Navarro, Jr., Mario v. The State of Texas--Appeal from 28th District Court of Nueces County

NUMBER 13-00-074-CR 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

___________________________________________________________________

MARIO NAVARRO, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 28th District Court
of Nueces County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Ya ez

Opinion by Chief Justice Seerden

This is an appeal from the conviction of Mario Navarro, Jr., appellant, for murder. Tex. Pen. Code Ann. 19.02 (Vernon 2000).

Appellant was among a group of young people who went to North Beach in Corpus Christi in the early morning of July 1, 1994. Upon arriving at the beach, appellant and his compatriots, members of a gang known as the "Little Mobsters," encountered another group of young people who were members of a rival gang. A fight eventually broke out. During this fight, witnesses observed appellant remove a gun or guns from the trunk of a nearby car. Two or three shots were heard. A young man in the rival gang, Armando Rinche, was struck by at least one shot and killed. A witness later identified appellant as the man who shot the victim.

Appellant was arrested five days later. After having the statutory warnings administered to him, appellant gave a written confession to the police. In the confession, appellant stated that, during the fight, a person named Gilbert produced a gun, which he handed to another of appellant's colleagues, Carlos Hernandez. Appellant stated that Carlos, in turn, handed him the gun and "said 'cap him' which means shoot him." Because Carlos was the leader of the gang, appellant said he did as he was told. Appellant admitted shooting the victim in the back.

Prior to trial, appellant filed a motion to suppress his confession. Appellant's motion was predicated on his assertion that his statement was involuntarily made as a result of threats of bodily harm made against appellant and his children by Carlos Hernandez. After a hearing on the motion, the trial court denied the motion. The case proceeded to trial and a jury convicted appellant of murder.

By his first issue, appellant argues that the trial court erred in admitting his confession.

In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be accorded their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We review the trial court's determination under an abuse of discretion standard, and in that regard, we review the record to ascertain whether it supports the trial court's findings. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). It is axiomatic that a defendant's statement must be voluntary in order to be admissible as a matter of due process of law. Tex. Code Crim. Proc. Ann. arts. 38.21, 38.22 (Vernon 1999). In determining if a confession is voluntary, we look to the totality of the circumstances surrounding the giving of the statement. Arizona v. Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, 1253, 113 L. Ed. 2d 302 (1991).

The sole concern of the voluntariness requirement is governmental coercion. Colorado v. Connelly, 479 U.S. 157, 170, 107 S. Ct. 515, 523 (1986). As the Supreme Court has noted, the voluntariness requirement found in the Fifth Amendment is "not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.'" Id.; see also Oregon v. Elstad, 470 U.S. 298, 305, 105 S. Ct. 1285, 1290, 84 L. Ed. 2d 222 (1985). In that regard, the voluntariness of a confession "has always depended on the absence of police overreaching, not on 'free choice' in any broader sense of the word." Connelly, 479 U.S. at 170 (emphasis supplied); see also Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986).

Texas has extended this protection to exclude "evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States." Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 1999). Appellant cites this court to no cases which suggest that the rule in Connelly has ever extended to a private person nor have we found any such authority. In the two most similar reported cases, actions by non-governmental actors were found to not violate constitutional or statutory protections, and the questioned evidence was admitted. See Alvarado v. State, 853 S.W.2d 17, 19 (Tex. Crim. App. 1993) (confession obtained by Mexican officials in Mexico without Miranda warnings was admissible); Lee v. State, 773 S.W.2d 47, 48 (Tex. App.--Houston [1st Dist.] 1989, no pet.) (use of evidence obtained as a result of search by private security guard not prohibited because no prohibition on such a search existed). To reiterate, however, no court of this State has held a confession involuntary as a result of coercion from a private individual.

At the hearing on the motion to suppress, appellant testified that he was instructed to confess to the shooting by Carlos Hernandez, the leader of the Little Mobsters. Appellant did not suggest at any point in his testimony that the pressure he felt was supplied by police officers or other governmental officials. The coercive pressure appellant complains of was supplied entirely by a non-governmental actor. Accordingly, appellant's statement was not involuntary. See Connelly, 479 U.S. at 170-71 (Connelly's statement, compelled by the "voice of God," was not involuntary). The trial court did not abuse its discretion in denying appellant's motion to suppress. Appellant's first issue is overruled.

