Martinez v. State

• Decision Date: 25 May 1983
• Docket Number: 04-82-00078-CR,Nos. 04-82-00068-C,s. 04-82-00068-C
• Parties: Rene MARTINEZ, Appellant, v. The STATE of Texas, Appellee. and Rudy MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 630

653 S.W.2d 630

Rene MARTINEZ, Appellant, v. The STATE of Texas, Appellee. and Rudy MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

Nos. 04-82-00068-CR, 04-82-00078-CR.

Court of Appeals of Texas,

San Antonio.

May 25, 1983.

Allen Cazier, San Antonio, for appellant.

Bill White, Dist. Atty., Susan Reed, Hipolite Canales, Jr., Robert C. Arellano, James L. Bruner, Asst. Dist. Attys., San Antonio, for appellee.

Before CADENA, C.J., and CANTU and REEVES, JJ.

OPINION

CANTU, Justice.

Rene and Rudy Martinez, brothers, were separately indicted for the offense of murder. Following a joint trial, a jury found them guilty of the offense as alleged in the indictments. The jury assessed Rene Martinez' (our Cause No. 04-82-00068-CR) punishment at thirty-five (35) years' confinement in the Texas Department of Corrections. Pursuant to his election on punishment, the trial court assessed Rudy Martinez' (our Cause No. 04-82-00078-CR) punishment at sixty-five (65) years' confinement in the Texas Department of Corrections. The trial court appointed different attorneys to represent the brothers on appeal and each appellant brings his separate appeal. Since the appellants were tried together and the convictions arise out of the same transaction, the facts in each case are identical. We therefore will consider both cases together.

Rudy raises three grounds of error and Rene six. Rene's first two grounds of error raise sufficiency questions and will be dealt with initially. We will, therefore, review all the evidence in the light most favorable to the verdict. Drager v. State, 548 S.W.2d 890 (Tex.Cr.App.1976); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974).

Randy West, a neighbor of the appellants, testified that on April 6, 1980, the day before the murder, he saw two unfamiliar subjects, a male and female, break into appellants' house when they were away for the weekend. After the man and woman finished loading appellants' household goods (a stereo, video-cassette player, etc.) into their car, the couple drove off. West followed the couple to 103 Grantham Street in San Antonio, where he saw them unload appellants' property and take it into the house. The house at 103 Grantham Street was the home of the deceased.

On the day of the murder, West told the appellants who had returned to find their house ransacked, what had occurred. He offered to take the Martinez brothers to the address on Grantham Street where he had seen the burglars take their property. ¹ Upon learning where their property had been secreted, the appellants decided to make a foray to 103 Grantham and retrieve their possessions. West further testified that he led appellants to 103 Grantham Street. West rode in a wrecker with Mike Leadford, a witness for the State, and a friend of appellants. When they arrived at 103 Grantham, Leadford and West pulled the wrecker over to the curb in front of the house and watched as the appellants approached, backed their pickup truck into the driveway, and entered the deceased's house.

Both Leadford and West testified that Rene carried a shotgun when he approached the house. Leadford also testified he believed Rudy had what looked like an automatic weapon in his belt. Rudy testified that he was unarmed when he entered the house and the defense introduced Rudy's wallet into evidence to explain why Leadford might have believed he had a gun in his belt.

Leadford testified that Rudy and Rene approached the front door and after waiting about thirty seconds entered the deceased's residence. Both West and Leadford heard one gunshot some thirty seconds after the brothers entered the house. After Rene walked out of the house carrying a video-tape recorder box, Leadford heard two more gunshots in rapid succession. The first and second shots were about four or five minutes apart according to West. West, in contrast to Leadford, stated that Rene was inside the house at the time the second and third shots were heard, but walked out shortly thereafter looking somewhat shaken.

When Leadford and West saw Rene exit the house, the two of them left the scene in the wrecker and returned to the appellants' house where they were rejoined by appellants about five to ten minutes later. Appellants according to Leadford, had with them some of the property that had previously been taken from their house. Rudy showed Leadford a weapon that had been recovered from the deceased's residence. Leadford saw the appellants make two trips from their pickup truck unloading goods taken from the deceased's house. West testified that he helped appellants unload the pick-up on their return home and that Rudy told him they were still missing a few guns that were taken from their home.

