COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

No.  08-02-00072-CR

DAVID SANTIAGO RENTERIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.

Appeal from the 41st District Court of El Paso County, Texas

O P I N I O N

Appellant, David Santiago Renteria, was charged by indictment with the capital murder of A. F., a child under the age of six.  The State filed notice of intent to seek the death penalty.  Appellant filed a motion to set or reduce bond.  After a hearing on Appellant's motion, the trial court denied bond, finding proof evident of a capital offense.  Appellant now brings this appeal challenging the trial court's denial of bond and finding that proof is evident for such a denial.  We affirm.

EVIDENCE BEFORE THE TRIAL COURT

At the bond hearing, five exhibits were admitted into evidence in support of the State's contention that bail should be denied.  The first exhibit is the complaint affidavit of Detective Arturo Ruiz outlining the underlying facts and evidence collected in this present case.^[1]  The affidavit provides in part:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS BEFORE ME, the undersigned authority, on this day personally appeared, Det. Arturo Ruiz Jr. #993, who after being by me duly sworn, on oath deposes and says that he has good reason to believe and does believe that heretofore to wit, on or about the 18th day of November, 2001, and before the filing of this Complaint in the County of El Paso, the State of Texas, one David Santiago RENTERIA (11/22/1969) hereinafter called DEFENDANT, did then and there unlawfully, commit the offense of CAPITAL MURDER by intentionally and knowingly causing the death of an individual to-wit: Alexandra FLORES (DOB: 09/14/1996) under SIX years of age.

On 11/19/2001 at approx. 7:10 AM the body of victim Flores was found at 1220 N. Oregon, east alley.  Physical evidence and latent prints were collected at the crime scene and from the victim's person.  An autopsy revealed that the manner of death was MANUAL STRANGULATION/HOMICIDAL.

EPPD latent print expert identified a latent print developed from a plastic bag that was found placed over the victim's head as having been made by defendant's right palm.  Furthermore, investigation has revealed that a vehicle registered to the defendant was at 9441 Alameda at the time and date of the victim's disappearance.  By his own admission, the defendant places himself at the said location at the time and date of the victim's disappearance.

The second exhibit is an order on Appellant's plea of guilty to the charge of indecency with a child committed on August 11, 1992.  The order indicates Appellant was placed on ten years' deferred adjudication.  The third exhibit is also a judgment of conviction from a previous felony offense of driving while intoxicated committed on June 18, 2000.  Appellant was sentenced to ten years' incarceration and the court granted shock probation for the offense.  The fourth exhibit is a motion to adjudicate guilt on the cause related to indecency with a child.  The fifth exhibit is a motion to revoke probation on the cause related to driving while intoxicated.  Both Appellant and his father also testified at the hearing.^[2]

This case involves a trial court=s decision to deny bail.  Such decisions are reviewable by the appellate courts under an abuse-of-discretion standard.  See Ex parte Lackey, 559 S.W.2d 823, 824 (Tex.Crim.App. 1977).  Texas law allows a judge to deny bail in capital cases where the proof is evident.  See Tex.Const. art. I, ' 11; Tex.Code Crim.Proc.Ann. art 16.15 (Vernon 1977).  Proof is evident in cases where clear and strong evidence exists, leading a well-guarded judgment to the conclusion that:  (1) the offense of capital murder has been committed; (2) the accused is the guilty party; and (3) the jury will convict the accused and likely return findings requiring a death sentence.  Beck v. State, 648 S.W.2d 7, 9 (Tex.Crim.App. 1983); Ex parte Alexander, 608 S.W.2d 928, 930 (Tex.Crim.App. 1980).  At a bond hearing, the State bears the burden of showing proof is evident.  Ex parte Wilson, 527 S.W.2d 310, 311 (Tex.Crim.App. 1975).  The applied burden is one of a Asubstantial showing of the accused's guilt.  Lee v. State, 683 S.W.2d 8, 9 (Tex.Crim.App. 1985).  Thus, the State's burden of proof regarding the accused's guilt at the bond hearing is far less than its burden at trial, which requires proof beyond a reasonable doubt.  Id.

The key question on review is whether the evidence is sufficient to support the trial court's decision to deny bail based on the conclusion that proof is evident.  See Wilson, 527 S.W.2d at 311-12.  The trial judge's conclusion that proof is evident is entitled to weight on appeal.  Id. at 311; Ex parte Hickox, 90 Tex.Crim. 139, 141, 233 S.W. 1100, 1101 (Tex.Crim.App. 1921).  Nonetheless, it is our duty to examine the evidence and make a separate determination as to whether the denial of bail was proper.  Id.  We look first to the evidence establishing the offense of capital murder.  Under Texas law, one commits capital murder if he intentionally or knowingly causes the death of an individual under six years of age.  Tex.Pen.Code Ann. ' 19.03(a)(8)(Vernon 1994).  Detective Ruiz's complaint affidavit indicates A. F. was under the age of six at the time she was murdered.  It also indicates an autopsy concluded she died as a result of manual strangulation.  Further, the death is categorized as a homicide.  In this case, State=s Exhibit No. 1 provides strong and clear evidence that a capital murder has been committed.  Beck, 648 S.W.2d at 9.

