






cr2-181                                                             



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 


NO. 3-92-181-CR


DAVID MADRIGAL,

	APPELLANT

vs.



THE STATE OF TEXAS,

	APPELLEE

 

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0912566, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
 



PER CURIAM
	A jury found appellant guilty of capital murder.  Tex. Penal Code Ann. § 19.03
(West 1989 & Supp. 1993).  Because the jury did not find that there was a probability that
appellant would commit criminal acts of violence that would constitute a continuing threat to
society, the court assessed punishment at imprisonment for life.  Act of May 27, 1991, 72nd Leg.,
R.S., ch. 652, § 9, 1991 Tex. Gen. Laws 2394, 2395 (Tex. Code Crim. Proc. Ann. art. 37.071,
since amended).
	After midnight on March 5, 1991, appellant and his brothers, Juan and Marcello
Gonzales, abducted Robert Bettelyoun at gunpoint as he arrived home from work and drove him
to a roadside park on Highway 71 east of Austin.  The three brothers believed that Bettelyoun had
broken into Marcello's car two days earlier and stolen $1200 worth of stereo equipment.  At the
park, appellant pointed his .380 caliber pistol at Bettelyoun and demanded the return of his
brother's property.
	The brothers' interrogation of Bettelyoun was interrupted by the arrival of
Department of Public Safety trooper Carlos Warren, who drove into the roadside park in the
course of his routine patrol.  The officer stopped beside appellant's car on the passenger side,
using his spotlight to illuminate the interior of the vehicle.  Appellant was sitting in the driver's
seat, Marcello was in the front passenger seat, and Juan and Bettelyoun were in the back seat. 
Appellant told the others, in Bettelyoun's words, "to just be cool, that he would get us out of this,
not to worry about it."  Marcello described the subsequent events:  


Q	What happened then?

A	Well, he just started asking us what are you-all doing here, and then I think
it was David told him that we were just taking a break from traveling.

. . . . 

Q	Did the trooper get out of the car?

A	Yes.

Q	What happened when he got out of the car?

A	He came to my side window and he flashed his flashlight in.

. . . .

Q	What happened next?

A	He just -- it was like he just thought for a couple of seconds and then he
said, okay, why don't you two guys in the front seat get out real slowly.

Q	Prior to that time, do you remember David saying be calm, I will get us out
of this?

A	Yes, I remember him saying that.

. . . .

Q	How long do you think it was from the time that you first realized there
was a spotlight on the car until the time that the officer said get out of the
car slowly?

A	It might have been about two minutes maybe, two or three minutes.

. . . .

Q	What happens then?

A	I started to get out real slowly because I was real scared.

Q	Did you still have your gun?

A	No. . . .  I just threw it underneath the seat.

. . . .

Q	What does the trooper do after he says get out of the car slowly?

A	He starts walking around the front of the car to the driver's headlight over
here.

. . . .

Q	What happens when he gets there?

A	It is like -- it was like he forgot something because I was looking at him the
whole time, and then he made like an about face, 180 degree turn, turned
around, turning inside like towards the car.

. . . .

Q	Okay.  What happened?

A	And he turned around and he started walking back towards my headlight.

Q	What happened then?

A	When he turned around, he put his hand on his gun and he started bringing
it out of his holster, and then when he got to about my headlight, that is
when the shooting started.

. . . .

Q	Did he have his back to David?

A	Yes.

Q	What did David do?

A	It seemed like when he got to like the front of my headlight it was like I felt
David like shake real hard and he just jumped out of the car.

. . . .

Q	What happens then?

A	He opened fire.

Q	As the officer's back is to him; correct?

A	Right.

Q	What do you do when you hear the shooting start?

A	Well, I was getting out very, very slowly, and when I heard it start, I just
-- I slammed the door and I jumped back and put my head down.  As I was
putting my head down, I saw the policeman start falling down.

Q	How many times did David shoot?

A	I don't know.  I just heard a whole bunch of bullets.  I don't know.  It was
like a whole bunch of shots. . . .

. . . .

Q	Who was shooting those shots?

