Munoz v. State

• Decision Date: 21 April 1993
• Docket Number: No. 71225,71225
• Citation: 853 S.W.2d 558
• Parties: Jesus MUNOZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 558

853 S.W.2d 558

Jesus MUNOZ, Appellant, v. The STATE of Texas, Appellee.

No. 71225.

Court of Criminal Appeals of Texas En Banc.

April 21, 1993.

Rehearing Denied May 26, 1993.

John Gates, Norbert J. Garney, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., and Frank S. Triana, Asst. Dist. Atty., El Paso, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BAIRD, Judge.

Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(2). ¹ The jury affirmatively answered the statutory punishment issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071. ² Appellant was sentenced to death. Tex.Code Crim.Proc.Ann. art. 37.071(e). Appeal to this Court is automatic. Tex.Code Crim.Proc.Ann. art. 37.071(h). We will reverse.

I. THE ACCOMPLICE WITNESS RULE

Appellant contends the evidence is insufficient to corroborate the testimony of the State's accomplice witnesses under Tex.Code Crim.Proc.Ann. art. 38.14. Art. 38.14 provides:

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.

As we held in Walker v. State, 615 S.W.2d 728 (Tex.Cr.App.1981):

An accomplice witness is a discredited witness because her or his testimony alone cannot furnish the basis for the conviction. No matter how complete a case may be made out by an accomplice witness or witnesses, a conviction is not permitted unless he or they are corroborated.

Id., 615 S.W.2d at 731 (citations omitted).

In order to determine whether the accomplice witness(es)' testimony is corroborated we eliminate all accomplice evidence from the record and determine whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense. Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App.1968); Carrillo v. State, 591 S.W.2d 876, 883 (Tex.Cr.App.1979); Passmore v. State, 617 S.W.2d 682, 684 (Tex.Cr.App.1981); Graham v. State, 643 S.W.2d 920, 924 (Tex.Cr.App.1981); and, Gosch v. State, 829 S.W.2d 775, 777 (Tex.Cr.App.1991). Corroborative evidence need not establish appellant's guilt of the charged offense nor directly link appellant to the offense, but is sufficient if it "tends to connect" appellant to the offense. Granger v. State, 683 S.W.2d 387, 392 (Tex.Cr.App.1984) (citing Edwards, 427 S.W.2d 629, 632 (Tex.Cr.App.1968)). See, Gosch, 829 S.W.2d at 777; Castaneda v. State, 682 S.W.2d 535, 537 (Tex.Cr.App.1984); and, Cox v. State, 830 S.W.2d 609, 611 (Tex.Cr.App.1992). Each case must be considered on its own facts and circumstances--on its own merit. Apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Mitchell v. State 650 S.W.2d 801, 807 (Tex.Cr.App.1983). If the non-accomplice evidence fails to connect appellant to the offense, the evidence is insufficient to support appellant's conviction and an acquittal results. Ex parte Reynolds, 588 S.W.2d 900 (Tex.Cr.App.1979); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

All facts and circumstances in evidence may be looked at to determine whether an accomplice's testimony is corroborated. Mitchell, 650 S.W.2d 801, 807 (Tex.Cr.App.1983). However, a challenge to the sufficiency of the evidence to corroborate the testimony of an accomplice is a challenge to the sufficiency of the evidence to support the jury's verdict on guilt or innocence. Therefore, our consideration of the evidence is necessarily limited to that evidence before the jury at the time it rendered its verdict of guilt. ³

II. THE ACCOMPLICE WITNESS TESTIMONY

Armando Enriquez, Alejandro Gallegos, and Wilfredo Villa were accomplices as a matter of law. ⁴ Appellant, the accomplices and other young men congregated under the "Carolina Bridge" in El Paso. On the evening of October 17, 1989 the accomplices joined others at the Carolina bridge to drink beer and talk. ⁵ Appellant arrived with Matthew Keown. The group continued to consume beer and made several "beer runs" over the evening. ⁶ During one such "beer run," appellant threw a can of beer in the face of a store clerk who chased him.

Later in the evening, appellant and the accomplice witnesses decided to make another "beer run." Keown was driven home. ⁷ The group drove to appellant's residence where appellant wished to retrieve a pistol. The accomplice witnesses waited outside. Appellant returned with a ski mask, latex gloves and a pistol. Appellant had placed adhesive tape over a scar and tattoo on his face and neck.

