Michael Trujillo v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00467-CR
Michael TRUJILLO,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-3469-B
Honorable Raymond Angelini, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 14, 2004

AFFIRMED

Appellant, Michael Trujillo ("Trujillo"), was convicted of capital murder and sentenced to life imprisonment. On appeal, Trujillo contends the trial court erred in excluding evidence in support of his defensive theory and in failing to give the jury an accomplice witness instruction. We overrule Trujillo's issues and affirm the judgment of the trial court.

Background

Trujillo was charged with the capital murder of Jose Manjarrez ("Manjarrez") and Steven Valle ("Valle") in the course of the same criminal transaction on December 27, 2001. At trial, several witnesses testified that Trujillo owed Manjarrez money for drugs and Manjarrez had recently threatened Trujillo. On the evening of December 26, 2001, Trujillo invited Manjarrez to come over to his house to get the money. Manjarrez arrived with Valle at Trujillo's house at about 11:00 p.m. in a green Lexus vehicle. Trujillo paid Manjarrez some money toward his debt and they went into the garage to play pool. There were several people present in Trujillo's garage: Fernando Gonzalez ("Fernando"), Steve Salgado ("Salgado"), Manjarrez and Valle, Trujillo, and Adam Gomez ("Gomez") and Daniel Gonzalez ("Danny"), two purported Mexican Mafia members. Manjarrez and Valle had handguns that they showed Trujillo and the others in the garage. One witness testified that Manjarrez had a dispute with the Mexican Mafia in November or December 2001, about paying them a percentage of his drug profits. Gomez left for a few minutes and returned with a handgun that looked like a TEC 9 with a silencer. A friend of Manjarrez testified that Manjarrez had given Trujillo a TEC 9 handgun a few days before Christmas. Gomez ordered Manjarrez and Valle to lie face down on the garage floor. Gomez, or Gomez and Danny, then shot Manjarrez and Valle twice in the back of their heads with two different caliber guns.

Gomez drove the Lexus around to the back alley behind the garage. Gomez and Fernando put Manjarrez into the trunk, and Trujillo and Danny put Valle in the backseat. All of the men, except Salgado, drove away in the Lexus and two of Trujillo's vehicles to dispose of the bodies. Salgado stayed at Trujillo's house. When Trujillo returned, he asked Salgado and Fernando to help him clean up the blood in the garage. Trujillo then took all four men with him to his girlfriend's apartment, where they stayed for a few hours until Trujillo drove Gomez and Danny home. Salgado stayed behind at the apartment. In the car on the way to the girlfriend's apartment, Salgado testified that Gomez said, "this happened because Mike [Trujillo] and his family were threatened."

The next day, Trujillo asked Salgado and Fernando to help him paint the garage floor; he told them to throw away any shell casings they found. Trujillo told Salgado he was sorry that he had seen the murders and that he was in the wrong place, but that he and his family were threatened and to "chill out about it." Salgado asked Trujillo what had happened with the two guys who were shot, and Trujillo replied "we just got rid of them." A few days later, Trujillo had a New Years Eve party in the garage at which all of the witnesses to the murders were present, including Gomez and Danny. No one talked about the murders. Trujillo continued associating with Gomez and Danny until his arrest in February 2002.

Trujillo was tried and convicted of capital murder by a jury under the law of parties. The State waived the death penalty, and the court assessed an automatic life sentence. On appeal, Trujillo does not challenge the sufficiency of the evidence, but raises evidentiary and jury charge issues.

Exclusion of Evidence

In his first and second issues, Trujillo argues the trial court erroneously excluded testimony by his wife, Lori Trujillo ("Lori"), and a neighbor, Raymond Gill ("Gill"), that Danny Gonzalez had threatened Trujillo and his family. Trujillo asserts the excluded evidence would have supported his defensive theory that the murders were a Mexican Mafia hit and would have explained why he gave two inconsistent statements to police, i.e., because he was afraid of Danny. In his initial statement to police, Trujillo admitted he knew Manjarrez, but claimed he knew nothing about the murders. In a second statement, Trujillo admitted being present when Gomez shot Manjarrez and Valle (1) in his garage, but claimed he did not know Gomez was going to shoot them. Trujillo stated that he assisted Gomez in disposing of the bodies, destroyed the evidence in the garage and did not tell anyone about the murders because Gomez was a Mexican Mafia member and he was afraid of him.

In her proffer, Lori testified that Danny was at the Trujillo house several days after the New Year's Eve party, and made the statement to her, "you better watch out, woman, or I'll take you to the garage." Lori did not understand what Daniel's statement meant at the time he said it. She first learned about the murders in her garage when she and Trujillo were questioned by the police in February 2002. Lori also testified in her proffer that after Trujillo was arrested, Danny went to a restaurant owned by Gill, Trujillo's neighbor, and questioned him about where Lori had moved. Lori testified she was afraid of Danny "because Michael [Trujillo] had told me that he was the one who actually did the murders." Similarly, Gill testified in his proffer that Danny came to his restaurant in January or February 2002, and questioned him about where Lori was living. The State objected that Lori's testimony was not relevant, and that Gill's testimony was hearsay and irrelevant; the court agreed and excluded the evidence.