By his second issue, appellant contends that the trial court erred in excluding evidence that a State's witness had pending criminal charges. Specifically, appellant complains that he sought to impeach the testimony of a State's witness with the fact that the witness had two pending, but unadjudicated felony charges, and "therefore had a reason to lie" about what she observed.

The right to confront one's accuser necessarily includes the right to cross-examine. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). This includes cross-examination "concerning criminal charges pending against a witness and over which those in need of the witness' testimony might be empowered to exercise control." Id. at 498. In order to impeach a witness with evidence of pending criminal charges, "the proponent must establish some causal connection or logical relationship between the pending charges and the witness' potential bias or prejudice for the State." Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998). The existence of an agreement between the witness and the State is not determinative of the defendant's right to cross-examination. Carroll, 916 S.W.2d at 500. Nevertheless, the cross-examination should amount to "an attempt to demonstrate [the witness] held a possible motive, bias or interest in testifying for the State." Id.

In Carpenter, the court of criminal appeals held that the trial court did not abuse its discretion by denying cross-examination into pending charges against a witness. Carpenter, 979 S.W.2d at 635. The court concluded that appellant could not provide any basis, other than an unsubstantiated assertion, for her suggestion that the witness, who was subject to federal criminal charges unrelated to the case against Carpenter, was biased. Id. Without such a showing, there was nothing in the record to suggest that the witness' testimony would be relevant to the charges against appellant. Id. at 634.

Here, the same situation exists. At trial, but outside the presence of the jury, after asking the witness about the pending charges against her and determining that the witness had not entered into a plea bargain with the State, appellant's counsel asked the court to permit cross-examination under Rule 609. Counsel explained that the evidence of pending charges should be admitted because "She obviously has reason to lie, if she's got two pending serious felonies." There was no testimony or evidence which suggested that a plea bargain was likely for this witness.

Appellant has done nothing to logically connect those charges to the witness's testimony in the present case. See id. at 635. Accordingly, we conclude that the trial court did not abuse its discretion by excluding the testimony. Appellant's second issue is overruled.

By his third issue, appellant argues that the trial court erred in charging the jury on the law of parties and by failing to apply the law to the facts in the instructions. Appellant's primary contention with regard to this issue is that the evidence adduced at trial was insufficient to show that he acted as a party to the commission of the offense if he was not the primary actor.

When the evidence is sufficient to support both primary and party theories of culpability, the trial court does not err in submitting an instruction on the law of parties. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). The evidence will be sufficient to convict under the law of parties if the defendant is physically present at the scene of the offense and encourages its commission by words or other actions. Id. Participation in the criminal enterprise may be inferred from the circumstances surrounding the offense and may be shown by circumstantial evidence. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Any charge which instructs the jury on the law of parties must also contain an application paragraph in which the facts of the case are tied to the law of parties. Jones v. State, 815 S.W.2d 667, 670 (Tex. Crim. App. 1991).

Here, the evidence indicated that appellant was present when the victim was shot during a fight. There was evidence that appellant removed some guns from the trunk of a nearby vehicle and handed those guns to others who were involved in the fight. There was no evidence to suggest that a weapon other than one fired by appellant or his compatriots was the one used to kill the victim. According to appellant's own confession, he was ordered to shoot the victim by Carlos Hernandez. Appellant's statement evidences his understanding that Carlos Hernandez intended the victim to be shot. There was some conflicting testimony which suggested that perhaps someone other than appellant fired the shot that struck the victim. Nevertheless, the evidence shows that appellant either fired the shot which struck and killed the victim or participated in the intentional shooting by supplying others with weapons. We conclude that this evidence is sufficient to establish that appellant was present when the victim was shot and that appellant either fired the gun himself or participated in the shooting by supplying weapons to whomever shot and killed the victim. Thus the trial court did not err by including an instruction on the law of parties in its charge.

We furthermore find no support for appellant's contention that the trial court failed to apply the law to the facts in its charge. The record reflects that the charge contains a paragraph which explains that appellant could be guilty of murder if the jury found beyond a reasonable doubt that Carlos Hernandez intended to cause the death or serious bodily injury of Armando Rinche and if the defendant knew of that intent and acted to promote the commission of the offense by Hernandez. This paragraph clearly applies the law of parties to the circumstances of this case. Appellant's third issue is overruled.

The judgment of the trial court is AFFIRMED.

ROBERT J. SEERDEN, Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 31st day of August, 2000.