A	My brother David.

Q	What happens next?

A	David got in the car and started it up and then I heard like three shots fired
back, two or three shots fired back.

Q	Did any of them hit the car?

A	Yes.

Q	How many?

A	I know one hit the front tire for sure because you heard it blow out the tire,
and then I heard the other shots just hit like metal.  I don't know where,
though, because I had my head down at the time.

Q	Does David say anything when he gets back in the car?

A	All he said was he shot the tire and he turned on the car, and then John
[Juan] started yelling at him what did you do that for, what did you do that
for.

Q	What did he say?

A	David said I had to do it because I thought he was going to get us. (1)


Appellant shot Warren three times in the back.  The bullets punctured both lungs and severed the
spinal cord.  The officer died within minutes.
	Appellant fled Austin after the shooting, apparently intending to drive to his
father's house in Laredo.  In San Antonio, appellant attempted to shoot a police officer who
stopped him for a traffic violation.  The officer returned fire, wounding appellant.  Two days
later, in the hospital, appellant gave a tape-recorded statement in which he confessed to shooting
Warren.  Asked why he did it, appellant stated that he was "scared" and "just panicked." 
	In points of error two and three, appellant contends the district court erred by
refusing his request for instructions on the lesser included offenses of involuntary manslaughter
and criminally negligent homicide. (2)  The State agrees that both lesser offenses were included
within the proof necessary to establish appellant's commission of capital murder.  The contested
issue is whether there was some evidence from which the jury could rationally find that appellant
was guilty only of one of the lesser offenses.  Rousseau v. State, No. 70,910 (Tex. Crim. App.
Feb. 24, 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (opinion on
rehearing).  The only evidence cited by appellant in support of the requested charges is a remark
he made to a Bexar County detention officer following his arrest in San Antonio.  This officer
testified that appellant told him that "he didn't mean to kill anybody."  Appellant argues that this
statement negates the element of intent and raises an issue as to whether he recklessly or
negligently killed the officer.
	Appellant relies on the opinions in Schoelman v. State, 644 S.W.2d 727 (Tex.
Crim. App. 1983), and Giles v. State, 617 S.W.2d 690 (Tex. Crim. App. 1981), in support of
both points of error.  Both of these opinions have been criticized as having incorrectly stated that
the act of pointing a loaded gun at another, in itself, constitutes criminal negligence.  Thomas v.
State, 699 S.W.2d 845, 849-50 (Tex. Crim. App. 1985).  The attendant circumstances from which
the defendant's mental state can be inferred must be collectively examined in light of the statutory
definitions of the culpable mental states.  Id.  That the State, in proving the offense of capital
murder, also proved the lesser offenses of criminally negligent homicide and involuntary
manslaughter does not, standing alone, entitle appellant to a charge on the lesser included
offenses.  Tompkins v. State, 774 S.W.2d 195, 210 (Tex. Crim. App. 1987).  
	Testimony by the accused denying the requisite culpable mental state for the
charged offense has been held in some cases to warrant an instruction on a lesser included offense. 
One example of this is Thompson v. State, 521 S.W.2d 621 (Tex. Crim. App. 1974).  Thompson
was a prosecution for assault with intent to murder a police officer.  The officer testified that the
defendant, during a chase from the scene of another offense, pointed a pistol in his direction and
fired.  The defendant testified that he did not aim or shoot the pistol toward the officer, and that
he did not intend to kill the officer.  In holding that the trial court erred by refusing a requested
instruction on the lesser included offense of aggravated assault, the court wrote:


	The jury in the present case could have reasonably rejected the appellant's
testimony that he did not fire at the officer; it could have reasonably believed the
officer's testimony that the appellant did fire the pistol at him at close range; it
could have reasonably believed the appellant's testimony that he did not intend to
kill the officer.  The appellant has the right to have the jury and not the court
decide these issues from the evidence under proper instruction.


