping, someone could be murdered, we hold that, as

applied to appellant in this case, the life sentence required under section 12.31(a) of

the Penal Code and article 37.071, section 1 ofthe Code of Criminal Procedure does

not constitute cruel or unusual punishment under either the Eighth Amendment or

Article 1, section 13 of the Texas Constitution.

        We overrule points of error nine and ten.




                                          28
                                    Conclusion


      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice


Panel consists of Justices Hedges, Jennings, and Alcala.

Publish. Tex. R. App. P. 47.2(b).




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