COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

O P I N I O N

Appellant Jorge Lira appeals from his conviction for capital murder.  We affirm.

Facts

On December 18, 1996, Jeannette Kern, an elderly widow, was found bound and strangled on her kitchen floor.  Several items, including her car, television sets, VCRs, an antique rifle, and small curios were missing from her home.

Police quickly learned that Enriqueta Yu had provided in-home nursing care for Kern=s husband a few months prior to his death in September 1996 and came to believe she was implicated in Kern=s murder.  Police also learned that Eva Moreno, a friend of Yu and defendant Lira, may have also been involved in the burglary/murder.

Kern=s car was eventually found in Juarez, Mexico at the home of the ex-wife of Constantino Torres.  Torres implicated Moreno as having been involved in Kern=s death.  Yu was questioned and ultimately arrested by police.  Moreno escaped to Mexico.

Lira, as a known associate of Moreno=s, was questioned by police.  A small silver box belonging to Kern was discovered during a permissive search of his bedroom at his mother=s house.  Lira=s brother also told the police Lira had been involved in the events of December 18.

Ultimately, Lira confessed to having been involved in the burglary of Kern=s home and gave police a written statement.  He also confessed he knew in advance of the burglary that Yu and Moreno planned to kill Kern so she could not identify anyone to the police.

Lira told police when Kern recognized Yu, she opened the door, and the gang forced their way into the house.  Lira held her at gunpoint while another man, Carlos, bound her with duct tape.  Yu then injected Kern with what Lira believed was heroin.

Lira stayed with Kern while the others took things from the house.  When they were finished, Yu motioned to Lira to kill Kern.  Lira was scared to do so and told Carlos to kill Kern.  Carlos and Yu then killed Kern by strangling her with the strap of Kern=s purse.  Lira admitted the silver box found in his bedroom had been taken from Kern=s house.

Lira did not testify at trial.  The jury heard evidence from two defense witnesses that they did not believe him capable of violent behavior.  After a five-day trial, a jury found Lira guilty of burglary and capital murder.  He was sentenced to life imprisonment.  This appeal timely followed.

Evidence of the Corpus Delicti

In his first issue, Lira contends the State failed to prove that he participated in Kern=s murder and therefore failed to prove the corpus delicti of the offense.  The term corpus delicti means that proof exists of the fact that Athe crime in question has been committed by someone.@  Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993); Nathan v. State, 611 S.W.2d 69, 75 (Tex. Crim. App. 1981).  The identity of the perpetrator of the crime is not an element of the corpus delicti:  the inquiry focuses only on the harm brought about by the criminal conduct of some person.  Gribble v. State, 808 S.W.2d 65, 70 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991).

Although the precise identity of the perpetrator need not be established to prove the corpus delicti, Texas law applies the common‑law rule that an extrajudicial confession is insufficient to support a conviction absent corroboration of the confession with independent evidence.  Gribble, 808 S.W.2d at 70; Lott v. State, 60 Tex. Crim. 162, 131 S.W. 553 (1910).  The corroboration requirement ensures that a person confessing to a crime is not convicted without independent evidence that the crime was indeed committed.  Gribble, 808 S.W.2d at 71.

Where, as in this case, an extrajudicial statement exists, the corpus delicti rule requires us to consider all the record evidence, other than Lira=s confession, in the light most favorable to the verdict.  Fisher, 851 S.W.2d at 303.  With that scope of review in mind, we must determine whether the record evidence tends to establish that someone committed the murder of Jeannette Kern.  See id.

The quantum of independent evidence required to corroborate an extrajudicial confession, and therefore establish the corpus delicti, is not onerous.  Gribble, 808 S.W.2d at 71‑72; Bordman v. State, 56 S.W.3d 63, 72 (Tex. App.‑-Houston [14th Dist.] 2001, pet. ref=d); Criner v. State, 868 S.W.2d 29, 30  (Tex. App.‑-Beaumont 1994, pet. ref=d).  There must, however, be some evidence which renders the corpus delicti more probable than it would be without the evidence.  Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000); Wooldridge v. State, 653 S.W.2d 811, 816 (Tex. Crim. App. 1983).