A trial court's ruling excluding evidence is reviewed for abuse of discretion, and will not be disturbed if it is within the zone of reasonable agreement. Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (opinion on rehearing). The trial court's ruling will be affirmed if it is correct under any theory of law applicable to the case, in light of what was before the trial court at the time of the ruling. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).

There was no evidence admitted, or proffered, that Trujillo was aware of Danny's statement to Lori or Danny's inquiries to Gill about her location at the time Trujillo made his first statement claiming no knowledge of the murders. Threats against a defendant's family are irrelevant as to the defendant's state of mind if there is no evidence the defendant knew of the threats. See Mozon v. State, 991 S.W.2d 841, 845 (Tex. Crim. App. 1999); see also Davis v. State, 104 S.W.3d 177, 181 (Tex. App.--Waco 2003, no pet.). Absent any evidence that Trujillo knew of Danny's threatening statements at the time he gave the inconsistent statements, the evidence was not relevant to Trujillo's state of mind.

Even if exclusion of the evidence proffered by Lori and Gill was error, it was not harmful error under Texas Rule of Appellate Procedure 44.2. See Tex. R. App. P. 44.2. Exclusion of evidence is non-constitutional error unless it precludes the defendant from presenting the substance of his defense. Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002). Rule 44.2(b) provides that non-constitutional error that does not affect a defendant's substantial rights must be disregarded on appeal. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). A reviewing court may not reverse a conviction for non-constitutional error if, after reviewing the record as a whole, it has "a fair assurance that the error did not influence the jury, or had but a slight effect." Id. In making the harm analysis, the reviewing court should consider the entire record, including any defensive theories. Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002).

Here, exclusion of the proffered evidence did not prevent Trujillo from presenting his defense that the murders were a Mexican Mafia hit and he assisted in the cover-up because he was afraid of Gomez and Danny. His defensive theory was established by other evidence in the record, including: Trujillo's second statement in which he said he assisted in the destruction of evidence, did not report the murders and denied any knowledge of them because he was afraid of Gomez; Lori's testimony that Trujillo took an alternate route home from the police station because he was afraid for their lives; and Fernando's testimony that after the shootings, Gomez and Danny pointed their guns at the rest of them and Danny told Fernando to bring Mike [Trujillo] back to help or they were going to go inside and kill his family. Fernando also testified that Gomez and Danny were still holding their guns while they gave Trujillo and the other men orders to load the bodies into the Lexus and while they drove to the site where the car was abandoned; Fernando stated that Danny threatened to kill him next if he did not assist them. Finally, there was evidence that Danny had just been released from prison in November 2001, that Gomez was an admitted member of the Mexican Mafia, and that Manjarrez had a recent dispute with the Mexican Mafia over drug profits.

In light of the record as a whole, we hold that the trial court's exclusion of the proffered evidence was not error, and even if error, it did not influence the jury's verdict or had but a slight effect; therefore, it was not harmful error under Texas Rule of Appellate Procedure 44.2(b).

Accomplice Witness Instruction

In his third and fourth issues, Trujillo asserts the court erred in failing to instruct the jury that Salgado was an accomplice witness as a matter of law or as a matter of fact. The State argues that Trujillo's third issue is not preserved for review because he did not request an instruction on accomplice witness as a matter of law. In addition, the State asserts Salgado was not an accomplice witness because there was no evidence that Salgado had the specific intent to promote or assist in the commission of capital murder.

Trujillo requested an accomplice witness instruction for Salgado. Specifically, Trujillo asked the court to determine whether he was an accomplice as a matter of law, and if not, whether there was sufficient evidence to raise a jury question of whether he was an accomplice as a matter of fact. The court agreed to make that determination, and ultimately, decided that an accomplice witness instruction was not warranted. We find Trujillo preserved both issues on the accomplice instruction. Therefore, we must determine whether Salgado is an accomplice for purposes of the accomplice witness rule.

Under Article 38.14 of the Texas Code of Criminal Procedure, a conviction cannot be based on the testimony of an accomplice unless such testimony is corroborated by other evidence tending to connect the defendant with the offense; the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); see Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). In addition, one accomplice witness cannot corroborate the testimony of another accomplice witness. Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971).

A person is an accomplice if he or she participates before, during, or after the commission of the offense and acts with the culpable mental state required for the offense. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). The participation necessary to be an accomplice must involve an affirmative act by the witness that promoted the commission of the offense. Id.; Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). An accomplice as a matter of law is one who is susceptible to prosecution for the same offense as the defendant or a lesser-included offense. Paredes, 129 S.W.3d at 536. The critical question is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice; whether the witness is actually charged and prosecuted is not relevant. Blake, 971 S.W.2d at 455.

