Zamora v. State of Tex.

• Decision Date: 28 August 2012
• Docket Number: No. 14–11–00342–CR.,14–11–00342–CR.
• Parties: Jaime Arturo ZAMORA, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

375 S.W.3d 382

Jaime Arturo ZAMORA, Appellant

v.The STATE of Texas, Appellee.

No. 14–11–00342–CR.

Court of Appeals of Texas,

Houston (14th Dist.).

June 19, 2012.

Rehearing En Banc Overruled Aug. 28, 2012.

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

Michelle R. Townsend, Houston, for the State.

Panel consists of Justice FROST and Justices BROWN and CHRISTOPHER.

OPINION

TRACY CHRISTOPHER, Justice.

Jaime Arturo Zamora appeals his conviction for capital murder, arguing that the trial court erred in failing to give an accomplice witness instruction for a key prosecution witness; submitting a confusing instruction for three other accomplice witnesses; refusing to allow him to question potential jurors about their possible biases against Hispanics; and failing to give a contemporaneous limiting instruction when it admitted a witness's prior inconsistent statements for impeachment purposes. We affirm.

I. Factual and Procedural Background

Appellant and his brother, Danny Zamora, ran a drug distribution network sourcing cocaine and marijuana from Monterrey, Mexico for resale in Houston, Texas. Santiago Salinas, at first a customer of the Zamoras, began to source his own product from Monterrey and compete with the Zamoras for Houston sales in 2005. Benjamin Rosales was a Houston-area paint and body shop owner who maintained a side business reselling drugs out of his shop, first using Salinas as a supplier and later the Zamoras. At some point in 2005, Appellant told Rosales that Salinas owed Danny Zamora money for “some cocaine that he had lost” and he wanted someone to collect the money for him. According to Rosales, appellant gave “three choices. One, he wanted to have him kidnapped to pay the money; or secondly, just go ahead and kill him.” The third choice was to collect the debt peacefully. According to Rosales, appellant's primary goal at this time was to collect the money. Rosales tried to recruit two associates to take the job but they declined.

In the late spring or early summer of 2005, four armed men robbed one of the Zamoras' cocaine storehouses in Houston. The Zamoras suspected Salinas was behind the robbery. After the robbery, appellant's intentions appeared to change. He “[w]anted to collect the money that was owed and then afterwards, later on, give it some time, and then turn around and kill [Salinas] anyway.” Appellant also told Rosales he had “other people working on it.” In May 2006, Danny Zamora orchestrated an attempt on Salinas's life in Monterrey. Salinas was shot in the neck but survived, after which he returned to Houston and went into hiding. Appellant began to put more pressure on Rosales to find Salinas, particularly after Salinas was overheard bragging about having survived the Monterrey assassination attempt. By this time, collecting the money was no longer appellant's primary goal; instead, “they were wanting to go ahead and just kill him.” Appellant told Rosales to report to appellant if he saw Salinas and that appellant had “some people already ready to go and get him.” Rosales began to drive by certain establishments where he knew Salinas might be, looking for Salinas's car. Rosales called appellant once or twice to tell him he had seen Salinas “but due to the locations ... [Rosales] wasn't able to find him, didn't know where he was going.” ¹

At some point in 2006, Jose Armando Chapa, a customer of the Zamoras, accepted a contract to kill Salinas for one kilo of cocaine or the cash equivalent. On the night of May 20, 2006, appellant called Chapa and said that he wanted to get in touch with Steven Torres, a man whom Chapa had introduced to appellant in January or February of that year. Later that night, Pedro Quintanilla received a call from Torres telling him that he had a job for Quintanilla and an associate of Quintanilla's named Michael Belmarez. Quintanilla and Belmarez were to kidnap Salinas at a seafood restaurant called Chilo's. They did not know Salinas, but Torres described him as wearing an “old school” Houston Astros jersey. Jose Perez was at Chilo's that night with his wife and two young children. He was wearing a Houston Astros jersey meeting that description. As Quintanilla and Belmarez waited in the parking lot outside Chilo's, Torres called them and told them that they should kill Salinas rather than kidnap him. Perez and his family left the restaurant and headed toward their car. Quintanilla got out of the car in which he was waiting, shot Perez three times, and left with Belmarez. Perez died on the scene.

