David Marmolejo v. State

Citation: Not availableDocket: 08-11-00108-CR

Court: Court of Appeals of Texas; April 30, 2013; Texas; State Appellate Court

Original Court Document: View Document

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David Marmolejo appeals his murder conviction from the 210th District Court of El Paso County, Texas, raising three main issues: (1) the evidence was legally insufficient to support his conviction; (2) the trial court erred by not including a mitigation instruction for manslaughter during the punishment phase; and (3) he was denied his right to confront and cross-examine a material witness. The court affirms the conviction.

Marmolejo was indicted for murder, with his first trial in October 2010 resulting in a mistrial due to a hung jury. His second trial commenced in March 2011, ending with a guilty verdict and a sentence of 54 years in prison along with a $10,000 fine.

Factual context reveals that in July 2009, Gloria Marmolejo, David’s mother, was in Arizona but allowed him to stay in her El Paso home. Gloria planned an unannounced visit on July 25, 2009, to confirm her suspicions about David's alleged sexual relationship with his stepsister, Mariah Wilson, which she disapproved of. Gloria intended to evict him if her suspicions were confirmed. During the day of her visit, Gloria communicated with family members about her plans and frustrations regarding David’s behavior and the condition of her home. After arriving in El Paso, Gloria attempted to contact family but did not respond to her son Manny’s calls later that evening, raising concerns about her well-being.

At 7:05 p.m. on Saturday, Marmolejo called Conrad to wish him a happy birthday and propose a celebration, which did not take place. Later, at approximately 10 p.m., Marmolejo texted Conrad and family about a potential cookout at Gloria’s house on July 26. He made an unusual late-night call to Manny around 11:50 p.m., during which he mentioned having seen Gloria and helping her unload her car, but noted she yelled at him about the condition of her home, prompting him to leave.

Reyna Yanez, who rented a room from Gloria, finished work at 6:12 p.m. and stayed at the mall until about 9 p.m., where she received a voicemail from Marmolejo warning her about Gloria's presence. Upon returning home around 9:15 p.m., Yanez found the house dark and, not seeing anyone, went directly to her room. She and her boyfriend, Robert Campos, watched movies in her room and did not hear or see anyone else in the house during their stay until 9:30 a.m. the following day.

Around 1:37 a.m. on July 26, Marmolejo called his ex-girlfriend Akasha Loo in Hawaii, which was noted as unusual due to the late hour and his quiet demeanor. At 5:30 a.m., neighbor Julie Serrano observed a female driver, presumed to be Gloria, driving her red Hyundai SUV out of the garage. Rafael Vargas corroborated Serrano’s account, describing the driver as a smaller woman with shoulder-length blondish hair, and thought he spotted another person in the backseat.

Throughout Sunday, Manny attempted to contact Gloria multiple times without success, leading him to consider filing a missing-person report on July 27 after confirming no one had seen or spoken to her. He was informed by the El Paso Police Department that he could not file the report since he was not the last person to see her. Before traveling to El Paso, Manny spoke with Marmolejo, who reiterated that he had not seen or talked to Gloria and noted that her car was missing.

Mary visited Gloria’s house on a Monday afternoon, where Marmolejo revealed he had seen Gloria upon her arrival home on Saturday and had opened the master bedroom door for her. Mary observed that the house appeared cleaner than Gloria had described. The group, including Conrad, Mary, Sal, and Marmolejo, determined that Marmolejo was the last to see Gloria. He filed a missing-person report with the EPPD in the presence of other family members, including Manny, who was on the phone from Arizona. During the report, Marmolejo described Gloria’s clothing as matching what she wore when she left Manny’s home that Saturday morning.

Marmolejo recounted that Gloria called him while he was at a movie theater, asking him to come home and let her in. After briefly speaking with her, he returned to the theater. When Manny and Jennifer arrived in El Paso on July 28, Marmolejo repeated his account of the last interaction with Gloria. Manny noted that the master bedroom appeared tidied, with Gloria’s suitcase and cosmetics bag still packed, which was atypical for her. Marmolejo later claimed that Gloria called him again around 5:40 p.m., requesting Yanez’s phone number. He insisted this was the last time he saw her before returning to the theater and then attending a cookout, followed by a nightclub, returning home around 3 a.m.