Thompson, 521 S.W.2d at 624.
 Thompson was followed in Lugo v. State, 667 S.W.2d 144 (Tex. Crim. App.
1984), a prosecution for murder.  The defendant shot and killed his wife during an argument.  He
testified that he did not intend to kill his wife, did not cock the gun or load it, and believed the
weapon was empty.  The court held that the defendant's request for a charge on involuntary
manslaughter was erroneously overruled.


[T]he jury as the trier of fact could have reasonably rejected the appellant's
testimony that he was unaware that the rifle was loaded; it could have reasonably
believed the witness's testimony that the appellant cocked and pointed the rifle at
the victim and thus could have inferred from such action that the appellant knew
the rifle was loaded; and it also could have reasonably believed appellant's
testimony that he did not intend to kill his wife.  Accordingly, the jury could have
reasonably concluded that appellant's action in pointing a loaded rifle at his wife
in an attempt to persuade her to relinquish the keys to a car constituted a conscious
disregard of "a substantial and unjustifiable risk."


Lugo, 667 S.W.2d at 149.
	The opinions in Thompson and Lugo must be read together with the opinion in
Godsey v. State, 719 S.W.2d 578 (Tex. Crim. App. 1986).  In Godsey, several police officers
responded to a disturbance call at the defendant's apartment.  When the defendant opened the door
to the apartment, he had a pistol in his waistband.  Ignoring instructions not to do so, the
defendant pulled the pistol from his waistband and took careful aim at an officer standing in front
of him, whereupon he was shot by another officer.  At his trial for attempted capital murder, the
defendant testified that he did not intend to kill anyone, but his requested charges on the lesser
offenses of aggravated assault and reckless conduct were denied.  The Court of Criminal Appeals
found no error.


The statement [that he did not intend to kill the officer] cannot be plucked out of
the record and examined in a vacuum.  The instant case is not like . . . Thompson,
supra, in which part of a defendant's testimony could be reasonably believed by a
jury in the context of the facts, so as to support a charge on the lesser included
offense.  See Lugo v. State.

	. . . .

	Appellant's actions progressed step by step toward the firing of the gun
which was prevented only by the officers' "beating him to the trigger."  Such
actions manifest only the intent to kill the officer and do not evidence a mere threat
with the gun. . . .  The deliberateness of appellant's actions belies any attempt to
simply threaten.  The evidence does not support any inference that appellant is
guilty only of aggravated assault or reckless conduct.


Godsey, 719 S.W.2d at 584-85 (citation omitted); see also Mendietta v. State, 706 S.W.2d 651
(Tex. Crim. App. 1986) (victim stabbed to death; defendant testified he did not intend to kill;
held, evidence did not raise issue of criminally negligent homicide).
	Appellant's statement that he did not intend to kill anyone raises an issue as to
appellant's culpable mental state only if it is taken alone and out of context.  The statement loses
its force within the context of the other facts concerning the offense, all of which are
uncontradicted.  On the night in question, appellant armed himself and, with his brothers,
kidnapped Bettelyoun.  Appellant drove Bettelyoun to the roadside park and, either implicitly or
explicitly, threatened to kill him.  When the highway patrolman drove up, appellant assured his
companions that "he would get [them] out of this."  When Warren turned his back, appellant
jumped from his car, pointed his pistol at the officer, and fired repeatedly.  As he drove away
after shooting the officer, appellant told his companions that he "had to do it."  As in Godsey, the
deliberateness of appellant's actions belies any claim that he did not intend to kill the officer. 
Moreover, in his recorded statement to the police, appellant did not suggest that he had no
intention of killing the officer, but instead indicated that he shot the officer because he was afraid
and panicked.  The evidence as a whole does not support a rational inference that appellant, when
he shot Warren in the back, was merely unaware of or consciously disregarding the risk of death
that his conduct created.  The district court did not err by refusing to instruct the jury on the lesser
included offenses.  Points of error two and three are overruled.
	In his first point of error, appellant contends the district court erred by excusing
venire member Sharon Strasser Rodriguez after the defense waived its ground for challenge.  The
relevant statute is article 35.16 of the Code of Criminal Procedure, which reads in pertinent part:


(a)  A challenge for cause is an objection made to a particular juror, alleging some
fact which renders him incapable or unfit to serve on the jury.  A challenge for
cause may be made by either the state or the defense for any one of the following
reasons:

. . . .

