Opinion
No. 13-07-00270-CR
Opinion delivered and filed July 30, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On appeal from the 94th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and BENAVIDES.
MEMORANDUM OPINION
A jury convicted appellant, Ernesto Gonzalez, of two counts of arson causing bodily injury, a first-degree felony. See Tex. Penal Code Ann. § 28.02(a)(2)(A), (d)(1) (Vernon Supp. 2008) ("A person commits the offense of arson if the person starts a fire . . . with the intent to destroy or damage . . . any building, habitation, or vehicle. . . ."). After the jury found an enhancement allegation "true," the trial court sentenced Gonzalez to thirty-five years' confinement. By three issues, Gonzalez contends that the trial court should have included an accomplice witness instruction in its charge to the jury and that counsel rendered ineffective assistance. We affirm.
I. Background
Gonzalez was tried along with his co-defendant, Adrian Rios. This Court decided Rios's appeal on August 26, 2008. See Rios v. State, No. 13-07-00264-CR, 2008 Tex. App. LEXIS 6524 (Tex.App.-Corpus Christi Aug. 26, 2008, no pet.) (mem. op., not designated for publication). The record is the same for this appeal, and we will restate the facts as they appeared in our prior opinion, along with a few additional facts relevant to this appeal. On July 15, 2006, Crystal Salinas and Jessica Sanchez visited a nightclub in Corpus Christi, Texas, where they became involved in an altercation with Rosanna Torres Juarez and Terry Garza. Afterward, Salinas and Sanchez went to their residence at 2107 Shirley Street in Corpus Christi, where they lived with Andres Ybanez, Ybanez's four siblings, Ybanez's mother, and Salinas's children. Juarez and Garza returned to Garza's house. At the time, Juarez was Rios's girlfriend, and Garza was Gonzalez's girlfriend. Gonzalez knew the Ybanez family very well and had previously resided with the Ybanezes at another address. The following evening, Juarez borrowed her mother's truck and drove to a "game room" in Odem, Texas with Rios, Gonzalez, Garza, Angel Moreno, and Sam Rodriguez. While there, Moreno overheard Juarez, Rios, Gonzalez and Garza discussing the fight that occurred the night before. Moreno also heard Rios and Gonzalez discuss their intent to "kick some guy's ass." The group returned to Garza's residence at around midnight, at which point Juarez, Garza, and Moreno entered the house while Rios, Gonzalez, and Rodriguez remained outside the house talking. At some point, Juarez took two Xanax pills. She subsequently went outside and overheard Rios, Gonzalez, and Rodriguez express their desire to "cocktail" the Ybanez house. Rios came into the house and asked to borrow keys to Juarez's mother's truck to "take care of some business." Juarez gave him the keys and then saw Rios, Gonzalez, Rodriguez, and another man, "Gordo," get into the truck and drive away. Meanwhile, Ybanez, Ybanez's sister Dina Limon, Sanchez, and Chelsea Rudisell were returning to the Shirley Street residence in Ybanez's white Chevrolet Malibu. Ybanez was driving, Rudisell was in the front passenger seat, and Limon and Sanchez were in the rear passenger seats. As Ybanez pulled into the driveway of the Shirley Street residence, Rudisell observed several men in the bed of a pickup truck approximately four houses away. According to Rudisell, the men were holding something on fire in their hands. Rudisell alerted the other passengers, who all looked up. Sanchez saw three bald men in muscle shirts holding "flames." The truck started moving slowly toward the Malibu, at which point Limon noticed that the man in the front passenger seat of the truck had "EME" tattooed on his arm; she recognized this tattoo as Gonzalez's. Four of the "flames," which were in fact Molotov cocktails, were then thrown in the direction of the Malibu. One came in through the passenger window and landed on Ybanez's lap, setting both Ybanez and the car ablaze. At least one other Molotov cocktail struck the Malibu. Although Sanchez, Rudisell, and Limon were able to evacuate the inferno, Ybanez's safety belt would not unbuckle. Salinas and her children were sleeping inside the Shirley Street house when she heard a noise followed by screams and saw a flash of light through the window. Salinas opened the front door to see Ybanez's Malibu engulfed in flames, with Ybanez still inside. Eventually, Rudisell was able to unbuckle Ybanez's safety belt, at which point others pulled him out of the car and sprayed him with water. Mario Olivarez, an officer with the Corpus Christi Police Department ("CCPD"), was dispatched to Shirley Street where he saw the Malibu still smoldering. He