Villarreal v. State

• Decision Date: 13 December 1978
• Docket Number: No. 59515,59515
• Parties: Jesse VILLARREAL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 51

576 S.W.2d 51

Jesse VILLARREAL, Appellant, v. The STATE of Texas, Appellee.

No. 59515.

Court of Criminal Appeals of Texas, En Banc.

Dec. 13, 1978.

Rehearing En Banc Denied Feb. 7, 1979.

Donald B. Dailey, Jr., Corpus Christi, for appellant.

William B. Mobley, Jr., Dist. Atty. and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, for the State.

Before the Court en banc.

OPINION

DALLY, Judge.

Appellant was convicted of capital murder following a change of venue from Nueces County. The punishment was assessed at death.

Appellant contends that the trial court erred: (1) in refusing to instruct the jury that two witnesses were accomplice witnesses as a matter of law, (2) in finding a deaf witness was competent to testify, (3) in refusing to instruct the jury concerning evidence of threats to witnesses, (4) in failing to grant a mistrial after an officer testified that a confidential informer's life had been threatened, (5) in admitting evidence unlawfully obtained after incorrectly holding it was obtained by consent, (6) in admitting hearsay evidence, (7) in allowing an expert witness to testify outside of the range of his expertise, (8) in excusing a prospective juror in violation of the constitutional principles and the holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), (9) in excusing a prospective juror on the grounds she was not physically capable of serving, (10) in failing to grant a mistrial because of the prosecutor's improper jury argument, (11) in failing to require the State to disclose exculpatory evidence to the defense.

Appellant was accused of murdering Norma Guevara, a clerk in a Corpus Christi convenience store, while in the course of committing robbery. The bodies of the deceased and a fellow employee were discovered by customers who entered the Maverick Market store at approximately 9:45 p. m. on March 24, 1975. Both victims were lying face down on the floor of a storeroom; both had been shot in the back. The store's safe was found open, and a bag containing money received from the sale of money orders had been taken.

Elva Garcia testified that on March 21, 1975, she rented two apartments in the Twin Palms Motel in Corpus Christi. She and her boyfriend stayed in apartment twelve, while her daughter, Lucy Gonzales, and appellant stayed in apartment ten. Also living in apartment ten were Garcia's son, Frederico Gonzales, and his girlfriend.

At 5:00 p. m. on March 24, Lucy and appellant left the motel in Garcia's car. They returned at approximately 10:00 p. m. Appellant entered apartment twelve and placed an object wrapped in a red handkerchief under the bedspread. He then left the apartment after telling Lucy to stay there. A few minutes later, Lucy left the apartment. As Garcia stood in the door, she heard Lucy ask appellant, "Where gun?" Appellant pointed toward the beach and said in Spanish that he had disposed of the evidence.

Garcia, Lucy, and appellant re-entered apartment twelve, and appellant removed the bundle from under the bedspread. The bundle was a bank bag, from which appellant removed and began counting money. A few minutes later, Frederico Gonzales entered the apartment. Appellant gave him twenty dollars to buy beer. Later, Frederico, Lucy, and appellant left the apartment to go to the N.G.N. Lounge.

Lucy Gonzales testified that she and appellant went to the N.G.N. Lounge after they left the motel on the afternoon of March 24. After leaving the lounge, appellant stopped the car, opened the hood, and removed a package. This package contained a gun, which appellant loaded and put in his belt. Appellant then drove to the Maverick Market. Appellant told Lucy to wait and then entered the store. He returned carrying a bank bag wrapped in a red handkerchief. Appellant placed the bag under the seat and drove away rapidly. Lucy's testimony with regard to the events which occurred after she and appellant returned to the Twin Palms Motel was similar to that of Elva Garcia.

Frederico Gonzales testified that he was in apartment ten when Lucy and appellant returned to the motel on the night of March 24. A few minutes after their return, he looked through a window into apartment twelve and saw appellant sitting on the bed counting money. After Frederico entered apartment twelve, appellant gave him twenty dollars and told him to buy a case of beer. Frederico, Lucy, and appellant later went to the N.G.N. Lounge where appellant bought several rounds of beer for the house.

