Mora v. State

• Decision Date: 31 August 1990
• Docket Number: No. 13-89-268-CR,13-89-268-CR
• Citation: 797 S.W.2d 209
• Parties: Mario MORA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 209

797 S.W.2d 209

Mario MORA, Appellant, v. The STATE of Texas, Appellee.

No. 13-89-268-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1990.

Rehearing Overruled Sept. 27, l990.

Homero C. Canales, Alice, for appellant.

Luis V. Saenz, County Crim. Dist. Atty., Brownsville, for appellee.

Before NYE, C.J., and SEERDEN and KEYS, JJ.

OPINION

NYE, Chief Justice.

A jury convicted appellant of the murder of his wife and assessed life imprisonment. Appellant raises seven points of error, claiming that a State's witness was an accomplice, that her testimony was not corroborated as required, that the evidence is legally and factually insufficient to support the verdict and conviction, and two instances of prosecutorial misconduct. We affirm the trial court's judgment.

By points one and two, appellant argues that Beatriz "Bebe" Garcia was an accomplice and that the trial court erred in submitting an accomplice instruction as a fact issue. The trial court included paragraphs in the charge which defined "accomplice" and instructed the jury that an accomplice's testimony must be corroborated before it could be relied on as evidence for conviction. The trial court did not require a separate finding on whether she was an accomplice. Since appellant did not object to the charge, he can obtain reversal on appeal only if the error is so egregious and created such harm that he did not have a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984); Lewis v. State, 771 S.W.2d 666, 668 (Tex.App.--Corpus Christi 1989, pet. ref'd).

An accomplice witness is someone who has participated with someone else before, during, or after the commission of a crime. Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App.1986). If the witness cannot be prosecuted for the offense with which the accused is charged, then the witness is not an accomplice witness as a matter of law. A witness is not an accomplice merely because he or she knew of the crime but failed to disclose it or even participated in concealing it. Beets v. State, 767 S.W.2d 711, 724 (Tex.Crim.App.1987); Kunkle, 771 S.W.2d at 439; Russell v. State, 598 S.W.2d 238, 249 (Tex.Crim.App.1980).

The trial court is not required to charge on an issue that is not raised by the evidence. Banks v. State, 624 S.W.2d 762, 765 (Tex.App.--Houston [14th Dist.] 1981), rev'd on other grounds, 656 S.W.2d 446 (Tex.Crim.App.1983). When the evidence clearly shows that a witness was not an accomplice, the trial court does not need to charge the jury either that the witness is an accomplice or that the jury must decide whether the witness is an accomplice. Harris v. State, 645 S.W.2d 447, 456 (Tex.Crim.App.1983).

On January 7, 1989, around 7 a.m., appellant reported his wife missing since the previous evening. Later that day, Mrs. Mora's body was found in the family jeep in an area of the beach called Outdoor Resorts. She had been shot in the head. Much of the evidence at trial concerned a marital crisis beginning in December, during which Mrs. Mora accused appellant of an affair with "Bebe" Garcia.

Ms. Garcia worked in the same office with appellant. She testified that they became romantically involved in December, during which time she was living at her parents' home rather than with her husband. At one point appellant said to her that he saw his wife no longer in the picture. Garcia understood this to mean that they would divorce. On December 28, he signed a check for $1,297 over to her and asked her to buy a .357 magnum automatic. She said she believed the appellant was helping her financially because she had mentioned difficulties. He told her he wanted the gun for shooting practice. On December 29, Ms. Garcia took $400, went into town with her mother, and attempted to buy the gun and bullets as instructed. She ended up buying a .38 Super and .38 Special bullets. The next day, a Friday, appellant picked up the gun at her house, then called later to say the bullets did not fit. He asked her to get the correct bullets, which she did. She next saw appellant at work on January 2.

On Friday, January 6, they had lunch together, and appellant asked her several times whether she would be home that night. He said he would call her. She stayed home, and he called between 12:15 and 12:40 a.m. "Bebe" Garcia testified to this conversation His first question was, "How are you doing?" I said, "Fine. Where are you at?" He says, "I'm at a pay phone." I said, "What about your wife?" He said, "Oh, she's with me," and he kind of laughed. I said, "Mario." He said, "No, I need a ride."

