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Ivan Abner
CANTU
Classification: Murderer
Characteristics:
Robbery
Number of victims: 2
Date of murders:
November 4, 2000
Date of arrest:
4 days after
Date of birth: June 14, 1973
Victims profile: James Mosqueda,
27 (his cousin) and Amy
Kitchens, 21
Method of murder:
Shooting
Location: Collin County, Texas, USA
Status: Sentenced to death on November 8, 2001
Name
TDCJ Number
Date of Birth
Cantu,
Ivan Abner
999399
06/14/1973
Date Received
Age
(when Received)
Education Level
11/08/2001
2828
12
Date of Offense
Age
(at the
Offense)
County
11/04/2000
27
Collin
Race
Gender
Hair Color
Hispanic
male
black
Height
Weight
Eye Color
5 ft
7 in
176
brown
Native County
Native State
Prior Occupation
Dallas
Texas
clerical, laborer
Prior Prison
Record
None
Summary of
incident
On
11/04/2000 in Dallas, Cantu shot and killed a 27 year old
Hispanic male (cousin to Cantu) and a 21 year old white female.
In addition, Cantu took jewelry and a vehicle from the victim's
residence.
KELLER, P.J., delivered
the opinion of the Court in which MEYERS, KEASLER, HERVEY and
COCHRAN, JJ., joined. WOMACK, J., filed a dissenting opinion in
which PRICE and JOHNSON, JJ., joined. HOLCOMB, J., concurred in
the result.
O P I N I
O N
Appellant was convicted in October 2001
of capital murder.
(1)
Pursuant to the jury's answers to the special issues set forth in
Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e),
the trial judge sentenced appellant to death.
(2) Direct appeal
to this Court is automatic.
(3)
Appellant raises thirteen points of error. We
shall affirm.
I. SUFFICIENCY OF THE EVIDENCE
A. Guilt
1. Legal
In point of error six, appellant
claims the evidence is legally insufficient to support his
conviction for capital murder. He argues that "apart from the
evidence resulting from the unlawful search of [his] apartment,
the only convincing evidence in the record that connects him to
the murders is the testimony of Amy Boettcher." He maintains that,
because Boettcher was an accomplice, her testimony must be
corroborated under Article 38.14. He says that the only evidence
that corroborates her testimony was illegally obtained and
therefore cannot be considered.
(4)
An accomplice participates with a defendant before,
during, or after the commission of a crime.
(5)
The participation must involve an affirmative act that promoted
the commission of the offense with which the accused is charged.
(6) One is not an
accomplice for failing to disclose a crime or even concealing it.
(7)
Appellant and Boettcher shared
an apartment not far from the victims, James Mosqueda and Amy
Kitchens. Mosqueda was appellant's cousin. On the night of the
offense, appellant told Boettcher he was going to Mosqueda and
Kitchens' house to kill them, but Boettcher did not believe him.
Appellant spoke with Mosqueda on the phone before leaving at about
11:30 p.m. While appellant was gone, Boettcher talked on the phone
with her stepfather, whom she and appellant were going to visit in
Arkansas the next day. When appellant returned around 12:20 a.m.,
his face was swollen and he had what looked like blood on his
jeans and in his hair.
He told Boettcher that "it
wasn't pretty" and began unloading his gun, complaining that it
had jammed on him. He had the victims' identification and car keys.
Boettcher testified that she threw appellant's bloody jeans in the
kitchen trash can. After he cleaned up, appellant made Boettcher
return with him to the victims' house to see what he had done.
They drove Kitchens' Mercedes.
Boettcher testified that she could see the victims' bodies through
the doorway to the master bedroom. They parked the Mercedes in the
garage and left in Mosqueda's Corvette.
Appellant gave Boettcher a
diamond engagement ring that had belonged to Kitchens. Boettcher
did not attempt to elude appellant or turn him in after learning
of the murders. She testified that she was terrified of appellant
and thought he might kill her. Appellant had shot at Boettcher
with a pistol the night before the murders and slammed the door on
her hand as she tried to leave.
