Alonzo v. State
| Citation | 67 S.W.3d 346 |
| Decision Date | 19 December 2001 |
| Docket Number | No. 10-00-224-CR.,10-00-224-CR. |
| Parties | Alexander ALONZO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Brian W. Wice, Houston, for appellant.
Charles A. Rosenthal, Harris County District Attorney, Alan Curry, Harris County Assistant District Attorney, Houston, for appellee.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
On July 6, 1997, seventeen-year-old Andrew Touring was kidnaped, robbed, shot, and killed. Seven months later Alexander Alonzo and Lance Lacaz were arrested for the murder, a capital offense. Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 1994). Although age fifteen at the time, Alonzo was certified to stand trial as an adult and was indicted. Tex. Fam.Code Ann. § 54.02 (Vernon Supp.2002). The State was prohibited by statute from seeking the death penalty. Tex. Pen.Code Ann. § 8.07(c) (Vernon Supp.2002). Lacaz, who was also indicted, gave a statement to police implicating himself and Alonzo.1 The State offered plea bargains to both Alonzo and Lacaz to plead guilty to regular murder with a sentencing recommendation of thirty to thirty-five years. Alonzo refused the offer, but Lacaz accepted it in exchange for his testimony against Alonzo.2 However, the offer to Lacaz was withdrawn because he communicated with Alonzo, and the State believed his testimony had been "compromised." He did not testify at Alonzo's trial. A jury convicted Alonzo, and he was given an automatic life sentence. On appeal he asserts twenty points of error. We will reverse the judgment and remand the cause for a new trial.
Point of error twenty pertains to article 38.14 of the rules of criminal procedure which states:
A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.
Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). The reason for the rule is that accomplice testimony is inherently untrustworthy and should be viewed with caution. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim.App.1998).
Unindicted alleged accomplices Tara Hatcher and Jimmy Tagameyer testified against Alonzo at trial. The jury was given the "accomplice-witness instruction" that it could not convict Alonzo based on their testimony if it determined (1) Hatcher and Tagameyer were accomplices, and (2) if so, there was no "other evidence in the case, outside of the testimony of Tara Hatcher and/or Jimmy Tagameyer, tending to connect [Alonzo] with the offense charged." Alonzo argues that Hatcher and Tagameyer were accomplices, and that there was no "other evidence." Therefore, a conviction could not be sustained based on their testimony.
Alonzo asserts that the "trial court charged the jury that Tara Hatcher and Jimmy Tagameyer were accomplice witnesses."3 However, the court's charge instructed the jury to determine if Hatcher and Tagameyer were accomplices; it did not instruct the jury that they were accomplices.
The accomplice-witness instruction is required whenever trial testimony offered by the State is elicited from an accomplice to the crime for the purpose of proving that the defendant committed the crime. Selman v. State, 807 S.W.2d 310, 311 (Tex.Crim.App.1991); Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987).4 If there is a fact question about whether a witness is an accomplice, the jury should be instructed to decide that issue. De-Blanc v. State, 799 S.W.2d 701, 708 (Tex. Crim.App.1990).
"A person is an accomplice if he participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense." Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000) (citing Blake, 971 S.W.2d at 454-55 (Tex.Crim.App.1998)). Mere presence at the scene of the offense does not make someone an accomplice. Blake, 971 S.W.2d at 454 (citing Creel v. State, 754 S.W.2d 205, 213 (Tex.Crim.App.1988)). Some affirmative act or omission is required. Id. (). On the other hand, a person can be an accomplice although not present at the scene of the crime. Id. (citing Goodwin v. State, 165 Tex.Crim. 375, 307 S.W.2d 264 (1957)). But simply knowing about a crime and failing to disclose it, or even concealing it, does not make someone an accomplice. Id. (citing Easter v. State, 536 S.W.2d 223, 225 (Tex.Crim.App.1976)).
Hatcher, age fourteen at the time of the murder, testified that she was Alonzo's former girlfriend. She knew one of Alonzo's closest friends, Lance Lacaz. On the afternoon of the day of the murder, she rode with Alonzo and Lacaz in Alonzo's car to the home of Jimmy Tagameyer whom she then met for the first time. When they arrived, Andrew Touring, the victim, was next door. Hatcher did not know Touring.
