Legate v. State

• Decision Date: 30 May 2001
• Docket Number: No. 04-99-00634-CR,04-99-00634-CR
• Citation: 52 S.W.3d 797
• Parties: (Tex.App.-San Antonio 2001) James LEGATE, Appellant v. STATE of Texas, Appellee
• Court: Texas Court of Appeals

Page 797

52 S.W.3d 797 (Tex.App.-San Antonio 2001)

James LEGATE, Appellant v. STATE of Texas, Appellee

No. 04-99-00634-CR

Court of Appeals of Texas, San Antonio

May 30, 2001

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 98-CR-06480 Honorable Sharon MacRae, Judge Presiding

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Sitting: Phil Hardberger, Chief Justice, Tom Rickhoff, Justice, Catherine Stone, Justice

Opinion by: Phil Hardberger, Chief Justice

James Legate ("Legate") was convicted of murder and sentenced to 99 years imprisonment. In his brief, Legate complains that the trial court erred by: (1) admitting hearsay statements; (2) not providing the defense grand jury testimony for impeachment purposes; (3) failing to allow adequate time to investigate recently discovered evidence; and (4) admitting prejudicial autopsy photographs. Legate also complains that the State lost a witness's exculpatory statement. We overrule each of these complaints and affirm the trial court's judgment.

Facts

Eddie Garcia ("Garcia") and Pedro Zamora ("Zamora") were partners in the Mexico Que Nice nightclub. The nightclub was losing money under Zamora's management, partly due to Zamora's habit of giving away free drinks and providing passes for friends so that they could avoid paying the cover charge. As a result, Garcia fired the entire nightclub staff, hired all new employees, and began to take money from Zamora's paychecks as compensation for the free drinks Zamora continued to give away. Tensions escalated between the two men. Eventually, Garcia planned a meeting to inform Zamora of Garcia's intent to force Zamora out of the business. Garcia was murdered before the meeting took place.

The murder occurred at Garcia's office, located next to a club called "Players." According to witnesses, Legate arrived at Players approximately four hours before Garcia was killed. He carried a briefcase and wore his hair in a ponytail. Legate sat drinking beer and staring out of the club window for several hours. Later that afternoon, Legate closed the blinds because the "sun was hitting his eyes," but left almost immediately thereafter, taking his briefcase with him. Moments later, gunshots were fired next door in Garcia's office. The Players bartender saw Legate running away from the office. Several other witnesses also testified that they saw Legate running from the vicinity of Garcia's office.

Legate was arrested shortly thereafter because he matched the suspect's description and was acting nervous in the presence of the police officer. Legate claimed that he had just come from a nearby Burger King; however, witnesses inside the Burger King stated that Legate had walked in the door and immediately back outside. In addition to having alcohol on his breath, Legate was sweating profusely. Near the location of the shooting, an abandoned briefcase similar to the one witnesses reported Legate carrying, was found with a handgun covered in electrical tape lying inches away. The handgun was later determined to be the murder weapon.

A jury convicted Legate of Garcia's murder, and Legate timely filed this appeal.

Hearsay Statements

In his first point of error, Legate contends that the trial court erroneously admitted hearsay statements concerning the existence of a conspiracy. The statements Legate complains of were made by Juan, or Jesse, Hernandez ("Hernandez"). Hernandez testified that prior to Garcia's death Zamora met with Legate and a few others on the patio of the nightclub owned by Zamora and Garcia prior to Garcia's death. Hernandez testified that he overheard Zamora tell Legate and the others that he [Zamora] needed protection from an lawyer (or "abogado" in Spanish) who was trying to take over Zamora's ownership in the nightclub, and that Zamora wanted the lawyer hurt. Hernandez, as well as a Bexar County interpreter, indicated in their testimony that in Spanish, the term "abogado" is often used to denote a practicing attorney or someone who does things for a person. Zamora told Legate that he wanted Legate to protect him from the lawyer who officed close to Players nightclub. Hernandez did not observe Legate saying anything to Zamora at the time, but Legate later told Hernandez that he was going to try to "work for" Zamora. Hernandez testified that Legate was not making enough money at his regular job, and, therefore, began to work as a bodyguard for Zamora, to "do some part-time for him, nights, hang around [Zamora], watch [Zamora's] back." According to Hernandez, around the time of the meeting at the nightclub and close to the time Garcia was killed, Legate asked whether Hernandez could get a gun for him. Legate told Hernandez the gun was for "protection." Hernandez furnished Legate a gun and testified that the weapon he provided Legate was very similar to the murder weapon--the only difference being that the murder weapon was wrapped in tape.

