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Vogt v. State

Court of Appeals of Texas, Fourth District, San Antonio

December 18, 2013

Stephen Jonathon VOGT, Appellant
v.
The STATE of Texas, Appellee

Page 234

From the 290th Judicial District Court, Bexar County, Texas. Trial Court No. 2009CR12648B. Honorable Melisa Skinner, Judge Presiding.

For APPELLANT: Michael C. Gross, Law Office Of Michael C. Gross, San Antonio, TX.

For APPELLEE: Lauren A. Scott, Assistant District Attorney, San Antonio, TX.

OPINION

Page 235

Patricia O. Alvarez, Judge.

Appellant Stephen Jonathon Vogt was found guilty by a jury for the capital murder of Mario Alberto Raygoza on September 6, 2009, and sentenced to imprisonment for life, without the possibility of parole, in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Vogt argues (1) the trial court's jury instruction fails to accurately apply the law of parties to the facts of the case, (2) the State's closing jury argument violated his right to a fair trial and due process, and (3) the record fails to establish Vogt's ability to pay attorney's fees as required by the judgment. We reform the judgment to delete the assessment of attorney's fees and affirm the judgment as reformed.

Background

A. State's Evidence

The State called numerous officers and other individuals during their case-in-chief. Additionally, numerous audio-video recordings of interviews between Vogt and Colorado and San Antonio officers were admitted.

According to Vogt, Vogt and Garza decided they wanted to move to Colorado, but the only way they could get to Colorado was to kill someone to steal that person's car. Vogt picked the victim, Mario Alberto Raygoza. Vogt first met Raygoza through MySpace and Raygoza expressed an attraction to Vogt. By promising Raygoza he was " going to make it be worth it," Vogt convinced Raygoza to pick him up at

Page 236

his house and to also pick up Garza at his residence. According to Vogt, he told Raygoza that he and Garza needed help moving into a new apartment.

Prior to being picked up by Raygoza, Vogt took a steak knife from his grandmother's butcher block. While still in the vehicle, Garza stabbed Raygoza from behind with the steak knife and then, according to Vogt's confession, Vogt stabbed Raygoza with a box-cutter. Raygoza was able to escape and run from the vehicle, Garza and Vogt watched him fall and then drove Raygoza's vehicle away leaving Raygoza to die in the apartment parking lot. Raygoza died from bleeding into his chest and a cardiac air embolism.

Garza and Vogt drove to Glenwood Springs, Colorado. Along the way, they pawned and sold items for cash. When they were out of money, they resorted to shoplifting. On September 24, 2009, almost three weeks after the murder, Vogt and Garza were picked up at a City Market for petty theft/shoplifting in Glenwood Springs. Neither individual would provide the officers with identification or their names. Originally, only Garza was charged with the theft. Vogt, however, became hysterical and inconsolable. Since he had no identification, the officers placed Vogt in a different police vehicle in an attempt to find out where he lived. Once they were back at the police station, Officers Allison Swegart and Scott Robertson recognized Vogt and Garza from a BOLO (be on the lookout) posted at their police station. Officers from San Antonio had previously determined that Vogt was in the Glenwood Springs area by Vogt's continued access to his MySpace account. After the Glenwood Springs officers obtained a video of the shoplifting, where Vogt could also be seen taking items from the store, the officers arrested Vogt as well.

Vogt was read his Miranda rights on several different occasions and elected to waive his rights and talk to officers each time. During his first interview with Glenwood Springs Detective John Hassell, Vogt was obsessed with seeing Garza. He was upset that he would not be able to talk to either his mother or to Garza. He offered on several occasions to provide the officers with any information they wanted if they would let him talk to Garza. Vogt denied any knowledge of anything happening in San Antonio. Detective Hassell terminated the interview and told Vogt that he was available if he wanted to discuss what happened in San Antonio.

Shortly thereafter, Detective Hassell was called by jail officers and Vogt was brought back to meet with Hassell. Vogt again waived his Miranda rights and told the officers he just wanted to see or talk to Garza. During the interview, Vogt told the officers many of the details and admitted to killing Raygoza. Vogt also relayed that he and Garza had tried to kill themselves with rat poison and Lime-A-Way, but that it had only made them sick. Vogt and Garza decided they did not want to be in San Antonio anymore and that they needed to leave.

Vogt told the officers that Raygoza sent him pictures of himself and that Vogt did not like it. He stated that after he and Garza stabbed Raygoza, Raygoza ran out of the car and Garza jumped in the driver's seat and they left. Vogt explained that they left because he and Garza did not want people to think that they had killed Raygoza. Garza reassured Vogt that everything would be fine. Vogt told the officers that he had about $50.00 on him and Garza had about $10.00 and that was the money they used for gas. When Vogt refused to acknowledge facts known to be true by Detective Hassell, the interview was terminated.

Page 237

The following morning, Vogt was again Mirandized and elected to speak to the officers. At this interview, Detective Hassell was accompanied by San Antonio Detective Tim Angell. Vogt also spoke in a subsequent interview with Detective Brent Bell, an officer with the San Antonio Police Department. Vogt told the officers that he wanted " to clarify" some of the details. He provided his and Garza's driving route, including the cities in which they stopped. Vogt even provided the officers with the five locations in which they purchased fuel for the vehicle. He explained that they stopped outside of Roswell and dyed their hair, but insisted that it was only because they liked the new colors and not because they were trying to avoid being discovered. Vogt further described how he and Garza were able to avoid detection. He stated they had only resorted to shoplifting as a last choice after they had pawned everything and begged for everything they could.