Marmolejo expressed concern that the police might suspect him due to a hug and kiss exchanged with Gloria, fearing DNA evidence. Manny suggested that security cameras at the theater could confirm Marmolejo's timeline. On July 29, when the EPPD detective met with the family, Marmolejo altered his story, stating he went directly to the cookout instead of returning to the theater, which Manny and Huerta found suspicious. Katherine Thompson, the cookout host, testified she last saw Marmolejo at her house before dinner, noting he did not return until shortly before 7 p.m. on Saturday.

On July 29, Gloria's abandoned car was discovered near an elementary school in El Paso, containing her purse, keys, and cell phone. The EPPD’s Crimes Against Persons unit became involved, gathering statements from family members, including Marmolejo. He initially provided a statement to Detective Ochoa that aligned with a prior account but later gave a second statement to Detective Samaniego due to inconsistencies. Marmolejo claimed he was at a movie theater when Gloria called him between 5:00 and 5:30 p.m., and he returned to Gloria’s house, where she was upset. He asserted that he left her home at 5:40 p.m. and received a call from her shortly after. 

Samaniego questioned the timeline, suggesting it was implausible for Marmolejo to travel from the theater to Gloria's house within the claimed time frame. Analyzing cell phone records, Samaniego noted Gloria called Marmolejo at 5:14 p.m., and subsequent calls indicated Marmolejo's location at various towers. It was determined that the earliest he could have arrived at Gloria's house was 5:49 p.m., contradicting his assertion of leaving at 5:40 p.m. Additionally, police found blood in Gloria's garage, identified as belonging to Wilson. Marmolejo's cell phone records showed multiple calls to Wilson throughout the evening, with specific timestamps and corresponding cell tower pings detailing his movements.

At 6:56 p.m. on July 25, outgoing calls from Marmolejo's cell phone were recorded, pinging off cell tower 272 on the eastside, with subsequent calls at 6:59 p.m. also from the same tower. At 7:04 p.m. and 7:05 p.m., calls switched to cell tower 273. By 7:15 p.m., Marmolejo's phone connected to cell tower 281 in the northeast. Monica Barragan, a customer-service manager for Cricket, testified that calls between Marmolejo and Wilson around 6:30 p.m. reflected Marmolejo’s phone consistently using eastside towers, while Wilson’s utilized northeast towers. From 7:24 p.m. to 10:28 p.m., Marmolejo’s calls pinged off northeast towers, and from 11:21 p.m. to 12:29 a.m., they switched back to eastside towers. Notably, a call made at 1:37 a.m. on July 26 pinged off tower 191 in Anthony, Texas. Barragan noted that a series of calls between 5:30 a.m. and 5:49 a.m. on July 26 pinged off eastside towers as well.

Marmolejo’s cell records were obtained shortly after the discovery of Gloria’s decomposed body in a New Mexico desert, with the autopsy determining asphyxia due to ligature strangulation as the cause of death. The 1:37 a.m. call to Marmolejo’s ex-girlfriend pinged from tower 191, located approximately thirteen miles from where Gloria’s body was found. An EPPD crime-scene technician testified that various routes exist from Gloria's home to the body location, with the most isolated route passing by tower 191 and taking about one hour to drive.

Evidence collected from Marmolejo's vehicle included hair samples consistent with Gloria’s, but sand comparisons did not match. Following his arrest for murder, Marmolejo was read his Miranda rights, waived them, and provided a video-recorded statement. In the video, he denied making the 1:37 a.m. call but mentioned frequently calling Akasha at that time. He speculated that four calls made around 5:30 a.m. occurred when Wilson accidentally activated her phone. He acknowledged Gloria was found in the same clothes worn during her trip to El Paso, suggesting she was murdered on July 25, a day he confirmed he was present at the house.