The trial court admitted Hernandez's statements as non-hearsay as either an admission by a party opponent, or a statement made by a co-conspirator during the course and furtherance of a conspiracy.

1. Admission of a Party Opponent

Rule of Evidence 801(e)(2)(B), provides, in part, that an out of court statement is not hearsay if it is: (1) an admission by a party opponent; (2) offered against that party; and (3) a statement of which the party has manifested an adoption or belief in its truth. Tex. R. Evid. 801(e)(2)(B). The proponent bears the burden of demonstrating to the trial court by a preponderance of the evidence that the statement meets the criteria for an admission by a party opponent. Meador v. State, 812 S.W.2d 330, 333 (Tex. Crim. App. 1991). In admitting the testimony regarding the statement, the trial court implicitly finds that the proponent has carried its burden. Alvarado v. State, 912 S.W.2d 199, 215 (Tex. Crim. App. 1995). Only upon finding an abuse of discretion may an appellate court disturb the trial court's ruling. Id.

Adoption of statements may be manifested in actions, responses, or acquiescence. Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim App. 1999); Cantu v. State, 939 S.W.2d 627, 635 (Tex. Crim. App. 1996); Tucker v. State, 771 S.W.2d 523, 536 (Tex. Crim App. 1988). There is sufficient support for the trial court's finding that Legate had adopted the statements Zamora made regarding the lawyer through his actions, verbal and non-verbal. After the nightclub meeting, Legate stated that he was working for Zamora, specifically watching Zamora's back. Legate also acquired the murder weapon after the conversation at the nightclub. While these statements and actions are not dispositive proof that Legate murdered Garcia, they sufficiently establish adoption for purposes of admitting Hernandez's testimony regarding the statements made by Legate and Zamora. Trevino, 991 S.W.2d at 853; Alvarado, 912 S.W.2d at 215.

2. Statement by a Co-Conspirator

Alternatively, the trial court admitted Hernandez's testimony because it was a statement made by a co-conspirator. Tex. R. Evid. 801(e)(2)(E). In reaching this conclusion, the trial court was required to find that the evidence showed beyond a preponderance of a doubt that: (1) there was a conspiracy; and (2) the statement was made during the course of and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987).

A conspiracy has been defined as "[w]hat one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all." Meador, 812 S.W.2d at 333. Proof of a conspiracy may be inferred from circumstantial evidence. Roy v. State, 608 S.W.2d 645, 651 (Tex. Crim. App. 1980). The Texas Court of Criminal Appeals has determined that a conspiracy is evidenced provided the record shows that: (1) at the time of the defendant's statement, the co-conspirator was participating in the conspiracy in which the defendant also participated or later joined; and (2) the statement was made in furtherance of the conspiracy. Ward v. State, 657 S.W.2d 133, 136 &137 (Tex. Crim. App. 1983); Rodriguez v. State, 552 S.W.2d 451, 454 (Tex. Crim. App. 1977). A trial court has discretion to determine admissibility of alleged hearsay statements under the co-conspirator rule. Howard v. State, 962 S.W.2d. 119, 123 (Tex. App. Houston [1st Dist.] 1997, pet. ref'd); Vasquez v. State, 902 S.W.2d 627, n.3 (Tex. App. El Paso 1995, reversed and remanded on other grounds, 919 S.W.2d 433 (Tex. Crim. App. 1996); Murdock v. State, 840 S.W.2d 558, 562 (Tex. App. Texarkana 1992, pet. ref'd).

The record contains support for the trial court's finding that Zamora and Legate conspired to "hurt" Garcia in order to prevent Zamora from losing his share of the nightclub. Zamora stated that he wanted Legate to protect him from the lawyer, or "abogado," officed close to Players nightclub and that he wanted the lawyer hurt. While Garcia was not a lawyer, he was a successful businessman in the community. The record reflects that while the term "abogado" is used to describe a lawyer, it is also used more loosely to describe someone who draws up documents or helps others out. As an investor and the person who had the management contract for the nightclub, Garcia could have been termed an "abogado" even though he was not actually an attorney. There is also evidence that Legate asked Hernandez to get a gun for him and that the gun Hernandez subsequently gave Legate was very similar to the murder weapon. In light of this evidence, Hernandez's testimony is admissible under the co-conspirator rule. Bourjaily, 483 U.S. at 175; Rodriguez, 896 S.W.2d at 205; Meador, 812 S.W.2d at 333.

3. Rule 403

In his second point of error, Legate argues that Hernandez's testimony should not have been admissible because its prejudicial value outweighed any probative value. Relevant evidence is admissible, however, unless the probative value is substantially outweighed...