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HENRY LEE ALVARADO v. STATE TEXAS (08/29/91)

delivered: August 29, 1991.

HENRY LEE ALVARADO, APPELLANT,
v.
THE STATE OF TEXAS, APPELLEE



On appeal from the 275th District Court of Hidalgo County, Texas.

COUNSEL

Attorneys for Appellant: Hon. Joe A. Cisneros, Attorney at Law, McAllen, Texas, Hon. Joseph W. Barbisch, Jr., Attorney at Law, Austin, Texas.

Attorneys for Appellee: Hon. Rene Guerra, District Attorney, Edinburg, Texas, Hon. Theodore C. Hake, Assistant Criminal District Attorney, Edinburg, Texas.

Paul W. Nye, C.j.; Noah Kennedy, and Robert J. Seerden, J.j.

Author: Nye

Appellant was separately indicted for the burglary of Kenneth Wilson's habitation, the capital murder of Kenneth Wilson, and the capital murder of his wife, Stella Wilson. The indictments were jointly tried. The jury found appellant guilty of burglary as charged but, on the capital murder indictments, found him guilty only of the lesser included offenses of murder. The jury then assessed punishments of 60 years in prison for each murder and 45 years in prison for the burglary. The trial court ordered the sentences to run consecutively. We affirm.

In his first point of error, appellant contends that the trial court erred in charging the jury on both capital murder and burglary because burglary was the underlying offense alleged in the capital murder indictments. The trial court submitted a separate charge for each indictment. At trial, appellant claimed that by so charging the jury, the trial court allowed appellant to be put to trial for burglary on all three indictments in violation of the jeopardy provisions of the United States and Texas Constitutions. The State responded that any discussion of double jeopardy was premature because appellant had not been found guilty or convicted of anything at that time. As noted above, the jury found appellant guilty of burglary and two murders, so that he was not actually convicted more than once of burglary.

On appeal, appellant does not cite any cases in support of his point of error or mention jeopardy. Instead, he now claims that the State improperly split capital murder into its two component lesser offenses, that is, murder and burglary. Appellant did not present this objection at trial, nor does he present any legal ground or authority for his position on appeal. To preserve error for appellate review, a complaining party's point of error on appeal must correspond to a timely, specific objection made at trial. Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Appellant has not preserved his appellate argument for review. Assuming, however, that appellant's point presents the jeopardy grounds which he asserted in the trial court, we find no error. Appellant was not convicted more than once of the "same offense." See generally, Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306 , 52 S. Ct. 180 (1932); Ex parte Ramos, Ex parte Ramos, 806 S.W.2d 845, 847-48 (Tex. Crim. App. 1991). Appellant's first point of error is overruled.

In his second and third points of error, appellant contends that the trial court's jury charges on murder allowed the jury to find him guilty of the Wilsons' murders without finding that he conspired to burglarize the Wilson home. Points two and three are identical except that point two concerns the murder charge for Kenneth Wilson and point three concerns the murder charge for Stella Wilson. The complained-of charges are identical except that one applies to Stella Wilson and the other to Kenneth Wilson. The charge applicable to Kenneth read:

Now, if you find and believe from the evidence beyond a reasonable doubt that Henry Lee Alvarado, Jorge Solorzano, Urbano Gonzalez, and/or Gonzalo Gonzalez intentionally or knowingly entered into a conspiracy to commit the offense of burglary of the habitation of Kenneth E. Wilson; that pursuant thereto they did carry out or attempt to carry out such conspiracy to commit the offense of burglary of the habitation of Kenneth E. Wilson; that on or about the 9th day of December 1987, in Hidalgo County, Texas, Jorge Solorzano, a member of said conspiracy, if he was, did then and there intentionally or knowingly commit another offense, to wit, murder, by causing the death of an individual Kenneth E. Wilson, by striking the said Kenneth E. Wilson with a deadly weapon, to wit, a metal bar, that in the manner of its use and intended use was capable of causing death and serious bodily injury; that the Defendant, Henry Lee Alvarado, pursuant to said conspiracy, if any, with the intent to promote and assist Jorge Solorzano, Urbano Gonzalez, and/or Gonzalo Gonzalez in the commission of the offense of burglary of the habitation of Kenneth E. Wilson, then and there was acting with and aiding the said Jorge Solorzano, Urbano Gonzalez, and/or Gonzalo Gonzalez in the commission of the offense of burglary of habitation, if any; that the murder of Kenneth E. Wilson occurred during the attempt to carry out said conspiracy, if any; and that the murder of Kenneth E. Wilson by Jorge Solorzano, if any, was done in furtherance of the conspiracy to burglarize the habitation of Kenneth E. Wilson, if any, and was an offense that should have been anticipated by Defendant, Henry Lee Alvarado, would occur as a result of the carrying out of the conspiracy to burglarize the habitation of the said Kenneth E. Wilson, then you will find the Defendant, Henry Lee Alvarado, guilty of murder, a lesser included offense of that alleged in the indictment.

