Leal v. State

• Decision Date: 01 May 1986
• Docket Number: Nos. 13-85-016-C,13-85-017-CR,s. 13-85-016-C
• Citation: 711 S.W.2d 702
• Parties: Victor LEAL & Ramon Leal, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 702

711 S.W.2d 702

Victor LEAL & Ramon Leal, Appellants, v. The STATE of Texas, Appellee.

Nos. 13-85-016-CR, 13-85-017-CR.

Court of Appeals of Texas Corpus Christi.

May 1, 1986.

Rehearing Denied May 22, 1986.

Joseph A. Connors, III, McAllen, Larry Zinn, San Antonio, for appellants.

Benjamin Eurest, Jr., County Atty., Reynaldo S. Cantu, Jr., Gilberto E. Rosas, Brownsville, for appellee.

Before NYE, C.J., and KENNEDY and DORSEY, JJ.

OPINION

KENNEDY, Justice.

A jury convicted appellants of murder and criminal conspiracy and assessed punishment at five years' imprisonment and a $5,000.00 fine for each count. Appellants bring twenty-five grounds of error. We reform and, as reformed, affirm the judgment of the trial court.

The deceased is Dr. Narciso Cortez. He was murdered for hire by one Wavil Lewis, Jr., who fled the scene of the shooting in a car driven by one Frank Loftis. Lewis and Loftis were hired by a man named Enrique Chapa. Lewis, Loftis and Chapa have confessed their crimes. It is alleged that appellants, who are brothers-in-law of Enrique Chapa, initiated and financed the killing (Victor Leal) and provided guidance by way of information as to the deceased's personal habits (Ramon Leal). The killing arose over a land dispute.

The indictment herein charges appellants with capital murder and conspiracy to commit capital murder. At trial appellants moved to require the State to elect which charge to proceed upon, which motion was denied by the trial court. This denial forms the basis for appellants' first two grounds of error.

"Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code." TEX.CODE CRIM.PROC.ANN. art. 21.24(a) (Vernon Supp.1986). TEX.PENAL CODE ANN. § 3.01 (Vernon 1974) defines criminal episode as "the repeated commission of any one offense defined in Title 7 of this code (Offenses Against Property)." Neither capital murder nor conspiracy to commit capital murder come within the scope of Title Seven of the Penal Code.

When an indictment charges two or more non-property offenses arising from a single criminal transaction, only one conviction and one punishment may result therefrom. Ex parte Siller, 686 S.W.2d 617, 618 (Tex.Crim.App.1985). If an indictment charges two or more non-property offenses arising from two or more criminal transactions, a defendant has a right, upon a timely motion to elect, to require the State to elect on which count in an indictment it will seek to convict. Smith v. State, 101 Tex.Cr.R. 615, 276 S.W. 924, 925 (Tex.Crim.App.1925); see Drake v. State, 686 S.W.2d 935 (Tex.Crim.App.1985). Unlike a single criminal transaction situation, failure to demand an election or to protest conviction in a multiple criminal transaction situation constitutes waiver of that error. Id. at 945. However, if there are multiple criminal transactions and the defendant moves for election, the trial court's denial of this motion is reversible error and the cause is remanded for new trial. Smith, 276 S.W. at 925 ¹. The rationale for distinguishing between single and multiple transactions is to limit the jury's consideration of transactions not properly before them. Appellants did move for election; therefore, we must determine whether the murder count and the conspiracy count arose from the same criminal transaction.

The "same criminal transaction" means that the two counts are a variation of the same act, or in other words, a single guilty intent runs through and connects both acts. McIntire v. State, 698 S.W.2d 652, 656 (Tex.Crim.App.1985); Holcomb v. State, 696 S.W.2d 190, 193 (Tex.App.--Houston [1st Dist.] 1985, no pet.). Whether two counts arise from the same criminal transaction depends upon the facts and circumstances of each particular case. Appellants rely on Betts v. State, 60 Tex.Cr.R. 631, 133 S.W. 251 (Tex.Crim.App.1911) for the proposition that murder and criminal conspiracy are separate transactions. However, the Betts court never reached that conclusion. They concluded that the indictment charged two separate and distinct felonies (not transactions); that the trial court should have either quashed the indictment (pursuant to the defendant's motion) or compelled the State to elect on which it would proceed; that there was no harmful error in overruling the defendant's motion as the murder count was the only one to go to the jury; but never did the Betts court hold that murder and criminal conspiracy were separate criminal transactions. Id. at 254-55. The same intent and actions that caused appellants to be culpable for criminal conspiracy provided the basis for their culpability to the murder.

