




02-10-405-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-10-00405-CR
 
 



Abel Noe Dominguez


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
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FROM Criminal
District Court No. 4 OF Tarrant COUNTY
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MEMORANDUM
OPINION[1]
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Introduction
          Shortly
after moving out of the house he had lived in with Alma Garcia, Appellant Abel
Noe Dominguez returned and stabbed her to death while she slept between their two
young sons.  Appellant now appeals his conviction for capital murder.  We affirm.
Factual
and Procedural Background
          Alma
was the mother of four:  two girls and two boys.  J.J., a daughter from an
earlier relationship, was eighteen; the other daughter, N.D., was fifteen.  The
boys, A. and N., were eight-year-old twins.  J.J. was around eighteen months
old when she and her mother moved in with Appellant and his parents.  The other
three children came later, after Alma, J.J., and Appellant had left his
parents’ home.
          They
moved into a house on Carnett Court in Fort Worth.  Alma’s older sister,
Blanca, had signed a mortgage on the house so that Alma and her family could
have a place of their own.  Alma used the wages she and Appellant earned from
their jobs to make the monthly mortgage payments.  The few times Alma was
unable to make the payments, Blanca made them for her.  Approximately half of
the thirty-year mortgage was paid off at the time of Alma’s death in March 2009.
          Appellant
was a jealous man.  Alma took care of her appearance, which made Appellant
believe she was seeing another man.  If she took too long at the grocery store,
at the gym, or anywhere else, to him it meant that she must be having an
affair.  He warned her that she could not leave him until he decided he wanted
her to.  More than once, when Alma had problems with Appellant, Blanca reminded
him that Blanca owned the house, and she advised him to leave Alma and the
children there in peace.
          On
February 24, 2009, following an altercation, Appellant moved out, and Alma
changed the lock on the front door.
          The
next week, J.J. and the twins were alone in the house when J.J. saw Appellant
in the back yard with a ladder.  J.J. stayed in the boys’ room and heard
Appellant try the back door and attempt entry through a dining room window.  She
phoned her mother.
          Robert
McWhorter lived in the house behind and one over from Alma’s house, and they
shared a portion of their backyard fences.  Robert was in his backyard
investigating what his dogs were barking at near the corner adjacent to Alma’s
yard when he saw Appellant near Alma’s back door.  Robert returned to his house,
and looking out the kitchen window moments later, he saw Appellant, crouching on
Alma’s roof, apparently studying something.
          Robert
thought that was “real odd . . . very out of the ordinary” and it struck him “as
something that was out of place.”  He walked around the corner to Carnett Court
and stood in front of Alma’s house.  He saw nothing unusual there, so he returned
to his own cul-de-sac and took a position between his house and a neighbor’s for
a better view.
          Appellant
was still on the roof.  Again, Robert walked toward Alma’s house, and this time
Appellant passed him on the street coming from the other direction.  They nodded
at each other but did not speak; Appellant continued to his car—parked on
Robert’s cul-de-sac—climbed in, and drove away.
          After
J.J.’s phone call, Alma pulled into the cul-de-sac to look into her backyard.  She
spoke to Robert, and seemed “real upset.”
          The
following Saturday night, March 7, 2009, the house on Carnett Court was empty. 
Alma and J.J. had gone to a friend’s birthday party, the twins were across the
street with a neighbor, and N.D. was at cheerleading practice.  N.D. was the
first to return home that evening; she retrieved her brothers and put them to
bed in Alma’s room, where they usually slept.  Then she retired to the room she
shared with her sister and turned on the television.
          Around
eleven o’clock, N.D. heard a noise on the roof, and her dog started barking at
the window.  When she looked out, she noticed that the ladder that usually lay on
its side by the house was standing up against the roof.  Nothing else appeared
out of place, however, so after checking on her brothers, who had fallen
asleep, she turned off her mother’s television set and went to bed.
          Alma
and J.J. had stopped at Jack-in-the-Box on their way home and were eating in
the girls’ room when N.D. awoke briefly, saw that the time was three a.m., and fell
back asleep.  After Alma and J.J. finished eating, Alma went to her room and climbed
into bed between the twins.  J.J. put away the trash, said good night to her
mother, and also went to bed.
          N.
woke to the bed shaking.  He saw his dad on top of his mother, choking her.  N.
screamed, waking his brother.  A. thought Appellant was punching Alma.  The
boys tried to shove Appellant off but could not budge him.  Appellant got up, though,
and exited the front door.  A. locked the door behind him, returned to bed, and
he and his brother eventually drifted back to sleep.
          A.
was the first to awaken in the morning.  He saw his mother lying on the side of
the bed; she did not look okay.  He thought N. was dead because there was blood
on N.s’ face and clothes, and he did not wake up easily.  Eventually, N. woke
up, and when he touched his mother—she felt frozen.  The boys ran to their
sisters’ room.
          J.J.
