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                     NO. 12-03-00165-CR
 
IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

 
RAFAEL CAHVARRIGA,                                 §                 APPEAL FROM THE 392ND
APPELLANT
 
V.                                                                         §                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                                        §                 HENDERSON COUNTY, TEXAS





OPINION
            A jury convicted Appellant Rafael Cahvarriga of murder and sentenced him to imprisonment
for fifty-five years.  In three issues, Appellant complains of the trial court’s denial of his motion to
suppress, its determination that a juror was disabled, and its failure to charge the jury on certain
lesser included offenses.  We affirm.

Background
            On August 15, 2001, Appellant was indicted for the murder of his wife, Melissa Bonk. 
Appellant pleaded not guilty to the charge, and the matter proceeded to a jury trial.  
            The trial evidence showed that at 5:00 a.m. on April 23, 2001, twenty-two-year-old Appellant
was in bed with sixteen-year-old Jennifer Nix in the master bedroom of Appellant’s Mabank trailer 
house.  According to Appellant’s trial testimony, he and Jennifer were awakened by a noise outside
the window of the trailer.  Appellant looked out the window and saw Melissa’s car.  Melissa entered
the trailer through a window.  Appellant, dressed in boxer shorts, confronted Melissa in the bathroom
just off the master bedroom.  Melissa demanded to know who Jennifer was and began throwing
things at her.  Jennifer, who was nude, wrapped herself in a sheet and escaped into an adjoining
room.  
            Jennifer testified that, from her vantage point, she could hear Appellant and Melissa shouting
insults and abuse at each other.  She could also hear Appellant and Melissa wrestling and being “very
physical.”  As they wrestled, they moved into other parts of the trailer and ultimately returned to the
master bedroom.  Jennifer heard Melissa scream “You are killing me” and then heard her trying to
get her breath.  The sound stopped and she heard nothing further from Melissa.  She testified that
at this point she did not hear any noise from Appellant either.  A few minutes later, she heard the
shower come on.  She said that Appellant came out of the master bedroom and told her that he had
calmed Melissa down, but that he needed to take her (Jennifer) home.  He went back into the master
bedroom, retrieved Jennifer’s clothes, and took her home.
            Appellant testified that he had calmed Melissa down by putting her in the shower and turning
cold water on her.  He said that Melissa was in the bathtub taking a bath when he took Jennifer
home.  However, when he returned to the trailer, he found Melissa dead in the bathtub with a syringe
stuck in her arm.  Appellant stated that he panicked at this sight.  He put weights on Melissa’s body,
wrapped it in a sheet, and put it in a trash can.  He then dumped the trash can, with Melissa’s
weighted body inside, into the Trinity River.  A fisherman in Freestone County found Melissa’s
partially decomposed body in the Trinity River fifteen days later on May 8. 
            After disposing of Melissa’s body, Appellant filed a missing person report with Henderson
County law enforcement authorities.  Following a meeting with the investigating officers, Appellant
hired an attorney.  After Melissa’s body was found, Appellant fled to Florida with Jennifer, traveling
under the name of “Dustin Kennedy.”  On June 6, he was arrested by police in Hialeah, near Miami,
on two outstanding felony warrants for drug possession and a weapons violation.  He  identified
himself to the arresting officers as “Dustin Kennedy.”  After the arrest, Appellant gave an audio-taped statement to three Hialeah police officers describing the events leading up to Melissa’s death. 
Appellant filed a motion to suppress the statement, which was denied.  The statement was introduced
into evidence at trial and conflicted with Appellant’s trial testimony.  
             Jill Irvin, the medical examiner who performed the autopsy, testified that Melissa’s body had
been so badly decomposed after being in the water for fifteen days that she could not determine a
specific cause of death.   
            The jury found Appellant guilty of murder and assessed his punishment at imprisonment for
fifty-five years.  Appellant timely filed this appeal.

