Reyes v. State
| Citation | 741 S.W.2d 414 |
| Decision Date | 04 November 1987 |
| Docket Number | No. 731-85,731-85 |
| Parties | Ruben Garcia REYES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Joseph A. Connors, III, McAllen, for appellant.
Rene A. Guerra, Dist. Atty., and Theodore C. Hake, Asst. Dist. Atty., Edinburg, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted by a jury of murder under V.T.C.A., Penal Code, § 19.02(a)(1). 1 Punishment was assessed at 99 years' confinement in the Texas Department of Corrections. The Corpus Christi Court of Appeals affirmed the conviction. Reyes v. State, 694 S.W.2d 556 (Tex.App.--Corpus Christi 1985, pet. granted). We granted appellant's petition for discretionary review on five grounds to determine the correctness of the Court of Appeals' decision. The grounds for review include the following diverse issues: (1) whether the charge adequately applied the law of parties to the facts; (2) whether appellant's requested converse charge on the law of parties should have been granted; (3) whether an arrest warrant can issue based on facts not shown on the face of the affidavit; (4) whether it is error to allow the prosecutor to read the law of aggravated perjury on cross-examination of a testifying accused; and (5) whether entry of an affirmative finding concerning the use of a deadly weapon was improper where a charge on "parties" was included and no special issue was submitted to the jury.
The record reveals that appellant's fate depended upon whether the jury believed his testimony or the testimony of one of the victims, Joel Villarreal. Joel testified that around 3:00 p.m. on Friday, September 23, 1983, he received a phone call from the appellant's brother, Roel Reyes, who arrived at Joel's house approximately thirty minutes later. Joel had known Roel and the appellant for eight to ten years, and was in fact married to their sister, Laura. Joel opened the door for Roel and testified that "I was getting dressed, and the next thing I know, he [Roel] had a gun to my head." Joel was forced to kneel down at gunpoint. Moments later he was ordered to respond to a knock at the door which resulted in the appellant being admitted into the house. Joel testified that the appellant "went through my drawers and stuff, and found my gun" and that he then "told me to get dressed, that we were going for a ride." At this point, the three men walked outside and went to Joel's car.
The appellant followed in his own car, while Roel drove Joel's car to the residence of Frank Luna, whom the appellant had allegedly called from Joel's house. Joel testified that "Frank got in the car, and Roel [who had moved to the back seat] put the gun on his head." Joel also stated that the appellant continued to follow them to a gas station, where the following took place:
At this point the appellant evidently got into Joel's car and handed Roel an "eight inch knife, dagger-type."
Joel testified that Frank and the appellant argued about "some money that Ruben had come out short." Joel admitted that he had set up a "grass deal" in which the appellant and Frank were to drive to Utah in separate cars to sell fifty pounds of marihuana. Joel also testified to the following:
According to Joel, the appellant was also mad at Frank for telling certain people in McAllen that the appellant was short $5,000. Joel stated that although he did not receive any money on the deal, this would not have made him angry enough to frame the appellant by lying in open court.
The group ultimately arrived at Tom Gill Road, where Joel parked his car approximately fifty feet from the road near an abandoned bus. Joel testified that once the men got out of the car, Joel also stated that the appellant told Roel: "We're going to make it look like a robbery." Roel bound the hands of both Joel and Frank with some black rope found near the side of the bus. The two were forced to kneel down at gunpoint, and "[t]hen Ruben handed the knife to Roel, and whispered something to Roel."
Joel then noticed Roel walk over to talk to the appellant, "[a]nd the next thing I know, Roel came out with my 357 and shot me." Joel suffered a gunshot wound to the neck and testified that before he passed out he heard another gunshot. Joel was later picked up by a couple driving north along Tom Gill Road, who immediately took him to Mission Hospital. Joel testified that he told the couple "that my brother-in-law and his brother had shot me."
Investigator Larry Norris testified that Frank Luna's body was discovered "face down with the hands bound behind the back and an extreme (sic) amount of red substance, which appeared to be blood, about the head and neck area." He also noticed that the body had been cut "from ear to ear on the throat area." Dr. Ruben Santos testified that the cut on the deceased's neck "was superficial" and "not sufficient to have caused massive bleeding." He determined that the cause of death was not the cut to the neck, but rather a "[g]unshot wound to the head." Dr. Santos further stated that the person holding the gun had to be standing behind the victim.
The 32-year-old appellant testified that he graduated from Hitchcock High School in Galveston County and successfully completed a four-year tour of duty in the United States Air Force, receiving an honorable discharge. He had taken some college courses, and was employed as a dispatcher for South Texas Security and Alarm Company. On September 23, 1983, he and Roel drove to Joel's house after Roel had called about buying a gram of cocaine from Joel. Appellant stated that he and Roel were greeted at the door by Joel, who "had a towel around his waist," and that they "just sat down on a couch, and [watched] T.V." Appellant testified that neither he nor Roel carried a firearm into or out of Joel's house.
According to the appellant, Joel asked the two brothers to "accompany him to see some people about that drug deal that happened in Utah." Appellant disputed Joel's version of the Utah drug deal, stating that Appellant did not admit to transporting fifty pounds of marihuana to Utah, and in fact said that he was not to make any money from the deal at all. Appellant testified: "The way I had fixed it up with him [Joel], is that I was just going to go up there for a free vacation, and that was it." Consequently, part of the $15,000 appellant said he received from Frank Luna in Utah was allegedly used for travelling expenses for himself and his family.
Appellant corroborated Joel's testimony about driving to Frank Luna's house, where Frank got into Joel's car, leaving the appellant to follow in his own vehicle. Appellant testified that the cars were driven to "a little grocery store," and that Joel made a phone call while the appellant filled his car with gas. Appellant again followed Joel's vehicle, but at State Highway 107 Joel pulled off the road, parked, and signaled for the appellant to get into his car. The appellant said that Joel talked about the Utah drug deal and how they would explain the money shortage to the men they were supposed to meet. Appellant testified as follows about his conversation with Joel:
The group finally pulled off Tom Gill Road, and according to the appellant "we were just talking about what was going to happen when those guys came."
The appellant testified that "those guys" arrived in a new Bronco with Mexican license plates that read "Frontera, Tamaulipas." Appellant stated that the men carried automatic pistols, and that they initially spoke to Joel and Frank. The appellant noticed that the gunmen spoke "correct Spanish" and he overheard them ask what they (Joel and Frank) planned to do about the money that was owed.
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