Rene Martinez did not testify. Rudy was the only witness to testify about what happened inside the house. He testified that when he and Rene learned that their property had been taken to the house on Grantham Street, they both went and purchased a shotgun in order to make an effort to retrieve their property. Appellants felt obliged to arm themselves, Rudy testified, because several handguns and a rifle had been among the property taken from their house. With Rene carrying the newly purchased shotgun, and, as Rudy testified, he unarmed, the two approached the door of the deceased's house.

Rudy testified that he knocked and the deceased opened the door. The deceased then backed away from the door and sat on the edge of the couch in the living room. Rudy began yelling at the deceased inquiring as to the whereabout of his property. The deceased denied having the goods. Rene meanwhile located the stolen stereo in another room. Rudy then saw that deceased had a handgun and leaped across the room and grabbed the deceased's arm causing one shot to be discharged into the floor. The pistol was knocked away and a struggle ensued. The struggle culminated when Rudy shot the deceased twice (with the deceased's own gun) in the back of the head because he thought the deceased was reaching for another weapon. Rudy did not know where Rene was during the struggle. Rudy then wrapped the gun in a towel and joined Rene who was already waiting in the pickup truck. Rudy subsequently threw the murder weapon in the Guadalupe River.

The State's ballistic and forensic experts testified that the evidence at the scene was consistent with Rudy's version of the events except that bloodstains on the wall and floor placed the exact locations of the shooting and the position of the body in different locations than Rudy's testimony.

Rene urges this court to reverse his conviction because there is no evidence or insufficient evidence to show that he knew of Rudy's intent to kill or that he was criminally culpable under the law of parties. See Tex.Code Crim.Proc. art. 7.02 (Vernon 1974).

In order to determine criminal responsibility under article 7.02, we may look at several factors, some of which were elucidated in Wygal v. State, 555 S.W.2d 465, 468 (Tex.Cr.App.1977):

In determining whether an individual is a party to an offense and bears criminal responsibility therefor, the court may look to events before, during and after the commission of the offense. Ex parte Prior, 540 S.W.2d 723, 727 (Tex.Cr.App.1976); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974).

'An agreement of parties to act together in a common design can seldom be proved by words, but reliance can often be had on the actions of the parties showing an understanding and a common design to do a certain act....' 16 Tex.Jur.2d, § 58, p. 171.

Participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Circumstantial evidence may be sufficient to show that one is a party to the offense. Ex parte Prior, supra; Westfall v. State, 375 S.W.2d 911 (Tex.Cr.App.1964).

We believe that there is evidence which, when viewed in the light most favorable to the verdict, supports the conviction of Rene Martinez as a party to the offense. There obviously was some kind of an agreement to act together as the brothers armed themselves to go to the scene of the eventual murder. The contention that they armed themselves in furtherance of an agreement only to get their property back could or could not be believed by the jury. Certainly the shotgun which Rene carried might lead reasonable people to believe that he intended to use deadly force to regain their possessions.

Rene's demeanor after the act could also be considered by the jury as evidence of a prior agreement to aid in the murder. Barron v. State, 566 S.W.2d 929 (Tex.Cr.App.1978). Here, both appellants apparently proceeded to load their property into the truck after the deceased was shot. Although Leadford and Rudy testified that when the second series of shots were heard Rene had only taken one trip to the car carrying either the stereo speakers or the video player, yet when they arrived back at their residence testimony indicated that they had to make two trips to the house to unload the truck. The jury could also have considered the appellants' subsequent disposal of the murder weapon to infer that Rene Martinez with the intent to promote the commission of the offense encouraged and aided Rudy Martinez to commit the offense. Considering Rene's armed presence on the scene, along with the other facts of the case, see Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977), we find there is evidence that would allow a jury to find Rene guilty as a party to the offense and that the evidence is sufficient to support a conviction.

In his third ground of error Rene complains that the charge permits a conviction upon a theory not alleged in the indictment because the indictment did not allege that Rene acted as a party to the offense. This same contention was rejected in Seals v. State, 634 S.W.2d 899 (Tex.App.--San Antonio 1982, no pet.), on the basis of Pitts v. State, 569 S.W.2d 898 (Te...