Lopez v. State, No. 13-07-00342-CR (Tex. App. 7/2/2009)
| Decision Date | 02 July 2009 |
| Docket Number | No. 13-07-00342-CR.,13-07-00342-CR. |
| Court | Texas Court of Appeals |
| Parties | MARCUS ANTHONY LOPEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
On Appeal from the 24th District Court of Victoria County, Texas.
Before Justices RODRIGUEZ, GARZA, and VELA.
A jury convicted appellant, Marcus Anthony Lopez, of engaging in organized criminal activity, a first-degree felony. See Tex. Penal Code Ann. § 71.02(a)(1), (b) (Vernon Supp. 2008). After finding that appellant had previously been convicted of one felony offense, the jury assessed punishment at life imprisonment. Appellant brings seven issues for our consideration. We affirm.
At about 11:00 p.m. on April 24, 2005, Graviel Molina, a prospect1 with the Texas Syndicate ("TS") gang in Victoria, Texas, was shot to death along Pleasant Green Road in Victoria County. That day, Molina had visited a friend, Angela Hernandez, at her apartment, and during this time he received a phone call from Joe Rosales, who was also a TS prospect. After talking to him, Molina left the apartment with Adrian Luna and Matthew Apis.
Captain Abel Arriazola, the lead investigator in this case, testified that prior to Molina's murder, someone had shot at Henry Vasquez's2 car. Afterwards, the TS gang members in Victoria had a meeting during which Molina was questioned about whether he was passing information about TS's business to Vasquez. After the meeting, Molina got into a pickup with Luna and Apis. Appellant, James Martinez, Rosales, and Jesse Villarreal got into Martinez's car. They drove to Pleasant Green Road where appellant shot Molina four times, including once in the face at close range. Captain Arriazola stated that Martinez also shot Molina three times and that appellant ordered the killing.
James Martinez testified that in 2005, the TS members in Victoria were himself, Rosales, Villarreal, Vasquez,3 Apis, Luna, and Molina. He stated they all sold narcotics for profit for TS. He also testified that Vasquez and Villarreal were "carnals"4 and that Vasquez was sponsoring Molina into TS. In early 2005, appellant, a carnal in TS, came to Victoria from Corpus Christi and talked to Villarreal and Rosales about a plan to improve TS in Victoria. The plan included greater discipline for TS members who violated TS's rules and the establishment of a treasury for the gang. On April 24, 2005, TS members decided to talk to Molina about whether he had met with and talked to Vasquez. After the decision was made to talk to Molina, Rosales called Molina and told him to come to a meeting. Apis and Luna picked up Molina at his girlfriend's apartment and took him to the meeting. After the meeting, Molina, Luna, and Apis got into Luna's pickup; appellant, Rosales, Martinez, and Villarreal got into Martinez's car. According to Martinez, they drove to Pleasant Green Road where appellant pulled Molina out of the pickup, held a nine millimeter pistol six inches from Molina's face, and shot him. Molina fell face down on the ground, and Martinez shot him three times in the back with a nine millimeter pistol. Martinez testified that the reason for Molina's murder was discipline and that carnals in TS can vote to kill a prospect, but prospects cannot vote to kill a prospect. He also testified the two carnals present at Molina's murder were appellant and Villarreal and that appellant was the highest ranking TS member present when Molina was killed.
