Colunga v. State

• Decision Date: 17 September 1975
• Docket Number: No. 49993,49993
• Citation: Colunga v. State, 527 S.W.2d 285 (Tex. Crim. App. 1975)
• Parties: Ruben V. COLUNGA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 285

527 S.W.2d 285

Ruben V. COLUNGA, Appellant, v. The STATE of Texas, Appellee.

No. 49993.

Court of Criminal Appeals of Texas.

Sept. 17, 1975.

Rehearing Denied Oct. 8, 1975.

Thomas Rocha, Jr. and Louis T. Rosenberg, San Antonio, both court-appointed, for appellant.

Ted Butler, Dist. Atty., and Charles T. Conaway, John L. Quinlan, III, and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed by the jury at 199 years.

The record reflects that Soloman Abdo died of knife wounds inflicted during a robbery which occurred at the deceased's grocery store in San Antonio on January 17, 1969. The first trial was in July, 1970, and the conviction resulting therefrom was reversed by this Court. ¹ This appeal stems from the conviction at the second trial in September, 1973. The record was filed in this Court on March 7, 1975.

The testimony of Jesse Motez and Feliciana Martinez reflects that Hector Garza, ² Jesse Gonzales, and Montez entered the Abdo store on the date in question while appellant circled the block in a car with Martinez.

The court instructed the jury that co-defendant Montez was an accomplice as a matter of law, and submitted the issue of whether or not Martinez (against whom no indictment was returned) was an accomplice as a question of fact for the jury to resolve.

A number of appellant's contentions are directed to the court's failure to charge the jury that both Montez and Martinez were accomplices as a matter of law.

About 4:30 p.m. on the day in question, appellant and Garza drove to a house where Gonzales and Martinez were living in what was described as a common law relationship. The four of them then drove to the corner of Guadalupe and Brazos, where appellant made inquiry of Montez and his companions about obtaining guns. According to Montez, appellant stated the reason he wanted guns was that 'He was going to do an easy job.' Upon appellant's inquiry, 'Do you want to make some money?' Montez answered in the affirmative, and appellant told Montez to 'get in the car.' They then proceeded to Gonzales' house, where Gonzales obtained a knife.

Appellant then drove the North Zarzamora Street, where he pointed out a store that 'was easy.' Appellant instructed Garza, Gonzales, and Montez on the roles they were to carry out in the robbery. Appellant told Garza, 'If you have to use the knife, use it.' According to plan, Montez entered the store first and asked the deceased for soda water. Gonzales and Garza then entered the store, and Garza grabbed the deceased. The deceased resisted, and was stabbed five times. Montez removed what was later determined to be two dollars in nickels from the cash register. Gonzales, Montez and Garza fled from the scene upon observing a car in front of the store. All later assembled in a cafe, where a division of the fruits of the robbery was made. Martinez, when offered twenty-five cents as her 'cut,' pushed the money toward Gonzales and said, 'I don't want any of that money.' Martinez, who was either fourteen or fifteen at the time in question testified that she never intended to participate in the robbery.

Appellant urges that Martinez was an accomplice witness as a matter of law, and that the jury should have been instructed that a conviction could not be had upon her testimony as an accomplice unless corroborated pursuant to Art. 38.14, V.A.C.C.P. ³

The record does not reflect that Martinez was ever an active participant in the planning or carrying out of the robbery or murder. Unlike the others present, Martinez was not assigned a role in the robbery by appellant, nor does the evidence show that Martinez advised, commanded or encouraged the principals to commit the offense, or agreed to aid them, or aided them in its commission. See Chapman v. State, Tex.Cr.App., 470 S.W.2d 656.

This Court has consistently held that where there is a doubt as to whether a witness is an accomplice witness, and such fact is submitted to the jury, such procedure is sufficient even though the evidence seems to preponderate in favor of the fact that such witness is an accomplice witness as a matter of law. Ward v. State, Tex.Cr.App., 520 S.W.2d 395; Jackson v. State, Tex.Cr.App., 516 S.W.2d 167; Zitterich v. State, Tex.Cr.App., 502 S.W.2d 144; Allen v. State, Tex.Cr.App., 461 S.W.2d 622.

We conclude that the court did not err in submitting the issue of whether or not Martinez was an accomplice witness as a question of fact for the jury to resolve. We further find that the court properly instructed the jury relative to corroboration of accomplice testimony.

Appellant contends that under the doctrine of collateral estappel, the State cannot deny that Martinez is an accomplice.

Appellant points to the fact that in the first trial of this case the trial court instructed the jury that Martinez was an accomplice witness as a matter of law. Appellant argues that since the proceeding involved the same parties, was before a court of competent jurisdiction, and an appellate court made a determination that the trial court correctly instructed the jury on this issue, that the second trial was bound by the court's determination that Martinez was an accomplice witness as a matter of law.

At the outset, we find appellant's premise that this Court made a determination that Martinez was an accomplice witness as a matter of law to be faulty. ⁴

Moreover, we find appellant's reliance upon Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, for the proposition that collateral estoppel applies to the instant case, to be misplaced. In Ashe v. Swenson, supra, the United States Supreme Court held that collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy, and where a defendant had been acquitted of the only rationally conceivable fact issue in dispute by a valid and final judgment in a previous trial, the government was precluded from a subsequent prosecution. In the instant case, we are not confronted with the trial of a fact issue in which appellant had previously been acquitted by a valid and final judgment.

Appellant contends that he has twice been placed in jeopardy for the same offense since the first conviction was reversed on the insufficiency of the evidence to support the conviction.

It appears to be appellant's position that a reversal on the insufficiency of the evidence should be tantamount to a judgment of acquittal at the original trial.

In Gilmore v. U.S., 264 F.2d 44 (5th Cir., 1959), cert. denied,359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, it was stated that the guarantee against double jeopardy does not prohibit a new trial even though reversal of the initial conviction is for want of sufficient evidence. See U.S. v. Nall, 437 F.2d 1177 (5th Cir., 1971).

We reject appellant's claim of jeopardy.

Appellant contends the court erred in admitting a hearsay conversation between a co-defendant and one Jesse Corona.

Corona testified that he talked to co-defendant Garza outside the presence of the appellant. During the course of the conversation, Garza asked Corona if he 'wanted to pull a job.' The fact that a conspiracy existed between Colunga, Garza, Montez and Gonzales is apparent from the evidence. There was proof in the record that the appellant and the above-mentioned companions were acting together in perpetrating the robbery. At the time of the conversation between Garza and Corona, they had already...