He said, "Pick me up at Outdoor Resorts."

Ms. Garcia testified that she drove to Outdoor Resorts, saw the jeep, and then saw appellant. He asked her to wait and got a purse and a blanket. She then knew something was wrong, and he said, "It had to be done." She testified that she began to shake and he tried to calm her, and he told her to go to deep water. She said she didn't question and drove him to water and he threw something into it, and then she drove him home. They talked on the phone several times thereafter.

Ms. Garcia testified that on the following Monday, she was called to the Sheriff's office for questioning. She denied her relationship with appellant because she knew it was wrong and she was embarrassed. She was also worried about having purchased the gun, which was registered to her. On Tuesday, however, she drew a map and gave a statement about the gun. Ms. Garcia testified she was not promised anything before giving the second statement and drawing the map. She also said she did not see what appellant threw into the water but assumed it was the gun.

Ms. Garcia testified that she was given total unconditional immunity and would never be prosecuted for murder. She said she was given it two or three days after her statements, but was deposed after that. She testified that she gave all the information about the gun without being promised anything. She, her attorney, and the prosecutor met later and he told her she would not be charged.

Investigator Ernesto Flores testified that he and another investigator recovered a .38 Super automatic from the water based on Garcia's map. He stated that Garcia did not ask for a lawyer and was promised nothing. She gave different versions of her story. She expressed embarrassment, would cry, and later would be calm.

Appellant took the stand and repeatedly denied having an affair with Ms. Garcia. He said he tried to quash the rumors at work, that Ms. Garcia's husband had made threats based on the rumors, that Ms. Garcia bought a gun to protect herself, and that he tried to load the gun for her but she had bought the wrong bullets, so he returned them. He characterized the money he gave her as a loan.

Having read the entire record, we are unable to find any evidence to show that Ms. Garcia knew or even suspected that appellant would kill his wife before it had been done. Even though she admitted she did not originally tell investigators the truth, nothing refutes her motives of embarrassment and fear of prosecution. No evidence suggests that she wanted to protect appellant, and even appellant's testimony portrays her as innocent. At most, she helped conceal the crime. The evidence is not sufficient to raise the issue of whether she was an accomplice. The trial court's instruction to the jury was more than what was required. We overrule points one and two.

By point three, appellant claims that Garcia's testimony was not sufficiently corroborated to support a conviction. Appellant assumes that Garcia was an accomplice. This was not so. The requirement of corroboration does not apply. This point is overruled.

Next, by points four and five, appellant claims that the evidence was legally and factually insufficient to support the conviction. When reviewing the sufficiency of the evidence, an appellate court looks at all the evidence in the light most favorable to the verdict or the judgment and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). Direct and circumstantial evidence are equally probative for proving guilt beyond a reasonable doubt. Hankins v. State, 646 S.W.2d 191, 199 (Tex.Crim.App.1983). In a circumstantial evidence case, every fact need not point directly and independently to the defendant's guilt; rather, the combined and cumulative force of all incriminating circumstances warrants the jury's conclusion. Livingston v. State, 739 S.W.2d 311, 330 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988); Ramos v. State, 767 S.W.2d 248, 249 (Tex.App.--Corpus Christi 1989, pet. ref'd). If, after viewing the evidence in the light most favorable to the verdict, there is no other outstanding reasonable hypothesis, we find that the evidence is sufficient to support the conviction. Livingston, 739 S.W.2d at 330.

Generally, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985).

Additional facts developed from the trial show that "Bebe" Garcia placed appellant at the scene of the crime on the night in question. She testified that he possessed the gun. Officers used Garcia's map to locate a gun that she thought the appellant had thrown from the jeep. The gun was of the same type that she said she had given him. Bullet casings in the jeep were the same type that the gun would use. A firearms examiner testified that he tested the cartridge cases found in the jeep and concluded they were fired from the recovered gun.

The State developed motive evidence. It showed that appellant applied to increase his wife's life insurance just before her death, on December 2.

Evidence showed app...