There is no evidence that
Boettcher intended to promote the offense or assisted in its
commission. Viewing the murder scene after the fact, failing to
report the offense, assisting appellant in returning Kitchens' car
to the scene, and failing to extricate herself from appellant
after becoming aware that he had committed the offense are not
acts that render Boettcher an accomplice to the offense. Because
she was not an accomplice, her testimony needed no corroboration.
Point of error six is overruled.
2. Factual
In his seventh point of error, appellant claims the evidence is
factually insufficient to support his conviction for capital
murder. Evidence is factually insufficient if, viewing all of the
evidence in a neutral light, "the proof of guilt is so obviously
weak as to undermine confidence in the jury's determination, or
the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof."
(8) Again,
appellant argues that Boettcher was an accomplice, that her
testimony was unreliable and requires corroboration, and that
there was no other admissible evidence linking appellant to the
crime. Appellant does not explain with any more specificity in
what way the evidence was factually insufficient.
As discussed above, Boettcher was not an accomplice. Her testimony
clearly showed appellant's involvement in the crime. While
appellant challenges her credibility, the credibility of a witness
is the province of the jury, and the jury's determination in that
regard generally should not be disturbed, even in a factual
sufficiency review.
(9)
Moreover, even without considering the evidence appellant claims
was illegally obtained,
(10) there was a
substantial amount of other evidence of his guilt. The murder
weapon was found at the home of one of appellant's friends, with
whom appellant and Boettcher had stayed in the days following the
offense. Appellant's fingerprints were found on the magazine of
the gun, along with Mosqueda's blood on the gun barrel.
Appellant's fingerprints were also found on Kitchens' Mercedes.
Evidence was presented that appellant showed off the engagement
ring he gave to Boettcher to numerous people on the night of the
offense, and to Boettcher's family in the days after the offense.
Appellant was seen wearing Mosqueda's bracelet in the days after
the murders and the bracelet was found at Boettcher's parents'
house in the room where Boettcher and appellant stayed following
the offense.
In addition, Jeff Boettcher testified that appellant told him less
than a month before the murders that appellant wanted to kill
Mosqueda, and after the offense, appellant called Jeff and told
him to check out the newspaper. Finally, records from the toll
road reflecting the comings and goings of the Mercedes and
Corvette on the night of the offense corroborated Amy Boettcher's
version of events.
Appellant
does not contend that there is any exculpatory evidence in the
trial record that could be weighed against the inculpatory
evidence, and we find none. We cannot say that the jury's verdict
is so lacking in support or so outweighed by contrary proof as to
be clearly wrong and manifestly unjust. We hold the evidence
supporting the conviction to be factually sufficient. Point of
error seven is overruled.
B. Punishment
1. Future dangerousness - legal
In his eighth point of error,
appellant claims the evidence is legally insufficient to support
the jury's finding that appellant would be a continuing threat to
society.
(11)
We consider all of the evidence presented at both phases of trial
and ask whether, viewing that evidence in a light most favorable
to the verdict, any rational trier of fact could have found beyond
a reasonable doubt that there is a probability that appellant
would commit criminal acts of violence that would constitute a
continuing threat to society.
(12)
The facts of the offense show the depravity of
appellant's character. As first cousins, appellant and Mosqueda
grew up together. They shared apartments over the years and worked
together in various business enterprises. Trusting appellant,
Mosqueda allowed him into his house at nearly midnight to "talk."
Witnesses testified that appellant was jealous of Mosqueda's
material wealth and success in business. Appellant searched the
house for drugs and money after the murders, and stole Mosqueda's
watch and bracelet and Kitchens' diamond engagement ring.
Later that night appellant gave Kitchens' ring to
Boettcher as he proposed marriage. Driving Mosqueda's Corvette,
the two then went out partying at several places where appellant
showed off the ring and announced that they were engaged.