 In this case, Mrs. Kern was found bound, gagged, and strangled on the kitchen floor of her home.  There was evidence that a robbery/ burglary had taken place including the fact that a garage door had been left open, cable wires were left dangling from the wall, drawers were open, and a telephone receiver was missing from its base.  Significant personal property was missing from the home, including televisions, VCRs, an antique rifle, a car, and several items from a curio cabinet, including a small silver box.  That box was found in Lira=s bedroom in a search conducted with his mother=s and brother=s permission when police detained him for questioning.^[1]  The car was ultimately found in Mexico at the home of the ex-wife of suspected co-conspirator Constantino Torres.

The police quickly learned that Enriqueta Yu had been employed by Mrs. Kern to take care of her husband prior to his death.  Yu was implicated in the robbery and murder of Mrs. Kern.  Another woman named Eva Moreno was also implicated in the robbery and murder.  Moreno was a known associate of Lira=s and Torres=s.  Finally, Lira=s brother, Mario, told police that Lira had been involved in Kern=s murder.

Taken in the light most favorable to the verdict, we find this evidence sufficient to corroborate Lira=s confession that he participated in the underlying robbery of Kern=s home, evidence which in turn supports his capital murder conviction.  Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997) (evidence of robbery at murder scene and discovery of stolen items at pawn shop and identification of appellant as person who sold stolen property established corpus delicti).  Because evidence of the corpus delicti corroborates Lira=s extrajudicial statement, we hold that his statement was sufficient to support his conviction and overrule Issue One.

The Motion to Quash

Lira next contends that the trial court abused its discretion in overruling his motion to quash the indictment.  Specifically, he complains the indictment=s burglary allegation is defective because it alleges that a property crime, burglary, was committed against a human being.^[2]  The jury ultimately found Lira guilty of capital murder based on his  participation in the underlying burglary.

The State, relying on article 1.14 of the Code of Criminal Procedure, argues that Lira waived this point on appeal because his motion to quash the indictment was not re-urged until the day of trial.  However, Lira=s motion to quash was filed fifteen days before trial.  That filing constitutes a proper objection made Abefore the date on which the trial on the merits commences . . . .@  Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2002).  Article 1.14=s preservation requirement is therefore satisfied and this point preserved for our review.

We review a trial court=s denial of a motion to quash an indictment for an abuse of discretion.  State v. Goldsberry, 14 S.W.3d 770, 772 (Tex. App.‑‑Houston [1st Dist.] 2000, pet. ref=d) (citing Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App.  [Panel Op.] 1980) (op. on reh=g)).  Such motions should be granted only when the language concerning the defendant=s conduct is so vague or indefinite as to deny effective notice of the acts allegedly committed.  DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); Jarnigan v. State, 57 S.W.3d 76, 92 (Tex. App.-‑Houston [14th Dist.] 2001, pet. ref=d).  The defendant must also demonstrate that the defect surprised or misled in the preparation of defense.  Burks v. State, 876 S.W.2d 877, 889 (Tex. Crim. App. 1994).  A valid indictment therefore need only contain enough verbiage to identify the specific penal statute under which the State seeks to prosecute the accused and to ensure the accused can prepare a defense.  State v. Carter, 810 S.W.2d 197, 199 (Tex. Crim. App.  1991); see Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997).

            There is nothing in the instant indictment that is so vague or indefinite as to deny Lira effective notice that he was on trial for capital murder arising from the burglary of Kern=s house.  Restated, Lira cannot demonstrate an abuse of discretion by the trial court occurred when it refused to grant his motion to quash the indictment.  This conclusion is reinforced by the fact that while Lira did complain of the alleged defect at trial, he made no claim or showing at trial that the defect compromised his defense.  Burks, 876 S.W.2d at 889.

Furthermore, generally the State need not plead with additional specificity those matters which are statutorily defined in the alternative where the matter is not an act or omission of the defendant.  DeVaughn, 749 S.W.2d at 68; see e.g., Allison v. State, 618 S.W.2d 763 (Tex. Crim. App. 1981) (failure to specify Aowner@ or Aeffective consent@ did not deny notice); Linville v. State, 620 S.W.2d 130, 131 (Tex. Crim. App. 1981) (robbery indictment need not further define Ain the course of committing theft@); Hall v. State, 640 S.W.2d 307, 309 (Tex. Crim. App. 1982) (attempted  murder indictment may allege only Awith intent to commit murder@ without further addressing the variety of acts which might constitute murder).  Because a burglary may be committed anywhere within the county, the State is not required to allege a specific location as an element which it must prove at trial.  Pinkerton v. State, 660 S.W.2d 58, 63 (Tex. Crim. App. 1983).  Thus, although this indictment did not allege that Kern=s house was the specific situs of the burglary, this is not a fundamental defect.  Lira=s Issue Two is therefore overruled.