FBI Special Agent David Magnuson, part of the Cellular Analysis Survey Team, provided expert testimony regarding the cell phone records of defendants Marmolejo, Gloria, and Wilson during the trial. His analysis revealed that Marmolejo’s cell phone pinged cell towers in the eastside of El Paso from 6:11 p.m. to 6:59 p.m. on July 25, while Gloria's phone pinged from the northeast area during the same timeframe. Magnuson detailed the locations of their phones at various intervals on July 25 and early July 26, noting specific times when Marmolejo and Wilson's phones were active, while Gloria's showed no activity during critical periods. Notably, he concluded that a call Marmolejo made at 1:37 a.m. did not connect through towers in either the northeast or eastside areas.

Marmolejo raised three issues on appeal: (1) the legal insufficiency of evidence to support his conviction, arguing that the State's case relied solely on motive and opportunity without proving his identity as the killer; (2) the trial court's error in not providing a manslaughter mitigation instruction during sentencing; and (3) the denial of his right to confront a material witness. The legal sufficiency challenge cites the precedent set in Brooks v. State, which eliminated the distinction between legal and factual sufficiency reviews, reinforcing that the only applicable standard is the legal sufficiency standard established in Jackson v. Virginia. The court will evaluate whether the evidence meets this standard beyond a reasonable doubt.

When assessing the sufficiency of evidence for a criminal conviction, the evidence is viewed in the light most favorable to the verdict to determine if a rational juror could find the essential elements of the offense beyond a reasonable doubt. The jury is the sole judge of the facts, witness credibility, and evidence weight, with no substitution of judgment permitted. The jury may accept or reject different versions of facts and can disregard any part of a witness’s testimony, even if uncontradicted. Legal sufficiency reviews consider both properly and improperly admitted evidence and presume that the fact finder resolved conflicting inferences in favor of the prosecution. Direct and circumstantial evidence are equally valid, with circumstantial evidence alone capable of establishing guilt. For murder, a person commits the offense if they intentionally or knowingly cause death, or if they intend to cause serious bodily injury through actions clearly dangerous to life. Convictions can be affirmed solely on circumstantial evidence, where the cumulative force of incriminating facts supports the conviction. In the case discussed, Gloria was likely murdered between 5:40 p.m. and 7:30 p.m. on July 25, 2009. Mary testified to a conversation with Gloria at 5:21 p.m., during which Gloria mentioned Marmolejo was coming to let her into the bedroom. Despite family expectations of communication upon Gloria's arrival in El Paso, no calls were received after her arrival, and attempts to contact her later in the evening were unsuccessful.

Gloria's suitcases and cosmetics bag remained unpacked upon her arrival in El Paso, indicating her unusual behavior. Marmolejo claimed to have seen Gloria alive at 5:40 p.m. on July 25 and suggested she was murdered that same day. Evidence indicated her last phone call was made at 5:40 p.m., and upon Yanez's arrival at her home between 9:15 and 9:20 p.m., no one was present. This timing allowed for a reasonable inference that Gloria was murdered between 5:40 p.m. and 7:30 p.m. Marmolejo, the last person to see her, asserted he left her home at 5:40 p.m. and returned to northeast El Paso, but Detective Samaniego testified this was implausible. Marmolejo initially told family members he went back to the movie theater after leaving Gloria’s, but later changed his story to returning to Thompson’s house. 

Marmolejo expressed concern about DNA evidence linking him to the crime, seeking reassurance from his brother about security camera footage. His statements to the police were inconsistent; he claimed he left Gloria's house at 5:40 p.m. but cell phone records contradicted this, showing his phone pinged in east El Paso until 7:15 p.m. The evidence, including cell phone records and witness testimonies, suggested Marmolejo was at the murder scene, supporting the inference he could have committed the crime. His inconsistent statements and attempts to misrepresent his whereabouts further indicated potential guilt, as established by precedent cases.