did not believe them when they told her that they thought their mother was
dead.  But after looking in on her and finding her cold, J.J. called 911.
          Officers
arrived and taped off the driveway, yard, and part of the street.  Inside the
house, they found bloodstains on the front door.  In the master bedroom, they
discovered Alma’s body partially on the bed.  She had multiple wounds on her
chest and neck.  Some were not very deep, surface-type wounds.  Others were
penetrating, “incise wounds made by a very sharp object.”  Beneath her
shoulder, the officers found a kitchen knife with blood on it—the blade
slightly bowed, and the tip bent.     
          Outside,
on the roof where earlier Robert had seen Appellant crouching, officers noticed
that the wooden slats that normally would cover the gable had been removed,
leaving a space large enough for a person to squeeze through into the attic.  Inside
the attic, a beam on the floor ran directly to a plywood panel that covered an
opening into the boys’ room, which had been converted from the garage some time
before.
          In
the boys’ room, the panel was in its place in the ceiling.  But dust and bits
of insulation matching the attic insulation were on the floor around a dresser that
sat directly below the panel, close enough so that a person climbing out of the
attic could use the dresser as a step.  In the dust on top of the dresser,
officers observed a “shoe transfer impression.”  And from the dust on the floor
in front of the dresser, the officers lifted a partial right shoeprint.
          While
those officers were investigating the scene on Carnett Court, others were
dispatched to a reported attempted suicide nearby.  When the officers arrived, they
found Appellant on a stretcher inside an ambulance, with his wrists cut.  His
wounds were serious, though not life-threatening, and he was transported to the
hospital.  Appellant asked an officer if his kids were okay and said that his
wife had left him for another man.
          Officers
arrested Appellant for murder.  Among his effects they seized were a pair of
black K-Swiss tennis shoes and a key ring with seven keys.  None of the keys on
the key ring fit any of the locks at the house on Carnett Court.  The general
design, size, and tread pattern of Appellant’s right tennis shoe, however, were
indistinguishable from those of the print lifted from the floor of the boys’
room.
          The
medical examiner ruled Alma’s death a homicide, having determined that its cause
was two wounds made with a sharp object that had transected the left common carotid
artery and the vein next to it.
          The
State waived the death penalty, and Appellant was tried for capital murder.  At
the close of the State’s evidence, Appellant moved for a directed verdict,
which the trial court denied.  The jury found Appellant guilty, and the trial
court sentenced him to life.
Issues
One and Two:  Denial of Appellant’s Motion for Directed Verdict
          In
his first two issues on appeal, Appellant challenges the trial court’s denial
of his motion for directed verdict.  A challenge to a trial court’s ruling on a
motion for directed verdict is actually a challenge to the sufficiency of the
evidence to support the conviction.  Madden v. State, 799 S.W.2d 683,
686 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954 (1991); Velasquez
v. State, 815 S.W.2d 842, 845 (Tex. App.—Corpus Christi 1991, no pet.).  In
reviewing the sufficiency of the evidence to support a conviction, we view all
of the evidence in the light most favorable to the verdict to determine whether
any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007).
Issue
One:  “Stabbing” versus “Cutting”
          In
his first issue, Appellant contends that the trial court erred by denying his
motion for directed verdict because the indictment alleged that he killed Alma
by “cutting” her, but the evidence showed that the fatal wounds were caused by
“stabbing.”  In other words, Appellant would have us reverse his conviction for
capital murder and render a judgment of acquittal because he managed to stab
Alma to death without cutting her.
          Stabbing
by definition involves cutting.  Merriam–Webster defines “cut” as “to
penetrate with or as if with an edged instrument.” Merriam-Webster Online
Dictionary, http://www.merriam-webster.com/dictionary/cut
(last visited Nov. 22, 2011).  Further, it defines “stab” as “to wound or
pierce by the thrust of a pointed weapon.” Id., http://www.merriam-webster.com/dictionary/stab
(last visited Nov. 22, 2011).
          Appellant
concedes that Alma died from wounds:  “The evidence was that the stabbing
wounds were what were fatal.”  A “wound” is “an injury to the body (as from
violence, accident, or surgery) that typically involves laceration or breaking
of a membrane (as the skin) and usually damage to underlying tissues.”  Id.,
http://www.merriam-webster.com/dictionary/wound (last visited Nov. 22, 2011).  Thus,
a wound, by definition, involves a cutting.  So the English language does not support
Appellant’s contention.
          Neither
does the evidence.  Dr. Gary Sisler, the medical examiner who performed the
autopsy, testified that of the nineteen sharp force injuries that Alma
sustained, wounds that he numbered eleven and twelve were fatal because they transected
her carotid artery.
Q.    [by the State] 
In wounds number 11 and 12, the two fatal injuries, when you did your internal
examination, did you discover whether the tracks of those two injuries actually
injured some part of Ms. Garcia’s — well, we would call it her throat,
somewhere located inside her neck where it appeared that something had
potentially hit it?
 