observed what appeared to be human skin next to the vehicle. Also, shards of brown glass were found in the Malibu and strewn on the driveway and street. George Alvarez, another CCPD officer, also responded to the scene. Officer Alvarez interviewed Limon, who could not identify or describe any suspects for him. However, Officer Alvarez did receive a description of the truck from which the incendiary projectiles were thrown. After Rudisell and Ybanez were taken to the hospital, CCPD Detective Guadalupe Rodriguez arrived at the scene, where she interviewed Sanchez and Limon, who were reluctant to provide any information. Detective Rodriguez then visited Rudisell in the hospital, but Rudisell was under heavy sedation and could not provide any information. Detective Rodriguez returned to Shirley Street, where Sanchez and Limon were more forthcoming, describing whom they thought was involved in the attack. Rudisell suffered burns on her face, neck, arm and hand, and was hospitalized for four to five days. Ybanez suffered severe burns on nearly fifty percent of his body, and lost large portions of skin from his stomach, chest, arms, legs and face. Juarez did not volunteer any information to the police at first, but she was contacted by the police several weeks after the incident. She stated that she was taking three prescription medications for bipolar disorder and that she had been hospitalized previously because of the disorder. Xanax was not one of those prescribed medicines. Juarez told police that Rios, Gonzalez, Rodriguez, and Gordo had borrowed her mother's truck on the night in question. Juarez initially told police that she was asleep at the time and that when the men returned, she asked Rios what had happened, but Rios would not answer. Juarez testified at trial, however, that when they returned, they were acting "wound up" and told her that they had "cocktailed" Ybanez's car. Sylvia Torres, Juarez's mother, testified that Juarez had taken her green Chevrolet Silverado four-door pickup truck without her permission on July 16, 2006. Torres stated that she called Juarez multiple times to find out where the truck was, eventually going to Garza's house in search of the truck. Torres testified that, as she arrived at Garza's house at around 1:00 a.m. on July 17, 2006, the Silverado was just pulling up to the house as well. Torres observed Rios, Gonzalez, Rodriguez, and a fourth man she did not recognize, exit the truck. At that point, Torres got into the truck and detected an odor of gasoline. Isabel Hinojosa, Gonzalez's aunt, testified that after the arson occurred, Gonzalez went to San Antonio because the police were looking for him and "his face was on T.V." Hinojosa stated that Gonzalez told her that on the night of the arson, "all he remember[ed] was that he got into the truck, they were on Xanax pills, and he had drank alcohol and once he hit the back seat of the truck, that was it, he was out." Hinojosa testified that Gonzalez told her Rios was driving the truck and Rodriguez was with them. According to Hinojosa, Gonzalez returned to Nueces County and turned himself in to police. On September 28, 2006, a Nueces County grand jury indicted Rios, Gonzalez, and Garza on two counts of arson causing bodily injury. See id. On February 27, 2007, all three defendants were re-indicted, and the amended indictment included an allegation that Gonzalez had one prior felony conviction. See id. § 12.42(c)(1), (d) (Vernon Supp. 2008). After Garza's motion to sever was granted, the case proceeded to trial against Rios and Gonzalez. The jury was instructed that it could find Gonzalez guilty of arson under the law of parties. On March 28, 2007, the jury found Rios and Gonzalez guilty on both counts. Gonzalez was sentenced to thirty-five years' confinement. This appeal ensued.II. Accomplice Witness Instruction
By his first issue, Gonzalez contends that the trial court should have instructed the jury that Juarez's testimony required corroboration because there is evidence that she was an accomplice. See Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App. 2006) (providing that a defendant has a right to an accomplice witness instruction if the issue is raised by the evidence); see also Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005) ("A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence. . . ."); id. art. 36.14 (Vernon 2007) (setting out that, in its charge to the jury, a trial court must distinctly set forth the applicable law). Gonzalez did not object to the jury charge or request an accomplice-witness instruction. Thus, in order to obtain reversal on this ground, he must show that he suffered egregious harm. Heron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002). We hold that while the evidence was sufficient to require the trial court to submit an accomplice-witness instruction, Gonzalez has not shown egregious harm.A. Law Governing Accomplice Witnesses