In Couchman v. State, the court established that a jury may infer "consciousness of guilt" based on a defendant's false statements regarding the crime (3 S.W.3d 155, 163-64). Similarly, in Torres v. State, the cumulative evidence can support a jury's guilt conclusion in circumstantial cases (141 S.W.3d 645, 662). In Guevara v. State, the appellant's motive for murdering his wife was tied to a long-term affair and threats from his mistress, indicating underlying issues that could lead to homicide (152 S.W.3d 45, 50).

In the case at hand, Gloria's unannounced visit to El Paso aimed to confront Marmolejo about his alleged affair with Wilson, with evidence suggesting Gloria disapproved of their relationship. Her family believed that if Gloria caught Wilson at home, she would evict Marmolejo. This context suggests a potential motive for Marmolejo to kill Gloria, supported by circumstantial evidence.

Further evidence included Marmolejo's actions following Gloria's death, such as his disposal of her body in the New Mexico desert and conflicting statements about his whereabouts. A key piece of evidence was a phone call from Marmolejo's cell phone at 1:37 a.m. on July 26, which pinged near the location where Gloria's body was found. Testimonies revealed that witnesses observed a woman, not Gloria, driving Gloria’s car early that morning.

Marmolejo's explanations for the phone calls between him and Wilson were inconsistent, leading the jury to assess his credibility. The timeline of events and cell phone records indicated suspicious behavior, reinforcing the notion of guilt and supporting the jury's verdict regarding Marmolejo's involvement in Gloria’s murder.

Marmolejo misrepresented his relationship with Wilson to the EPPD, denying any discussion of a sexual relationship with Gloria and claiming he did not make a call to his ex-girlfriend. These statements, along with his actions to dispose of evidence and implausible explanations about his whereabouts, indicate a consciousness of guilt, allowing a jury to reasonably infer he was responsible for Gloria's death. The trial court rejected Marmolejo’s request for a sudden-passion instruction during the punishment phase, despite his argument that evidence of a motive related to Gloria's intent to evict him warranted such instruction. Marmolejo's defense suggested Wilson committed the murder, supported by DNA evidence found at the crime scene. During closing arguments, counsel posited that if Marmolejo was responsible for the murder, it occurred in a moment of sudden passion, advocating for a lower sentence. The appellate review of jury charge error assesses whether an error occurred and if it caused sufficient harm for reversal, with less harm required for reversal if the defendant preserved the error at trial. During the punishment phase, a defendant can argue that the death occurred under the influence of sudden passion stemming from adequate cause.

Sudden passion is defined as an emotional state caused by provocation at the time of an offense, not merely from prior events, as per the Texas Penal Code. Adequate cause refers to circumstances that provoke strong emotional responses, such as anger or terror, in a person of ordinary temperament, leading to a lack of cool reflection. Sudden passion can mitigate a homicide charge from first-degree felony to second-degree felony if established by a preponderance of the evidence. A defendant must demonstrate adequate provocation, the existence of strong emotions at the time of the homicide, that the killing occurred before the opportunity for emotions to cool, and a direct link between provocation, emotion, and the homicide. Ordinary anger does not qualify as adequate cause. A jury instruction on sudden passion is warranted if evidence supports it, even if that evidence is weak or contested, as long as it is not utterly incredible. The defendant carries the burden to prove sudden passion, requiring both objective evidence of provocation and subjective evidence of an agitated state of mind at the time of the offense. In the case of Marmolejo, he must establish that he killed his mother under sudden passion, demonstrating provocation, emotional state, and the lack of cooling-off time, along with a causal relationship between these factors.

Marmolejo did not meet the burden of proof to demonstrate he acted with sudden passion or was provoked by a legally adequate cause in the murder of Gloria. The jury concluded that Marmolejo killed Gloria, allegedly due to her confrontation regarding his relationship with Wilson and potential eviction threats. However, the evidence of motive alone did not indicate that Marmolejo experienced the extreme emotional state necessary to claim sudden passion. The court referenced Saldivar v. State, emphasizing that mere provocation does not equate to the required emotional state for such a defense, and it was not an ordinary response for a reasonable person to react violently after an argument. Consequently, the trial court correctly refused to submit an instruction on sudden passion.

