Angel Louis Cruz v. The State of Texas--Appeal from 38th Judicial District Court of Medina County

MEMORANDUM OPINION
No. 04-02-00858-CR
Angel Louis CRUZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 00-10-8344-CR
Honorable Mickey R. Pennington, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 9, 2003

AFFIRMED

Appellant, Angel Louis Cruz ("Cruz"), was convicted of aggravated assault causing serious bodily injury after a joint jury trial with co-defendant, Bobby Perez ("Bobby"). This appeal followed. In one issue, Cruz contends the evidence is insufficient to support his conviction because the testimony against him lacks corroboration under the accomplice witness rule. We overrule Cruz's sole issue and affirm the judgment of the trial court.

Analysis

At trial, several individuals testified Cruz was present at the scene of the assault on Eulalio Alvarez ("Alvarez"), and two witnesses testified they actually witnessed Cruz strike Alvarez. Bobby, one of the two witnesses, testified that Alvarez's injuries were caused by Cruz striking him. The second witness was Bobby's wife, Michelle. She testified that both Cruz and Bobby struck Alvarez with their fists and feet.

On appeal, Cruz argues there is no incriminating evidence, independent of the testimony of accomplices, tending to connect him to the offense. Cruz centers his argument on the claim that not only is Bobby (the indicted co-defendant) an accomplice, but that Bobby's wife, Michelle, is an accomplice as well. Cruz maintains that Bobby's and Michelle's testimony was not corroborated as required by the accomplice witness rule. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). Cruz is correct that a conviction will not be upheld on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense. See Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999); Hernandez v. State, 939 S.W.2d 173, 178-79 (Tex. Crim. App. 1997). In addition, one accomplice witness cannot corroborate another accomplice witness. Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971). Therefore, we must determine if Michelle is an accomplice for purposes of the accomplice witness rule. (1)

At trial, Michelle testified she was present and witnessed the assault. She became "hysterical" because Cruz and Bobby, two young men, were beating Alvarez, an older man. She told Cruz and Bobby to stop because they were going to kill Alvarez, and grabbed Bobby to make him stop. Cruz and Bobby eventually stopped, jumped back into their cars, and left Alvarez on the road. At home, Michelle testified that she was too scared to sleep. She saw blood on Bobby's shoes and cleaned them. She also noticed blood on her clothes and threw them away. Michelle later returned Bobby's shoes to the store where she had purchased them.

In arguing that Michelle is an accomplice witness, Cruz first notes that Michelle was present at the time of the assault and failed to disclose it. Cruz maintains Michelle then "crossed the line" as an accomplice for purposes of the accomplice witness rule when she later "destroy[ed] evidence." We disagree.

A person is an accomplice if he or she participates before, during, or after the commission of the crime and can be prosecuted for the same offense or a lesser-included offense as the defendant. Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999); Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991). The participation necessary to be considered an accomplice must involve an affirmative act or omission by the witness to promote the commission of the offense. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). The critical question is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Id. at 455. Whether the person is actually charged and prosecuted for his or her participation is not relevant; what matters is the evidence in the record. Id.

Where there is no doubt as to the evidence or the evidence clearly shows that a witness is an accomplice as a matter of law, the trial court is under a duty to instruct the jury. Id. (quoting DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990)). If evidence presented by the parties is conflicting, the question of whether a witness is an accomplice as a matter of fact is left to the jury under instructions defining the term accomplice. Id.; see Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987). If the evidence is clear that the witness is not an accomplice witness, neither an instruction that the witness is an accomplice as a matter of law nor a question regarding whether the witness is an accomplice as a matter of fact is required to be given. Gamez, 737 S.W.2d at 322.

As noted above, whether the person is actually charged and prosecuted for their participation is irrelevant to the determination of accomplice status. Blake, 971 S.W.2d at 455. What matters is the evidence in the record. Id. The critical question is whether there is sufficient evidence in the record connecting the person to the criminal offense as a blameworthy participant. Id. Therefore, we examine the evidence for Michelle's participation in the assault on Alvarez.

There is no evidence that Michelle played any part in the actual assault on Alvarez. To the contrary, the undisputed evidence reflects that Michelle tried to stop the assault by yelling at both Cruz and Bobby and by grabbing Bobby. The evidence also reflects that Michelle was unaware of Cruz's and Bobby's intent to attack Alvarez. When she left her home with Bobby, Michelle testified that she understood another friend had been "jumped" at a bar. She accompanied Bobby because they were taking her car. There is no evidence that Michelle entered into a previous agreement with Cruz and Bobby to assist in the commission of the assault. See Husting v. State, 790 S.W.2d 121, 124 (Tex. App.--San Antonio 1990, no pet.) (stating that accessory after the fact [terminology under former penal code] is not an accomplice witness unless there is an agreement prior to the crime for the individual to act as an accessory after the fact).

