Cruz v. State
| Decision Date | 09 July 2003 |
| Docket Number | No. 04-02-00858-CR.,04-02-00858-CR. |
| Parties | Angel Louis CRUZ, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 38th Judicial District Court, Medina County, Texas, Trial Court No. 00-10-8344-CR.
Honorable Mickey R. Pennington, Judge Presiding.
AFFIRMED.
Sitting: Alma L. López, Chief Justice, Karen Angelini, Justice and Phylis J. Speedlin, Justice.
Appellant, Angel Louis Cruz ("Cruz"), was convicted of aggravated assault causing serious bodily injury after a joint jury trial with co-defendant, Bobby Perez ("Bobby"). This appeal followed. In one issue, Cruz contends the evidence is insufficient to support his conviction because the testimony against him lacks corroboration under the accomplice witness rule. We overrule Cruz's sole issue and affirm the judgment of the trial court.
At trial, several individuals testified Cruz was present at the scene of the assault on Eulalio Alvarez ("Alvarez"), and two witnesses testified they actually witnessed Cruz strike Alvarez. Bobby, one of the two witnesses, testified that Alvarez's injuries were caused by Cruz striking him. The second witness was Bobby's wife, Michelle. She testified that both Cruz and Bobby struck Alvarez with their fists and feet.
On appeal, Cruz argues there is no incriminating evidence, independent of the testimony of accomplices, tending to connect him to the offense. Cruz centers his argument on the claim that not only is Bobby (the indicted co-defendant) an accomplice, but that Bobby's wife, Michelle, is an accomplice as well. Cruz maintains that Bobby's and Michelle's testimony was not corroborated as required by the accomplice witness rule. See Tex. Code Crim. Proc. Ann. art 38.14 (Vernon 1979). Cruz is correct that a conviction will not be upheld on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense. See Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999); Hernandez v. State, 939 S.W.2d 173, 178-79 (Tex. Crim. App. 1997). In addition, one accomplice witness cannot corroborate another accomplice witness. Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971). Therefore, we must determine if Michelle is an accomplice for purposes of the accomplice witness rule.(1)
At trial, Michelle testified she was present and witnessed the assault. She became "hysterical" because Cruz and Bobby, two young men, were beating Alvarez, an older man. She told Cruz and Bobby to stop because they were going to kill Alvarez, and grabbed Bobby to make him stop. Cruz and Bobby eventually stopped, jumped back into their cars, and left Alvarez on the road. At home, Michelle testified that she was too scared to sleep. She saw blood on Bobby's shoes and cleaned them. She also noticed blood on her clothes and threw them away. Michelle later returned Bobby's shoes to the store where she had purchased them.
In arguing that Michelle is an accomplice witness, Cruz first notes that Michelle was present at the time of the assault and failed to disclose it. Cruz maintains Michelle then "crossed the line" as an accomplice for purposes of the accomplice witness rule when she later "destroy[ed] evidence." We disagree.
A person is an accomplice if he or she participates before, during, or after the commission of the crime and can be prosecuted for the same offense or a lesser-included offense as the defendant. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999); Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991). The participation necessary to be considered an accomplice must involve an affirmative act or omission by the witness to promote the commission of the offense. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). The critical question is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Id. at 455. Whether the person is actually charged and prosecuted for his or her participation is not relevant; what matters is the evidence in the record. Id.
Where there is no doubt as to the evidence or the evidence clearly shows that a witness is an accomplice as a matter of law, the trial court is under a duty to instruct the jury. Id. (quoting DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990)). If evidence presented by the parties is conflicting, the question of whether a witness is an accomplice as a matter of fact is left to the jury under instructions defining the term accomplice. Id.; see Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987). If the evidence is clear that the witness is not an accomplice witness, neither an instruction that the witness is an accomplice as a matter of law nor a question regarding whether the witness is an accomplice as a matter of fact is required to be given. Gamez, 737 S.W.2d at 322.
As noted above, whether the person is actually charged and prosecuted for their participation is irrelevant to the determination of accomplice status. Blake, 971 S.W.2d at 455. What matters is the evidence in the record. Id. The critical question is whether there is sufficient evidence in the record connecting the person to the criminal offense as a blameworthy participant. Id. Therefore, we examine the evidence for Michelle's participation in the assault on Alvarez.
There is no evidence that Michelle played any part in the actual assault on Alvarez. To the contrary, the undisputed evidence reflects that Michelle tried to stop the assault by yelling at both Cruz and Bobby and by grabbing Bobby. The evidence also reflects that Michelle was unaware of Cruz's and Bobby's intent to attack Alvarez. When she left her home with Bobby, Michelle testified that she understood another friend had been "jumped" at a bar. She accompanied Bobby because they were taking her car. There is no evidence that Michelle entered into a previous agreement with Cruz and Bobby to assist in the commission of the assault. See Husting v. State, 790 S.W.2d 121, 124 (Tex. App.—San Antonio 1990, no pet.) ( that accessory after the fact [terminology under former penal code] is not an accomplice witness unless there is an agreement prior to the crime for the individual to act as an accessory after the fact).
Cruz argues that by concealing evidence to protect herself, Michelle "crossed the line" and became an accomplice. We disagree. Michelle testified that the acts in which she engaged after the assault were a result of fear. She stated that she "didn't want it to come back towards [her]." Michelle also testified that she engaged in these acts because she was scared of Bobby. See id. ().
We conclude that the evidence does not establish an affirmative act on the part of Michelle to assist in the commission of the assault. The evidence merely establishes Michelle's presence at the assault and her attempts to conceal it. The law is clear that mere presence at the commission of a crime does not make one an accomplice nor is one an accomplice for knowing about a crime and failing to disclose it. Blake, 971 S.W.2d at 454; Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986). Even evidence that the person was present during the crime and then participated in concealing that crime is not sufficient to prove accomplice status. Blake, 971 S.W.2d at 454; see Smith v. State, 721 S.W.2d 844, 851 (Tex. Crim. App. 1986).
Finally, Cruz argues Michelle is an accomplice because she was arrested and charged with conspiracy to commit aggravated assault, the same assault for which Cruz and Bobby were tried. Again, we disagree. The fact that Michelle was charged with criminal conspiracy to commit aggravated assault does not make her an accomplice because criminal conspiracy is not a lesser-included offense of aggravated assault. An offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from...
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