Hernandez v. State

• Decision Date: 21 June 2001
• Docket Number: No. 13-99-568-CR,13-99-568-CR
• Citation: 52 S.W.3d 268
• Parties: (Tex.App.-Corpus Christi 2001) JESSE HERNANDEZ, A/K/A "BUMPY," Appellant, v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 268

52 S.W.3d 268 (Tex.App.-Corpus Christi 2001)

JESSE HERNANDEZ, A/K/A "BUMPY," Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-99-568-CR

Court of Appeals of Texas, Corpus Christi

June 21, 2001.

Rehearing Overruled September 6, 2001.

On appeal from the 105th District Court of Nueces County, Texas. [Copyrighted Material Omitted]

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Before Justices Hinojosa, Yanez, and Chavez¹

OPINION

Hinojosa, Justice.

A jury found appellant, Jesse Hernandez a/k/a "Bumpy," guilty of engaging in organized criminal activity² and murder³ and assessed his punishment at life imprisonment and a $5,000 fine for the organized criminal activity and fifty years imprisonment and a $5,000 fine for the murder. Both sentences were ordered to run concurrently. In fourteen issues, appellant contends: (1) the evidence is legally and factually insufficient to support the judgment; (2) he received ineffective assistance of counsel during trial; (3) the trial court erred by admitting improper evidence; and (4) a fatal variance exists between the offenses charged in the indictment and the evidence presented at trial. We affirm.

A. Evidence at Trial

It is undisputed that on August 10, 1998, the victim, Luis "Huicho" Luna ("Luis"), was shot to death. What is disputed is the role appellant played in the murder.

The State sought to prove that appellant, Jesse "Trece" Casso ("Casso"), Jeremy Munguia ("Munguia"), Rudy "Rhino" Contreras ("Contreras") and Jason "Chino Boy" Luna ("Jason"), all members of the "Raza Unida" gang, conspired to murder Luis in retaliation for allegedly being disrespectful to a Raza Unida officer. The record reflects that Luis's body was found lying beside Carbon Plant Road in Corpus Christi, near a burning Oldsmobile which had been stolen several days before. Testimony showed that the murder occurred between 1:45 and 2:15 a.m. on August 10, 1998. The autopsy established that Luis died from eight bullet wounds to the abdomen, neck, chest and head.

1. Testimony of Investigating Officers

According to Officer Thomas Mylett, Contreras told him where to find the Norinco SKS semi-automatic rifle used in Luis's murder. Contreras also told Mylett that he had been ordered to perform a hit on someone named Lance, but that he did not want to do it. John Hornsby, firearms examiner for the Corpus Christi Police Department, testified that bullets removed from Luis's body were fired from the recovered rifle.

2. Testimony of Contreras

Contreras was a member of Raza Unida, a gang that was involved in "a lot of drug dealing, killings [and] beating up people." Raza Unida has a certain symbol or emblem and a chain of command. Contreras and Munguia were soldiers; Casso was a captain; Jason and Luis were "prospects." Luis was in trouble with the gang because he had left a Raza Unida party to be with a girl, cursed at Raza Unida members, and placed a gun on a table so that it pointed at a Raza Unida ranking officer named Sapo. Sapo told Contreras, "[T]hat's automatic death, you know, put him in a box, that's disrespect."

Contreras, appellant, and Munguia went to Casso's house so that appellant could give Casso some money. While they were there, Casso told them that Luis had to be killed. Casso chose Contreras, Munguia, and Jason to kill Luis. Casso whispered something in appellant's ear while looking at Contreras. The men left in Contreras's car, and dropped appellant off. Before they left appellant's house, appellant put his arm around Contreras's shoulder and said, "You know what time it is, right? Y'all better do it. If you don't do it, you know what is going to happen." Contreras understood that to mean that he would be killed if he did not kill Luis.

Contreras drove to appellant's "tienda,⁴ which is a crack house," and picked up Jason. Munguia then told Contreras to drive to Munguia's house, which was close to Luis's house. Munguia exited the vehicle and returned with Luis. The group proceeded to Munguia's house, where there was a maroon Oldsmobile parked in the garage. Munguia gave Luis and Jason each a pair of gloves, and told them to follow him and Contreras. The group proceeded to the home of Munguia's brother and picked up a gun wrapped in a pink towel. They all then got into the Oldsmobile. Contreras drove, Luis was in the front passenger seat, Jason was in the left back seat, and Munguia was in the right back seat. Munguia said, "Nobody better hesitate." Munguia told Contreras to exit the freeway. Contreras felt the gun touch the back of his head and then his right shoulder. Munguia directed Contreras to stop the car so he could put the gun in the trunk. They all got out of the car, and Contreras thought he was going to be killed because he owed Raza Unida member Mark Alaniz some drug money. Jason shot Luis multiple times. Before he was shot, Luis asked in Spanish, "What did I do?"