A.    I found transections
of the carotid artery, internal jugular artery, and the track ended in the
trachea.
 
(Emphasis
added).
          “Transect”
means “to cut transversely.”  Id., http://www.merriam-webster.com/dictionary/transect
(last visited Nov. 22, 2011).  In other words, a transection is a
cutting.
          Finally,
on cross-examination by Appellant, Dr. Sisler specifically testified that the
fatal stab wounds cut Alma’s trachea:
Q.    [By defense
counsel] . . . [T]his particular knife, did it damage the trachea?
 
A.    It lacerated
it, sir.
 
Q.    Lacerated, that
means what?
 
A.    Made a cut in
it.
 
          Because
neither the English language nor the evidence supports Appellant’s contention,
we overrule his first issue.
Issue
Two:  Home Ownership
          In
his second issue, Appellant contends that the trial court erred by denying his
motion for directed verdict because the evidence did not show that Alma had a
greater right to possess the house that Appellant broke into than he did.
 Since she did not have the greater right of possession, the argument goes, he
could not have committed burglary—the element that raised the offense to
capital murder—because he could not burglarize his own home.
          Under
the penal code, a person commits burglary if, without the effective consent of
the owner, the person enters a habitation and commits a felony, theft, or an
assault.  Tex. Penal Code Ann. § 30.02(a)(3) (West 2011).  “Owner” is defined
in the penal code in three different ways:  a person is an owner if she has (1)
“title to the property,” (2) “possession of the property, whether lawful or
not,” or (3) “a greater right to possession of the property than the actor.”  See
id. § 1.07 (a)(35)(A).
          The
jury charge tracked the penal code definitions of owner.  Given the charge, therefore,
the jury was authorized to find that Alma was the owner if she had title,
lawful or unlawful possession, or a greater right to possession.  Viewed in the
light most favorable to the verdict, the evidence supports a reasonable juror’s
belief beyond a reasonable doubt that Alma was the owner because the evidence
shows that she had a greater right to possession than Appellant and that
at the time he entered the house without her effective consent, she had
possession of the house, lawfully or otherwise.
          The
evidence showed that Alma had a greater right to possession than Appellant
because Blanca testified that she signed the mortgage “for Alma” and reminded
Appellant on numerous occasions that Blanca owned the house and that Appellant
should leave Alma and the children there in peace.  See Mack v. State,
928 S.W.2d 219, 223 (Tex. App.—Austin 1996, pet. ref’d) (holding that because
the appellant had moved out of the apartment he shared with a girlfriend, the girlfriend
was the “owner” within the meaning of the burglary statute despite the fact that
the appellant’s name remained on the lease).
          Moreover,
whether or not the evidence showed that Alma had a greater right of possession,
it showed that at the time of the offense she had possession of the house, lawfully
or not, and that Appellant did not.[2] 
“Possession” was correctly defined in the jury charge as actual care, custody,
control, or management.  See Tex. Penal Code Ann. § 1.07(a)(39).  The
evidence showed that Appellant moved out of the house more than a week before
the murder, that Alma changed the locks, that Appellant did not have a key that
fit, that he was seen skulking around the backyard and on the roof, that he
tried to get in the house by coming in a window, and that he eventually did get
in by climbing onto the roof, going through a gable, and then dropping down
into the boys’ room through the attic access.  Thus, viewed in the light most