Sixth Amendment
            In Appellant’s first issue, he asserts that the trial court erred in denying his motion to
suppress his audio-taped statement to the Hialeah, Florida police.  In the statement, Appellant said
that Jennifer had run into his room at 5:00 a.m. screaming that someone had broken into the trailer
house.  Appellant said he feared for his life and grabbed a .12 gauge shotgun.  He pumped the gun,
only to find that it was not loaded.  He then used it to strike the intruder, who he later determined
was his wife, Melissa. 
            Appellant points out that (1) at the time of his arrest, the Hialeah police knew he was a
suspect in Melissa’s death, (2) the officers knew before he gave the audio-taped statement that he
was represented by an attorney in Texas in connection with Melissa’s death, and (3) the officers
knew Appellant’s Texas attorney did not want them to talk to Appellant about Melissa’s death. 
Therefore, Appellant argues, his Sixth Amendment right to counsel
 precluded the officers from
taking his statement without his counsel present to advise him.  
Standard of Review
            We review a trial court’s ruling on a motion to suppress for abuse of discretion.  See
Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  In reviewing the trial court’s
ruling, we apply a bifurcated standard of review.  See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.
Crim. App. 2000).  We give almost total deference to the trial court’s determination of historical
facts and review de novo a trial court’s application of the law to those facts.  Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997).  In a suppression hearing, the trial court is the sole trier of
fact and judge of the credibility of the witnesses and the weight to be given their testimony.  State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Applicable Law and Analysis
            The Sixth Amendment provides that in all criminal prosecutions the accused shall enjoy the
right to assistance of counsel for his defense.  U.S. Const. amend. VI; McNeil v. Wisconsin, 501
U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991).  However, this Sixth Amendment
right is offense specific.  Id.  The Sixth Amendment right to counsel cannot be invoked against
potential future prosecutions that have not commenced.  Id.  Moreover, the right to counsel does not
attach until the initiation of adversary judicial proceedings (including formal charge, preliminary
hearing, indictment, information or arraignment).  Texas v. Cobb, 532 U.S. 162, 167-68, 121 S. Ct.
1335, 1340, 149 L. Ed. 2d 321 (2001).  
            As authority for his contention that he was entitled under the Sixth Amendment to consult
the counsel he had retained before his June 6 arrest, Appellant cites Holloway v. State, 780 S.W.2d
787 (Tex. Crim. App. 1989).  However, this case is distinguishable from the facts before us.  In
Holloway, the appellant was indicted for capital murder the day before he spoke to law enforcement. 
Consequently, his Sixth Amendment right to counsel had attached at the time he was interviewed
by the officers.  Id. at 793-94.
            Here, Appellant was arrested on the outstanding felony warrants for drug possession and
weapons violations.  He was only a suspect in his wife’s murder.  An arrest for a charged offense
does not trigger a person’s Sixth Amendment right to counsel for an uncharged offense.  Upton v.
State, 853 S.W.2d 548, 555 (Tex. Crim. App. 1993).  Appellant’s right to counsel did not attach on
the charge in the instant case until adversary judicial proceedings were instituted.  See Holloway, 780
S.W.2d at 795. This occurred when Appellant was indicted for Melissa’s murder more than two
months after he spoke to the Hialeah police.  Holloway is therefore inapplicable to the facts before
us.  
            Once the Sixth Amendment right to counsel has attached, the police may not interfere with
the efforts of an attorney to act as a medium between his client and the State during an interrogation. 
Id. at 791 (citing Moran v. Burbine, 475 U.S. 412, 428, 106 S.Ct. 1135, 1144, 89 L.Ed.2d 410
(1986)).  Prior to that time, a suspect who has been properly advised of his right to counsel under
Miranda can waive the right.  See Holloway, 780 S.W.2d at 790.  This is true even where the suspect
has counsel.  See Burbine, 475 U.S. at 429, 106 S.Ct. at 1145.  The trial court found that Appellant
initiated the communication with the Hialeah police, was read his Miranda warnings, and still chose
to give a statement about Melissa’s death.  The record supports these findings.  The trial court
correctly applied the law to the facts and determined that Appellant knowingly, intelligently, and
voluntarily waived his right to counsel.  Therefore, the trial court did not abuse its discretion in
denying Appellant’s motion to suppress the written statement he gave in Florida.  Appellant’s first
issue is overruled.
Disabled Juror
            In his second issue, Appellant contends that the trial court erred in determining that juror
Victoria Hamelin was disabled and in not granting Appellant’s motion for mistrial instead of
discharging Hamelin as a juror.
            A juror is disabled only when the juror is physically, emotionally, or mentally impaired in
some way that hinders the juror’s ability to perform the duties of a juror.  Brooks v. State, 990
S.W.2d 278, 286 (Tex. Crim. App. 1999).  Stated another way, a disability is not limited to physical
disease, but also includes “any condition that inhibits a juror from fully and fairly performing the
functions of a juror.”  See Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000) (citing Griffin
v. State, 486 S.W.2d 948, 951 (Tex. Crim. App. 1972)).  This condition may result from physical
illness, mental condition, or emotional state.  Reyes, 30 S.W.3d at 411; Brooks, 990 S.W.2d at 286. 
The determination as to whether a juror is disabled is within the discretion of the trial court.  Id. 
Absent an abuse of that discretion, no reversible error will be found.  Id. 
            The record before us shows that Hamelin had been impaneled along with the eleven other
jurors on March 24, 2003 to hear Appellant’s case.  The next morning, before the jury began to
consider any evidence in the trial, Hamelin appeared before the trial judge.  She explained that she
had not realized until she had gone home the night before that she knew about Melissa’s murder. 
She further explained that she lived with her son, Scott, who was a close friend of Darla Harvey. 
Darla Harvey was Melissa’s aunt.  Hamelin also testified that Scott was a good friend of Darla
Harvey’s son, Bobby, and that they worked on cars together.  She told the court that her son owned
the house in which they lived and that he allowed her to live there rent free.  
            The trial court found that Hamelin appeared to be in an agitated and nervous condition as she
related these facts to the court.  The court further stated its opinion that “she’ll recollect more facts
about this case during the trial and that will cause her further agitation.” The court then dismissed
Hamelin from the jury.  Based upon our review of the record, we hold that the trial court did not
abuse its discretion by determining that juror Hamelin was disabled as that term is used in Article
36.29 or by denying Appellant’s motion for mistrial instead of dismissing her.  Appellant’s second
issue is overruled.
Lesser-included Offenses
            In his third issue, Appellant contends that the trial court erred in denying his request for a jury
instruction on the lesser included offenses of manslaughter, criminally negligent homicide, and
aggravated assault.
Standard of Review
            Both Appellant and the State agree that we must apply a two-pronged test to determine
whether a charge on a lesser included offense should be given.  See Mathis v. State, 67 S.W.3d 918,
925 (Tex. Crim. App. 2002).  First, the lesser included offense must be included within the proof
necessary to establish the offense charged.  Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim.
App. 1993).  Second, some evidence must exist in the record that would permit a rational jury to
acquit the defendant of the greater offense while convicting him of the lesser included offense. 
Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).  
Applicable Law and Analysis
            Manslaughter, criminally negligent homicide, and aggravated assault are lesser included
offenses of murder.  Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000).  Therefore, the
first prong of the test has been satisfied.  
            The State contends that the second prong of the test has not been satisfied because the
evidence does not raise the issue of any of the three lesser included offenses. The State emphasizes
Appellant’s testimony that Melissa died in the bathtub from a self-induced drug overdose.  A
defendant’s own testimony that he committed no offense or testimony that otherwise shows no other
offense occurred at all is not adequate to raise the issue of a lesser included offense.  Loftin v. State,
45 S.W.3d 649, 652 (Tex. Crim. App. 2001).  If a defendant either presents evidence that he
committed no offense or presents no evidence, and there is no evidence showing that he is guilty
only of a lesser included offense, then a charge on a lesser included offense is not required.  Id.
(citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)).
            Appellant responds that this Court must consider his statement to the three Hialeah police
officers that was introduced into evidence by the State.  Specifically, he asks us to consider the
following portion of his statement:
 
