Zamora v. State

• Decision Date: 29 May 2014
• Docket Number: No. 14–11–00342–CR.,14–11–00342–CR.
• Citation: 432 S.W.3d 919
• Parties: Jaime Arturo ZAMORA, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

432 S.W.3d 919

Jaime Arturo ZAMORA, Appellant

v.The STATE of Texas, Appellee.

No. 14–11–00342–CR.

Court of Appeals of Texas, Houston (14th Dist.).

May 29, 2014.

Paul C. Looney, Clay S. Conrad, Houston, for Appellant.

Jessica Alane Caird, Houston, for the State.

Panel consists of Chief Justice FROST and Justices CHRISTOPHER and McCALLY.

OPINION ON REMAND

TRACY CHRISTOPHER, Justice.

Appellant Jaime Arturo Zamora's appeal of his conviction for capital murder is before us on remand. When this case was first before us, appellant argued that the trial court erred in failing to instruct the jury that if it determined that witness Benjamin Rosales was a co-conspirator accomplice, then it could consider Rosales's testimony only if it was corroborated by other evidence tending to connect appellant to the offense. Zamora v. State, 375 S.W.3d 382, 388–89 (Tex.App.-Houston [14th Dist.] 2012, pet. granted). We concluded that this complaint was waived because appellant had asked the trial court to instruct the jury to determine whether Rosales was a direct-party accomplice rather than a co-conspirator. Id. at 389. The Court of Criminal Appeals reversed and remanded the cause for us to consider appellant's charge-error complaint under the procedural framework of Almanza. See Zamora v. State, 411 S.W.3d 504, 506 (Tex.Crim.App.2013) (citing Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (op. on reh'g)).

We conclude that the evidence raises a question of fact as to whether Rosales was a co-conspirator accomplice, and thus, the trial court erred in failing to instruct the jury accordingly. We further conclude that appellant was egregiously harmed by the error. We accordingly reverse the trial court's judgment of guilt and remand for a new trial.

I. Background

On May 20, 2006, Jose Perez had dinner with his wife and their two children at Chilo's Seafood Restaurant in Houston. After dinner, Perez secured the couple's infant son in the back seat of the car, then opened the driver's side door. Before Perez could enter the car, a man approached him from behind. Without saying anything, the man shot Perez repeatedly, then ran and jumped into a vehicle waiting at an adjacent service station. Perez died from his wounds. There was no apparent motive for the shooting.

Two-and-a-half years later, appellant was arrested for Perez's murder. The State's theory was that before Perez's murder, appellant offered to pay the monetary equivalent of a kilo of cocaine for the murder of a different man—Santiago Salinas—and that Perez was shot because he was mistaken for Santiago. ¹ According to the State, appellant gave the contract for Santiago's murder to Jose Armando “Mando” Chapa. Chapa was said to have used another man, Steven Torres, as a subcontractor for the job, and Torres hired two other men—Michael Belmarez and Pedro Quintanilla—to kidnap or kill Santiago. Quintanilla was said to be the person who actually shot Perez.

Among the witnesses who testified at appellant's trial were four men whom appellant characterizes as accomplices. Belmarez admitted he was the driver of the vehicle in which the man who shot Perez fled the scene; the trial court instructed the jury that Belmarez was an accomplice as a matter of law. Chapa also testified at trial, and Rogelio “Roy” Gonzalez, appellant's brother-in-law, testified to his own participation in discussions about having Santiago killed. The trial court instructed the jury that there was a question of fact about the accomplice status of Chapa and Gonzalez under a direct-party theory of liability. A fourth witness, Benjamin “B2” Rosales, testified that in the months before the Perez murder, he knew that appellant had people ready to act if Santiago could be found, and he helped look for Santiago and called appellant on the two occasions when he sighted Santiago, although neither of these occasions was on the date that Perez was shot. When Rosales and appellant saw Santiago some months after Perez was killed, Rosales arranged to have his friends detain Santiago while Rosales called another gunman, who successfully completed Santiago's murder. The trial court refused appellant's request to give the jury the same accomplice-witness instruction about Rosales that was given about Chapa and Gonzalez.

Appellant was convicted and sentenced to imprisonment for life without parole. We overruled each of the issues presented for our review and affirmed the conviction. The Court of Criminal Appeals reversed, and we now consider appellant's charge-error complaint under Almanza's procedural framework.