favorable to the verdict, a reasonable juror could have concluded that at the
time Appellant broke into the house, Alma had actual care, custody, control, or
management of it and therefore possession.  Because it is reasonable to
conclude from the evidence that Alma had possession of the house, and thus was
the owner as defined by the penal code and in the jury charge, we hold that the
trial court did not err by denying Appellant’s motion for directed verdict on
this issue.  See Little v. State, 567 S.W.2d 502, 504 (Tex. Crim. App.
1978) (holding that ownership was adequately shown in man who testified that
house belonged to his mother-in-law who was in a rest home and that he had
“charge of it and power of attorney”); Gregg v. State, 881 S.W.2d 946,
951–52 (Tex. App.—Corpus Christi 1994, pet. ref’d) (holding that the fact that a
woman’s parents held title to the home did not preclude her from being
considered the owner where testimony showed she lived in the house, provided
for the family, and had control over what happened in the house); Hudson v.
State, 799 S.W.2d 314, 315–16 (Tex. App.—Houston [14th Dist.] 1990, pet.
ref’d) (holding that there was no evidence upon which the jury could find the
defendant had a greater right of possession to woman’s apartment where,
although they once lived together, she later made him move out).  Accordingly,
we overrule Appellant’s second issue.
Issue
Three:  Appellant’s Requested Jury Charge Instructions
          In
his third issue, Appellant contends that the trial court erred by denying his
requested jury charge instructions setting out specific provisions of the
family code that govern spousal possessory rights in Texas.
          These
family code provisions were not law applicable to the case because ownership in
a criminal prosecution for burglary is defined by the penal code, which takes
precedence over civil statutes in criminal proceedings.  Tex. Penal Code Ann.
§ 1.07 (a)(35)(A); see Tex. R. Evid. 101(c).[3] 
Accordingly, we overrule Appellant’s third issue.
Issue
Four:  Deadly Weapon Finding
          In
his fourth and final issue, Appellant complains that the judgment erroneously
reflects a deadly weapon finding when the issue of whether Appellant used a
deadly weapon was never presented for the jury’s determination.
          The
State responds by citing Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim.
App. 1985) to support its position that the jury’s verdict “necessarily implied”
an affirmative deadly weapon finding.  (Emphasis added.)  In Polk, the court
of criminal appeals stated that “if the indictment by allegation specifically
places the issue before the trier of fact (i.e. ‘….by stabbing him with a
knife, a deadly weapon....’), then an affirmative finding is de facto made when
the defendant is found guilty ‘as charged in the indictment.’”  693 S.W.2d 391,
394 (Tex. Crim. App. 1985); see also Ruben v. State, 645 S.W.2d
794, 798 (Tex. Crim. App. 1983) (holding that trial court erred by entering a deadly
weapon finding when the jury found the appellant guilty “as alleged in the
indictment” and the indictment contained no mention of a deadly weapon).
          Here,
the indictment contained the following “deadly weapon finding notice”:
AND IT IS FURTHER
PRESENTED TO SAID COURT THAT A DEADLY WEAPON, TO-WIT: A KNIFE, THAT IN THE
MANNER OF ITS USE OR INTENDED USE WAS CAPABLE OF CAUSING DEATH OR SERIOUS
BODILY INJURY, WAS USED OR EXHIBITED DURING THE COMMISSION OF THE FELONY
OFFENSE OR FELONY OFFENSES SET OUT ABOVE OR DURING THE IMMEDIATE FLIGHT
FOLLOWING THE COMMISSION OF THE ABOVE FELONY OFFENSE OR FELONY OFFENSES AND
THAT THE DEFENDANT USED OR EXHIBITED THE DEADLY WEAPON OR WAS A PARTY TO THE
OFFENSE AND KNEW THAT A DEADLY WEAPON WOULD BE USED OR EXHIBITED. 
 