Henry Vasquez, a former TS member, testified he was sponsoring Molina as a prospect for TS. Before January 2005, Vasquez was TS's "chair" or senior member in Victoria and held the rank of captain. While a captain, he was senior to Villarreal, who was a carnal. Vasquez testified he, Martinez, Villarreal, Rosales, Luna, Apis, and Molina sold narcotics for TS in Victoria. After Vasquez attended his last TS meeting in January 2005, the gang "demoted" him because he was no longer participating in TS. He testified appellant was a carnal in TS and came to Victoria from Corpus Christi. After arriving in Victoria, appellant started making the decisions for TS in Victoria.5
Vasquez said appellant wanted to improve TS in Victoria by establishing a treasury and by tightening up security within the gang in order to prevent TS members from leaking information to persons who should not be hearing it. Vasquez testified this was a TS rule. In early April, the TS members in Victoria had a meeting. Vasquez testified that after this meeting, Molina warned him about a TS plot to kill Vasquez. Two days before Molina's murder, two masked men shot at Vasquez's car. Vasquez avoided the hit by ducking inside his car. He identified one of the would-be assassins as Villarreal because he recognized Villarreal's voice. Vasquez testified that appellant ordered Molina's murder for two reasons: (1) to improve the gang; and (2) because Molina had told Vasquez about the gang's plot to kill Vasquez.6 Vasquez testified that an active TS member is not supposed to talk about TS business with an inactive member or with one who has disassociated himself from the gang. He also testified that in this case, Molina's act of talking to him would have been a violation of that rule.
The autopsy showed Molina died from multiple gunshot wounds. He was shot three times in the back, once in the face, and three times in the chest. Dr. Roberto Bayardo, who performed the autopsy, testified he had recovered one bullet from Molina's body—a nine-millimeter bullet that had penetrated Molina's face. He said the three bullets that penetrated Molina's back exited the body. Based upon the wounds and crime-scene photos, Dr. Bayardo believed Molina was first shot in the face. Molina "went down" and at that time suffered three gunshot wounds to the chest. While on the ground, Molina was shot three times in the back.
Investigators recovered seven spent nine millimeter shell casings from the crime scene. Two bullets were found in the ground underneath Molina's body and another bullet was found nearby. Carol Hulsey, a deputy with the Victoria County Sheriff's Department, testified that four of the shell casings were fired from one weapon and that the other three shell casings were fired from a different weapon. The weapons were never recovered.
Tim Counce, a forensic firearms and tool-mark examiner with the Texas Department of Public Safety crime lab, examined the seven spent nine-millimeter shell casings, the three bullets recovered from the scene, and the bullet recovered from Molina's body. He prepared a report,7 which showed, in relevant part that: (1) four of the spent nine-millimeter shell casings were fired from one weapon, and the other three spent nine-millimeter shell casings were fired from a different weapon; and (2) two of the nine-millimeter bullets were fired from one weapon, and two of the other nine-millimeter bullets were fired from a different weapon.
Jay Hart, a Regional Security Threat Group Coordinator for the Texas Department of Criminal Justice, testified he assisted with the investigation of gang activity and that he was familiar with the identifiers and the inner workings of TS. He stated: (1) TS had a defined structure and a written constitution; (2) TS was a prison gang, which operated outside the prison system; (3) TS engaged in drug trafficking and murder outside the prison system; (4) TS engaged in these activities for profit; and (5) the highest rank within TS is chairman, followed by lieutenant, sergeant, soldiers, which are considered either "brothers" or "carnals," and then prospects. He also testified that if, after three years, a TS prospect did everything the full members told him to do, the membership will vote on whether to admit the prospect as a full member. TS's application process is speeded up if a prospect assaults somebody or kills somebody. Once a person joins TS, "they consider blood in, blood out, meaning death would be the only way out." If a member violates a rule, he is targeted for assault or death. He said most TS members have an identifying tattoo—a "T" with an "S" superimposed behind it.
Appellant did not call any witnesses to testify on his behalf at the guilt-innocence phase.
We address issue two first. Therein, appellant argues there was insufficient evidence to corroborate the testimony of the accomplice witness, Martinez.
The accomplice-witness rule provides that, "[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." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); see Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The court of criminal appeals has described this rule as "a statutorily imposed review" that "is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards." Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). We evaluate the "sufficiency of corroboration evidence under the accomplice-witness rule" by first eliminating the accomplice's testimony from consideration and then examining the remainder of the record for non-accomplice witness "evidence that tends to connect the accused with the commission of the crime." Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). In applying this standard, we view the evidence in the light that most favors the jury's verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (citing Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)).
We have said that "[t]he tends-to-connect standard presents a low hurdle...
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