II. Error Analysis

When an appellant argues that the trial court erred in failing to give an accomplice-witness instruction, our first task is to determine whether the trial court erred in failing to give such an instruction sua sponte. Zamora, 411 S.W.3d at 506. As a matter of Texas law, “[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. Ann. art. 38.14 (West 2005). See Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.2007) (accomplice-witness testimony “must be corroborated by independent evidence tending to connect the accused with the crime”). Faced with conflicting or inconclusive evidence as to whether a witness is an accomplice, the trial judge must instruct the jury first to decide the question, and then, if the jury determines that the witness is an accomplice, to apply the corroboration requirement. Zamora, 411 S.W.3d at 510.

An accomplice is someone who may be charged with the same or a lesser-included offense, whether as a principal, a direct party, or a co-conspirator. Id. at 511. A person is guilty as a co-conspirator for the conduct of another if, in the attempt to carry out a conspiracy to commit one felony, and in furtherance of the unlawful purpose, one of the conspirators commits another felony “that should have been anticipated as a result of the carrying out of the conspiracy.” Tex. Penal Code Ann. § 7.02(b) (West 2011). We conclude that the evidence was sufficient to raise a fact question as to whether Rosales was an accomplice under a co-conspirator theory, and thus, the trial court erred in failing to instruct the jury accordingly.

Appellant urges that Rosales was a co-conspirator in the attempt to carry out the murder of Santiago. In arguing to the contrary, the State asserts that there were two conspiracies, one in which Rosales hired the gunmen who succeeded in murdering Santiago at a hotel in November 2006, and an earlier “botched” conspiracy in which Perez was killed. The State refers to Perez's murder as “a crime committed with an entirely different group of conspirators and without any knowledge or participation by Rosales.” Thus, the State posits, Rosales's involvement did not pertain to the conspiracy to murder Santiago himself. We therefore examine the record to determine whether there is evidence that Rosales was a co-conspirator in a conspiracy to murder Santiago that arose prior to Perez's death.

We begin with evidence that the conspiracy arose prior to Perez's death in May 2006. Rosales testified that appellant believed that Santiago Salinas owed him money for some “lost” kilos of cocaine. According to Rosales, appellant had three choices: he could try to collect the money, kidnap Santiago to coerce him into paying, or simply kill him. Rosales testified that Santiago went to Monterrey, Mexico, where he paid appellant's brother Danny only part of the money that was owed while continuing to spend a lot of money entertaining. Rosales said that the people in the Monterrey end of the Zamora family's drug business felt disrespected, “and then that's when they decided they were going to go ahead and kidnap [Santiago] there in Monterrey.” During this trip, Santiago was shot in the neck. Id. Santiago's mother testified that her son was shot on September 30, 2005; that he was in the hospital for ten days; and that he then flew back to Houston.

Rosales stated that when Santiago returned to Houston, appellant reported that “Santiago was saying that the people over there [in Mexico] couldn't do anything right, that they couldn't even—they couldn't even shoot him right. They couldn't kill him.” Rosales further testified that when appellant heard about this boast, things changed, and “[t]hey were wanting to go ahead and just kill [Santiago].” According to Rosales, appellant told him before the shooting at Chilo's that there was a contract to kill Santiago and that appellant “had some people already ready to go and get him.”

Appellant asked Rosales for his help in finding Santiago. Rosales said that he knew Santiago's vehicles, and knew the places where he could normally be found. These included Slick Willie's Pool Hall (where Santiago bragged that “they couldn't even kill him right”), Chilo's (where Santiago was present on the night Perez was shot) and the Ritz Cabaret (where appellant and Rosales later found Santiago on the night they succeeded in having him killed). Rosales said that when he left work, he “would drive by most of the places and then go home.” Twice before the Chilo's shooting, Rosales saw Santiago and called appellant, but Santiago was not found.

The State points to other evidence supplied by Rosales that the conspiracy arose after Perez's death. Rosales testified that appellant first decided to kill Santiago after appellant's brother Danny was killed, but there is no non-accomplice testimony about the date of Danny's death. Rogelio testified that Danny was killed on November 2, 2006, but the jury was instructed to determine as a question of fact whether Rogelio was an accomplice, and as discussed further infra, the record indicates that the jury did determine that Rogelio was an accomplice. Moreover, even if the jury could infer...