Carrillo v. State

• Decision Date: 19 December 1979
• Docket Number: No. 58109,No. 3,58109,3
• Citation: 591 S.W.2d 876
• Parties: Oscar CARRILLO, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 876

591 S.W.2d 876

Oscar CARRILLO, Appellant, v. The STATE of Texas, Appellee.

No. 58109.

Court of Criminal Appeals of Texas, Panel No. 3.

Dec. 19, 1979.

Randolph L. Schaffer, Jr., Houston, for appellant.

Alger Kendall, Dist. Atty., Jourdanton, F. A. Cerda, Dist. Atty., Hebbronville, John L. Hill, Atty. Gen., Gerald C. Carruth, Max P. Flusche, Jr. and Catherine E. Greene, Asst. Attys. Gen., Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, PHILLIPS and DALLY, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for felony theft under the former penal code. The punishment is imprisonment for seven years, probated.

Appellant contends that (1) the evidence is insufficient to corroborate an accomplice witness, to establish appellant's guilt as a principal, and to prove ownership of the stolen property as alleged in the indictment; (2) appellant's cross-examination of State witnesses to show their bias and motive for testifying against him was improperly restricted; (3) the trial court gave a conflicting and irreconcilable charge on the law of principals and refused to give an affirmative charge on the converse of the law of principals; (4) the charge permitted a conviction on a theory without support in the evidence; (5) the trial court refused to give affirmative instructions on two defensive theories and to instruct the jury that two State witnesses were accomplice witnesses as a matter of law; (6) improper evidence was admitted over objection; (7) the trial court commented on the weight of the evidence; (8) the prosecutor engaged in improper jury argument; (9) the trial court refused to permit appellant to timely make his bills of exception; (10) evidence beneficial to the defense was stolen from appellant's office by agents of the State; and (11) appellant's motion to quash the indictment should have been granted.

The indictment alleges that on or about May 4, 1972, appellant

"unlawfully and fraudulently (took) two thousand five hundred one (2501) Postage meter stamps numbered 561541 of the value of over two hundred dollars ($200.00), the same then and there being the corporeal personal property of and belonging to Ken Bercaw, from the possession of the said Ken Bercaw, without the consent of the said Ken Bercaw, and with the intent then and there to deprive the said Ken Bercaw of the value of the same and to appropriate it to the use and benefit of himself, the said Oscar Carrillo . . . ."

At the time in question, appellant was a member of the Texas House of Representatives, and was a candidate for the Texas Senate from the 21st senatorial district. The postage meter described in the indictment belonged to the Benavides Independent School District (BISD). It was the State's contention that appellant arranged to have some of his campaign materials mailed at the expense of the BISD by having it run through the school district's postage meter.

The postage meter was located in what was referred to at the trial as the BISD tax office in Benavides. Rodolfo Couling was the BISD tax assessor-collector, and was in charge of the tax office. Couling testified that in April, 1972, appellant came to the tax office and told him that he wanted the tax office to furnish postage to appellant's campaign. After Couling agreed to provide the requested assistance, appellant brought in several boxes of envelopes and pamphlets. Couling testified that appellant instructed him to address the envelopes, stuff them with the pamphlets, and run them through the postage meter. One or two days later, more of appellant's campaign literature was delivered to the tax office, but Couling could not remember who made this delivery.

Couling testified that he instructed the tax office employees to type addresses on the envelopes from the tax rolls, a process which took approximately three weeks. After the envelopes were addressed, Couling and Grace Bridges, another BISD employee, ran them through the postage meter. Couling testified that appellant came to the tax office several times while the envelopes were being processed to see how things were going, but that appellant had not been present when the envelopes were run through the postage meter. Appellant did not reimburse Couling for the postage used to mail the envelopes.