Appellant showed no remorse the night of the offense, taking
Boettcher back to the scene to show her what he had done, to
gather some things that he had left, and to continue looking for
drugs and money. When visiting Boettcher's parents in the days
following the offense, appellant acted as though nothing was wrong.
He made several self-serving phone calls to friends in which he
told a story about a man who had appeared at his apartment on the
night of the offense and had threatened his and Mosqueda's lives.
In addition
to the facts surrounding the double murder, the State also
presented evidence of appellant's abusive conduct during his two
marriages and toward Boettcher. Boettcher testified that the night
before the offense she and appellant had an argument. In his anger,
appellant retrieved a pistol and shot it at her head. When
Boettcher tried to leave the apartment, appellant slammed the door
on her hand and "smacked" her across the face. He then held the
gun to her head and told her he was "serious."
He also told
Boettcher that going to the police would be futile because the
police all worked for him and would not help her. Appellant's
first wife, Michelle Traister, described episodes in which
appellant threw her to the floor, while beating her face and
slamming her head repeatedly against concrete and tile surfaces.
In one instance, as appellant choked her, he stated that he wanted
to kill her. Traister blacked out and when she came to, appellant
ripped her clothes off and forced her to have sex with him.
In another
instance, appellant beat Traister's head and face so severely that
she still exhibited bruises days later when she finally returned
to work. Several police officers testified about responding to
domestic disturbance calls from appellant's second wife, Jennifer.
In each case, upon arrival, the police officers witnessed bruises
on Jennifer which she said were caused by appellant's beating.
Jennifer told one of the officers that appellant had told her he
wanted to kill her.
A friend of
Jennifer's testified that she saw Jennifer's bruises and advised
her to leave appellant. There was also testimony about incidents
between appellant and his mother in which appellant flew into a
violent rage and others had to intervene on behalf of appellant's
mother. Finally, there was evidence of appellant's continued drug
abuse, reckless driving, convictions for a DWI, a public
intoxication, evading arrest, a controlled substance charge, and
failed probation.
All of the
evidence taken together and viewed in the proper light support the
jury's finding beyond a reasonable doubt that there is a
probability that appellant would commit criminal acts of violence
that would constitute a continuing threat to society. Point of
error eight is overruled.
2. Future dangerousness - factual
In his ninth point of error,
appellant claims the evidence is factually insufficient to support
the jury's affirmative answer to the future dangerousness issue.
This Court does not conduct a factual sufficiency review of the
future dangerousness special issue.
(13)
Point of error nine is overruled.
3. Mitigation - legal
and factual
In his tenth point of error, appellant claims the evidence is both
legally and factually insufficient to support the jury's answer to
the mitigation special issue. We do not review the sufficiency of
the evidence to support the jury's answer to the mitigation
special issue.
(14) Point of
error ten is overruled.
II. GUILT
A. Motion to suppress
1. Search
In points of error one through
three, appellant claims the trial court abused its discretion by
denying appellant's motion to suppress evidence obtained by
allegedly illegal searches of his apartment on November 4, 7, and
29, 2000, in violation of Articles 18.02(10) and 38.23, the Fourth
Amendment to the United States Constitution, and Article I § 9 of
the Texas Constitution.
(15)
Assuming, without deciding, that
the searches were illegal, we find the admission of the evidence
to be harmless. As a result of these searches, the police
recovered the following evidence: (1) a pair of jeans; (2) a pair
of socks; (3) a box of .380 bullets; (4) a Dooney & Burke key ring
with keys; (5) a set of assorted keys; (6) a silver Mercedes Benz
key; (7) a black Mercedes Benz key; and (8) a bullet found in the
wall of appellant's apartment. Blood on the jeans and socks was
analyzed and determined to match the victims' DNA.
Amy Boettcher's testimony about the offense
wholly incriminated appellant in the murders and robbery, and her
version was corroborated by other evidence. In addition, as
discussed in the section of this opinion relating to the factual
sufficiency of the evidence to support guilt, there was a great
deal of circumstantial evidence, obtained from sources other than
the searches in question, that linked appellant to the crime.