Policeman:How long did the episode in the trailer – when your wife entered the trailer
and you had the confrontation with her?
 
Appellant:I don’t know.  I don’t know.  It was – was – I wasn’t thinking.  All I was
thinking was this person’s gonna kill me, or I don’t know.  I need to
defend myself because why would somebody want to come in at the house
at 5:00 in the morning if their – if their – the subject for them to be there
is to kill me or, I mean, why would they be inside the house when all the
cars are out there?   That’s the only thing that came to my mind.  
Somebody wants to kill me.  I just went ballistic.  I wasn’t thinking.  I – I
got up.  The first thing when I got up was, boom, the 12 gauge.  I wasn’t
thinking, Who the hell is this?  I was just thinking.  This person’s gonna
kill me. 
 
Policeman:At one point was this person attacking you?
 
              Appellant:            Yeah.  There was – yeah.
 
              Policeman:          Which ended up being your wife?
 
              Appellant:            Yeah, it was.
 
              Policeman:          Did you realize – did you know if it was a male or female while
you were fighting with the individual?
 
              Appellant:            No, because it was dark.  I just I just noticed long hair.  I noticed
long hair.  I didn’t notice it was male or female.  I just noticed
long hair.
 
              Policeman:          How – how tall is your wife?
 
              Appellant:            I don’t know.
 
              Policeman:          Was she taller than you?
 
              Appellant:            A little bit, yeah.
 
              Policeman:          She heavier than you?
 
              Appellant:            No.
 
              Policeman:          Lighter than you?
 
              Appellant:            Yeah.
 
