State v. Cisneros

• Decision Date: 13 November 1996
• Docket Number: No. 445-96,445-96
• Parties: The STATE of Texas, v. Dora CISNEROS, Appellant.
• Court: Texas Court of Criminal Appeals

Page 789

935 S.W.2d 789

The STATE of Texas, v. Dora CISNEROS, Appellant.

No. 445-96.

Court of Criminal Appeals of Texas En Banc.

Nov. 13, 1996.

David L. Botsford, Austin, J.A. Canales, Corpus Christi, for appellant.

Luis V. Saenz, District Attorney, Brownsville, Matthew Paul, State's Atty., Austin, for State.

State's petition for discretionary review refused.

KELLER, Judge, dissenting.

Appellant was convicted of the capital murder of Joey Fischer and sentenced to life in prison. On appeal, she contested the sufficiency of the evidence to prove that the victim was killed by either of the two men named as the hired killers in the jury instructions. The Court of Appeals found that the evidence was insufficient and ordered an acquittal. Cisneros v. State, 915 S.W.2d 217 (Tex.App.--Corpus Christi 1996).

As noted in the opinion of the Court of Appeals, much of the evidence introduced at appellant's joint trial with Garza was admissible against Garza but not against appellant, and thus could not be considered in the sufficiency analysis. The evidence against appellant shows that she wanted her daughter's former boyfriend dead and engaged a fortune teller, Martinez, to find someone to kill him. Martinez asked Garza to find someone to commit the murder. Appellant supplied money, information, and directions to Martinez. Evidence not admissible against appellant shows that Garza found Olivares and Pizana, who shot and killed eighteen year old Fischer.

The Court of Appeals first found that the evidence admitted against appellant was insufficient to prove, as specifically required by the jury charge, that either Olivares or Pizana killed Fischer. Id. at 221. This conclusion appears to be supported by the record. Although the State was not required to plead or prove the names of the hired killers, the charge did require it, and the State failed to meet its burden as to that matter.

Second, there was no evidence that appellant ever met or had any dealings at all with Olivares or Pizana. The Court of Appeals determined that, even if the evidence were sufficient to show that the named killers committed the murder, the evidence was insufficient to establish that appellant herself "employed" Olivares or Pizana to kill Fischer. Id. at 221.

Third, the abstract portion of the jury charge on guilt/innocence instructed the jury on the law regarding parties and criminal responsibility. The application paragraph, however, failed to instruct the jury as to those matters. The Court of Appeals found that because the jury was not so instructed, the jury was not authorized to find appellant criminally responsible for the acts of Martinez, Garza, Olivarez, or Pizana.

In my dissenting opinion in Plata v. State, 926 S.W.2d 300 (Tex.Crim.App.1996), I explained the reasons that it is unnecessary, in my view, that a jury be instructed as to the law of parties. I will not repeat my arguments, but say only that here, as there, the trial court instructed the jury on the definition of "parties" and "criminal responsibility." We should, therefore, assume that the jury correctly applied those definitions to the facts of this case.

As stated above, however, the lack of a parties charge was not the only deficiency in this case. If we assume that the Court of Appeals correctly determined that appellant was entitled to be acquitted of capital murder because of insufficient evidence that Olivares or Pizana killed Fischer, my position in Plata would not save the conviction for capital murder. ¹

Even if we assume, however, that the Court of Appeals correctly determined that appellant was entitled to be acquitted of capital murder, that would not be the end of this case. In Bigley v. State, 865 S.W.2d 26 (Tex.Crim.App.1993) we discussed the authority of a court of...