Detective Angell asked Vogt on several occasions why he and Garza picked Raygoza. Vogt responded that Raygoza was chosen because Vogt knew that he could convince Raygoza to come and pick him up. Raygoza had a car and Vogt did not really know him and he " didn't have any ties to him." Vogt reiterated that Raygoza was the only person that Vogt could think of with whom they did not have ties. Vogt tried to make the officers understand that he and Garza had determined that for he and Garza " to get on with their lives" in Colorado it required someone having to die.

Vogt further explained that he snuck out of his house and even described a basket of clothes he left behind. Vogt directed Raygoza to Garza's house where Garza was waiting for them. Vogt exited the vehicle to help Garza with his belongings. Vogt also told the officers that while he and Garza were stabbing Raygoza, they were saying that they were sorry. Vogt further detailed that he was responsible for the " little slits" and the stab wounds were made by Garza. Vogt told officers that Raygoza " did not yell or anything," he just started running off and then fell. That was when he and Garza left for Colorado. They just wanted to start over.

After describing the murder in great detail, Vogt again asked about Garza and when he could see him. He wanted to know if Garza was still his friend.

B. Defense Evidence

Dr. Joann Murphey, an expert in psychology was called by the defense. Dr. Murphey examined school records, video-recordings of interrogations, and medical records. She spoke to people who knew Vogt, as well as Vogt himself. Dr. Murphey testified Vogt's father and a cousin both suffered from several mental disorders, often requiring his father to be hospitalized. At the age of ten, Vogt was diagnosed with depression, anxiety, and attention deficit hyperactivity disorder. Vogt's childhood records indicate that he was irritable, suffered with sleep problems, heard voices, and had hallucinations. Additionally, Vogt was paranoid, scared of the devil, scared of anthrax, believed strangers were in his house, and even duct-taped his head to keep voices out.

Dr. Murphey further explained Vogt was unable to think straight, suffered from a psychotic disorder, and would " literally bounce around his bedroom" for days without sleep. She continued that " Stephen has been diagnosed with almost every psychological condition that one could name." He was diagnosed with depression, anxiety, ADHD, bipolar disorder, thought disorder, and schizophrenia. Dr. Murphey opined that all of these disorders impair judgment and thus affected Vogt's ability

Page 238

to anticipate what would happen in a given situation.

Dr. Murphey explained that, prior to Raygoza's murder, Vogt and Garza had mixed rat poison, Lime-A-Way, NoDoz, and potentially other ingredients, with Dr. Pepper and made a suicide pact. Vogt drank his concoction first and then Garza drank his. According to Dr. Murphey, Vogt longed for friends, was extremely vulnerable, and needed social contact. In this case, Vogt was " head over heels in love with [Garza]. He idolized him. [Garza] had lots of friends. [Garza] moved easily with people. Met people easily. Told [Vogt] whom he could spend time with and who he could not spend time with. . . . [Vogt] felt that he finally had some friends because of his relationship with [Garza]."

Dr. Murphey explained this behavior could be seen in the interrogations where Vogt's only concerns were where Garza was, whether he could talk to Garza, and whether he could see Garza. Vogt was " obsessionally involved in that relationship," to the extent that Vogt took blame and manufactured facts that did not even exist. Dr. Murphey testified that, in her opinion, Vogt " could not have foreseen that--that level of violence or violence period would occur." According to Dr. Murphey, Vogt was heavily influenced by " some kind of almost psychotic proportions of love. So that he could not anticipate that such a horrific event would occur."

During cross-examination, the State identified reports that Vogt did not have delusions or hallucinations and that after treatment, Vogt's levels of uncooperativeness, hostility, manipulativeness, hyperactivity, and distractability all significantly decreased. Dr. Murphey, however, testified these symptoms returned when Vogt stopped attending counseling sessions. She further opined that at the time of the murder, Vogt was under significant stress, he was homeless, fearful of losing his love object, and had not been sleeping. In her opinion, the culmination of all his mental and emotional problems caused Vogt not to be able to think clearly or rationally or form an idea to harm someone. Dr. Murphey could not, however, point to any literature to support her hypothesis.

Law of Parties Jury Instruction

Vogt argues the jury was not instructed on how the law of parties applied to Vogt and the facts of the case. More specifically, Vogt contends the State clearly asserted that Garza, not Vogt, inflicted the blows that caused Raygoza's death and, thus, Vogt was guilty as a party to the offense.

During closing argument, Vogt's defense counsel argued Vogt was not guilty of capital murder because he did not kill Raygoza. To the contrary, defense counsel argued Vogt was guilty as a party only to the aggravated robbery because Vogt gave the knife to Garza in order to rob Raygoza. The trial court denied defense counsel's requested instruction explaining it believed the jury could reasonably apply the definition of " criminally responsible" to the charge as written. Vogt's defense counsel properly preserved his objection prior to the charge being read to the jury.

A. Jury Charge

The jury charge is the means by which a judge instructs the jurors on the applicable law. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). " 'Because the charge is the instrument by which the jury convicts, [it] must contain an accurate statement of the law and must set out all the essential elements of the offense.'" Id. (alteration in original) (quoting Dinkins v. State, 894 S.W.2d 330, 339 ...


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