No. 05-06-00011-CR
Opinion issued July 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th District Court, Dallas County, Texas, Trial Court Cause No. F04-59183-KR. Affirmed.
Before Chief Justice THOMAS and Justices LANG and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The jury convicted Juan Raymond Garza of capital murder and the trial court imposed a life sentence. In one point of error, appellant complains the trial court should have submitted a jury instruction on accomplice witness testimony. We affirm the trial court's judgment.
Background
Several people, most of whom knew each other and some of whom were related to each other, all ended up at the Hampton Street 7-Eleven at the same time. While they were there, a shooting occurred. The State indicted appellant and Jose Villamil with shooting the deceased during the course of a robbery. Accomplice Witness Testimony Jury Instruction
In one point of error, appellant argues the trial court erred in not submitting an accomplice witness testimony instruction to the jury. Additionally, he contends that all of the eyewitnesses, except for Abram Fuentes, the passenger in the deceased's car, "arguably played a role in the offense" and even Fuentes could not identify appellant. Appellant also argues that no physical evidence exists to show appellant's involvement, appellant's confession was poorly written and vague, and the testimony conflicted. The State responds that the trial court's error in not instructing the jury that Villamil was an accomplice as a matter of law was harmless. The State also contends that the complained-of witnesses were not accomplices as a matter of fact. The State contends, even if we find charge error, appellant did not object and, therefore, must show egregious harm. 1. Standard of Review
When reviewing jury charge error, we must first determine if error actually exists in the jury charge and, if we find error, did it harm appellant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). If appellant objected, we reverse if we find any actual harm, regardless of the degree. See Anderson v. State, 11 S.W.3d 369, 374 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). If appellant does not object to the jury charge at trial, he must show he suffered actual, egregious harm. See Almanza, 686 S.W.2d at 171. For charge error to result in egregious harm, it must "affect `the very basis of the case,' `deprive the defendant of a valuable right,' or vitally affect a defensive theory.'" Ngo v. State, 175 S.W.3d 738, 750 (Tex.Crim.App. 2005). To establish egregious harm, it is not essential to show direct evidence of harm. See Stokes v. State, 74 S.W.3d 48, 50 (Tex.App.-Texarkana 2002, pet. ref'd). We review the record to determine if a defendant suffered actual, not theoretical, harm. See Morris v. State, 67 S.W.3d 257, 261 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994)). In assessing actual harm, we must examine the harm "in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other information revealed by the record of the trial as a whole." Frost v. State, 25 S.W.3d 395, 400 (Tex.App.-Austin 2000, no pet.) (citing Almanza, 686 S.W.2d at 171). The existence and strength of nonaccomplice evidence can render harmless the failure to submit an accomplice witness jury charge. See Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002). 2. Applicable Law
A conviction cannot be based upon the testimony of an accomplice witness alone, unless other evidence tends to connect the accused to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). A witness who participates with a defendant either before, during, or after the commission of an offense and can be prosecuted for the same or a lesser included offense as an accomplice witness. See Nguyen v. State, 177 S.W.3d 659, 668 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (citing Herron, 86 S.W.3d at 63, Ashford v. State, 833 S.W.2d 660, 663 (Tex.App.-Houston [1st Dist.] 1992, no pet.)). If the State has indicted a witness for the same, or a lesser included, offense, that witness is an accomplice as a matter of law and the trial court has a duty to submit an accomplice witness instruction. See Herron, 86 S.W.2d at 631. 3. The Evidence a. Abram Fuentes
Fuentes, who is the deceased's cousin, and the deceased stopped at the Hampton Street 7-Eleven. Fuentes went behind the store to go to the bathroom. When he came back, the deceased was pumping gas. As Fuentes approached their truck, he saw two men approaching the deceased. One man was small and skinny; the other was taller and of medium build. The small, skinny man walked toward the deceased. As the man got closer, he ran up to the deceased and asked him for money. The deceased did not want to give up his money. The skinny man shot the deceased and ran away. The taller, medium-built man took beer out of the deceased's truck and ran to another truck. b. Brewster Billings