We conclude that the indictment herein charged two non-property offenses which arose from the same criminal transaction and, therefore, only one conviction and one punishment may result therefrom pursuant to Ex parte Siller. Since the judgment indicates that the jury first found appellants guilty of murder, the judgment is reformed to show appellants guilty of that offense only, and the latter conviction and sentence for criminal conspiracy is vacated and set aside. Ex parte Siller, 686 S.W.2d at 620. We sustain appellants' first and second grounds of error.

Appellants, by their third ground of error, complain that the trial court erred in allowing the State to amend the first ground of the indictment.

Prior to trial, the State decided to proceed on murder rather than capital murder. The indictment in the record is the original and is not amended. However, upon reading the indictment to the jury pursuant to TEX.CODE CRIM.PROC.ANN. art. 36.01 (Vernon 1981) the prosecuting attorney deleted parts of the indictment, which involved the capital murder aspect of the count. The relevant portion of the indictment read:

[The defendants named below did,] as parties to the offense, intentionally and knowingly cause the death of an individual, Narciso Cortez, by shooting him with a firearm, and that Defendant Wavil Bernard Lewis, Jr. did then and there commit the aforesaid murder of Narciso Cortez for remuneration, to-wit: United States Currency; and that the Defendant Enrique Chapa did then and there employ the aforesaid Wavil Bernard Lewis, Jr. for remuneration and the promise of remuneration, to-wit: United States Currency, to kill the aforesaid Narciso Cortez by shooting him with a firearm; and that the Defendant Victor Leal intentionally and knowingly provided the remuneration, to-wit: United States Currency, to the aforesaid Enrique Chapa for payment to the Defendant Wavil Bernard Lewis, Jr. for killing Narciso Cortez; and that the Defendant Ramon Leal intentionally and knowingly encouraged, directed, aided and attempted to aid the aforesaid Enrique Chapa and Wavil Bernard Lewis, Jr. in the commission of the offense by providing information and guiding the aforesaid Enrique Chapa to locations where the aforesaid Narciso Cortez resided and worked, knowing that the aforesaid Enrique Chapa had employed another to kill the aforesaid Narciso Cortez,....

The prosecuting attorney read to the jury:

[P]resent that Wavil Bernard Lewis, Jr., Enrique Chapa, Victor Leal, and Ramon Leal on or about the 31st day of August A.D. One Thousand Nine Hundred and Eighty-two, and anterior to the presentment of this indictment in the County of Cameron and State of Texas, did then and there unlawfully, as parties to the offense, intentionally and knowingly cause the death of an individual, Narciso Cortez, by shooting him with a firearm, and that Defendant Wavil Bernard Lewis, Jr., did then and there commit the aforesaid murder of Narciso Cortez.

The language charging Victor Leal with employing for remuneration and the promise of remuneration and Ramon Leal with providing information and guiding Enrique Chapa was deleted when read to the jury.

The indictment was not altered or amended in any way. Since murder is a lesser included offense of capital murder, the greater offense, when properly alleged, necessarily includes all the lesser included offenses. Allison v. State, 618 S.W.2d 763, 764 (Tex.Crim.App.1981). Each of the constituent elements of the lesser included offense need not be alleged in the wording of the indictment. Id. As to the deletions by the prosecuting attorney upon reading the indictment to the jury, ² no reversible error occurs when a timely objection does not result from a misreading of the indictment. Craig v. State, 480 S.W.2d 680, 684 (Tex.Crim.App.1972); Nolan v. State, 624 S.W.2d 721, 724 (Tex.App.--Amarillo 1981, no pet.). Appellants made no objections to the misreading of the indictment. We overrule appellants' third ground of error.

Appellants, in their fourth ground of error, complain that the indictment is defective because it fails to allege the facts which form the basis of appellants' criminal responsibility for the offense committed by another.

Appellants assume that an "amendment" of the indictment occurred, as complained of in ground of error three, thereby rendering the indictment defective. Appellants concede that the original indictment sufficiently alleged facts which form each appellant's criminal responsibility. We found the original indictment was not altered or amended in any way, and what appellants assume to be an "amendment" is a misreading of the indictment under TEX.CODE CRIM.PROC.ANN. art. 36.01(1) (Vernon 1981). The indictment contained in the record sufficiently charges appellants with capital murder and its lesser included offenses. Appellants may be charged directly with the commission of an offense although it was not actually committed by them. ³ Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978); Burkhalter v. State, 655 S.W.2d 215, 223 (Tex.App.--Corpus Christi 1982), pet. dism'd, 655 S.W.2d 208 (Tex.Crim.App.1983); accord TEX.PENAL CODE ANN. § 7.01 (Vernon ...