Leroy Martinez v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

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No. 04-99-00469-CR

Leroy MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-4125-A
Honorable Pat Priest, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 4, 2000

Affirmed

Leroy Martinez appeals his conviction for murder. On appeal, Martinez challenges the legal sufficiency of the evidence. We affirm the judgment of the trial court.

Factual and Procedural Background

On May 4, 1998, Antonio Munoz was shot fatally at his home. Daniel Sanchez, an accomplice witness as a matter of law, testified to the events of that day. On the day of the shooting, Sanchez, Crisencio Resendez, appellant, Leroy Martinez, and his brothers, Richard and Gary, were at the apartment that Sanchez and Leroy Martinez shared. Richard and appellant had a conversation regarding Antonio Munoz, whom they believed had insulted one brother by calling him a derogatory name, and decided they should "straighten him out." Appellant had a gun in the waist of his sweat pants. All five got into appellant's car and went to a convenience store close to the victim's home where appellant and his brother, Richard got out, retrieved something from the trunk, (1)

and left on foot. Sanchez then drove Resendez and Gary Martinez to a gas station and returned to the convenience store to wait for appellant and Richard. They overheard a person coming out of the store describing someone with a gun; Sanchez feared the two had been "caughten on to" and decided to go looking for them instead of waiting. They did not find them and returned to the apartment where they received a phone call from appellant to pick him up at a pizza parlor, which they did. Upon arriving, appellant told them to drive around to find Richard. They found and picked up Richard across from Edgewood High School. After they returned to the apartment, Sanchez overheard one of the brothers say something like they knew they had hit him because it was at close range. Chris Resendez, an accomplice as a matter of fact, also testified about the drive to the convenience store, the gas station, back to the convenience store, to the apartment, to the pizza parlor to pick up Leroy, and then to their looking for and picking up Richard.

San Antonio Police Officer, Thomas Ortiz, testified about the unsolicited statements given by appellant while in custody. Appellant stated it was an accident and they did not mean to do it. He then went on to explain that when his brother and the victim got into a struggle, he saw the flash of a gun and began shooting.

Witness Maria Valadez testified that on the night of May 4, she saw two men walking down a path across the street from Edgewood High School about the same time Sanchez and Resendez testified to looking for and picking up Richard. Rebecca Gallegos also testified to seeing a man coming out of a vacant lot across from Edgewood High School, squatting as he ran, and getting into the passenger side of a dark Cadillac.

The jury found appellant guilty of murder and sentenced him to thirty years confinement. Martinez argues in this appeal that in the absence of the accomplice witness testimony, the evidence is legally insufficient to support the judgment.

Accomplice Witness Rule

A person is defined as an accomplice if he could have been prosecuted for the same offense as the defendant, or for a lesser included offense. Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998). If the evidence clearly demonstrates that a witness is an accomplice witness as a matter of law, the trial court must instruct the jury on the law governing accomplice testimony. See Blake, 971 S.W.2d at 455; Long v. State, 10 S.W.3d 389, 393 (Tex. App.-Texarkana 1999, pet. ref'd).

Under Article 38.14 of the Code of Criminal Procedure, "a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it proves merely the commission of the offense." Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 805 (2000). The corroborating evidence need only tend to connect the defendant to the offense, it is not necessary for the corroborating evidence to directly connect the defendant to the crime or be enough by itself to establish guilt. Id. "If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of 38.14 has been fulfilled." Id. The "tend to connect" requirement, however, is not reviewed under standards of either legal or factual sufficiency of the evidence. Id. at 462-63. Rather, it is a statutorily imposed sufficiency review requiring only that there be other evidence "tending to connect the defendant with the offense." Id. at 463. Evidence of the defendant's presence at the scene, in addition to other suspicious circumstances, even seemingly insignificant ones, may well be enough to tend to connect the defendant to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Similarly, evidence that the defendant was in the presence of the accomplice at or near the time or place of the offense is proper corroborating evidence. Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App. 1988).

