Hernandez v. State

• Decision Date: 05 February 1997
• Docket Number: No. 010-96,010-96
• Citation: 939 S.W.2d 173
• Parties: Hugo Alberto HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 173

939 S.W.2d 173

Hugo Alberto HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 010-96.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 5, 1997.

Walter J. Pink, Houston, for appellant.

Robert H. Moore, Asst. District Attorney, Brownsville, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Appellant was convicted of murder and sentenced to thirty-five years imprisonment. ¹ The Thirteenth Court of Appeals reversed appellant's conviction and ordered an acquittal after finding the evidence insufficient to corroborate the accomplice witness testimony. Hernandez v. State, 907 S.W.2d 654 (Tex.App.--Corpus Christi 1995). We granted the State's petition for discretionary review to determine whether the court of appeals erred in misinterpreting the quality and quantum of proof necessary to corroborate accomplice testimony in a murder case. ²

We adopt the court of appeals' recitation of the facts surrounding the accomplice witness testimony:

The record shows that [on] April [6th] 1988, the bullet-riddled body of [the victim] was found alongside a Cameron County Highway [sic]. Shortly thereafter, the Cameron County grand jury jointly indicted Martin Flores and appellant for the murder. Appellant failed to appear for arraignment, but Flores was tried and convicted in August 1988. Appellant was captured four years later and tried in January 1993. At appellant's trial, the State called accomplice Flores and a number of non-accomplice witnesses.

Flores, the accomplice, testified that in 1988 he had been convicted of [the victim's] murder and sentenced to twenty-five years in prison. He was released on parole in February 1992. He testified that he did not want to testify at appellant's trial but appeared because he was subpoenaed. He did not remember witnesses testifying during his own trial, nor did he remember evidence being presented. He identified appellant in the courtroom. He testified that [the victim] had been a mechanic who lived next to him on Elena Street in Brownsville. He could not remember how long he had known [the victim] or when [the victim] became his neighbor. Flores remembered that he had met appellant in Matamoros but could not remember when. He could not remember where appellant lived. Flores could not remember getting together with appellant and [the victim]. Flores testified that he could not remember "what happened" because he had nerve problems when he was in prison. He could not remember the last time he saw [the victim]. He did not remember being in court or testifying at his own trial in his own defense. After the prosecutor showed him a transcript of what purported to be his prior testimony, Flores remembered who his attorney had been, but he still did not remember testifying. The prosecutor showed Flores three prior statements Flores purportedly made. Flores looked at them but could not remember their contents or signing them. The State passed the witness, and appellant's counsel asked Flores no questions.

John Corr testified that he was the court reporter during Flores's 1988 trial and that Flores had testified under oath at that trial. Over appellant's objection, the trial court permitted the State to read Flores's former testimony to the jury. [footnote omitted]

In that testimony, Flores testified how he came to know [the victim]. They had a close relationship, like brothers. Flores only knew appellant for three months. On the day of the killing, Flores went to [the victim's] house to help him fix a van. About 7:30 p.m., appellant showed up with some beer. After a while, they needed more beer, so Flores left with appellant to get some. While they were out, they went to "Chato's place" to check on two trucks appellant was having painted. They returned to [the victim's] house, then about 9:30 went to get some videos. They then came back to [the victim's] around 10:15 but all three then left to go to a bar.