Billings, a Dallas Police Officer, testified that he was on patrol in the Southwest division when he was dispatched to a shooting at the Hampton Street 7-Eleven. He secured the scene and got a "suspect vehicle description." c. Joel Lucas Reyes
Reyes, a Dallas Police Officer, testified that he was dispatched to the Hampton Street 7-Eleven and was helping Billings secure the scene. He was interviewing a witness when a call came over his radio about a red Cherokee. Reyes left for the area where the Cherokee was reported. After a brief pursuit, Reyes stopped the Cherokee and arrested Charlie Ortiz, Juan Luna and Anthony Garcia. As Ortiz stepped out of the Cherokee, "a nine millimeter bullet fell from his clothing." A nine millimeter gun was found under the right front passenger seat. d. Raymond R. Bennet
Bennet, a Dallas Police Crime Scene Officer, testified that when he arrived at the Hampton Street 7-Eleven, he found three .45-caliber shell casings and some money scattered about. After he completed his work at the 7-Eleven, Bennet was called to the scene where the officers stopped the red Cherokee. e. Amber Gonzalez
Gonzalez testified that on the night in question Charlie Ortiz, John Paul Carrillo, Pasqual Garcia, and she were going to a party. Garcia was driving, Ortiz was in the front passenger seat, and Carrillo was sitting behind the front passenger seat. On the way, they picked up appellant at the Davis Street 7-Eleven. She could not remember where they picked up Villamil. Appellant was drunk and saying that he needed money and that he was going to "jack" someone. All six of them drove around for a while and ended up at the Hampton Street 7-Eleven where the shooting took place. Until they reached the Hampton Street 7-Eleven, Gonzalez was unaware that anyone in the car had a gun. They parked in front of the washateria next to the Hampton Street 7-Eleven and Villamil got out of the car to go to the bathroom. When appellant wanted to get out of the vehicle, Gonzalez tried to stop him. Appellant, however, got out of the vehicle and went straight to Villamil. They spoke and she saw Villamil raise his arm. Appellant pulled a gun out of Villamil's holster. Next, she saw appellant running "over there," heard six sounds that she thought were gunshots, and saw a man fall to the ground. She told Garcia they needed to leave. As they were leaving appellant, Villamil, and Castillo jumped into Garcia's car. "They" all met at Marcus (Peanut) Garcia's house. Peanut yelled at appellant, "Why did you do it?" Appellant answered, "I needed the money." On cross-examination, Gonzalez admitted she saw Villiamil take the beer out of the deceased's truck. f. Pasqual Garcia
Garcia testified that on the night of the shooting, he was driving Ortiz, Carrillo, and Gonzalez to a party. When they "heard something happened" to the party, they went to the Davis Street 7-Eleven where they met up with Villamil and appellant. Appellant had been taking Xanax or drinking and was not himself that night. Someone had left Villamil and appellant at the Davis Street 7-Eleven, so Garcia picked them up. They all went to the Hampton Street 7-Eleven. There, Villamil got out of Garcia's car to go to the bathroom. Next, appellant got out of the car and went toward Villamil. As appellant and Villamil talked, Garcia saw Villamil move his hand and appellant "got the gun and ran towards that pump" by the white truck. Garcia heard shots and saw appellant shoot the deceased. Appellant and Castillo jumped into Garcia's car as he was leaving. On cross-examination, Garcia admitted that he had not seen appellant take anything that night. He saw the passenger get out of the white truck and take off as appellant ran toward the deceased. Garcia also saw a group of people, including Peanut and Castillo, surround the white truck, but he did not see what they were doing. Once the shots were fired, they all took off. Villamil had some beer when he got into Garcia's car. g. Charlie Ortiz
Ortiz testified that appellant was acting different on the night in question. Although Ortiz did not see appellant take or drink anything, he appeared intoxicated. Ortiz said that appellant, Gonzalez, and Villamil both got out Garcia's car. Ortiz confirmed Garcia's testimony on appellant's and Villamil's actions after they got out the car. While showing a videotape taken on the night in question, the State had Ortiz identify the people shown on the tape. The tape showed appellant holding a gun in the deceased's face. Ortiz knew the gun used was a .45-caliber because appellant had told him it was a .45-caliber gun. Ortiz and his cousins left Peanut's house in a red Cherokee. They realized they were being followed by another car, but they did not know an undercover police officer was driving the car. Ortiz shot his nine millimeter gun up in the air to discourage the car from following them The police stopped the red Cherokee and arrested them because Ortiz had fired his gun into the air. The following morning, Ortiz lead the police to Villamil's house. On cross-examination, Ortiz testified that he knew Villamil was carrying a .45-caliber gun in the car. Actually, he admitted that five of the people in the car had handguns. h. John Carrillo