              Policeman:          Were you expecting your wife?
 
              Appellant:            No. No. Every time – the night before I told her – I asked her if
she was gonna come home and she said no, she had to go to a
friend’s house.  And I used to ask her this every time she was out. 
Please call me before you come to the house.  And she always
did.  I told her, ‘If you’re gonna come to the house, call me after
10:00 in the morning.  Let me know you’re coming to the house.’ 
11:00, she called me.  ‘Hey, baby, I’m coming home.  It is cool?’ 
I’m like, ‘Yeah, come on.’  That night she – she – she never did
anything like that.  I mean, I told her, ‘Hey, call me before you
show up.’  Okay.   She never came to the house.  If she didn’t get
ahold [sic] of me, she would not come to the house.  She will not
come to the house.  I was always paranoid.  I was always
paranoid and – she knew, she wouldn’t come to the house.  And
this morning I – I never thought she was gonna come home
because she said, ‘I’m going to a friend’s house and I’m going to
stay over there.  I’ll probably stay over there ‘till the day I go to
Iowa’ or Ohio or whatever the hell.  I don’t know.  I don’t even
know where she was going.  Ohio.
 
              Policeman:          Has anybody ever come into your house and either attempted to
kill you or rob you or – shoot you?
 
              Appellant:            The phone calls.  I’ve been shot a couple of times.  Calls, ‘I’m
gonna kill you.’  I told this to my probation officer.  Somebody’s
threatening me.


            Appellant concedes that he disavowed this entire statement in front of the jury.  He reiterated
to the jury that he had done nothing to cause Melissa’s death.  We must therefore determine whether
Appellant’s statement to the jury is evidence that would permit a jury rationally to find that if he was
guilty, he was guilty only of manslaughter, criminally negligent homicide, or aggravated assault.  See
Mathis, 67 S.W.3d at 925.  
            Manslaughter requires proof that the defendant acted recklessly; that is, that he consciously
disregarded a substantial risk of which he was aware.  See Tex. Pen. Code Ann. §§ 19.04(a), 6.03(c)
(Vernon 2003).  Criminally negligent homicide requires proof that the defendant acted with criminal
negligence; that is, that he ought to have been aware of a substantial and unjustifiable risk that the
result would occur.  See Tex. Pen. Code Ann. §§ 19.05(a), 6.03(d) (Vernon 2003).  Aggravated
assault requires proof that the defendant intentionally, knowingly, or recklessly caused serious bodily
injury to another or used or exhibited a deadly weapon during the commission of the assault.  See
Tex. Pen. Code Ann. §§ 22.01(a), 22.02(a) (Vernon 2003).
            In order to constitute a crime, the act or actus reus must be accompanied by a criminal mind
or mens rea.  Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994).  For an act to constitute
any crime, there must first be a “vicious will.”  Id. (citing Morissette v. United States, 342 U.S. 246,
72 S. Ct. 240, 96 L. Ed. 2d 288 (1952)).  In his statement to the Hialeah police, which was part of
the evidence before the jury, Appellant did not admit to a bad act or a vicious will.  Instead, he
admitted that he was thinking only about his bodily safety.  Therefore, by his own testimony,
Appellant could not have been guilty of these lesser included offenses because he did not have the
mens rea or vicious will necessary to commit these offenses.  See Godsey v. State, 719 S.W.2d 578,
584 (Tex. Crim. App. 1986).  If believed by the jury, this evidence would require Appellant to be
acquitted of any crime rather than found guilty of a lesser included offense of murder.  
            For a defendant to be entitled to a lesser included offense instruction, the evidence must
establish a lesser included offense as a valid rational alternative to the charged offense.  Wesbrook
v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000).  When the defendant merely denies
commission of any offense and, therefore, presents no evidence establishing commission of a lesser
included offense, he is not entitled to a charge on the lesser offense.  Fraga v. State, 940 S.W.2d
736, 738 (Tex. App.–San Antonio 1997, pet. ref’d).  We therefore hold that Appellant’s disavowed
statement to law enforcement denying a vicious will in the events leading up to the death of his wife
is not evidence of manslaughter, criminally negligent homicide, or aggravated assault.  As such, the
trial court did not err in failing to submit the requested instruction.  Appellant’s third issue is
overruled.
 
Disposition
            Having overruled Appellant’s three issues, the judgment of the trial court is affirmed.  
 
                                                                                                     JAMES T. WORTHEN 
                                                                                                                 Chief Justice
 
 
Opinion delivered December 30, 2004.
Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.
 
 
(PUBLISH)