The Extraneous Offenses Evidence

In his final issue, Lira contends the trial court abused its discretion by permitting the introduction of evidence that Lira was a Atank boss@ and committed violent acts while confined in jail prior to trial.  He further maintains this evidence was not relevant because it failed to establish any element of the offenses with which he was charged and occurred subsequent to the offense.  For its part, the State asserts that Lira failed to preserve this point for our review.  We first address the waiver argument.

A timely and specific objection must be made at trial to preserve error for appellate review.  Tex. R. App. P. 33.1(a); Davila v. State, 930 S.W.2d 641, 650 (Tex. App.--El Paso 1996, pet. ref=d).  The point of error raised on appeal must also comport with the objection made at trial or the point of error is waived.  Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); Davila, 930 S.W.2d at 650.

During the guilt/innocence phase of trial, the defense presented several witnesses including Lira=s sister, Juanita Pantoja.  On direct examination, defense counsel questioned Pantoja as follows:

Q         (By Mr. Brady) Now, do you know George=s reputation in the community for being--whether he=s violent or not?

A         No.

MS. MERAZ:  Objection, Your Honor.  It=s not the punishment phase of the trial.  Character is not an issue.

THE COURT:  She=s already stated no.  She=s already answered no. Proceed.

Q         (By Mr. Brady) Do you know whether or not he=s aggressive.

A         I don=t--

MS. MERAZ:  Same objection, Your Honor.

.   .   .

THE COURT:  Overruled.

Q         (By Mr. Brady) You don=t know whether or not he=s an aggressive person?

A         He=s not.

Q         Have you ever known him to be in trouble with the authorities?

MS. MERAZ:  We=re going to object, Your Honor, to character evidence of the defendant.  His character is not in issue.

MR. BRADY:  His character is in issue, Your Honor.  It=s a murder trial.

THE COURT:  Sustained at this time.

.   .   .

Q         (Redirect by Mr. Brady) Okay.  Have you ever known George to lie, cheat, steal, be violent, anything of that nature?

A         No.

.   .   .

Q         (Recross by Ms. Meraz) Okay.  Now, you said that you don=t know George to steal, or --and that he was an honest person?

A         That=s correct.

Q         Okay.  Now, Ms. Pantoja, did you know that on February 24th of 1998--

MR. HUGHES:  Objection, Your Honor.  May we approach?

MS. MERAZ:  They opened the door, Your Honor.

.   .   .

He=s not violent and nonaggressive, so they have opened that. Now they say he=s honest and doesn=t lie.  We have these records on these dates, he extorted commissary [sic], started fights--

.   .   .

We have information from the jail, Your Honor, that the defendant has engaged in numerous bad acts in the jail.  I believe they have opened the door by saying he=s not violent and not aggressive, you know, that he=s an honest person.

.   .   .

THE COURT:  . . . How is it that she is--she would know anything that occurred in the jail.

MS. MERAZ:  Well that=s it, Your Honor.  If she=s making a point--a blanket statement saying that he=s honest and fair-dealing, we get to attack the >do you know= questions.

.   .   .

MR. BRADY:  Your Honor 404(b) . . . evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may be admissible for other purposes, and it talks about-- . . . proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absent mistake or--

Essentially, Your Honor, 404 . . . says that a defendant in a criminal case, his character is in evidence from the beginning of the trial, by reading the indictment.  We=re entitled to bring in general character traits, Your Honor, to rebut that.

The State of Texas is not entitled to use specific acts of misconduct to rebut what we have put in, unless they are attempting to show one of the things under the extraneous offense exception.

.   .   .

Now, they can come in with other witnesses . . . that know George Lira. And those other witnesses can testify as to his character, his character traits that they know him to have from their knowledge of the particular person.

But just to bring extraneous offenses at this point, it=s improper, it=s inadmissible, and I would submit to the Court it=s very likely to be reversible error.

.   .   .

THE COURT:  [U]nder Rule 405, specific instances of conduct, it could also be admissible.  And I find that, now that it has become a part of the defense in this case, that specific instances of conduct may, in fact, be admissible.  However, I am also going to find that there is just no way that this person could have any knowledge of any alleged crimes to have occurred in the jail.  And if you want to make proof of those, it will not be through this witness.

