Alfaro v. State

• Decision Date: 15 September 1982
• Docket Number: Nos. 62708,62709,s. 62708
• Citation: 638 S.W.2d 891
• Parties: Marco ALFARO, Appellant, v. The STATE of Texas, Appellee. and Kennette KINSER v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 891

638 S.W.2d 891

Marco ALFARO, Appellant, v. The STATE of Texas, Appellee. and Kennette KINSER v. The STATE of Texas, Appellee.

Nos. 62708, 62709.

Court of Criminal Appeals of Texas En Banc.

Sept. 15, 1982.

Albert A. Pena, III, Corpus Christi, for appellant.

Henry Wade, Dist. Atty. and Steve Wilensky, Bob Whaley & Mike Keasler, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ROBERTS, Judge.

These appeals are from convictions of aggravated robbery. The appellants were indicted separately, but tried together for the robbery of Edward Max. They were represented at trial by the same team of attorneys. The jury found both guilty and assessed punishment in both cases at confinement for twenty years.

Although the record on appeal is not without some confusion, these appellants are now apparently represented by separate attorneys. In No. 62,708, a brief was filed in the trial court which purports to be a brief raising grounds of error for both appellants. Both names are on the cover sheet of the brief, and the trial court docket numbers of both cases also appear thereon. A copy of this brief also appears in the appellate record in No. 62,709.

In addition, in No. 62,709, a separate brief was filed in the trial court which shows only the appellant Kinser's name and case number. Both briefs show that they were timely filed in the trial court and included in the appellate record. However, the record in No. 62,709 contains no response by the State to the grounds raised in the brief filed on behalf of only the appellant Kinser. Since the briefs appear to have been timely and properly filed, we will treat both briefs as raising grounds to be considered as to the appellant Kinser, and only the joint brief as raising grounds to be considered as to the appellant Alfaro.

The complaining witness, Edward Max, testified as follows: He was an officer of Ed Max Salvage, Inc. At some time in early 1978, he and Dell Malone, another officer of the corporation, decided to begin a public relations campaign to boost the company's sales of replacement auto parts. They decided to hire a young woman for the job of calling upon auto parts retailers and new car dealers. They also decided to furnish the woman they hired with a new car as part of the campaign.

Kennette Kinser, one of the co-defendants in this case, worked as a legal secretary for Max's attorney. She overheard Max and his accountant discussing the public relations idea at the attorney's office and called the next day to apply for the job. Max had been impressed with the way Kinser handled her job for the law firm, and the way she dealt with the public. He decided to hire her.

Kinser gave notice to her employer. Between the time she gave notice and the time she began working for Max, Kinser rented a new apartment. Max lent her $1300 to get set up in the new apartment, and gave her the use of a car owned by Malone. Max said the loan was to be repaid at the rate of ten dollars per week, although he did not have Kinser sign any documents in connection with the loan. He did not tell Malone that he had allowed Kinser to use one of Malone's cars.

Kinser was to begin working for Max on Monday, March 13. The Friday before, she picked up the new car which was to be for her use in the new job. The car was a $13,000 Silver Anniversary Edition Corvette.

During the next month, Max became dissatisfied with Kinser's job performance and transferred her to a job in the office where she would be more closely supervised. He was also displeased that the Corvette had been driven so many miles (6000) in such a short period of time. Kinser only worked one day at the office and then did not return to work.

On May 3, Max went to Kinser's apartment to attempt to get a release from her on her oral employment contract. He intended to give Kinser $300 to secure the release. He did not have his attorney draft a release since he thought that he and Kinser would be able to work things out. Max arrived at the apartment about 6:15 p.m. As he approached the house, two men carrying rifles forced him into the house. They claimed to be Arab terrorists, told him that he had no right to live, and threatened to cut his tongue out. One of the men was Marco Alfaro, Kinser's boyfriend and co-defendant in this case.

The men forced him to sit on the couch in the living room. They removed his sweater and shirt. Kinser removed Max's shoes and socks. The men then forced Max to embrace Kinser, pose for pictures, and engage in suggestive conversation with Kinser which they tape recorded.