Carrillo testified that he and appellant left a party on the night in question in Garcia's car and ended up at the Hampton Street 7-Eleven. Before he got out of Garcia's car, appellant said he was going to "jack" the guy in the white truck. Appellant got out and went over to Villamil. Carrillo saw appellant take Villamil's gun and start toward the white truck. When appellant reached the white truck, he pulled up the gun and the passenger took off running. Then, other people started hitting the deceased. Gonzalez and everybody started calling appellant's name. Appellant looks at them, then looks back at the deceased, and shoots him. Everyone in the car was really upset with appellant when he returned to the car. Appellant said he did it because "his pockets were hurting." They left the scene. Carrillo and Ortiz got out at a church and went with Carrillo's other nephew, Johnny. Later, when Garcia called him, they met up and Garcia gave Carrillo a ride home. On cross-examination, Carrillo claimed Gonzalez never got out of the car. He also identified Castillo as one of the men hitting the deceased. Peanut was in his car watching what was happening. i. Peanut
Peanut, his cousin, and Carrillo had stopped after a party at the Hampton Street 7-Eleven for gas and food. Peanut parked his car right behind the white truck. They were standing at his car's trunk when he heard someone say in Spanish, "Give me your wallet." Peanut thought "they were talking to me." He looked up and saw appellant wrestling with the guy by the white truck. Appellant's arm was out, but Peanut did not see a gun. Next, Peanut heard gunshots. He jumped into his car and took off. He saw Castillo run past the car, mad because Peanut had left him. Peanut went home, and appellant, Villamil, Castillo, and the others pulled up. Peanut went inside and his mother asked why everyone was there at that hour of the morning. He told his mother what had happened and opened the door and yelled at everyone to leave. j. Jose Villamil
Villamil testified that he, Garcia, Gonzalez, Carillo, Ortiz, and appellant went to the Hampton Street 7-Eleven. When Villamil went to use the bathroom, appellant followed him and asked for Villamil's gun. Appellant said, "Hey, there is some mojos." Villamil answered with "No, chill." When he realized that appellant had run toward the white truck, Villamil ran after him. Villamil picked up a bag that "some guy" had dropped, which contained beer. He then ran back towards Garcia's car. When Villamil reached the car, he heard the gunshots. He turned and saw appellant shoot the deceased. Villamil got into Garcia's car. As they were leaving, appellant jumped into the car. Appellant was playing with the gun and Villamil took the gun from appellant. They went to Peanut's house where everyone got out and began to yell at appellant. When they left Peanut's house, Villamil went home, got his sister's car and threw the gun into the Trinity River. On cross-examination, appellant established that Villamil was currently in jail, charged with capital murder, with bail set at one million dollars. They only stopped at the Hampton Street 7-Eleven so Gonzalez could go to the bathroom. Both Villamil and appellant also had to go to the bathroom. Villamil saw Castillo and Wedo standing over the deceased. k. Mary Cruz Perez
Perez, Villamil's sister, testified that on the day after the shooting, she saw Villamil being taken away by the police. After the arrest, appellant called Perez at home and asked to speak to Villamil. Villamil's family decided to try to get appellant to turn himself in to the police. They contacted the police and arranged for appellant to come to their house. On cross-examination, appellant inquired into Perez's influencing Villamil to testify. She denied ever discussing his testifying in appellant's trial. However, they did discuss his testifying in his own trial. And, Perez told him she would be testifying in appellant's trial. She also denied ever speaking with Villamil's attorney. l. Richard Foy
Foy, a Dallas Police Officer, testified that he answered a call at Perez's home the night after the shooting. After meeting with her, he contacted homicide. Foy eventually returned to the house and arrested appellant. On the way downtown, appellant commented, "you hemmed me pretty quickly" and "I killed a man so I guess I should get a lot of time." 4. Application of Law to the Facts
