Colunga v. State

• Decision Date: 11 January 1972
• Docket Number: No. 44379,44379
• Citation: 481 S.W.2d 866
• Parties: Ruben V. COLUNGA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 866

481 S.W.2d 866

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

No. 44379.

Court of Criminal Appeals of Texas.

Jan. 11, 1972.

Rehearings Denied May 31, 1972.

Second Rehearing Denied July 19, 1972.

Nicholas & Barrera by Roy R. Barrera, Cecil W. Bain, San Antonio, for appellant.

Ted Butler, Dist. Atty., Charles T. Conaway, John L. Quinlan, III, Lucian B. Campbell and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is murder; the punishment, one hundred ninety-nine (199) years.

Ruben Colunga was indicted for murder with malice in the stabbing death of Solomon Abdo, Sr., during a robbery at his store. The State contended that Hector Garza, Jesse Gonzales and Jesse Montez entered the store while Colunga circled the block in a car with Feliciana Martinez waiting for his confederates.

Appellant contends there is insufficient testimony to corroborate the accomplice witnesses.

This is the companion case to Garza v. State, tex.Cr.App., 469 S.W.2d 169, but the facts and circumstances involving Colunga are entirely different and, consequently, require different proof.

Two witnesses, Jesse Montez and Feliciana Martinez, who the court charged were accomplice witnesses as a matter of law, testified appellant drove the get-away car and did not enter the establishment where the murder took place.

Under Art. 38.14, Vernon's Ann.C.C.P., ¹ the testimony of an accomplice witness must be corroborated. The test of the sufficiency of such corroboration is to eliminate the evidence of the accomplice from consideration and then to examine the evidence of other witnesses to determine if there is inculpatory evidence, evidence of an incriminating nature which tends to connect the accused with the commission of the offense. Merely showing an offense occurred is not sufficient. Odom v. State, Tex.Cr.App., 438 S.W.2d 912; Edwards v. State, Tex.Cr.App., 427 S.W.2d 629. The corroborative testimony need not supply direct evidence; it must only tend to connect appellant with the crime. Cherb v. State, Tex.Cr.App., 472 S.W.2d 273. It is the combined cumulative weight of the evidence furnished by non-accomplice witnesses which supplies the test. Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422.

The State's principal non-accomplice witness, Ernest Lopez, by whom it intended to place appellant near the scene and in the company of his co-defendants prior to the murder, testified that he knew the man, known to him as Tony, was Ruben Colunga but that he had never seen him before the day of the trial and, therefore, could not identify him as the man in the car on the night of the murder. The State claimed surprise and sought to impeach him stating he had told them he saw Colunga, known to him as Tony, in a car with the others on the night in question and that Colunga asked him for a pistol to use on a job. The State also introduced an affidavit Lopez gave to the police shortly after the incident where he also stated a man, known to him only as Tony, drove up to him in a car on the night of the murder and asked for the pistols. Lopez admitted the claimed conversations and signing the affidavit but still continued to deny he knew the appellant.

The State further showed that an offense was committed, that the fingerprints of appellant's co-defendants where found in the establishment and that appellant was at a cafe later in the evening with a co-defendant and an accomplice witness. We have searched the record with care and find no further evidence connecting Colunga to the murder. There is no credible evidence placing him in the presence of the accomplice witnesses at or near the scene of the crime nor tending to connect him with the alleged crime.

The State relies on Edwards v. State, Tex.Cr.App., 427 S.W.2d 629. In Edwards, however, the appellant was shown to be in the company of the accomplice near the scene of the crime at the time of its commission at an unusual hour, that he fled and was found in possession of a weapon belonging to the murder victim on the day after the homicide.

Chapman v. State, Tex.Cr.App., 470 S.W.2d 656, is more nearly in point. The case involved a robbery in which Chapman was an alleged accomplice. The evidence showed that at the time of his arrest in a cafeteria he had a pen in his hand and that a paper napkin was recovered from a table where the two arrestees were seated containing certain numerical notations including '600 bonds' and '600 me.'

In Chapman, supra, we found that evidence insufficient to corroborate the accomplice.

We reach the same conclusion here.

The judgment is reversed and remanded.

OPINION

ON STATE'S AND APPELLANT'S MOTIONS FOR REHEARING

DAVIS, Commissioner.

Both the State and the appellant have filed motions for rehearing.

The State urges that the witness Feliciana Martinez was not an accomplice witness as a matter of law and, therefore, her testimony need not be corroborated by non-accomplice testimony as required by Art. 38.14, Vernon's Ann.C.C.P. The record reflects that the witness was present at the planning of the crime. The witness, appellant and their companions who entered the store and commited the murder and robbery all went to the scene of the crime in the same...