Mere presence during the commission of the crime does not make one an accomplice. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). Nor does a person become an accomplice for "knowing about a crime and failing to disclose it, or even concealing it." Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999); Blake, 971 S.W.2d at 454. Even where the evidence shows the witness was present during commission of the crime and participated in concealing the crime, such evidence is not sufficient to raise the issue of accomplice status. Smith v. State, 721 S.W.2d 844, 851 (Tex. Crim. App. 1986). Further, the witness's participation with the defendant in the commission of other offenses does not make the witness an accomplice to the charged offense. Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987); see also Husting v. State, 790 S.W.2d 121, 124 (Tex. App.--San Antonio 1990, no pet.)

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 so instruct the jury. Paredes, 129 S.W.3d at 536; Blake, 971 S.W.2d at 455. If the evidence presented by the parties is conflicting and it is not clear whether the witness is an accomplice, the question of whether the witness is an accomplice as a matter of fact must be submitted to the jury under instructions defining the term "accomplice." Paredes, 129 S.W.3d at 536. 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 an issue regarding whether the witness is an accomplice as a matter of fact is required to be given. Gamez, 737 S.W.2d at 322. Therefore, we examine the record for evidence of Salgado's participation in the capital murder.

In arguing that Salgado is an accomplice witness, Trujillo stresses that Salgado was present during the commission of the murders, assisted in concealing the murders and failed to disclose the murders. Even though he was present, there is no evidence that Salgado took any action to promote or assist in the commission of the murders. To the contrary, the undisputed evidence reflects that Salgado was merely present in the garage when Adam Gomez, or Gomez and Danny Gonzalez, shot Manjarrez and Valle. Mere presence during the crime is insufficient to make Salgado an accomplice. Solomon, 49 S.W.3d at 361. There was no evidence that Salgado had any knowledge of Adam and Danny's intent to kill Manjarrez and Valle, or that he himself had the intent to promote or assist in the commission of the murders. There is no evidence that Salgado entered into any prior agreement to assist in the commission of the murders. See Husting, 790 S.W.2d at 124 (stating that "accessory after the fact," under terminology used in the 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).

Salgado's actual participation was limited to assisting in the concealment of the murders by, at most, helping to carry one of the bodies to the car, cleaning and painting the garage and throwing away shell casings - all at the instructions of Danny or Trujillo. Salgado testified that immediately after the murders he was "in shock" and "froze" where he was standing, while the other four men rushed around and looked outside to see if anyone had heard the shots. Trujillo turned on the radio and turned off the lights. Gomez drove the Lexus around into the alley behind the garage. Fernando helped Gomez put Manjarrez's body in the trunk. Danny told Salgado "don't just stand there, do something," and instructed Salgado to help him move Valle's body. Salgado hesitated, but began to help carry the body; Trujillo then came over and took Salgado's place, helping Danny put Valle in the backseat. Salgado testified the reason he hesitated was because he "did not want to have anything to do with it." The other four men left in the Lexus and two of Trujillo's vehicles to dispose of the bodies. Salgado stayed behind and went inside Trujillo's house.

When the four men returned, Trujillo told Salgado to come back to the garage and help clean up, which he did. Trujillo then drove Salgado, Fernando, Gomez and Danny over to his girlfriend's apartment. When Trujillo later left to drop Gomez and Danny off, Salgado again stayed behind, spending the night at the girlfriend's apartment. The next day, Trujillo asked Salgado to help him clean and paint the garage, and Salgado agreed because he "always told him [Trujillo] yes." Trujillo told Salgado to look for shell casings and throw them away; he found three which he threw away. Salgado helped Fernando paint the garage floor. Finally, Salgado testified he did not call the police or tell anyone about the murders because he was afraid of Gomez. Salgado's participation in concealing evidence of the murders and his failure, out of fear, to report the crime do not make him an accomplice witness. See Medina, 7 S.W.3d at 641; Blake, 971 S.W.2d at 454.

Based on our review of the record, we hold the evidence is clear that Salgado was not an accomplice witness as a matter of law and there was no evidence to warrant submitting an issue to the jury of whether he was an accomplice as a matter of fact. See Smith, 721 S.W.2d at 851; Paredes, 129 S.W.3d at 536. Accordingly, the court did not err in failing to give an accomplice witness instruction to the jury. Trujillo's third and fourth issues are overruled.

Based on the foregoing reasons, we overrule Trujillo's issues on appeal and affirm the judgment of the trial court.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. Trujillo stated that after Gomez shot Manjarrez, he walked out of the garage and toward his house to vomit. He heard the two shots that killed Valle, but did not see the actual shooting.