Cruz v. State, 13-81-039-CR

• Citation: 629 S.W.2d 852
• Decision Date: 18 February 1982
• Docket Number: No. 13-81-039-CR,13-81-039-CR
• Parties: Santos H. CRUZ, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 852

629 S.W.2d 852

Santos H. CRUZ, Appellant, v. STATE of Texas, Appellee.

No. 13-81-039-CR

Court of Appeals of Texas, Corpus Christi.

Feb. 18, 1982.

Robert A. Whittington, O'Leary, Sanchez & Benton, Brownsville, for appellant.

Reynaldo Cantu, Jr., Criminal Dist. Atty., Brownsville, for appellee.

Before BISSETT, YOUNG and GONZALEZ, JJ.

OPINION

BISSETT, Justice.

Santos H. Cruz was convicted of capital murder under Tex.Penal Code Ann. § 19.03(a)(2) (Vernon 1974). ¹ Trial was to a jury. Punishment was assessed at life imprisonment in the Texas Department of Corrections. We reverse and remand.

The indictment, in substance, alleged that Santos H. Cruz (defendant-appellant), on or about September 25, 1978, in the County of Cameron, State of Texas, did intentionally and knowingly, while in the course of committing robbery of Amador Balderas Salinas, cause the death of Amador Balderas Salinas by shooting him with a gun. The court's charge, in pertinent part, reads as follows:

"(i)f you find from the evidence beyond a reasonable doubt that on or about the 25th day of September, 1978, in Cameron County, Texas, the Defendant, Santos H. Cruz, did intentionally or knowingly cause the death of another person, to wit, Amador Balderas Salinas, by shooting him with a gun and that the said Santos H. Cruz, was then and there in the course of committing, or attempting to commit, the offense of robbery of Amador Balderas Salinas, of his property, then you will find the Defendant guilty of Capital Murder..."

Since we reverse the judgment of the trial court, we do not deem it necessary to discuss or decide the questions presented by grounds of error one, three, four, five and seven. We, therefore, limit our discussion and decision to grounds of error two and six.

The appellant, in ground of error two, asserts that the trial court erred in ruling that his statement, or confession, was admissible in evidence. He argues that the statement was not voluntarily given and that he was not properly advised of his constitutional and statutory rights prior to signing the statement.

The record reveals that the appellant shot and killed Amador Balderas Salinas on September 25, 1978. The appellant was taken into custody on September 26, 1978. He made and signed a statement while in jail on September 27, 1978. With respect to the contention that appellant was not properly advised of his constitutional and statutory rights, the statement, which was made to Cameron County Deputy Sheriff Roy Zepeda, reads as follows:

"I, Santos Herbert Cruz, having been warned by Roy Zepeda Deputy, whose occupation is a Deputy Sheriff, at o'clock 11:00 a. m., on the 27th day of September, 1978, at Brownsville, Cameron County, Texas, (1) that I have the right to remain silent and not make any statement at all and that any statement that I make may be used against me at my trial or trials; (2) that any statement I make may be used as evidence against me in court; (3) that I have the right to have a lawyer present to advise me prior to and during any questioning; (4) that If I am unable to employ a lawyer, I have the right to have a lawyer appointed to advise me prior to and during any questioning; and (5) that I have the right to terminate the interview at any time. I understand all of my rights as stated above, and now that I know my rights it is my choice to voluntarily give them up and to freely, intelligently, and knowingly make the following statement."

"I, Luis G. Martinez, Jr., do hereby certify that I have translated the foregoing statement from English to Spanish to the above named person Santos Herbert Cruz, and that he has signed it with the same full knowledge and understanding of its contents and legal effects."

Following a hearing on the appellant's motion to suppress the statement, the trial court, over the appellant's objections, ruled that the statement was admissible.

The inculpatory portions of the statement were introduced in evidence by the State. In those portions of the statement, the appellant said that during the early morning hours of September 25, 1978, upon his return from Harlingen, Texas, to the house where he lived, and after a conversation with one of the men who also lived in the house, "I then pulled out my gun and shot him."

The exculpatory portions of the statement were introduced in evidence by the appellant. The appellant, in those portions, said:

"The men told me where was the other men; I told him that he stayed behind with a girl. He told me you better bring him to me now, that's when he told me: 'Chinga tu Madre.' I went to his room and I told him why he said 'Chinga tu Madre.' The man swung at me with a hammer. I then pulled out my gun and shot him."