Afterwards, the remaining three got back in the car and Contreras drove until he was ordered to stop. Munguia and Jason exited the car and returned without the gun. They picked up Contreras's car and drove it to a location near a refinery. Jason followed in the Oldsmobile. Munguia and Jason set the Oldsmobile on fire, and all three rode in Contreras's car to appellant's house.

When they reached appellant's house, they knocked at the back door. Appellant appeared, got a trash bag, put the gloves in the trash bag, and "suggested he would get rid of all the evidence." Appellant noticed Jason had a lot of blood on his clothing. Appellant got some clothes from his room and instructed Jason to take a shower, telling him to "scrub his hands real good because he might have some gun powder on his hands." Appellant washed Jason's clothes in the washing machine. Jason changed into appellant's clean clothes. Contreras dropped off Munguia and Jason and returned to appellant's house, where he and his wife and son were living.

Contreras testified that he had been a member of Raza Unida for a year and a half. He joined because he was told that Raza Unida "was more than a prison gang. They would help you out." He did not realize what he was getting into. They told him they would provide him with a place to live and money. He had no place to stay, and moved into appellant's house. Soon he learned there were strings attached; "you have to do what you're told." At first, Contreras was sent to collect money from various people; if they didn't pay, he had to beat them up. He also sold drugs and acted as a drug courier for the gang.

Contreras was a "prospect" for six months. He proved himself by following orders. If you do not follow the rules in Raza Unida, there are three levels of sanctions. The first level, a "30-second workout," is when three guys beat you up for 30 seconds. The next level, a "30-minute workout," "[t]hey just beat you up real bad which is called H Town [meaning "hospital"] . . . they just beat you up to where you can't get up no more." The third level is called being "put in a box," which means you will be killed. If you are supposed to do a "cameo" or hit and you hesitate, you are automatically killed too. As a Raza Unida prospect, Contreras participated in the first two levels of sanctions. He wanted out of the gang, but there was no way out except death. That's when he decided to call the police. He did not want to participate in Luis's murder, but he could not refuse or inform the police because his wife and baby son were at appellant's house, and he knew the gang would retaliate against them.

Contreras, Munguia, Jason, and another Raza Unida member by the name of Fabian were ordered to kill Lance, who was not a member of Raza Unida, because Lance was "[p]utting Mark [Alaniz] down and trying to take away Mark's connection . . . his supplier." Contreras knew that another Raza Unida member, Mark Posada, had been killed because he had hesitated to carry out a hit. The punishment for giving a statement or testifying is death. Contreras knew the location of the murder weapon in this case because appellant told him where it was and offered him money to retrieve it. That is when Contreras contacted the police. In exchange for his testimony, Contreras was given deferred adjudication probation for ten years.

3. Testimony of Munguia

Munguia testified that he had become a member of Raza Unida when he was in prison for burglary, theft, unauthorized use of a motor vehicle, and possession of cocaine. His father is a ranking Raza Unida member. Munguia went with appellant and Contreras to Casso's house because appellant had to drop off money from drug sales. Casso sent Munguia, appellant, and Contreras to kill Luis. They dropped off appellant, who told Contreras to "[m]ake sure the job is done. If not, you know what it is." They picked up Jason at appellant's crack house. Jason had to kill somebody to become a full-fledged Raza Unida member. Munguia told Jason what he had to do. Then they picked up Luis, telling him he was going to "do a hit" in Odem, Texas. They first stopped to buy gloves at a Circle K, so that fingerprints would not get on the gun or the stolen car. They then went to Munguia's house and wiped down the stolen car, which was in the garage. Paul Moreno had stolen the car for appellant. Munguia was "taking care of" the car for appellant, who wanted the motor.

Jason and Luis got in the stolen car and Munguia and Contreras got back in Contreras's car. They drove to a house on Leopard Street and picked up the gun. They then got back in the stolen car and drove on Interstate Highway 37 toward Odem. Munguia told Contreras to exit when he realized Luis was suspicious. Munguia told Luis that they needed to stop so he could put the gun in the trunk. When they got out, Munguia and Jason walked back toward the truck. Jason shot Luis as he was getting out of the car. Luis fell back in the car with his head resting on the passenger seat. Jason...