Appellant maintains that Jose Villamil was an accomplice witness as a matter of law. We agree. Therefore, the trial court erred in not giving an accomplice witness instruction as to Villamil's testimony. Appellant also argues that Garcia and Peanut drove to the crime scene and helped each witness escape from the scene. Our review of the testimony shows that Villamil and appellant both jumped into Garcia's car as it was leaving. Additionally, when everyone in Garcia's car saw appellant heading toward the deceased with a gun, they all tried to get appellant to get into the car. This shows that rather than encouraging appellant to escape, everyone in Garcia's car was trying to stop appellant from approaching the deceased. Peanut thought he was the one about to be robbed. When he heard gunshots, he took off without appellant or Villamil. Obviously, he did not help them escape. Appellant contends that Ortiz, Gonzalez, and Carrillo heard appellant say he was going to "jack" someone. Then Gonzalez "coaxed appellant" into the car, encouraging him to escape. We find no testimony that Ortiz heard appellant say he wanted to "jack" someone, although he did testify that appellant told him he had a .45-caliber weapon. Gonzalez admitted that she heard appellant say he wanted to "jack" someone, but she also testified that when they arrived at the Hampton Street 7-Eleven, she tried to keep appellant from leaving the car. The only testimony that Gonzalez "coaxed appellant" into the car came from Gonzalez herself. She testified that she and others tried to get appellant to return to Garcia's car as soon as they saw appellant approaching the deceased with a gun. Rather than showing that Gonzalez "coaxed appellant" to help him escape, she and others tried to stop appellant from approaching the deceased. Carrillo admitted that he heard appellant say he needed to "jack" someone. However, when he saw appellant approaching the deceased, he and the others tried to get appellant back into the car. Although both Gonzalez and Carrillo heard appellant wanted to "jack" someone, they tried to stop him from approaching the deceased. Next, appellant asserts Garcia, Carrillo, Gonzalez, and Villamil saw a group gather around the deceased and beat him during the robbery. Only Castillo, who did not testify, was identified as being a part of the group "beating the deceased." Appellant does not explain how this evidence shows Garcia, Carrillo, and Gonzalez participated in the offense. After examining all the evidence, we conclude that Garcia, Carrillo, Gonzales, and Ortiz did not affirmatively participate in the robbery and murder. Therefore, the evidence did not support a jury instruction that Garcia, Carrillo, Gonzales, and Ortiz were accomplice witnesses as a matter of fact. We now turn to whether appellant was harmed by the trial court's failure to give an accomplice witness instruction with regard to Villamil's testimony. Appellant only objected to the jury charge because the trial court did not include a charge on the lesser offense of murder. At trial, he argued this failure was a comment on the weight of the evidence. The trial court overruled the objection. From the record, we glean that appellant had requested the trial court include a charge on the lesser-included offense of murder. We also note that the trial court refers to requested instructions, but our review of the entire record reveals appellant requested no other instructions and appellant directs us to none. Consequently, because appellant did not object to the failure to include an accomplice witness instruction, he must show he was egregiously harmed by the error. The existence and strength of nonaccomplice witness testimony can fulfill the purpose the accomplice witness instruction serves. See Herron, 86 S.W.2d at 632. Moreover, in the context of egregious harm, a confession might be enough when the voluntariness of the confession was unchallenged. See id. at 633 (citing Burns v. State, 703 S.W.2d 649, 652 (Tex.Crim.App. 1985)). Here, appellant made two incriminating statements to the officer as he was being transported to jail — "you hemmed me pretty quickly" and "I killed a man so I guess I should get a lot of time." Although challenged in a motion to suppress, they are not challenged on appeal. Although the statements are not sufficient within themselves, they are some evidence tending to connect appellant to the offense. Moreover, during Ortiz's testimony, the State played a videotape taken at the Hampton Street 7-Eleven, which showed appellant running toward the deceased with his right arm extended. Appellant had a gun in the deceased's face. Although Fuentes could only identify the shooter as the small, skinny man, Fuentes saw the man run up to the deceased and shoot him. The jury saw the videotape and, having seen the appellant in the courtroom, would have known if appellant was the shooter. The police identified the shell casings found at the scene as .45-caliber shell casings. Appellant told Ortiz that he had .45-caliber gun and Ortiz saw appellant shoot the deceased with the .45-caliber gun. Because the nonaccomplice testimony fulfilled the purpose of the accomplice witness instruction, we conclude appellant was not egregiously harmed by the trial court's failure to give an accomplice witness instruction with regard to Villamil's testimony. We overrule appellant's point of error. We affirm the trial court's judgment.