We review non-accomplice testimony in the light most favorable to the jury verdict. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997); Ayers v. State, 879 S.W.2d 176, 178 (Tex. App.-Houston [14th Dist.] 1994, no pet.). The jury is the sole trier of fact, and it may judge the credibility of the witnesses, reconcile conflicts in the testimony, and accept or reject any or all of the evidence on either side. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). In order to obtain a conviction for murder under the facts in this case, the State was required to prove, beyond a reasonable doubt, that appellant either: "intentionally or knowingly cause[d] the death of an individual; or intend[ed] to cause serious bodily injury and commit[ed] an act clearly dangerous to human life that cause[d] the death of an individual." Tex. Pen. Code Ann. 19.02(b) (Vernon 1997).

Here, the State called accomplice witness as a matter of law, Daniel Sanchez, and the proper jury charge instruction was given for this type of accomplice witness testimony. See Blake, 971 S.W.2d at 454 & n.8 (mandating an instruction be given to the jury on the corroboration requirement of the accomplice witness rule only when an accomplice witness is called by the State); Solis v. State, 792 S.W.2d 95, 97 (Tex. Crim. App. 1990) (holding that the trial court is required to properly instruct the jury when the evidence clearly shows that a witness is an accomplice as a matter of law). The State also called Chris Resendez, and the proper jury charge instruction for an accomplice witness as a matter of fact was provided to the jurors. See Blake at 455 (explaining the proper instruction to be given to the jury in determining whether a witness is an accomplice witness as a matter of fact).

Accomplice Witness Testimony

Daniel Sanchez testified to what took place at the apartment shared by him and appellant in the company of Resendez, appellant, and his brothers, Richard and Gary. He testified that he saw appellant with a gun prior to leaving the apartment. (2) He recounted the conversation between Richard and Leroy Martinez regarding the victim, Antonio Munoz. He went on to explain how all five got into appellant's car and went to the convenience store close to the victim's home where the appellant and his brother, Richard got out, retrieved something from the trunk, and left on foot. Sanchez then detailed where they went and how they finally picked up Leroy at the pizza parlor and Richard from across the street from Edgewood High School, not far from the victim's home. He reported one of the brothers saying something back at the apartment like they knew they had hit him (the victim) because it was at close range. Chris Resendez testified as well to where the five went and how they retrieved appellant and Richard and returned to the apartment following the events of that day.

Non-Accomplice Testimony

Excluding the testimony of Sanchez and Resendez, we find the non-accomplice testimony tends to connect Martinez to the crime. San Antonio Police Officer, Thomas Ortiz, testified to the unsolicited inculpatory statements given by appellant, while in custody. Appellant stated the shooting was an accident and they did not mean to do it. Appellant also stated to Officer Ortiz that when they got to Munoz's home, Munoz tackled Richard and they began fighting on the floor. While they were fighting, appellant heard someone yell, "Watch out," followed by a gunshot. He then saw the gun muzzle flash and began to shoot. Appellant stated to Officer Ortiz that Munoz "didn't deserve to die like that. Not even a dog should be killed like that."

Rebecca Gallegos testified that she saw a man coming out of a vacant lot across from Edgewood High School who suspiciously squatted as he ran and got into a dark colored Cadillac. (3) Maria Valadez testified that she saw two men walking down a path across the street from Edgewood High School at about the same time that Sanchez and Resendez testified they were looking for and picking up Richard.

Viewed in a light most favorable to the jury verdict, we hold that the non-accomplice evidence tends to connect Martinez with the instant offense. The non-accomplice witness testimony of Gallegos and Valadez corroborates the testimony of Sanchez and Resendez, affirming they were in the presence of appellant near the place of the offense. The strongest corroborating evidence, however, is found in the unsolicited statement of appellant himself. While appellant argues his statement admits only mere presence, and asserts lack of malevolent intent, accident, and defense of third person, we presume the jury, after being properly instructed, concluded the accomplice witness testimony had been corroborated by appellant's statements, as well as by the testimony of the non-accomplice witnesses. See Blake, 971 S.W.2d at 454 (acknowledging that it has been within the province of the jury to assess the credibility of accomplice witness testimony for more than one hundred years). We overrule Martinez's legal sufficiency challenge and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH

1. Sanchez testified that Richard Martinez retrieved what appeared to be a handgun from the trunk.

2. Sanchez testified that the gun he saw appellant with was a 9mm handgun; it was shown through the testimony of a ballistics expert that some of the bullets removed from the body of the victim came from a 9mm handgun.

3. Sanchez and Resendez testified they were in appellant's black Cadillac during the drop off and pick up of appellant and Richard Martinez.