Saenz v. State

• Decision Date: 13 August 1998
• Docket Number: No. 13-97-217-CR,13-97-217-CR
• Citation: 976 S.W.2d 314
• Parties: Randy SAENZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 314

976 S.W.2d 314

Randy SAENZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-97-217-CR.

Court of Appeals of Texas,

Corpus Christi.

Aug. 13, 1998.

Anne M. Marshall, Corpus Christi, for appellant.

Carlos Valdez, Dist. Atty., James D. Rosenkild, Asst. Dist. Atty., Corpus Christi, for state.

Before DORSEY, HINOJOSA and RODRIGUEZ, JJ.

OPINION

HINOJOSA, Justice.

A jury found appellant, Randy Saenz, guilty of murder and assessed his punishment at thirty years imprisonment. At the time of the offense, appellant was fourteen years old. By four points of error, appellant challenges his certification to stand trial as an adult, argues that no evidence corroborates the testimony of an accomplice witness and no evidence establishes a culpable mental state, and complains of jury misconduct. We affirm.

Background

At approximately 10:00 p.m. on May 21, 1996, seventeen-year-old Gilbert Flores, sixteen-year-old Raymond Montalvo, and twenty-one-year-old John De la Rosa arrived in Corpus Christi from Portland to visit appellant's older sister. Shortly thereafter, Montalvo, De la Rosa, and appellant left in Flores's maroon, four-door car, saying they were going to a nearby store to put gas in the car and buy snacks. De la Rosa was driving, appellant was in the front passenger seat, and Montalvo was in the back seat, sitting behind appellant.

Instead of going to the store, the three drove to Villa Street and cruised slowly up and down the street three times. Roger Ayala and some of his friends were "hanging out" in the driveway of 425 Villa Street and noticed the cruising car. All of the boys knew and recognized appellant in the front seat. Threatening gestures were exchanged. After passing by Ayala and the others for the third time, appellant directed De la Rosa to the home of another friend, Joey Gallardo. Appellant went up to the house and returned alone. The trio then drove back to Villa Street, approaching it from Quaile Street, where they stopped and sat for a couple of minutes.

About 10:30 p.m., Ayala saw and recognized the maroon car at the intersection. Suspicious, Ayala and one of his friends, Alex Franco, walked down to the end of the driveway for a better look. They saw someone leaning out of the passenger side window just before shots were fired. Franco ran for cover. One bullet hit Ayala just above the right hip, causing massive internal injuries. He did not regain consciousness before dying early the next morning.

Appellant and his friends returned to appellant's house around 11:00 p.m. His sister noticed that they had not brought any food with them. Montalvo and De la Rosa immediately left again to put gas in the car and to get snacks at the corner convenience store. Appellant went inside his house to call his girlfriend and tell her he had just returned from the Maverick Market, a few minutes walk from his home.

Appellant learned of Ayala's death early the next morning. He skipped school that day and went shopping for a used vehicle with his stepfather. He was found at the car dealership by police and taken in for questioning. He made a statement regarding his involvement in the shooting and signed it in the presence of a judge.

Appellant was charged with murder, a first-degree felony allegation. Because appellant was fourteen-years-old at the time, the State filed a petition to have him certified to stand trial as an adult. Appellant filed a motion to quash, which was denied prior to the certification hearing. After hearing the certification proceeding, the juvenile court waived jurisdiction and transferred appellant to the criminal courts. Appellant was subsequently indicted for murder and tried as an adult.

Felony Merger Rule

By his first and second points of error, appellant contends the juvenile court erred by refusing to quash the indictment and by certifying him to stand trial as an adult.

Appellant contends the felony merger doctrine prohibits basing a charge of felony murder on the identical conduct of a lesser-included offense which caused the death. In other words, because no additional or different element of conduct must be shown, deadly conduct, a third-degree felony, cannot be bootstrapped to a first-degree felony simply because a death occurred. Appellant argues that because the evidence does not otherwise support a finding of the commission of a first-degree felony, he could not be tried as an adult.