"A witness may be an accomplice either as a matter of law or as a matter of fact; the evidence in the case determines what jury instruction, if any, needs [to] be given." Cocke, 201 S.W.3d at 747. The trial court must provide an accomplice witness instruction to the jury if the evidence clearly shows that the witness is an accomplice as a matter of law. Id. at 748. If the parties present conflicting or unclear evidence as to whether the witness is an accomplice, the trial court instructs the jury to determine whether the witness is an accomplice as a matter of fact. Id. "However, as with an accomplice as a matter of law, there must still be some evidence of an affirmative act on the part of the witness to assist in the commission of the charged offense before such an instruction is required." Druery v. State, 225 S.W.3d 491, 499 (Tex.Crim.App. 2007). The trial court is not required to include an accomplice witness instruction if it is clear from the evidence that the witness was not an accomplice as a matter of law or as a matter of fact. Cocke, 201 S.W.3d at 748. An accomplice is a person who participated with the defendant before, during, or after the commission of the crime and acted with the requisite mental state. Id. "Participation requires an affirmative act that promotes the commission of the offense with which the defendant is charged." Id. If there is sufficient evidence connecting a witness to the criminal offense as a blameworthy participant, then he is an accomplice. Id. Under the law of parties, a person is a party to an offense if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). "The evidence must show that, at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose." Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986) (en banc); Mullins v. State, 173 S.W.3d 167, 174 (Tex.App.-Fort Worth 2005, no pet.); Smith v. State, 781 S.W.2d 675, 678 (Tex.App.-Dallas 1989, pet. ref'd). Because "an agreement between parties to act together in common design can seldom be proven by words, the State often must rely on the actions of the parties, shown by direct or circumstantial evidence, to establish an understanding or a common design to commit the offense." Hoang v. State, 263 S.W.3d. 18, 22 (Tex.App. Houston [1st Dist.], pet. ref'd) (citing Miller v. State, 83 S.W.3d 308, 314 (Tex.App.-Austin 2002, pet. ref'd)); Segura v. State, 850 S.W.2d 681, 684 (Tex.App.-Corpus Christi 1993, pet. ref'd).B. Juarez's Intent
The question that must be answered in this case is whether Juarez could have been charged as a party to the offense. See Tex. Penal Code Ann. § 7.02(a)(2) (stating that a person is liable as a party if "he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. . . ."). A person who provides transportation for another person, knowing that the other person intends to commit a crime, is an accomplice under the law of parties. See Phillips v. State, 17 Tex. App. 169, 1884 WL 8645, at *5 (Tex.Ct.App. 1884) ("If Mat Sisk, knowing the unlawful intent of the defendant to commit the crime, aided him in so doing by furnishing him a horse to ride to the place where it was to be committed, he would be an accomplice in the crime, although he did not participate in its actual commission."); Longest v. State, 732 S.W.2d 83, 86 (Tex.App.-Amarillo 1987, no pet.). Juarez provided the men with the keys to her parents' truck, thus providing transportation necessary for the offense. See Phillips, 1884 WL 8645, at *5; Longest, 732 S.W.2d at 86. The question, then, is whether the evidence raised a fact issue as to Juarez's knowledge and intent to assist in the offense. In this case, the evidence raised an issue as to whether Juarez held a common purpose with Gonzalez and Rios and possessed the intent required to be charged for the offense as a party, including testimony regarding (1) the fight that occurred the night before the arson, (2) Juarez's knowledge that the men were considering "cocktailing" the residence when Rios asked to borrow the keys, and (3) questions about Juarez's credibility.1. The Fight
