Gamez v. State
| Decision Date | 02 November 1983 |
| Docket Number | No. 04-81-00287-CR,04-81-00287-CR |
| Citation | 665 S.W.2d 124 |
| Parties | Jesus Martinez GAMEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
David Chapman, San Antonio, for appellant.
Bill White, James L. Bruner, San Antonio, for appellee.
Before BUTTS, REEVES and DIAL, JJ.
Appellant, Jesus Martinez Gamez, was convicted of the capital murder of Joe Banda. He was assessed punishment at life imprisonment. We affirm.
Appellant's first four grounds of error complain that a witness for the State, Richard Sanchez, was an accomplice as a matter of law; that the court erred in submitting Sanchez's status as an accomplice to the jury as a question of fact; that the evidence is insufficient to corroborate the testimony of Sanchez, and; that the evidence is insufficient to corroborate the testimony of Frank San Miguel, a State's witness and an accomplice as a matter of law.
Appellant was indicted for employing Guadalupe Castro, for remuneration in the amount of one thousand dollars ($1,000.00) to kill the decedent, Joe Banda. TEX.PENAL CODE ANN. § 19.03(a)(3) (Vernon 1974). Frank San Miguel, who was held to be an accomplice as a matter of law by the trial court, testified that appellant telephoned him in December, 1978, and asked if he could find someone who was willing to kill an individual for one thousand dollars. San Miguel, as a result of this phone call, arranged a meeting between Guadalupe Castro and appellant. At this meeting it was decided that the decedent would be killed by placing dynamite in his car. San Miguel was given three hundred dollars ($300) to purchase the dynamite. Twenty-five dollars went to the actual purchase of the dynamite. San Miguel gave eighty dollars to Castro and kept the balance for himself.
Richard Sanchez testified that he had met Castro in 1977. Sanchez and Castro lived together and both worked at a fireworks stand which was managed by San Miguel. Sanchez stated that he knew appellant hired Castro to kill the decedent; that the price was one thousand dollars, and that three hundred dollars had been paid. Sanchez testified Castro offered him one hundred dollars to help kill Banda which he refused. Despite the refusal of the one hundred dollars, Sanchez watched while San Miguel instructed Castro how to connect the dynamite and allowed his car to be used for this practice session. That evening Sanchez, knowing Castro was going to plant the dynamite to kill Banda, drove Castro to Banda's residence. Neither Castro nor Sanchez could open the hood of Banda's car. They then left and returned some four hours later after having learned how to open the hood. On this trip, Sanchez waited in the car while Castro planted the dynamite.
The next morning Banda started his car. The dynamite exploded destroying the car. Banda, however, was only slightly injured. Castro and Sanchez learned of the failure the next day at work. Sanchez testified appellant arrived at the fireworks stand and had a discussion with Castro in appellant's car. Castro emerged from the car with a newspaper which showed Banda was still alive. Castro told Sanchez he was going to finish the job by shooting Banda, and asked for Sanchez's help. Sanchez declined.
After the bomb attempt on Banda's life failed, Banda moved from his home to a motel. Sanchez testified that Castro learned of Banda's new location from appellant a couple of days after the bombing. Sanchez was again asked to accompany Castro and again refused. When Castro left to do the shooting, Sanchez wished him "good luck."
Castro was successful on this trip. Banda was shot nine times with a .22 caliber rifle and died as a result of multiple gunshot wounds.
Some six to seven hours after the shooting, Sanchez saw appellant pay Castro the seven hundred dollar balance due, and was shown Banda's wallet and nine spent shell casings by Castro.
One is not an accomplice witness who cannot be prosecuted for the offense for which the accused is charged. May v. State, 618 S.W.2d 333, 340 (Tex.Cr.App.1981), vacated, 454 U.S. 959, 102 S.Ct. 497, 70 L.Ed.2d 374 (1981), aff'd on remand, 632 S.W.2d 751 (Tex.Cr.App.1982). There is no evidence that Sanchez was involved in the negotiations and the agreement between Castro, San Miguel, and appellant. Further, the evidence is uncontroverted that Sanchez received no remuneration, was not present at the shooting, and did not participate in the shooting in any way. While it is true that Sanchez knew of the contract to kill Banda; knew the details of the contract with particularity; assisted in an unsuccessful attempt on Banda's life; and made no effort to contact the authorities, we cannot say that Sanchez was an accomplice witness as a matter of law. "Where there is doubt whether a witness is an accomplice, submitting the issue to the jury is sufficient even though the evidence preponderates in favor of the conclusion that the witness is an accomplice as a matter of law." May, supra at 339-40. There was no error in submitting the issue of whether Sanchez was an accomplice to the jury. Appellant's first two grounds of error are overruled.
The trial court held that Frank San Miguel was an accomplice as a matter of law. TEX.CODE CRIM.PROC.ANN. art. 38.14 (Vernon 1979) provides: "A conviction cannot be had upon the testimony of an accomplice unless 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." Since the jury found that Sanchez was not an accomplice, and we have held he is not an accomplice as a matter of law, his testimony may be used to corroborate the testimony of San Miguel. We hold there is sufficient evidence to corroborate San Miguel's testimony more likely than not. Further, since Sanchez was not an accomplice his testimony needed no corroboration. Appellant's third and fourth grounds of error are overruled.
Appellant's fifth ground of error contends the State "over indicted" him and then failed to prove all the allegations in the indictment. The pertinent part of the indictment states:
JESUS MARTINEZ GAMEZ did then and there knowingly and intentionally CAUSE THE DEATH OF JOE BANDA HEREINAFTER CALLED COMPLAINANT, BY SHOOTING THE SAID COMPLAINANT WITH A GUN AND THE SAID JESUS MARTINEZ GAMEZ DID THEN AND THERE KNOWINGLY AND INTENTIONALLY EMPLOY GUADALUPE CASTRO FOR REMUNERATION AND PROMISE OF REMUNERATION, TO-WIT: THE SUM OF ONE THOUSAND DOLLARS ($1,000.00) PAID AND PROMISED TO BE PAID TO GUADALUPE CASTRO TO KILL THE SAID COMPLAINANT BY SHOOTING THE SAID COMPLAINANT
WITH A GUN.... (emphasis ours).
Appellant contends that by the use of the conjunctive "and," the State must prove that appellant personally shot the deceased. We disagree.
TEX.PENAL CODE ANN. § 19.03(a) (Vernon 1974), which defines capital murder, states: "A person commits an offense if he commits murder as defined under section 19.02(a)(1) of this code...." This section goes on to enumerate five instances which raise the offense of murder to capital murder. Section 19.02(a)(1) defines murder as intentionally and knowingly causing the death of an individual.
What the indictment before us does is charge appellant with murder and also alleges an additional fact, employing another to commit murder for remuneration, so that the indictment, when viewed in its entirety, charges capital murder.
The trial court's charge to the jury correctly included the law of parties, English v. State, 592 S.W.2d 949 (Tex.Cr.App.1980), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); TEX.PENAL CODE ANN. §§ 7.01, 7.02 (Vernon 1974). The proof at trial showed that appellant hired Castro to murder the deceased and that Castro did in fact shoot the deceased with a gun. A court may charge...
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Gamez v. State
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...amount to participation in the preparation and investigation of the case sufficient to require disqualification. Cf . Gamez v. State, 665 S.W.2d 124, 127–28 (Tex.App.1983) (trial judge was not disqualified from hearing case because of perfunctory act, as former assistant district attorney, ......
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