Cruz argues that by concealing evidence to protect herself, Michelle "crossed the line" and became an accomplice. We disagree. Michelle testified that the acts in which she engaged after the assault were a result of fear. She stated that she "didn't want it to come back towards [her]." Michelle also testified that she engaged in these acts because she was scared of Bobby. See id. (holding witness was not an accomplice and considering acts she engaged in after murder were a result of appellant's threats and fear of him).

We conclude that the evidence does not establish an affirmative act on the part of Michelle to assist in the commission of the assault. The evidence merely establishes Michelle's presence at the assault and her attempts to conceal it. The law is clear that mere presence at the commission of a crime does not make one an accomplice nor is one an accomplice for knowing about a crime and failing to disclose it. Blake, 971 S.W.2d at 454; Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986). Even evidence that the person was present during the crime and then participated in concealing that crime is not sufficient to prove accomplice status. Blake, 971 S.W.2d at 454; see Smith v. State, 721 S.W.2d 844, 851 (Tex. Crim. App. 1986).

Finally, Cruz argues Michelle is an accomplice because she was arrested and charged with conspiracy to commit aggravated assault, the same assault for which Cruz and Bobby were tried. Again, we disagree. The fact that Michelle was charged with criminal conspiracy to commit aggravated assault does not make her an accomplice because criminal conspiracy is not a lesser-included offense of aggravated assault. An offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).

The statutory elements of the charged offense of aggravated assault are that one intentionally, knowingly, or recklessly causes serious bodily injury. Tex. Pen. Code Ann. 22.01(a)(1), 22.02(a)(1) (Vernon & Supp. 2003). The statutory elements of criminal conspiracy are:

(a) A person commits criminal conspiracy if, with intent that a felony be committed:

(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

(2) he or one or more of them performs an overt act in pursuance of the agreement.

Tex. Pen. Code Ann. 15.02(a) (Vernon 2003). The facts required to prove aggravated assault and the facts required to prove criminal conspiracy are not functionally equivalent. Specifically, criminal conspiracy contains the additional element of an agreement with others to commit a felony.Compare Tex. Pen. Code Ann. 15.02(a) with id. 22.02(a) (Vernon 2003); see Outland v. State, 810 S.W.2d 474, 476 (Tex. App.--Fort Worth 1991, pet. ref'd) (holding that criminal conspiracy is not a lesser-included offense of aggravated robbery). Therefore, criminal conspiracy, the offense with which Michelle was charged, is not a lesser-included offense of aggravated assault. See Outland, 810 S.W.2d at 476.

Having reviewed the record as a whole, we conclude Michelle did not commit an affirmative act before or during the assault that would necessitate an accomplice witness instruction either as a matter of law or as a question of fact. See Gamez, 737 S.W.2d at 322. Therefore, her testimony can be considered in evaluating the sufficiency of the evidence.

A challenge of insufficient corroboration is not the same as a challenge of insufficient evidence to support the verdict as a whole. See Cathey, 992 S.W.2d at 462-63 (stating accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards). To corroborate accomplice witness testimony, the law only requires that there be some evidence tending to connect the defendant with the offense. Id. at 463. Michelle testified that she saw Cruz hit and kick Alvarez. Accordingly, Michelle's testimony alone sufficiently tended to connect Cruz with the assault.

Even if we disregarded Michelle's testimony, the testimony of other witnesses, who Cruz does not contend were accomplices, also tended to connect Cruz with the offense. Bobby and Cruz arrived at the scene of the assault in separate cars. Carolina Monreal was driving the car in which Cruz was riding and was following the car being driven by Michelle in which Bobby was riding. Carolina and Gina Huerta, who also was riding in the car with Cruz, saw Bobby get out of his car and start talking to someone. Gina then saw Bobby hit the victim. Carolina and Gina testified that after a couple of minutes, Cruz exited their car and walked over to the other side of Michelle's car where the assault was occurring. At that moment, Carolina heard Gina scream and saw someone on the ground. Gina heard Michelle yelling at Cruz and Bobby to "get them to stop." (Emphasis added). The victim, Alvarez, also identified Cruz as being present at the time of the attack. Accordingly, the testimony of these other witnesses also sufficiently tends to connect Cruz with the assault and corroborates Bobby's accomplice witness testimony.

We overrule Cruz's sole issue on appeal and affirm the judgment of the trial court.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. In the instant case, the trial court did not submit an instruction to the jury on Michelle's status as an accomplice witness as a matter of law or as a question of fact. Cruz did not object to the charge.