In a separate issue, Marmolejo argued that his right to confront and cross-examine Wilson was violated when the State introduced her declarations through witness Estrella Pulido, who testified about Wilson's relationship with Marmolejo and provided context about her living situation. Pulido described their dynamic, indicating Marmolejo exerted control over Wilson. Although Wilson had an immunity agreement with the State, she did not testify. Marmolejo's counsel sought to admit the immunity agreement into evidence, asserting it was relevant for impeachment purposes, but the State objected, and the trial court sustained this objection. Marmolejo contended that the introduction of Wilson's statements through Pulido's testimony compromised his Sixth Amendment rights and sought a new trial based on this denial of his right to confront Wilson.

The Sixth Amendment’s Confrontation Clause grants an accused individual the right to confront witnesses against them in criminal prosecutions. An objection under this clause or Rule 806 must be properly raised during trial, or it is considered waived on appeal, as per TEX.R.APP.P. 33.1(a). In this case, no objections were made regarding Pulido’s testimony or the admission of the immunity agreement by Marmolejo, which may constitute a waiver of those arguments. However, the court may still consider the issue for justice's sake. 

Confrontation Clause issues are evaluated case-by-case, balancing the defendant's right to cross-examination against the risks of admitting certain evidence. The Confrontation Clause applies only to testimonial hearsay statements, which are statements made under circumstances that suggest they were intended for use in a trial, such as affidavits or prior testimony. Trial courts have broad discretion to limit cross-examination to prevent harassment, confusion, or prejudice. 

Hearsay is defined as any statement made outside of court offered to prove the truth of the matter asserted, and Rule 806 allows for attacking the credibility of a hearsay declarant as if they had testified. The trial court's decisions regarding evidence admission or exclusion are reviewed for abuse of discretion.

A trial court's evidentiary determinations are not to be reversed unless they fall outside the zone of reasonable disagreement. An abuse of discretion occurs if the court acts without reference to rules or principles, or if its ruling exceeds reasonable disagreement. A defendant has a constitutional right to cross-examine witnesses, but the court has broad discretion to impose limits on this cross-examination. Defendants may inquire into areas revealing a witness's motive, bias, or interest, yet the extent of this inquiry is within the trial court's discretion. A defendant does not have an unrestricted right to impeach a witness's credibility. While the Confrontation Clause guarantees effective cross-examination, trial courts can limit it for various reasons.

In this case, Wilson was a potential witness, but Marmolejo stated he would not call her, intending only to introduce her immunity agreement. Pulido's testimony included two statements that may be hearsay: Wilson identifying Marmolejo as her boyfriend and her assertion of living at Gloria's house. Even if these were hearsay, the trial court did not abuse its discretion by excluding Wilson's immunity agreement for impeachment, as these statements were deemed non-testimonial and did not implicate the Confrontation Clause. Other testimonies supported the claims regarding Wilson's actions, bias, and motivation, including observations of her living arrangements and personal items found in the house.

Pulido’s characterization of the relationship between Marmolejo and Wilson does not constitute hearsay under Rule 801(d) because it reflects Pulido’s interpretations rather than statements made by others. Testimonies reveal various perspectives on the relationship: Yanez met Marmolejo through Wilson at Hooters, Akasha testified to their intimacy, and Huerta and Thompson suggested the relationship was secretive, with Huerta observing Wilson at Gloria’s house while Marmolejo lived there. Despite Marmolejo's written statement claiming they were "close friends" without dating, he later brought Wilson to sleep in the same room at Gloria’s house. The court determined that the evidence related to the immunity agreement was not relevant to the hearsay claims, as the statements were non-testimonial and did not breach the Confrontation Clause. The hearsay statements were also deemed cumulative to existing non-hearsay evidence. The trial court's exclusion of the evidence was ruled reasonable. Consequently, Marmolejo’s appeals were overruled, and the trial court's judgment was affirmed.