Zarate v. State
| Decision Date | 18 April 2018 |
| Docket Number | No. 04–16–00485–CR,04–16–00485–CR |
| Citation | 551 S.W.3d 261 |
| Parties | Salvador ZARATE Jr., Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Julie M. Balovich, Abner Burnett, Starr County Public Defender, 310 E. Mirasoles, Rio Grande City, TX 78582, for Appellant.
Martie Garcia Vela, 401 North Britton Ave., Ste. 417, Rio Grande City, TX 78582, for Appellee.
Sitting: Karen Angelini, Justice, Marialyn Barnard, Justice, Patricia O. Alvarez, Justice
Opinion by: Patricia O. Alvarez, Justice
On June 30, 2015, a Starr County Grand Jury returned an indictment against Appellant Salvador Zarate Jr. for two counts of bribery and one count of possession of a controlled substance, less than one gram, alleged to have occurred on December 24, 2014. After several days of trial, on April 14, 2016, the jury returned a guilty verdict on the two counts of bribery and a not-guilty verdict on the possession of a controlled substance. The trial court sentenced Zarate to five-years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of five years. Zarate's motion for new trial was denied by the trial court.
On appeal, Zarate contends (1) the evidence is legally insufficient to support the jury's bribery convictions, (2) the trial court erred in denying his requested entrapment instruction, (3) trial counsel provided ineffective assistance of counsel by failing to seek a continuance when Daisy and Harry Rich failed to comply with the State subpoenas, and (4) the trial court erred in requiring Zarate to forfeit his tax refund as a condition of probation and pay court costs in both bribery counts. Because the trial court erred in charging court costs in two bribery charges stemming from a single criminal action, we reform the trial court's judgment to reflect court costs of $334.00; we affirm the judgment as reformed.
The State's first witness was Starr County Sheriff's Officer Justin Falcon. Officer Falcon testified that he was working in the jail, on December 24, 2014, when he received a call from Justice of the Peace Salvador Zarate Jr. instructing him to reduce the bonds for both Daisy Rich and Harry Rich from $30,000.00 each to $5,000.00 each. Officer Falcon explained that although it was not unusual for justices of the peace to call and reduce a bond over the telephone, the Riches had been arrested earlier that same day for manual delivery of a controlled substance, and it was rare that a justice of the peace would call and change a bond within a matter of hours.
Investigator Ismael Guerra, with the 229th Judicial District Attorney's Office, took the stand and testified that he was contacted by Investigator Trinidad Lopez on December 24, 2014, with information "that Justice of the Peace Salvador Zarate Jr., was going to reduce a bond on two individuals that one of our other investigators had previously arrested, and that he was going to get some currency in return." Because the individual asking to make the exchange was Investigator Lopez's wife, Investigator Guerra took charge of the investigation.
Elizondo testified that Irvin told her than an agreement was made that they were going to pay Justice of the Peace Zarate $500.00 and he was going to reduce the bonds to $5,000.00 each. It was her understanding that the arrangements had already been made. She further testified that she knew that paying to have bonds lowered was illegal and that her husband, Investigator Lopez, overheard the conversation and that he even spoke directly to Irvin.
Elizondo continued that she had never worked with law enforcement before that day and she had never dealt directly with Zarate. During the next several hours, she had multiple telephone conversations with Zarate. They were originally supposed to meet at the parking lot of the Border Town Store; Zarate later called Elizondo and told her to go to his office. Prior to arriving at Zarate's office, Elizondo was outfitted with a watch capable of audio and video recording. She was also provided $500.00 in marked bills and surveillance was arranged outside Zarate's office.
Immediately upon her arrival, Zarate told Elizondo that he had already lowered the bonds. There was no discussion of price with Zarate. He told her, Zarate was adamant that he could not "get any money," and then directed Elizondo to "[p]ut whatever there." Elizondo put the money on the table in front of Zarate. She confirmed there was already an agreement and, "[t]hey just send me with this." To which Zarate responded, Elizondo testified Zarate then "laughed."
On several occasions Elizondo told Zarate that she did not want anyone to think that she took money. "I don't want for there to be any missing money, or there was money left over if something happened." Zarate assured her, He assured her When she asked for paperwork, Zarate assured her that he spoke to "Falcon at the jail." As she left, Zarate told her to "tell [the attorney for whom she worked] to do a motion to reduce bond, and for him to send it to me whenever he has a chance."
Elizondo testified that on two different occasions, Zarate appeared nervous and questioned Elizondo whether she was wearing a wire. She further averred that the $500.00 was for the purpose of lowering the bonds for Daisy and Harry Rich; it was not for a political contribution and it was not a donation.
After Elizondo left Zarate's office, Zarate exited the building and was at his pickup truck when Investigator Guerra approached Zarate and advised him that they were conducting an investigation of "something illegal that was going on in his office." Investigator Guerra asked Zarate if he had anything in his pockets. Zarate took the money out of his pocket; he knew that he had exactly $540.00 in his pocket; he also had a box of cigarettes. Investigator Guerra testified that he personally recovered the money at the Justice of the Peace's office in La Victoria, Rio Grande City, Starr County, Texas; the money was in the possession of Salvador Zarate Jr. Investigator Guerra verified it was the same marked bills that he had previously provided to Elizondo.
Zarate told Investigator Guerra that the money was his and, after Investigator Guerra told Zarate the money was going to be seized, Zarate stated that it "was going to leave him without any Christmas money." Investigator Guerra also received permission from Zarate to search Zarate's pickup truck. He identified a bag that was located in the pickup truck as the "same bag that Justice of the Peace Zarate walked out with from inside his office." Investigator Guerra further testified that he has known Zarate since 2004 and that he was familiar with the bag; it was the same bag that Zarate always takes inside the jail. Investigator Guerra explained Zarate keeps all of his paperwork to magistrate defendants in the bag. Inside the bag, the officers found a "Marlboro cigarette box with no cigarettes, only a clear, corner-cut, classic baggy containing a white, powdery substance." The substance was later confirmed to be cocaine.
After the State rested, the defense called several witnesses. Juan Artemio Barrera testified that he had known Zarate for ten years and was contacted by Martin Terran to see if Zarate could "help" after Daisy and Harry Rich were arrested. Barrera spoke to Zarate and then Terran. Terran then spoke to Zarate and Mascorro Bail Bonds. Barrera and Terran both denied speaking to Elizondo or offering Zarate money in exchange for reducing the bonds.
The trial court denied defense counsel's motion for directed verdict and his requests to include an entrapment instruction in the court's jury charge. Following closing arguments, the jury began deliberations, during which time several notes were submitted to the trial court, including a request for a computer on which to view the videotapes submitted in evidence. After approximately six hours of deliberations, the jury returned a not guilty verdict on the possession of a controlled substance, but found Zarate guilty on both counts of bribery.
After considering a presentence investigation report and seventeen letters of recommendation, the trial court opined as follows:
At the end of the day, it's not a win/win; it's a lose/lose. It's not only a loss for you, Mr. Zarate, and your family, but it's a loss to our judicial system. It's especially a loss to our great county, and a really bad loss for the good folks of Alto Bonito. It's just a bad situation.
The trial court subsequently sentenced Zarate to five-years' confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended and probated for a term of five years, on each count.
Zarate raises four issues on appeal: (1) the evidence is legally insufficient to support the jury's bribery convictions, (2) the trial court erred in denying...
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