Silva v. State

• Decision Date: 16 October 1996
• Docket Number: No. 04-95-00062-CR,04-95-00062-CR
• Parties: Antonio SILVA, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 715

933 S.W.2d 715

Antonio SILVA, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 04-95-00062-CR.

Court of Appeals of Texas,

San Antonio.

Oct. 16, 1996.

James William Blagg, Steven P. Redgate, Sr., San Antonio, for appellant.

Jose M. Rubio, Jr., Webb County District Attorney, Tito H. Alfaro, Assistant District Attorney, Laredo, for appellee.

Before CHAPA, C.J., and STONE and GREEN, JJ.

OPINION

CHAPA, Chief Justice.

This is an appeal from a conviction for aggravated robbery. The appellant was tried along with a codefendant on charges of aggravated robbery and murder. After returning a verdict of not guilty on the charge of murder, the jury found both appellant and his codefendant guilty of aggravated robbery. Appellant was sentenced to 50 years confinement. Appellant complains on appeal that the evidence is insufficient to support his conviction and that the trial court erred in refusing to grant his motions for severance. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 1994, at approximately 6:00 p.m., Juanita Flores heard a gunshot. Shortly thereafter, she responded to an alarm from the store that she and her husband owned and operated in Laredo, Texas. Mrs. Flores entered the store and found her husband wounded on the floor. He died a short time later. The official cause of death was a gunshot wound to the chest.

During an investigation of the crime scene, the police discovered both a .25 caliber casing and a .25 caliber bullet. No latent finger prints were discovered on either piece of evidence. No gun was ever recovered. The investigation further revealed that the cash drawer was out of place and that some money was missing.

At trial, the State's witness, Graciela Gonzalez, testified that at 5:50 p.m. on June 1, 1994, she left a friend's house and was enroute to Laredo Community College. At approximately 6:00 p.m., she arrived at the intersection on which the victim's store was located. Ms. Gonzalez began a left hand turn and almost struck two males walking hurriedly across the street, towards the victim's store. She made eye contact with one of the men for approximately 15 seconds. Ms. Gonzalez testified that she watched the two males in her rear-view mirror and then turned around and saw them standing at the store entrance. She further testified that the two males looked around nervously as they entered the store.

After hearing a news report regarding the shooting, Ms. Gonzalez contacted police, gave a statement, and described to a police artist the one male she had made eye contact with. Two days later, Ms. Gonzalez was shown a photographic line up of 6 males. She identified appellant from the array as the individual she made eye contact with on June 1. Based on Gonzalez's identification, appellant was arrested.

At trial, appellant's codefendant, Ronald Lemos, testified in his own behalf. He testified that on the evening in question he left a friend's house and was approximately two blocks from the victim's store when he ran into appellant and they began talking and walking together. Lemos testified that when they arrived at the victim's store, appellant entered the store and told Lemos to wait. Sometime thereafter, Lemos started to enter the store, but he stopped when he heard the gunshot and saw appellant pointing a gun at the victim.

Seconds later, appellant left the store. Appellant pointed the pistol at Lemos and told Lemos that if he told anyone what happened, appellant would kill him and his family. Lemos then returned to his friend's home. Lemos testified that he informed his friend, Luna, that, "he gave him a slug," implying that someone other then Lemos pulled the trigger, but not mentioning appellant by name. Lemos also testified that he informed another friend, Villanueva, that "they killed an old man." Conversely, Luna and Villanueva testified that Lemos told them that he (Lemos) had killed someone.

After interviewing Luna during the course of the investigation, the police approached Lemos at his home and asked him to accompany them to the police station to be interviewed in connection with the criminal investigation. After several hours of questioning Lemos was placed under arrest. He then signed a written confession in which he confessed to shooting Benjamin Flores. At no time did Lemos state that appellant or any other person was involved.

Appellant and Lemos were both indicted for the offenses of murder and aggravated robbery. The jury found both appellant and Lemos guilty of aggravated robbery and returned not guilty verdicts on the charge of murder.

ARGUMENTS ON APPEAL

A. Sufficiency of the Evidence

In his first and second points of error, appellant contends that the evidence presented at trial is insufficient to support his conviction. In point of error two, appellant contends that because Lemos was an accomplice who testified at trial but was not called by appellant, the "accomplice witness rule" should apply. Appellant contends that Lemos's testimony, in order to furnish the basis for the conviction, must be corroborated by other evidence. See TEX.CODE CRIM. PROC. ANN. art. 38.14 (Vernon 1979). Appellant argues that the "other evidence" in this case is insufficient to corroborate the testimony of Lemos, and therefore, is insufficient to sustain the jury's verdict. In his first point of error, appellant argues that, even with Lemos's testimony, the evidence is insufficient to support the jury's verdict.

The accomplice witness rule, as codified in Article 38.14, states that "[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...." TEX.CODE CRIM. PROC. ANN. art. 38.14 (Vernon 1979). However, "... accomplice-witness testimony must be corroborated and the jury so instructed only when the State calls the witness and seeks to rely on such witness' testimony." Selman v. State, 807 S.W.2d 310, 311 (Tex.Crim.App.1991). In the present case, although Lemos was an accomplice as a matter of law, the State did not call Lemos as a witness. He testified in his own behalf. As such, Lemos's testimony is exempt from the accomplice witness rule, and there was no need for his testimony to be corroborated. See id.

In reviewing the legal sufficiency of the evidence, we must view all the evidence admitted, whether proper or improper, in the light most favorable to the jury's verdict and determine whether a rational trier of facts could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Deason v. State, 786 S.W.2d 711, 713 (Tex.Crim.App.1990). The jury is the sole trier of fact, and it may judge the credibility of the witnesses, reconcile conflicts in the testimony, and accept or reject any or all of the evidence on either side. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991).

In order to obtain a conviction for aggravated robbery, the State must prove, beyond a reasonable doubt, the following six elements: 1) A person, 2) in the course of committing theft, 3) with intent to obtain or maintain control of the property, 4) intentionally, knowingly, or recklessly, 5) causes bodily injury to another or threatens or places another in fear of imminent bodily injury or death, and 6) uses or exhibits a deadly weapon. Robinson v. State, 596 S.W.2d 130, 132 (Tex.Crim.App.1980); TEX. PENAL CODE ANN. § 29.03 (Vernon 1994).

Although appellant maintained that he was not present when the crime took place, the testimony of both Gonzalez and Lemos places him at the scene of the crime. Mrs. Flores's testimony indicates that money was missing from the cash draw. The testimony of the investigating police officers establishes that there were signs of a struggle at the store and that the cash draw was out of place. Lemos's testimony supports a finding that appellant threatened or placed the victim in fear of imminent bodily injury or death and that a firearm was used. The coroner's report also supports a finding that a firearm was used.

After reviewing this evidence in a light most favorable to the jury's verdict, we conclude that a reasonable jury would be justified in concluding that appellant committed aggravated robbery. As such, the evidence is sufficient to support appellant's conviction. Appellant's first and second points of error are overruled.

B. Severance

In his third point of error, appellant argues that the trial court abused its discretion by failing to grant his motions for severance pursuant to TEX.CODE CRIM. PROC. ANN. art. 36.09 (Vernon 1981). Appellant asserts that, because of inconsistencies in his defense and that of Lemos, a joint trial was prejudicial to him. Because of this prejudice, appellant made a pre-trial motion for severance and...