We conclude appellant's reliance on the felony merger doctrine is misplaced as it is not applicable under the instant circumstances. The appellant in Rodriguez v. State, 953 S.W.2d 342 (Tex.App.--Austin 1997, pet. ref'd), was convicted of felony-murder based on his repeated discharging of a firearm into a car he knew to be occupied. Id. at 343-44. Rodriguez challenged his conviction, arguing that he had merely engaged in deadly conduct and such could not be the basis of the felony-murder charge under the merger rule. Id. at 345. Judge Onion addressed Rodriguez's point in an exhaustive review of the history and development of the felony murder rule, including a close examination of Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.1978) (prohibiting felony-murder prosecution based on aggravated assault). Rodriguez, 953 S.W.2d at 345-52. The Austin Court of Appeals concluded that the express language of the current penal code, rather than the rationale of Garrett, governs prosecutions in cases such as the one before it, and the statutory language clearly serves to elevate deadly conduct to felony-murder when a death occurs. Id. at 354; accord Medellin v. State, 960 S.W.2d 904, 906-7 (Tex.App.--Amarillo 1997, no pet.). The legislature has never adopted or approved the Garrett decision. By the plain language of the statute, only manslaughter is exempted as an underlying felony under the felony merger rule. Rodriguez, 953 S.W.2d at 354.

We agree with our sister courts that the felony merger doctrine does not prevent the State from using a defendant's deadly conduct as the basis for a charge of felony murder. Because appellant was properly charged with a first degree felony, as required for certification as an adult under TEX. FAM.CODE ANN. § 54.02(a) (Vernon 1996), the juvenile court did not err in granting certification.

The basis of appellant's motion to quash was much the same as that against his eligibility for certification as an adult. Because we find he was properly certified, the juvenile court did not err in refusing to quash the indictment.

Appellant's first and second points of error are overruled.

Accomplice Witness Testimony and Legal Sufficiency of the Evidence

Appellant's third point of error has two parts. First, he contends the testimony of Raymond Montalvo, a confessed participant in the shooting of Roger Ayala, is not sufficiently corroborated by other evidence, i.e., if the accomplice testimony is excluded, there is no evidence to support the verdict. ¹ Second, he contends there is no evidence appellant intended to seriously injure or kill Ayala. Appellant does not contend the evidence is factually insufficient.

The code of criminal procedure 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." TEX.CODE CRIM. PROC. art. 38.14 (Vernon 1979).

The test for sufficient corroboration is to eliminate from consideration the accomplice testimony, and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App.1997); Burks v. State, 876 S.W.2d 877, 887 (Tex.Crim.App.1994). The non-accomplice evidence does not have to directly link appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; but rather, the non-accomplice evidence merely has to tend to connect appellant to the commission of the offense alleged in the indictment. McDuff, 939 S.W.2d at 612; Burks, 876 S.W.2d at 888; Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App.1994). Non-accomplice evidence that the defendant was in the company of the accomplice at or near the time or place of the offense is proper corroborating evidence. Hernandez v. State, 939 S.W.2d 173, 178 (Tex.Crim.App.1997) (citing Jackson v. State, 745 S.W.2d 4, 13 (Tex.Crim.App.1988) ) (presence in company of accomplice near time of offense not alone conclusive, but important factor for corroboration); McDuff, 939 S.W.2d at 612; Meador v. State, 941 S.W.2d 156, 159 (Tex.App.--Corpus Christi 1996, pet. ref'd). Accordingly, we review the facts and determine whether the accomplice testimony is adequately corroborated.

On the night of the shooting, appellant went riding in a maroon, four-door car with his friends John De la Rosa and Raymond Montalvo sometime after 10:00 p.m. De la Rosa and Montalvo lived in Port Aransas and Gregory--Portland respectively and neither appears to have been familiar with Corpus Christi streets. Several turns were required to get from Greenpath Street, where appellant lived, to Villa Street. Appellant had once lived with his grandmother on a street near Villa Street, in the same neighborhood as Roger Ayala.

The three told the car's owner, Gilbert Flores, that they were going to get gas and snacks. A Maverick Market stood on a corner about one-half mile from appellant's home. Instead of stopping at the convenience store, the three drove to Villa Street and cruised slowly up and down the road three times.

By his own admission, appellant was a gang member. He joined the Ruthless Gangsters when he was eleven years old. Eight months before Ayala's death, appellant informed Todd Green, a Corpus Christi Police Officer, that he had joined another gang, the Navarro Five, whose territory included a neighborhood he had lived in some time before....