On March 25, Lucy, Frederico, Frederico's girlfriend, and appellant went shopping. Appellant bought several items of clothing for Lucy, Lucy's baby, and himself, paying cash. Later that day, Frederico and appellant went to the N.G.N. Lounge. Appellant was arrested when he and Frederico returned to the motel.

Natividad Nigreta, the owner of the N.G.N. Lounge, testified that when Lucy Gonzales and appellant were in the lounge on the afternoon of March 24 she heard appellant tell a man that if he would do a job, he could make $500. The man responded by saying he wanted to leave. During this first visit to the lounge, appellant bought beer on credit, but when he returned with Lucy and Frederico Gonzales that night he bought several rounds of beer for the house. Appellant also spent a large sum of money when he and Frederico were at the lounge on March 25.

Corpus Christi police searched the area in and around the Twin Palms Motel following appellant's arrest. They found a .38 caliber pistol under apartment seven, and a box of .38 caliber bullets under apartment ten. Lucy Gonzales identified the pistol as the one she saw appellant carrying on the night of March 24. An F.B.I. firearms expert testified that this pistol fired one of the bullets removed from the body of Norma Guevara. The other bullets recovered from the bodies of the victims were too damaged to make a comparison. The bank bag removed from the safe at the Maverick Market was found under a piece of concrete pipe in a vacant lot approximately sixty yards from the motel.

The question of whether Elva Garcia, Lucy Gonzales, and Frederico Gonzales were accomplice witnesses was submitted to the jury as a question of fact. Appellant contends that the trial court erred by refusing to instruct the jury that Elva Garcia and Lucy Gonzales were accomplice witnesses as a matter of law. He argues that Elva Garcia was an accomplice witness because she accepted money from appellant knowing that it had been taken in the robbery. He argues that Lucy Gonzales was an accomplice witness because she was present in the car during the fatal course of events on March 24, and permitted appellant to buy her and her baby clothes with money taken in the robbery.

The record reflects that before Elva Garcia accepted the money appellant told her that he had committed a robbery at a small store and that no one had been hurt. The record does not reflect when Lucy Gonzales learned of the murders. She is a deaf mute, and could not have heard the shots while she waited in the car outside the Maverick Market.

An accomplice witness is someone who has participated with another before, during, or after the commission of a crime. Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1977); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974). One is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged. Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961); Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108 (1954); Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914). A witness is not deemed an accomplice witness because he knew of the crime but failed to disclose it or even concealed it. Easter v. State, supra; Gausman v. State, 478 S.W.2d 458 (Tex.Cr.App.1972).

Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App.1975), was a conviction for murder under the former penal code. During the course of the criminal transaction, several items of property were taken from the deceased's home. This Court held that a witness who received an item of the stolen property, knowing it to be stolen, was not an accomplice witness to the offense of murder:

"We are not presented here with the question of whether Dempsey would be an accomplice witness in the trial of the appellant for acquiring the diamond ring by committing the offense of robbery or theft. The question is whether Dempsey was an accomplice witness in the appellant's trial for murder. Since there is no evidence to show that Dempsey was an accomplice, principal, or accessory to the murder of Currie, he is not an accomplice witness in the trial of the appellant for the murder of Currie. See Ham v. State, 4 Tex.App. 645 (1878); Warren v. State, 60 Tex.Cr.R. 468, 132 S.W. 136 (1910); Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914); Chandler v. State, 89 Tex.Cr.R. 599, 232 S.W. 337 (1921); Carnathan v. State, 478 S.W.2d 490 (Tex.Cr.App.1972); 23 C.J.S. Criminal Law § 786(2). Cf. Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (1958); Morgan v. State, 171 Tex.Cr.R. 187, 346 S.W.2d 116 (1961)."

Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977), was also a prosecution for murder under the former code. In that case, a witness, Bell, had taken part in two thefts shortly before the murder, and had waited outside after the accused entered the house in which the murder took place. This Court held that:

"The mere fact that a witness has complicity with an accused in the commission of other offenses does not make his testimony that of an accomplice witness for the offense for which the accused is on trial if there is no showing of his complicity in that offense. (citing Easter v. State, supra). The record in the instant case does not reflect any affirmative act on Bell's part to assist in Knox's murder. See Chappell v. State, Tex.Cr.App., 519 S.W.2d 453. Appellant made no showing that Bell participated in...