Hatcher said Alonzo and Lacaz attempted to buy marihuana from Touring, but he had only LSD. Touring was supposed to meet the four later to make the LSD sale. When he did not show up, they drove around and spotted him walking. Alonzo was driving his car, and Lacaz was in the front seat. Touring was invited into the backseat of the car between Hatcher and Tagameyer. Lacaz pulled out a .45 caliber pistol, which Hatcher had seen before at Alonzo's home, and pointed the pistol at Touring. Lacaz told Hatcher to pat down Touring, which she did "[s]lightly, just to make sure he didn't have any weapons on him." Lacaz demanded the LSD, which Touring handed over. Touring asked Hatcher for a cigarette which she gave him.
Then, according to Hatcher, Alonzo and Lacaz began discussing whether to kill Touring. Alonzo suggested that they go to the Cliffs near a lake. Once at the Cliffs, Touring's black Nike sandals were taken so he couldn't run, and his pager was also taken. Then, all five got out of the car. After they walked a distance, Hatcher and Tagameyer stopped. The other three walked a little farther. Lacaz told Touring to walk ahead with his back to Lacaz. When Touring was a few yards in front, Lacaz shot him. Lacaz approached and shot again. Then Alonzo grabbed Hatcher's wrist and pulled her over to the body, saying "You got to go see this." They noticed Touring was still breathing, so Alonzo took the gun and shot once more.5 They started to leave, but Lacaz remembered that the shell casings needed to be retrieved. Only one was found, picked up by Alonzo. The four left in the car, and Hatcher asked to be taken home.
Hatcher kept what she knew a secret for about six months; then she told her mother, who contacted police. She remained involved with Alonzo briefly after the murder; she had no further contact with Tagameyer.
Tagameyer, age eighteen at the time of the murder, was a friend of Touring. After Hatcher interviewed with the police, Tagameyer was interviewed and gave a statement. He testified he did not know Lacaz's last name and had met Hatcher once but did not know her name. He gave testimony virtually identical to Hatcher's in all material respects. Facts he added were: (1) Lacaz told him to hit Touring, which he did out of fear because Lacaz had the .45 caliber pistol (Tagameyer elbowed Touring in the chest); (2) Alonzo and Lacaz were laughing after the murder; (3) when Hatcher was taken home, Alonzo and Lacaz threatened to kill Tagameyer and Hatcher if they told anyone.
Assuming that Hatcher or Tagameyer were accomplices as a matter of law or that the jury found that Hatcher and Tagameyer were accomplices, the question is whether there was "other evidence ... tending to connect" Alonzo with the crime.
The jury was presented with ample evidence connecting Alonzo to the crime.
• Tracy Solis, a good friend of Hatcher, testified that about a week after the murder, Alonzo bragged to her about killing Touring and described how the offense was committed.6
• The murder weapon was found by police in Alonzo's car.
• Melissa Snead testified that shortly before his death, Touring was supposed to sell LSD to Alonzo and Lacaz. She testified Touring was with Alonzo and Lacaz shortly before his death.
• Lacaz told Paul Makow ten days after the murder that he and Alonzo killed someone for LSD. Makow got the impression the murder had just happened.
• Karen Touring, the victim's mother, testified that he had black and white Nike sandals which he was wearing on the afternoon of July 5, 1997. Her son would often stay with a neighbor and kept personal belongings there. Paul Makow testified Alonzo gave black Nike sandals to him ten days after the murder. He said he later threw the sandals in the bayou.
The record does not support Alonzo's argument that there was insufficient "other evidence" tending to connect him with the crime. Therefore, his "legally insufficient evidence" argument cannot stand. Point of error twenty is overruled.
In points of error one and two, Alonzo claims the trial court erred in denying his motion to suppress the murder weapon and its magazine which were found in his car. A hearing was conducted on the motion before trial.
A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). There is an abuse of discretion "when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op....
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