Appellant stated he wished to rob a convenience store clerk. The group drove by several stores looking for a convenience store which was not busy. After locating such a store, appellant instructed Gallegos and Villa to enter the store and act as if they were purchasing beer. Appellant and Enriquez would then enter the store and order Gallegos and Villa to leave. The group parked a block away and walked to the store.

Villa and Gallegos entered the store and each selected beer. They observed two men playing a video game in the store's video room. Appellant and Enriquez entered and appellant instructed the deceased to give appellant the money. Enriquez was holding a plastic shopping bag with which to carry the money. Appellant ordered Gallegos and Villa to leave the store. As Gallegos exited the store, he handed Villa his beer and returned to take some "Bic" cigarette lighters. When Gallegos returned, he and Villa ran to the vehicle. As they ran, Villa heard two shots.

While in the store, appellant shot once at the floor in order to hurry the deceased. After retrieving the money Enriquez exited the store while appellant backed toward the door. As appellant opened the door to leave, Enriquez observed appellant raise the pistol and then Enriquez heard a shot. Appellant and Enriquez ran to the vehicle.

In the car, appellant asked Enriquez how much money was in the bag. After learning the robbery netted only twenty dollars, appellant became angry, stating he had to pay some "tickets." Gallegos asked appellant if he shot the deceased and appellant laughed, stating, "Yeah, I hope she dies." ⁸ Appellant further stated, "That's what happens to chicks that don't move fast."

The group went to appellant's residence where they retrieved another vehicle. Appellant drove each of the accomplice witnesses home, cautioning each against discussing the robbery. Appellant stated that if the information was disclosed, he would kill the accomplices.

III. NON-ACCOMPLICE EVIDENCE

Aside from the testimony of the accomplice witnesses, the State presented testimony from the medical examiner, ten police officers, the store manager, and another sales clerk from the store. Appellant presented no evidence at the guilt-innocence phase of the trial.

Dr. Juan Contin, Chief Medical Examiner of El Paso County, testified he performed an autopsy on the deceased. The deceased died from bleeding in the chest cavity, resulting from one gunshot which penetrated both lungs and the heart. The gunshot was from a distance of over two feet.

The police officers testified to the manner the crime scene was secured and the procedures used in investigating the offense. Two bullets and bullet casings were found at the crime scene. No fingerprints were recovered. Officers established a "trajectory of the bullet" to indicate the possible locations of the murder weapon at the time of the shooting. The murder weapon was not recovered.

A search warrant was executed upon appellant's home and vehicle. The officers recovered a ski cap, bank bag, latex gloves and adhesive tape from appellant's home. A shirt and a wrapper from a "Bic" lighter were recovered from appellant's vehicle. At the time of the offense, appellant had outstanding traffic tickets and appellant made arrangements to pay the tickets soon after the offense.

Alan Ogden testified he was at the store playing a video game with John Bustamante on the night of the offense. While playing he heard a loud, vibrating "bang" and a male voice state "get it." He heard the deceased state "no, please." The video game was located against a wall and Ogden never turned around. He saw no one and heard nothing else.

Bustamante was watching Ogden play a video game when he heard a loud shot. He heard screaming and a male voice state "give me all of the money." The deceased stated "no, please." Bustamante then heard another shot. Bustamante "froze" and never turned around. He saw no one because the video game was against the wall and his back was to the counter.

Tommie Krcelic, the manager of the store, testified the register was missing a total of forty-seven dollars and seventeen cents. Krcelic was unable to determine if any merchandise was missing and could not identify the wrapper from the "Bic" lighter as coming from the store because each store in the chain carried "Bic" lighters and used the same pricing machine. Krcelic did recognize appellant as a customer in the store previously.

Linda Callender testified she was a clerk in the same store. On the date of the offense she worked the shift immediately preceding the deceased's shift. She also recognized appellant as a previous customer.

IV. PRIOR CASE LAW

In reviewing the instant record to determine the sufficiency of corroboration of the accomplice testimony we find benefit in reviewing our previous decisions. In Cruz v. State, 690 S.W.2d 246 (Tex.Cr.App.1985), the State presented non-accomplice testimony proving the defendant was near the scene of the crime with a pistol and rifle some time prior to the time the complainant was shot; the defendant, his wife, and accomplice disappeared from the area at approximately the same time the complainant was shot; a gift...