Next, we consider whether there is strong evidence of the accused's guilt.  Again, the trial court looked to the information provided by State's Exhibit No. 1 engaging the strength of the evidence of Appellant's guilt.  The affidavit listed the key pieces of evidence implicating Appellant in the murder of the child victim.  First, when the victim's body was recovered, latent palm prints matching Appellant were found on the plastic bag placed over her head.  Second, Appellant's vehicle was at the Wal-Mart at the time the child victim disappeared.  Third, Appellant admitted he was at the Wal-Mart when the child victim disappeared.  Taken as a whole, this evidence substantially shows the guilt of Appellant for the capital murder of A. F.  Lee, 683 S.W.2d at 9.

The third consideration in determining whether proof is evident requires the trial court to make a preliminary judgment as to whether the jury will convict the accused and if it is likely the death penalty will be assessed.  Implicit in finding strong evidence of the accused's guilt is the presumption the accused would be convicted of the offense.  As such, the focus of the third requirement under Beck is whether the jury will return findings requiring a death sentence.  There are three possible questions a jury must answer in order to determine whether a death penalty will be imposed in a capital case.  See Tex.Code Crim.Proc.Ann. art. 37.071, ' 2(b), (e)(Vernon Supp. 2002).  Initially, a jury must answer the following two questions when assessing a defendant=s punishment in a capital case:

(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

Tex.Code Crim.Proc.Ann. art. 37.071, ' 2(b).  If the above questions are answered affirmatively, the jury must then answer the following question:

Whether, taking into consideration all of the evidence, including the    circumstances of the offense, the defendant=s character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

Tex.Code Crim.Proc.Ann. art. 37.071, ' 2(e)(1).  If the jury answers affirmatively to the first two questions and negatively to the third question, the death penalty is imposed.  Tex.Code Crim.Proc.Ann. art. 37.071, ' 2(g).

One of the factors that may be considered in determining the future dangerousness of a defendant is the existence of a prior criminal record and the severity of the prior crimes.  Smith v. State, 74 S.W.3d 868, 870 (Tex.Crim.App. 2002); Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App. 1987).  Moreover, the Court of Criminal Appeals has recognized that participation in an offense similar to the one on trial constitutes evidence of future dangerousness.  Lane v. State, 933 S.W.2d 504, 508 (Tex.Crim.App. 1996); Coleman v. State, 881 S.W.2d 344, 347 (Tex.Crim.App. 1994).  Indeed, the facts of the offense alone can be sufficient to support a finding that a defendant may constitute a continuing threat to society.  Nenno v. State, 970 S.W.2d 549, 552 (Tex.Crim.App. 1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App. 1999); Walbey v. State, 926 S.W.2d 307, 310 (Tex.Crim.App. 1996).

In this case, all of the exhibits admitted by the court are helpful in determining whether it is likely a jury would answer the special issues questions such that the death penalty would be imposed.^[3]  With regard to whether Appellant would constitute a continuing threat to society, the court had documentary evidence of prior crimes and Appellant's own testimony in which he admitted he was on probation and had been arrested for other crimes as well.  See Smith, 74 S.W.3d at 870.  In particular, State's Exhibits Nos. 2 and 4 established Appellant's guilt in a prior sexual offense against a child.  This documentary evidence was supported by Appellant's testimony that he was on probation for indecency with a child.  See Lane, 933 S.W.2d at 508.  Finally, in determining how a jury would likely answer the second question relating to whether Appellant actually caused the death of the victim, State's Exhibit No. 1 provides substantial evidence indicating Appellant actually caused the child victim's death.  It indicates Appellant's latent prints were found on the plastic bag used to suffocate and strangle the victim.  The documentary and testimonial evidence presented at the bond hearing supports the trial court=s conclusion that a jury will convict Appellant and likely return findings requiring a death sentence.  Beck, 648 S.W.2d at 9; Ex parte Alexander, 608 S.W.2d at 930.

Given the evidence presented by the State at the bond hearing, we find the trial court=s determination that proof is evident and bond should be denied to be within the zone of reasonable disagreement.  See Ex parte Lackey, 559 S.W.2d at 824.  No abuse of discretion by the trial court is shown.  Id.  Appellant's issue on appeal is overruled.  The trial court's ruling is affirmed.

October 3, 2002

David Wellington Chew, Justice

*****

^[1] State's Exhibit No. 1 was admitted into evidence over the hearsay objection of the defense.  However, Appellant has not challenged the admission of this evidence on appeal.  The only issue before us today is the sufficiency of the evidence supporting the trial court's decision to deny bail.  Accordingly, we will consider all of the evidence before the trial court, regardless of whether it was properly or improperly admitted.  See Green v. State, 893 S.W.2d 536, 540 (Tex.Crim.App. 1995).

^[2] We note that both Appellant and his father testified to Appellant's ties to Mexico.

^[3] Appellant's brief does not deal specifically with the issue of mitigating circumstances raised by Tex.Code Crim.Proc.Ann. art. 37.071, ' 2(e).  Rather, Appellant focuses almost entirely on whether the evidence was sufficient to establish future dangerousness.  As such, we  will confine our discussion to the issues raised under Tex.Code Crim.Proc.Ann. art. 37.071, ' 2(b).