Roy Zepeda testified that on September 27, 1978, he took the appellant's statement. He further testified that prior to taking the same, he read the rights to the appellant which are set out at the very beginning of the statement. He said that those rights were read by him to the appellant in both English and in Spanish. According to Officer Zepeda, the appellant understood these rights.

After the statement was typed, and before the appellant signed it, the statement, including the rights contained therein, was once again read to him in Spanish by Officer Zepeda and also by deputy sheriff Luis Martinez. Again, the appellant indicated he understood his rights and appellant then affixed his mark to the confession, which was witnessed by Officer Zepeda and by Julio Martinez, a deputy sheriff, who translated the confession, as written in English to Spanish, to the appellant, including the warnings at the top of the confession, and the appellant stated to Officer Martinez, in Spanish, "Si, entiendo," which Officer Martinez testified means, "I understand." At no time did appellant ask for a lawyer.

Oscar Leal, a deputy sheriff of Cameron County, testified that, at the request of the District Attorney's office, he took the statement (after it had been reduced to writing in English) back to the appellant to be re-translated from English to Spanish to the appellant, and to be re-signed by him in the presence of a non-officer witness. This was done on October 25, 1978. Officer Leal read the confession, including the warnings thereon, to the appellant in Spanish. The appellant told Officer Leal that he understood his rights. Officer Leal then asked him if he wanted to re-sign the confession and appellant made his mark thereon once again. Officer Leal further testified that at no time did the appellant request an attorney and, further, that the appellant understood what he was doing and did so voluntarily.

Yolanda Delgado, a secretary for the Sheriff's Department of Cameron County, testified she was not a police officer. Her signature was affixed to the statement as a witness thereto on October 25, 1978. She said that on that date, Officer Leal, in her presence, read the warnings from the statement to the appellant; that the appellant said that he understood the warnings; and that Officer Leal told the appellant that he did not have to sign the statement. She further stated that the appellant was then asked if he wanted to sign the statement; and that he then picked up a pen and again made his mark.

The appellant, at the hearing of his motion to suppress the statement, testified that he understood his rights to have a lawyer appointed and present during the taking of the confession, as well as his other rights.

We find that the appellant, at all pertinent times incident to the making and signing of the statement, was given all of the required warnings. On each occasion he indicated that he understood the warnings given to him. He did not, at any time, request that a lawyer be appointed to advise him of his rights nor did he attempt to retain the services of a lawyer. We further find that the statement was made voluntarily and that the appellant understood what he was doing when he made the statement and when he signed and re-signed the same. The trial court did not err in ruling that the statement was admissible or in permitting portions thereof to be read into evidence by the State (and by the appellant).

The appellant, in ground of error six, contends "that the evidence was insufficient to establish all elements of the offense alleged beyond a reasonable doubt." We agree.

In order to sustain the conviction for capital murder in this case, it was incumbent upon the State, pursuant to the provisions of Tex.Penal Code Ann. 19.03(a)(2) (Vernon 1974), to prove beyond a reasonable doubt that:

(1) the defendant

(2) intentionally

(3) caused the death of the deceased

(4) while in the course of committing a robbery of the deceased.

The intentional killing of the deceased by the appellant was established by direct evidence. However, the evidence relating to the element that the killing was in the course of committing robbery of the deceased by the appellant is purely circumstantial. The trial court charged the jury on circumstantial evidence.

A conviction will not be sustained if the evidence, direct or circumstantial, is insufficient to establish all material elements of the offense with which the defendant is charged. Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969); Ysasaga v. State, 444 S.W.2d 305 (Tex.Cr.App.1969).

On September 24, 1978, the appellant was living in a small house on the Troy Myers Ranch, which is located approximately 2 1/2 miles north of Harlingen, Cameron County, Texas. Living in the house with him were the deceased and Juvencio Salinas, a cousin of the deceased.

All three men worked on the ranch for Mr. Myers. The deceased had worked for Mr. Myers for approximately three weeks prior to the date of the shooting; Juvencio had worked for approximately 3 1/2 months, and the appellant had worked for approximately seven or eight years.

At approximately 4:00 o'clock on the afternoon of September 24, 1978, the deceased went into town (Harlin...