When they got to the bar, [the victim] and appellant greeted different friends. At some point, appellant told [the victim] that one of the men owed appellant $36,000. When [the victim] told appellant to "tell him to pay you," appellant said he did not want to be paid. Appellant said he just wanted to kill him. The three then left the bar and cruised around during which time appellant gave the victim a pistol. They agreed they were going to go back and kill the man. While Flores and appellant waited in the car, [the victim], leaving the gun in the car, went into the bar to see if the man was there. [The victim] was in the bar about five minutes when appellant and Flores saw the man they seemed to be waiting for leaving the bar. [The victim] then came out and said the man was not in the bar. Appellant told [the victim] that they had seen the man come out, but [the victim] said he was not in there. Appellant and [the victim] then argued. Appellant then started the car and they headed for Boca Chica. Soon they stopped, apparently to urinate, and got out. Appellant had his 12-gauge shotgun and looked at [the victim], who asked if appellant was "going to give it to" him. Appellant called [the victim] a "son of a bitch" and a "snitch" and then shot [the victim] twice with the shotgun. Appellant then pointed his shotgun at Flores. Instead of shooting, appellant handed Flores a pistol and told him to shoot [the victim]. Flores fired two or three times at a shadow, really not wanting to hit [the victim]. Appellant then took the gun from Flores, and they left for Matamoros. Later, Flores realized he had lost one of his sandals at the murder scene. Flores did not think he killed [the victim] because [the victim] was already down and would not move. Flores would not have fired if appellant had not forced him.

Tex.Code Crim. Proc. Ann. art. 38.14, the accomplice witness rule 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.

The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is evidence which tends to connect the accused with the commission of the offense. Reed v. State, 744 S.W.2d 112, 125 (Tex.Crim.App.1988). The non-accomplice evidence need not be sufficient in itself to establish the accused's guilt beyond a reasonable doubt. Id. at 126. Nor is it necessary for the non-accomplice evidence to directly link the accused to the commission of the offense. Reynolds v. State, 489 S.W.2d 866, 872 (Tex.Crim.App.1972). The accomplice witness rule is satisfied if there is some non-accomplice evidence which tends to connect the accused to the commission of the offense alleged in the indictment. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App.1994) (citing Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993))(emphasis in original); Cox v. State, 830 S.W.2d 609, 611 (Tex.Crim.App.1992).

The court of appeals found that the non-accomplice testimony viewed most favorably to the jury's verdict showed

(1) appellant and Flores were with [the victim] approximately two hours before the killing, (2) two persons killed the victim, (3) appellant departed without explanation after [the victim] was killed, (4) in the past, appellant possessed one type of weapon (pump shotgun) used to kill [the victim], and (5) appellant drank Miller Lite beer and a can of that type of beer was found by [the victim's] body.

Hernandez, 907 S.W.2d at 658. In concluding that the non-accomplice evidence was insufficient to connect appellant to the offense, the court of appeals relied on this Court's opinion in Cruz v. State, 690 S.W.2d 246 (Tex.Crim.App.1985), focusing on the following language:

[p]roof that an accused was present at or near the scene of a crime, when coupled with other suspicious circumstances, including subsequent flight, may tend to connect the accused to the commission of the offense.... The fact that [the defendant] lived [on the victim's property] and had gone away around the time of the murder is of some significance, but, by itself, is not sufficient to connect appellant to the murder.

Hernandez, 907 S.W.2d at 658 (citing Cruz, 690 S.W.2d at 250-51). ³ Purporting to follow Cruz, the court of appeals held that evidence that appellant was with the accomplice the night of the offense, that appellant had previously possessed a weapon like that of the murder weapon, that the victim might have been killed by two persons, that the brand of beer appellant was seen drinking on the night of the murder was found by the victim, and that appellant disappeared without explanation following the offense amounted to suspicious circumstances only but did not tend to connect appellant to the commission of the offense.

The State claims the court of appeals' reliance on Cruz is misplaced because in that case there was no evidence that tended to place the defendant at the crime scene. We agree that the court's reliance on Cruz is misplaced, although not for the precise reason the State asserts. In reaching its holding, the court of appeals failed to take into account facts which distinguish Cruz from the instant case and ignored caselaw which speaks directly to the significance of such facts. ⁴ Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993) (noting each case must be considered on its own facts and circumstances).

Evaluating the evidence in Cruz, we noted the following:

No connection was shown between the rifle and pistol [the defendant] had been seen with at some, unspecified time prior to the murder, and the weapons used to kill [the victim]. The State never even proved...