Several BISD tax office employees testified that they had addressed appellant's campaign envelopes and stuffed them with pamphlets on school time. Gordon Ross, the superintendent of the BISD at the time in question, testified that he saw this work being done. Mauricio Gonzalez, the Benavides postmaster, testified that thousands of envelopes bearing appellant's photograph and which had been stamped by the BISD postage meter were mailed in May, 1972. While none of the witnesses could place an exact figure on the number of envelopes which were processed through the BISD tax office, the estimates were between 5,000 and 10,000. At eight cents per letter, which the record reflects was the first class rate in 1972, the cost to the BISD was between $400 and $800. Gonzalez testified that the record book maintained for the BISD postage meter, which was in evidence, showed that $800 of postage had been used during the first week of May, 1972. Luis Elizondo and M. K. Bercaw, Jr., both members of the BISD board of trustees in 1972, testified that the board never authorized the use of the school's postage meter for appellant's campaign.

The trial court instructed the jury that Couling was an accomplice witness as a matter of law. A conviction cannot be had upon the testimony of an accomplice unless that testimony is 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. Art. 38.14, V.A.C.C.P. While there is ample evidence in the record to corroborate Couling's testimony that appellant's campaign material was addressed, stamped, and mailed by BISD employees at BISD expense, only two other witnesses gave testimony connecting appellant to the theft. Appellant argues that the testimony of these witnesses may not be considered in corroboration of Couling because both were accomplice witnesses as a matter of law. See Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Chapman v. State, 470 S.W.2d 656 (Tex.Cr.App.1971).

The first of these witnesses was Ruben Chapa, who testified that he had been employed by appellant to work in his Laredo campaign office. Chapa testified that in late April, 1972, appellant gave him a box of envelopes which had been addressed, stuffed, and sealed, and told him to take them to Couling, who would "know what to do with them." Chapa delivered the envelopes to Couling at the BISD tax office, and later watched him run the envelopes through the postage meter. Chapa also testified that on another occasion he saw Couling and Bridges run campaign envelopes through the postage meter.

The second witness was Brian Taylor, who in 1972 was superintendent of the San Diego Independent School District (SDISD). He testified that in April of that year appellant asked him if he would mail some of appellant's campaign literature. Taylor testified that during this conversation appellant told him that the BISD was providing similar assistance to the campaign. Taylor agreed to mail appellant's material, and approximately 2,500 campaign envelopes were subsequently delivered to him at his office. Taylor hired several SDISD students to address these envelopes, which were then stuffed with appellant's campaign pamphlets and mailed with stamps purchased by the SDISD. The SDISD was not reimbursed for these stamps.

The trial court submitted the issue of whether Chapa was an accomplice as a question of fact for the jury to decide. Where there is a doubt whether a witness is an accomplice, submitting the issue to the jury is sufficient even though the evidence seems to preponderate in favor of the conclusion that the witness is an accomplice as a matter of law. Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975); Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975); Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974). Chapa admitted that he delivered envelopes to Couling and that he saw Couling and Bridges run envelopes through the school district's postage meter. Couling testified, but Chapa denied, that Chapa delivered some of the campaign envelopes to the post office. But there is no evidence that Chapa knew that the postage meter was being used without the consent of the school board or that the district was not going to be reimbursed for the postage. We hold that the trial court did not err in submitting the issue of whether Chapa was an accomplice witness as a fact question for the jury. See and compare Ward v. State, supra; Zitterich v. State, 502 S.W.2d 144 (Tex.Cr.App.1973); Allen v. State, 461 S.W.2d 622 (Tex.Cr.App.1970).

The trial court did not instruct the jury that Taylor was an accomplice witness as a matter of law, nor did the court submit the issue as a question of fact. An accomplice witness is someone who has participated with another before, during or after the commission of a crime. Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978); Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1977); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974). One is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged. Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978); Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961); Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108 (1954); Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914). A witness is not deemed an accomplice witness because he knew of the crime but failed to disclose of or even concealed it. Easter v. State, supra; Gausman v. State, 478 S.W.2d 458 (Tex.Cr.App.1972). While the record in the instant...