Finally, both Amy and Jeff Boettcher testified about appellant's
expressed desire to kill the victims.
As for the bullet recovered from the wall in
appellant's apartment, the existence of that bullet did nothing to
link appellant to the crime. While the recovery of the bullet
corroborates Boettcher's testimony that appellant shot at her with
a pistol and slammed her hand in the door, other evidence
corroborated her version of these events, such as a neighbor who
testified to hearing a loud sound like a gun, and a witness who
testified about the injuries to Boettcher's hand. We find beyond a
reasonable doubt that the evidence did not contribute to
appellant's conviction or punishment.
(16)
Points of error one through three are overruled.
2. Arrest
In point of error four,
appellant claims his arrest on November 8, 2000, was illegal in
violation of his rights under the Fourth and Fourteenth Amendments
to the United States Constitution and Article 1 §§ 9, 10 of the
Texas Constitution. He complains that this arrest was a fruit of
the illegal searches and that evidence of this arrest should have
been suppressed. But appellant entered into an agreement with the
State at trial that any statements or other evidence stemming from
the allegedly illegal arrest would not be offered into evidence.
There is no indication in the record that the agreement was
breached and appellant does not claim it was. Point of error four
is overruled.
B. Accomplice witness jury instruction
In his fifth point of error, appellant claims the trial court
abused its discretion in denying his request to instruct the jury
that appellant's girlfriend, Amy Boettcher, was an accomplice as a
matter of law. A prosecution witness who is indicted for the same
offense with which the defendant is charged or a lesser-included
offense based upon participation in the commission of the greater
offense is an accomplice as a matter of law.
(17) If a
prosecution witness is an accomplice as a matter of law, the trial
court has a duty to instruct the jury accordingly.
(18) However, we
have already found that Boettcher was not an accomplice as a
matter of law. Therefore, the trial court did not abuse its
discretion in denying appellant's request for an instruction.
Point of error five is overruled.
III. PUNISHMENT
In point of error eleven, appellant contends that Articles 37.071
and 44.251 are unconstitutional under the Eighth and Fourteenth
Amendments by failing to provide meaningful review of the
punishment issues. Identical claims have been addressed and
rejected.
(19) Point of
error eleven is overruled.
In his twelfth point of error, appellant argues that Article
37.071 is unconstitutional under the Eighth and Fourteenth
Amendments because it fails to adequately define the term "society"
in the context of the future dangerousness punishment special
issue. This Court has repeatedly held that this term need not be
defined, as it is presumed to be understood by the jury without
instruction.
(20) Point of
error twelve is overruled.
Relying on Justice Brennan's dissent in Gregg v. Georgia,
428 U.S. 227 (1976), appellant claims in his thirteenth point of
error that the Texas death penalty scheme constitutes cruel and
unusual punishment in violation of the Eighth Amendment. This
Court is not bound by Justice Brennan's dissent. Moreover, we have
previously rejected facial challenges to the Texas death penalty
scheme under the Eighth Amendment.
(21) Point of
error thirteen is overruled.
4. Although appellant cites
Jackson v. Virginia, 443 U.S. 307 (1979), his argument
that the evidence is legally insufficient is based solely on the
effect of the statutory accomplice witness rule.
12. Manns v. State,
122 S.W.3d 171, 193 (Tex. Crim. App. 2003).
13. Allen v. State,
108 S.W.3d 281, 285 (Tex. Crim. App. 2003).
14. McFarland v. State,
928 S.W.2d 482, 499 (Tex. Crim. App.1996), cert. denied,
519 U.S. 1119 (1997); Lawton v. State, 913 S.W.2d 542,
557 (Tex. Crim. App.1995), cert. denied, 519 U.S. 826
(1996).
15. In his points of error,
appellant mistakenly refers to the third search as occurring on
November 22, but the search warrant for that search is dated
November 29, 2000.
