Montoya v. State
| Citation | 810 S.W.2d 160 |
| Decision Date | 24 May 1989 |
| Docket Number | No. 69644,69644 |
| Parties | Irineo MONTOYA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant and his codefendant, Juan Fernando Villavicencio, were charged with murdering John E. Kilheffer while in the course of committing and attempting to commit the offense of robbery. Appellant was convicted of capital murder. Punishment was assessed at death.
In his eighth point of error, appellant argues that the evidence is insufficient to show that he was guilty of capital murder. Appellant argues that the evidence shows that he had no intent to either rob or kill the victim. Appellant asserts that at most he is guilty of theft. We disagree. During trial appellant's confession was admitted into evidence. The portion of the confession which we set out below and which was offered into evidence by the State clearly shows appellant's guilt as a party to the offense:
The jury was charged that they could convict appellant if they found that he was "acting alone or with another person." In his confession appellant admitted holding the victim while Juan Fernando stabbed him. Appellant also admitting robbing the victim after he and Juan Fernando had drug the injured victim out of the Blazer. Clearly this evidence shows that although appellant himself did not stab the victim he aided Juan Fernando in murdering the victim and later in robbing the victim. V.T.C.A., Penal Code, Section 7.02(a)(2). Viewing the above evidence in the light most favorable to the verdict, we find the evidence sufficient to support appellant's conviction for capital murder.
In his tenth point of error, appellant argues that the trial court should have entered an acquittal after the State introduced into evidence appellant's exculpatory statement and then failed to disprove it. Appellant maintains that the State introduced appellant's entire confession into evidence and thus was bound to disprove the exculpatory material contained in the unhighlighted portions of the confession.
It has long been the rule that when the State introduces a defendant's confession it is bound by any exculpatory portions of the confession unless it otherwise disproves the exculpatory facts beyond a reasonable doubt. Cannon v. State, 691 S.W.2d 664 (Tex.Cr.App.1985); Palafox v. State, 608 S.W.2d 177 (Tex.Cr.App.1979).
Our reading of the record in this case leads us to two conclusions: first, the Palafox rule is inapplicable to the instant case because the State did not introduce into evidence any exculpatory portion of appellant's confession; second, appellant, in his brief has seriously misrepresented the record. The record reflects that during the State's direct examination of Sgt. Luis Martinez of the Cameron County Sheriff's office, the following occurred:
Thereupon Sgt. Martinez read the entire statement to the jury.
Evident from the above exchange is the fact that it was appellant and not the State who was offering the unhighlighted portion of the confession into evidence. Thus the rule in Palafox is inapplicable to the instant case. Although the procedure used in this instance was unorthodox in that at the time the case was tried the usual procedure was to wait until cross-examination to introduce the remainder of the confession, it is apparent that it was defense counsel's intention to introduce that portion of the confession which was not introduced by the State. See Article 38.24, V.A.C.C.P. (1985) (). A reading of the highlighted portion of the confession which was previously set out in our discussion of appellant's eighth point of error reveals nothing which exculpates appellant. Based on all of the above, we hold that the trial court did not err in denying appellant's request for acquittal.
Appellant also argues that the court committed fundamental error in not instructing the jury that exculpatory statements introduced by the State must be regarded as true unless disproved. Appellant concedes that he did not request such an instruction.
We have already concluded that the portion of the confession introduced into evidence by the State did not contain any exculpatory material. Thus there was no need for such an instruction. Cannon v. State, supra; Daniel v. State, 668 S.W.2d 390 (Tex.Cr.App.1984). Appellant's eleventh point of error is overruled.
In another point of error dealing with the court's charge, appellant argues that the court erred in failing to instruct the jury on the law regarding circumstantial evidence. An examination of the court's charge shows that the jury was properly instructed on the presumption of innocence, the State's burden of proof, and the requirement that appellant be acquitted if there was a reasonable doubt of his guilt. It has been the position of this Court that if a jury is properly instructed in these areas, a charge on circumstantial evidence is no longer required. DeLuna v. State, 711 S.W.2d 44 (Tex.Cr.App.1986); Mulder v. State, 707 S.W.2d 908 (Tex.Cr.App.1986); Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983) (Opinion on State's Motion for Rehearing...
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