So the objection as to getting--eliciting that information from this witness is sustained.

MS. MERAZ:  Your Honor, we=re getting the case law that says we can get it under the >do you know= questions.

THE COURT:  It is sustained.  You can bring in what other evidence on that that you see fit.

MS. MERAZ:  Okay.  But you said we could prove it up through other witnesses, right?

THE COURT:  It appears to have now become admissible, yes.

.   .   .

Q         (Direct by Ms. Meraz) Okay.  Ms. Pantoja, previously you stated that your brother was not violent, was not aggressive, didn=t steal and was honest; is that right?

A         That=s right.

Q         Okay. Ms. Pantoja, did you know that on April 29th of 19---

MR. HUGHES:  Your Honor, excuse me.  We object to this under Rule 404 and Rule 405 of the Texas Rules of Criminal Evidence.  We believe this is improper cross-examination, and we would like to state our objection for the record, Your Honor.

THE COURT:  The objection is overruled.

.   .   .

Q         (By Ms. Meraz) Okay. Ms. Pantoja . . . [a]nd did you know that, back on August 9th of 1997, your brother was in a fight trying to be a tank boss?

A         No.

Q         And back on May 28th 1998--

MR. HUGHES:  Objection, Your Honor.  Ms. Meraz is testifying.  This is improper cross-examination.  She=s stating a fact . . . We object.  That=s improper cross-examination.  Even under the rules of evidence, it=s improper cross-examination.

THE COURT:  Overruled.

.   .   .

Q         And also, on June 28th of 1999--

MR. HUGHES:  Objection, Your Honor.  Your Honor, I would point the Court out to the State=s notice of extraneous [sic], contained in the Court=s file under the Court=s 28.01 order and under Rule 404(b) motion, which we filed.  They have gone into at least two items not listed there.  We object and request a mistrial, Your Honor.

THE COURT:  Your objection is overruled.  Your request for a mistrial is denied.

.   .   .

MS. MERAZ:  State closes.

THE COURT:  Does the defense close?

MR. HUGHES:  Yes, Your Honor . . . .

We have quoted extensively from the record to demonstrate several points.  First,  the only objections Lira made to the State=s line of questioning concerning his bad acts in jail was that it constituted improper cross-examination pursuant to Rules 404(b) and 405.  On appeal, however, Lira argues that the trial court abused its discretion by admitting this evidence pursuant to Rules 403 and 401.  To the extent that he relies upon Rules 403 and 401, his Issue Three is overruled as waived.

Second, Lira did object to the State=s questioning on the basis of Rule 404(b) at trial and now raises that issue on appeal.  However, this record demonstrates Lira opened the door concerning his character.  Indeed his own counsel argued that character is always at issue in a murder case.  Because Rule 405(b) permits proof of specific instances of a person=s conduct to prove character, the questioning was proper.  Tex. R. Evid. 405(b).

Third, Lira apparently argues that because Pantoja was questioned about three offenses that were not listed in the State=s notice of extraneous offenses, the questioning should have been excluded for procedural reasons.  However, pursuant to Rule 404(b), the notice of extraneous offenses concerns only that evidence which the State will introduce in its case-in-chief.  Tex. R. Evid. 404(b).  In this instance, the disputed questioning occurred during cross-examination after the State=s case closed and the defense was putting on its case.  Thus no error occurred, and Lira=s Issue Three is overruled on that ground.

Finally, even if we were to find that reversible error occurred under any of Lira=s  theories, Lira=s harm analysis fails.  He argues that the introduction of this evidence resulted in harm because he was unable to rebut the State=s evidence and A[t]he jury was forced to conclude that Appellant was generally a violent person and was, therefore, guilty of the instant offense.@  This ignores the fact that Pantoja denied every allegation of violent behavior asserted by the State.  Whether or not that testimony was credible or convincing is solely a matter for the trier of fact, not this Court.  Duffy v. State, 33 S.W.3d 17, 22 (Tex. App.‑‑El Paso 2000, no pet.).

In short, on this record we find no abuse of discretion concerning the trial court=s decision to allow the State to cross-examine Pantoja with evidence of extraneous offenses.  Lira=s Issue Three is thus overruled.

Conclusion

The trial court=s judgment is affirmed.

SUSAN LARSEN, Justice

July 18, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)