But
the prosecutor did not read the deadly weapon notice to the jury when he read
the indictment at the start of trial, nor was the notice included in the jury
charge.  After retiring to deliberate, the jury returned a general verdict
finding Appellant “guilty of the offense of capital murder as alleged in the
indictment.”
          Although
this case is similar to Polk in some ways, at least four issues give us pause
as we consider the reasoning urged by the State.  The first is that Polk
does not stand for the proposition that deadly weapon findings may be implied—to
the contrary, it specifically sought to eliminate them.  As stated by the majority
in that case, “No longer will a verdict ‘amount to’ or ‘necessarily imply’ an
affirmative finding of use or exhibition of a deadly weapon or firearm.  We
will no longer look to the facts of the case to permit an ‘implied’ affirmative
finding . . . .”  693 S.W.2d at 396.  Judge Clinton seconded the majority in his
concurring and dissenting opinion, noting that the court’s decision seeking to
pull the bench and bar out of the “quagmire” of implied or inferred findings
was overdue.  Id. at 397 (Clinton, J., concurring and dissenting); see
also Lafluer v. State, 106 S.W.3d 91, 92 (Tex. Crim. App. 2003) (reaffirming
Polk’s holding “that there must be an express finding of a deadly
weapon when the jury is the factfinder” (emphasis added)).
          The
second difficulty is that although Polk held that if the indictment
“specifically places the issue before the trier of fact (i.e. ‘….by stabbing
[the victim] with a knife, a deadly weapon….’), then an affirmative finding is
de facto made when the defendant is found guilty ‘as charged in the indictment,’”
the prosecutor in this case did not read the State’s deadly weapon notice in
open court when reading the indictment, nor was the deadly weapon notice
included in the court’s charge on guilt-innocence.  See Polk, 693 S.W.2d
at 394.  So it strains credulity to assert that “the indictment by allegation specifically
place[d] the issue before the trier of fact.”  See id.
          The
third concern about the State’s reasoning is that this is a capital case in
which the punishment upon a guilty verdict is automatic:  life without parole. 
Tex. Penal Code Ann. § 12.31(a)(2) (West 2011).  Polk and its
progeny dealt with affirmative deadly weapon findings in noncapital felony
cases where an improper finding potentially had a deleterious effect on when a
convicted defendant would become eligible for parole.  Thus, arguably Polk
does not even apply to this case.
          This
last issue leads us to a fourth, which is the issue of harm.  Although Appellant
frames his issue as the trial court having erred by including a deadly weapon
finding in the judgment, he complains that the trial court erred to do so
because the charge lacked “a paragraph encompassing the deadly weapon finding
notice” authorizing the jury to make such a finding.  Thus we take his complaint
as one of error in the charge.  Because Appellant did not object to this
absence of a paragraph encompassing the deadly weapon notice, assuming without
deciding that the charge thus was erroneous, we must decide whether Appellant was
egregiously harmed.  See Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984).
          Under
the current state of the law, it appears that the only harm flowing from an
unauthorized deadly weapon finding would be its effect on when a person
convicted and sentenced to prison would become eligible for parole.  But as we
have noted, this is a capital case in which the State waived the death penalty,
making Appellant’s punishment upon a finding of guilty automatic life without
parole.  See Tex. Penal Code Ann. § 12.31(a)(2).  Thus, it appears that although
the judgment contains a deadly weapon finding entered by the trial court when
the charge never placed the issue before the trier of fact—and that the trial
court therefore lacked authority to include a deadly weapon finding in the
judgment—because the deadly weapon finding has no actual effect on Appellant’s
punishment, we cannot hold that he was egregiously harmed.
          Accordingly,
we overrule Appellant’s fourth issue.
Conclusion
          Having
overruled all four of Appellant’s issues, we affirm the judgment of the trial
court.
 
 
 
LEE GABRIEL
JUSTICE
 
PANEL: 
GARDNER,
WALKER, and GABRIEL, JJ.
 
PUBLISH
 
DELIVERED:  December 1, 2011




[1]See Tex. R. App. P. 47.4.


[2]To the extent that Appellant
also appears to argue that he acquired possession, lawful or not, under section
30.02 when he entered the house so he could not have committed burglary, we
note that this view of the offense leads to the absurd result that a person who
breaks into a home immediately takes possession of it and becomes the owner, who
then gives himself effective and retroactive consent to break in and therefore cannot
be found guilty of burglary.  We are confident that this is not the result the
legislature intended when it passed the burglary statute, and that to avoid
this absurd result, possession must be determined immediately prior to
and not during the break-in.  In other words, the legislature cannot
have intended to allow one to acquire possession as against another already in
possession, lawfully or not, by one’s own unlawful entry.


[3]Entitled “Hierarchical
Governance in Criminal Proceedings,” rule 101(c) provides:
Hierarchical governance shall be in the
following order:  the Constitution of the United States, those federal statutes
that control states under the supremacy clause, the Constitution of Texas, the
Code of Criminal Procedure and the Penal Code, civil statutes, these rules [of
evidence], and the common law.  Where possible, inconsistency is to be removed
by reasonable construction.
Tex. R.
Evid. 101(c).