When determining if a person harbored the intent to assist with an offense or participated in a common design to commit the offense, courts can consider the defendant's actions and events occurring before, during and after the commission of the offense. Burdine, 719 S.W.2d at 315. A witness's prior altercation with a person who later becomes the victim of the offense is circumstantial evidence that the witness participated in a common design to commit the offense and had the requisite intent. See Tex. Penal Code Ann. § 7.02(a)(2); see also Pena v. State, No. 13-00-331-CR, 2003 WL 25580003, at *5 (Tex.App.-Corpus Christi Jan. 9, 2003, no pet.) (not designated for publication); Garcia v. State, No. 03-96-00447-CR, 1997 WL 590616, at *3-4 (Tex.App.-Austin Sept. 25, 1997, no pet.) (not designated for publication) (considering appellant's presence at a prior altercation with the victims). Juarez testified about the fight that occurred on Saturday, July 15, which was the night before the arson. Juarez testified that she and Garza went to a club in Corpus Christi. At the club, Juarez and Garza got into a fight with Sanchez and Salinas. Juarez testified that she had "issues" with Salinas prior to the fight, but she actually fought with Sanchez. Sanchez ultimately became one of the victims of the arson. After the fight, Juarez was kicked out of the club. Garza was hurt in the fight, suffering black eyes and a busted lip. Juarez later told the police that Garza's injuries were so bad that it frightened Juarez, and Juarez was concerned because Garza was pregnant at the time. Juarez's fight with Sanchez, an ultimate victim of the arson, and the fact that Juarez's friend, Garza, was seriously injured in the fight, gave Juarez a motive to participate in the arson of Ybanez's house, where Sanchez and Salinas were staying at the time.2. Juarez's Knowledge
Next, courts have relied on an alleged party's knowledge of the impending crime when determining if the party harbored the common purpose and intent to assist with the crime. See, e.g., Hanson v. State, 55 S.W.3d 681, 689-90 (Tex.App.-Austin 2001, pet. ref'd) ("By appellant's own admission, he knew of Ludwick's plan to rob Cavness and to accomplish the robbery by hitting Cavness over the head."). Juarez knew that the men were going to cocktail the house when Rios borrowed the keys to the truck. Specifically, the testimony showed that the night after the fight, Juarez, Garza, Rios, Moreno, Gonzalez, and Rodriguez went to a game room in Odem to play slot machines and poker-type games, left the game room at around 11:00 p.m., and returned to Garza's house, arriving at approximately 11:30 p.m. When they returned, the women went inside and the men stayed outside. At some point in time, Juarez went outside to see what the men were doing. She stated that "[t]hey were all chatting about what had happened at the club[,] and they were talking about that they wanted to go do something to — to somebody's house." She then testified that she heard Rios "talking about they wanted to do something to the house and they were talking about that they wanted to cocktail the house," and Gonzalez said the "same thing." She clarified that she knew the men were referring to Andres Ybanez. Juarez testified that she did not say anything, and she went inside. Shortly thereafter, Rios came inside the house, and he asked to borrow Juarez's mother's truck. Juarez testified that this occurred at 12:30 a.m. She stated that Rios told her that "they were going to go take care of some business." Juarez gave him the keys, and Rios, Gonzalez, Rodriguez, and a man nicknamed "Gordo" left in the truck. Juarez stated that the men were gone for approximately 45 minutes. Juarez opined that when the men returned, they were "acting like they had done something, all hysterical, rowdy." Juarez testified that she spoke to Rios when he returned, and he informed her that "they had cocktailed [Ybanez's] vehicle." She did not speak to Gonzalez, but he was acting "hysterical," "jumpy," and "antsy." Juarez testified that her mother and father arrived at Garza's house after the men returned, shortly after 1:00 a.m. During Juarez's cross-examination, Juarez admitted that, when Rios asked to borrow the keys to the truck, she knew what the men were about to do:Defense counsel: Well, doesn't that make you a party to this offense, too? You're helping them do all of this, whatever they're going to do?
Juarez: How does that make me possible of being with him?
Defense counsel: Well, you've given them the keys to go do this crime. You're helping them, aren't you?
Juarez: I don't completely say it's — that I'm helping them.
Defense counsel: Well, you gave them the keys and you knew — what you're testifying to, you knew what they were going to do —
THE COURT: Is that a question?
Defense counsel: — isn't that correct?
Juarez: Yes.
The State did not object to this line of questioning. We conclude that this testimony raises a fact question about whether Juarez had a common purpose with the men to commit the offense.