Rosales heard about Perez's murder the next day and was told by an unidentified person that Perez had been a mistaken victim in the hunt for Salinas. Two or three days later, Rosales called Detective E.R. Rogge of the Pasadena Police Department, with whom he had had past contacts, hoping to receive a reward for the information from Crime Stoppers. Detective Rogge told Rosales that the murder had taken place outside of his jurisdiction and Rosales should call the Houston Police Department. Rosales did not make that call. Rosales spoke with appellant, who told him that Perez's murder had been a mistake and that the assassins were “going to be dealt with.” Nonetheless, Quintanilla and Belmarez received payment from Torres for their work.

Appellant's efforts to kill Salinas intensified after Danny Zamora was assassinated in Monterrey on November 2, 2006. This event eliminated any remaining possibility of merely collecting the debt; appellant's sole aim at this point, according to Rosales, was “to find [Salinas] and he was not worried about the money anymore.” On November 20, 2006, appellant and Rosales spotted Salinas at a topless club. Rosales called a customer of his auto shop who had volunteered to kill Salinas and appellant called “somebody else he had” as well. To stall Salinas, Rosales asked three women he knew from the club to keep Salinas busy until the assassins could arrive. The women invited Salinas to join them at the Baymont Hotel, and appellant and Rosales trailed them there. Rosales got the room number from one of the women and communicated it to the hitmen, who arrived and killed Salinas. Appellant paid the assassins at Rosales's shop the next day.

Appellant was charged with the capital murder of Perez. At trial, the jury heard the testimony, summarized above, of Rosales, Belmarez, Chapa, and appellant's brother-in-law Rogelio Gonzalez. No other witnesses connected appellant with Perez's murder. The jury convicted appellant and he was sentenced to life in prison by operation of law.²

II. Questions Presented

In four issues, appellant argues that the trial court erred in (1) failing to give an accomplice-witness instruction for Rosales; (2) refusing to allow appellant to question potential jurors about their possible bias toward Hispanics; (3) submitting a confusing accomplice-witness instruction for Chapa, Belmarez, and Gonzalez; and (4) failing to give a contemporaneous limiting instruction when the State introduced Chapa's prior inconsistent statements for impeachment purposes.

III. Analysis

A. Accomplice Witness as a Matter of Fact

Appellant first argues that the trial court should have given the jury an instruction on whether Rosales was an accomplice witness as a matter of fact. Before a conviction may rest upon an accomplice witness's testimony, that testimony must be corroborated by other evidence tending to connect the accused with the crime. Tex.Code Crim. Proc. Ann. art 38.14 (West 2005); Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.2007). An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the requisite culpable mental state. Druery, 225 S.W.3d at 498 (citing Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App.2004) and Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App.1986)). To be considered an accomplice witness, the witness's participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged. Id. Complicity with a defendant in the commission of another offense separate from the charged offense does not make that witness an accomplice. Id.

A witness may be an accomplice either as a matter of law or as a matter of fact; the evidence in a case determines which jury instruction, if any, needs to be given. Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App.2006). A trial court is obligated to instruct the jury that a witness is an accomplice as a matter of law only if there is no doubt that the witness is an accomplice. Druery, 225 S.W.3d at 498. A matter-of-law accomplice instruction is appropriate when the witness is charged with the same offense as the defendant or with a lesser-included offense, or the evidence clearly shows that the witness could have been so charged. Id. If the evidence as to a witness's status as an accomplice is conflicting, the jury should determine the witness's status under instructions defining an “accomplice.” Id. at 498–99;Blake v. State, 971 S.W.2d 451, 454–55 (Tex.Crim.App.1998). However, there must be some evidence of an affirmative act on the part of the witness to assist in the commission of the charged offense before such an instruction is required. Druery, 225 S.W.3d at 499. The trial court is not required to give the jury an accomplice witness instruction when the evidence is clear that the witness is an accomplice neither as a matter of law nor as a matter of fact. Cocke, 201 S.W.3d at 747 (Tex.Crim.App.2006).

When reviewing claims of jury-charge error, we first determine whether error actually exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). If error exists and the appellant objected to the error at trial, we then determine whether the error was sufficiently harmful to warrant reversal. Id.;Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g). In this case, there was...