The men then forced Max upstairs at gunpoint. When they reached the top of the stairs, Max began to struggle with the men. During the struggle, a third man hit Max in the ribs with the butt end of a rifle and Kinser sprayed Max's face with some type of aerosol. Max also saw Kinser remove his billfold from his back pocket.

Max finally broke away from the men and ran outside. Alfaro followed him. The two men sat outside in the driveway talking for awhile. Alfaro demanded that Max give him the keys to Max's car. Alfaro removed a parka from the back seat of the car and covered Max with it. (Max, who was wearing only his pants, had begun shivering.) Alfaro also removed a packet of legal documents from the car.

During their conversation outside, Alfaro told Max that he had invaded his (Alfaro's) home and that he would probably have to destroy him. He then demanded that Max sign a document whereby Max would give Kinser the Corvette and $10,000 as payment for sexual favors performed. When Max said that he could not sign the document without his glasses, Alfaro yelled to Kinser to bring Max's glasses from the house. Kinser did so and Max then signed the document, although upon Kinser's advice, the clause about the $10,000 was deleted.

Max was then allowed to leave. Although Alfaro offered to take him to a nearby "Arab hospital", Max declined the offer. He drove to his salvage yard in Grand Prairie, where Malone was working late. Malone attended to Max's injuries, then took pictures of him and called the doctor in Decatur who treated Max's wife. Malone drove Max first to Fort Worth, where Max lived, then to Decatur, some forty miles from Fort Worth. Max was placed in a hospital overnight.

The next day, Malone called the F.B.I. With Max's permission an agent placed a tap on Max's phone. Three conversations between Max and Kinser were recorded. In one of the conversations Kinser gave Max instructions on where to deliver the car. She told him that a cab would be waiting to take him back to Grand Prairie, and that his "belongings" would be in the cab.

Both Kinser and Alfaro testified in their own behalves. To say the least, their testimony was somewhat different from that given by Max. They testified as follows: Kinser had been employed by the law firm for about three years. During that time she had had coffee with Max many times, and had received a gold necklace from him in 1976. Several times Max had asked her to leave her job and go to work for him. In January, 1978, Max renewed his employment offer during a lunch meeting with Kinser. He offered her a car of her choice, a salary of $13,000 per year, and offered to pay the rent on the apartment of her choice for one year.

Kinser agreed to go to work for Max and gave notice to the law firm. Max gave her the use of a car owned by Malone and told her not to let Malone know that she was using the car. He also told her not to let the law firm know where she was going to work. Max helped her locate her new apartment and went with her when she signed the lease. The $1300 Max gave her was for the first and last month's rent on the apartment and was not a loan. Max told her he would give her the $650 per month rent in cash about the first of every month. Max also told her that he would have the title to the car put in her name by the time of her birthday.

When she began her new job, Max told her that she did not have to begin work each day until about 9:30 a. m., and that she would only have to make three or four calls each day. She learned that the job itself involved offering car dealerships kickbacks if they would buy their parts from Max. On the job, Max followed Kinser around continually, even to the bathroom. He took her out to lunch nearly every day, and occasionally took her out to dinner. In late March, Max gave Kinser $750 in cash. This money included $650 for her April rent as agreed. The extra $100 was for work to be performed in the future on a farm owned by Max. The work was to be "counting cows."

The high mileage on the car was the result of trips to Lubbock and Laredo with Alfaro. Max knew about the trips and did not object to her using the car for personal trips.

At some time in April, Max invited Kinser to accompany him to Las Vegas. She refused to go with him. She told him that she was in love with someone else and that Max was "extremely too old" for her. After that, Max's attitude toward her changed considerably. Shortly thereafter, Max took the car away from her and put her in the office. She did not return to work after the first day in the office because Max repeatedly pinched her "behind."

On May 1, Max went to Kinser's apartment. He gave her a check for $132.45 which was made out to "petty cash" and signed by him. He told her the check was for compensation. This was after Kinser had left the job at the office.

On May 3, Max called Kinser and told her that he was coming by. Alfaro was there at the time. Alfaro called a friend of his and went jogging so that he would not be there when Max arrived.

When Max arrived, Kinser was alone in the apartment. Max first told her what a bad day he had had. Then, as arranged, the two went upstairs to "make love". Kinser had agreed to "make love" to Max so that he would pay her rent and give her back the Corvette. She helped him remove his sweater....