10.  That from hearsay, or otherwise, there is established in the mind of the juror
such a conclusion as to the guilt or innocence of the defendant as would influence
him in his action in finding a verdict.  To ascertain whether this cause of challenge
exists, the juror shall first be asked whether, in his opinion, the conclusion so
established will influence his verdict.  If he answers in the affirmative, he shall be
discharged without further interrogation by either party or the court. . . .

. . . .

No juror shall be impaneled when it appears that he is subject to the second, third
or fourth grounds of challenge for cause set forth above, although both parties may
consent.  All other grounds for challenge may be waived by the party or parties in
whose favor such grounds of challenge exist.


Tex. Code Crim. Proc. Ann. art. 35.16(a) (West 1989).
	Rodriguez was disqualified from jury service under article 35.16(a)(10).  Rodriguez
stated, shortly after her voir dire began, that she would find it difficult to be an objective juror
given what she had heard about the case.  The court then questioned her as follows:


	Have you established in your mind a conclusion as to the guilt or innocence
of the defendant, David Madrigal?

	MS. RODRIGUEZ:  Yes.

	THE COURT:  In your opinion, will the conclusion so established as to
Mr. Madrigal's guilt or innocence influence your verdict if you're selected on the
jury?

	MS. RODRIGUEZ:  I would like to say no, but I can't.  It probably would. 
I would have to say yes.


The court gave Rodriguez a few minutes to think and then repeated the questions.  She again
answered both questions affirmatively.  The court discharged Rodriguez even though defense
counsel "waive[d] any objection that we might have" to the venire member under article
35.16(a)(10).
	Appellant argues that despite the seemingly mandatory language of article
35.16(a)(10), he had the right under the statute to waive his objection to Rodriguez serving on the
jury.  Because he did waive his objection, appellant concludes that the court erred by excusing
Rodriguez from jury service.  This contention was not preserved for review.  When a juror who
is subject to challenge for cause but is not absolutely disqualified is excused by the court sua
sponte, in order to preserve error and establish harm the defendant must, among other things,
exhaust all of his peremptory challenges.  Green v. State, 764 S.W.2d 242, 247 (Tex. Crim. App.
1989).  In this cause, appellant used only seven of his fifteen peremptory challenges.  Even if
appellant's waiver of his right to challenge Rodriguez is assumed to have qualified her for jury
service, reversible error still is not shown because the State did not exhaust its peremptory
challenges.  Id. at 246.  Point of error one is overruled. (3)
	The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]
Affirmed
Filed:  March 31, 1993
[Publish]
1.        During cross-examination, Marcello amended his testimony to indicate that appellant's
words were "I had to do it because he was going to do us."
2.        A person commits involuntary manslaughter if he recklessly causes the death of an
individual.  Tex. Penal Code Ann. § 19.05(a)(1) (West 1989).  A person acts recklessly with
respect to the result of his conduct when he is aware of but consciously disregards a substantial
and unjustifiable risk that the result will occur.  Tex. Penal Code Ann. § 6.03(c) (West 1974).
        A person commits criminally negligent homicide if he causes the death of an individual by
criminal negligence.  Tex. Penal Code Ann. § 19.07 (West 1989).  A person acts with criminal
negligence with respect to the result of his conduct when he ought to be aware of a substantial and
unjustifiable risk that the result will occur.  Tex. Penal Code Ann. § 6.03(d) (West 1974).
3.        Were we to reach the merits of appellant's contention, we would hold it to be without merit. 
Article 35.16(a) states that a challenge for cause may be made by either the State or the defense
for any of the reasons listed therein.  Both parties have an interest in empaneling jurors who do
not have a preconceived opinion of guilt or innocence that will influence their verdict.  While
appellant chose to waive his ground for challenge under subsection (a)(10), the State did not.  In
the absence of a waiver by both parties, the district court was required by the express terms of
article 35.16(a)(10) to excuse the prospective juror.  