Unless you so find and believe from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant, Henry Lee Alvarado of murder of Kenneth E. Wilson and say by your verdict not guilty.

Appellant alleges that the charge allows the jury to find him guilty if any of the named persons entered into a conspiracy to burglarize the Wilson house and if Jorge Solorzano murdered Kenneth E. Wilson in furtherance of the conspiracy. Although appellant did not raise this objection at trial, he now contends that the charge does not require the jury to find that he was a part of that conspiracy. As appellant made no objection on this ground at trial, he will obtain reversal only if the error is so egregious and created such harm that he has not had a fair and impartial trial--in short "egregious harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

If we restricted our review to the beginning phrases of the application paragraph, we would agree with appellant. The trial court did not require the jury to find that appellant conspired with anyone. In this opening phrase, the trial court required the jury to find only that two or more of the named individuals, but not necessarily appellant, conspired to commit burglary. At this point, the charge was deficient because it should have required the jury to find that appellant conspired with one or more of the named individuals.

We will not, however, limit our review to this single portion of the application paragraph. Later in the same paragraph, the jury was instructed that it had to find, inter alia, that appellant acted pursuant to the conspiracy with the intent to promote the commission of burglary, that appellant acted with or aided in the commission of the burglary, and that Wilson's death should have been anticipated by appellant as a result of carrying out the conspiracy.

Under these requirements, the jury could not have convicted appellant without finding that he was a member of the conspiracy. Error, if any, in the initial portion of the charge did not create egregious harm. Appellant's second and third points are overruled.

In points of error four and five, appellant contends the evidence is insufficient to sustain the murder convictions. Appellant contends that nothing in the record supports a finding that appellant "should have anticipated" that a murder would occur as a result of the Wilson burglary. In reviewing the sufficiency of the evidence, an appellate court views 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. Baugh v. State, 776 S.W.2d 583, 585 (Tex. Crim. App. 1989); Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).

The evidence presented at trial showed that the Wilsons were beaten to death while in bed during a burglary of their home. Jorge Solorzano, the co-conspirator who actually beat the Wilsons to death, testified that appellant was inside the Wilsons' house and directed him to beat the Wilsons with a metal bar. According to Solorzano, appellant was the individual who instigated him and several others to commit burglary. Solorzano testified that appellant chose the Wilson house, saying that they would have to beat up (or kill) the couple that lived there.

Appellant testified in his own defense. He denied involvement in the killings but admitted to participating in the burglary. Appellant testified that he reluctantly agreed with some friends to commit burglary. He claimed that the conspirators sought to find an unoccupied house to burglarize. He further claimed to have remained outside the Wilson house, except for one brief entry to steal a television, and not to have known until after the burglary that the Wilson house had been occupied or that anyone had been killed.

In its charge on murder, the trial court authorized the jury to find appellant guilty under the law of parties as set forth in Tex. Penal Code Ann. ยง 7.02 (b)(Vernon 1974). This section provides:

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 of the carrying out of the conspiracy.

In arguing that the evidence is insufficient, appellant excludes the accomplice evidence, relies upon his version of the facts, and then concludes that he could not have anticipated the murders. We do not follow this approach in judging the sufficiency of the evidence. Instead, we view the evidence ...


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