Jason Gallegos v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-97-00940-CR
Jason GALLEGOS,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CR-0537A
Honorable W. E. Bachus, Jr., Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Karen Angelini, Justice

Delivered and Filed: July 15, 1998

AFFIRMED

Appellant, Jason Gallegos ("Gallegos"), appeals his murder conviction. In two points of error, Gallegos contends the trial court erred by (1) denying Gallegos's request for a jury instruction on the law of accomplice witness as a matter of fact with regard to Jeremy Blades; and (2) denying Gallegos's motion for mistrial based on the State's improper questioning during the punishment phase of the trial, seeking to shift the burden of proof to Gallegos. We affirm the trial court's judgment.

Procedural History

Gallegos was indicted for the murder of Andres Chavez a/k/a "Flipside," whose body was discovered wrapped in a sheet in an alley. No physical evidence was found that linked Gallegos to the murder. The State relied on the testimony of four eyewitnesses to prove its case.(1)

Jeremy Blades (also known as "Big Bird" or "Crazy J") testified that he arrived home on the night of the murder after being released from jail that morning. When he arrived, his sister Sally and her friend, his sister Judith, Manuel Conde (also known as "Joker"), "Nick" (identified by another witness as Jose Perez), "Angel" (unknown by Blades by another name),"Binky" (identified by another witness as Gary Adams), and Gallegos (also known as "Chico") were in the back bedroom of his home. Blades saw people pushing and shoving each other. Blades then saw Gallegos on top of Flipside on the bed. Somewhat conflictingly, Blades also testified that Nick and Angel were pushing Flipside back and forth. Blades testified that he told them to go outside if they were going to be loud. Blades admitted that he might have told them to go outside if they were going to roll (beat up) Flipside. Blades testified that they took Flipside outside in back, and Blades went outside in front to smoke. He was later told that Flipside was dead, and Blades went into the house and went to sleep.

Gary Adams (also known as "Binky") testified that a group of people went to Blades's house for a welcome-back party because Blades was getting out of jail. Adams testified that Flipside had been drinking and was swinging at the air and insulting the Kings and Surrenos, the gangs to which Nick, Angel, Gallegos, Adams, and Blades belonged. Adams stated that Nick and Gallegos were upset, and Nick told Flipside to calm down. Nick, Gallegos and Flipside went for a walk and returned in about ten minutes. Some of the group went to the back of the house, including Gallegos, Flipside, Angel, Nick, and Adams. Although they said everything was fine, Gallegos slapped Flipside a few times. Flipside apologized, and Gallegos told him everything was fine and for everyone to go to bed. Everyone then went into the back bedroom, including Gallegos, Nick, Angel, Joker, Adams, and Flipside. Blades opened the bedroom door, and everyone welcomed him. Adams saw Gallegos making a lasso out of wire.(2) Gallegos, Flipside, and Crystal were on the bed. Gallegos told Flipside to put the wire around his neck. Flipside said no, but began to apologize again. Gallegos got on top of Flipside and put the wire around his neck. Gallegos put a pillow over Flipside's face to keep him quiet. Nick and Angel were trying to hold Flipside down. Blades told them to go outside. Adams followed them outside and saw Gallegos, Nick, Angel and Joker beating and kicking Flipside. Adams saw Gallegos with a knife. Gallegos handed the knife to Nick and told him to stab Flipside. Adams saw Nick stab Flipside one time, and Adams turned and went to the front of the house. Blades and two other girls were in the front. Gallegos came to the front of the house and asked for sheets to wrap the body. Blades gave Gallegos some sheets. Adams went to the back of the house and saw holes and blood all over Flipside's body. At Gallegos's direction, Angel, Joker and Adams carried the body into the alley, and an attempt was made to clean up the blood.

Crystal Martinez testified that she, Sally, Adams, another girl named Crystal, Shorty, Gallegos, Nick, Flipside and Charlie were on the front porch at Blades's house. Crystal stated that Nick and Gallegos got upset at Flipside because he was insulting the Kings and Surrenos. Nick went inside and got a knife and told Crystal that he and Gallegos were going to take Flipside to the train tracks and scare him. Nick, Gallegos and Flipside left for approximately thirty minutes to an hour. When they returned, they said everything was fine and went to the back bedroom of the house.(3) Sally and Crystal went inside to the kitchen, and Blades arrived. Sally went and opened the door to the back bedroom. Crystal saw Gallegos get on top of Flipside and was holding him by the neck. Blades went into the room, and Gallegos told him about Flipside's insults. Blades went and put his hand on Flipside's face. Crystal then testified Blades "said, 'You don't know me like that. I'm crazy.' And he was cutting. And he was like, 'If you wake up my mom, I'm going to kill you." Crystal said the door closed. Afterward, Gallegos, Joker, Nick, and Blades brought Flipside to the back yard, with Elizabeth following. Crystal was upset because there was blood on Flipside's face. When Crystal and Sally went to the back yard, Flipside, Nick, Angel, Adams, Blades, and Gallegos were already outside. Gallegos, Nick and Angel were beating Flipside. Crystal then saw Nick pull a knife and approach Flipside. Crystal turned away. Crystal said that she thought Blades was in the back at the time. Sally and Crystal went to the front. Blades went to the front to see if there were any cops and told Sally and Crystal to go into the house because it was curfew. Adams and Blades were on the front porch. Gallegos came to the front and told Crystal to say that Flipside was never there.

Elizabeth Mendoza testified that she went to Blades's house with Judith, Sally, two girls named Crystal, Shorty and some other girl. The girls were waiting for some guys to arrive. Elizabeth stated that everyone was there to celebrate Flipside getting out of jail.(4) Sometime later, Angel, Joker, Fernando, Nick and Gallegos arrived. Elizabeth said that Flipside was also there and, at some point, started punching in the air "as if he were punching the guards because he had said he had gotten out of jail." Elizabeth stated that the guys were trying to get Flipside to be quiet; then, everyone went into the backyard. Flipside was questioned about his tatoos, and Gallegos became upset because he thought the tatoos were gang-related.(5) Elizabeth said that there was some whispering and then the guys started beating on Flipside. After the guys beat Flipside, they went into the back bedroom of the house.(6) Gallegos got on top of Flipside and started strangling him with shoelaces and, later, with some kind of wire. Flipside's face was covered with a pillow to keep him quiet, while Nick, Angel and Adams were holding Flipside down. Blades came into the room and told the guys to go outside. Flipside was taken outside, and Gallegos, Angel, Joker, Nick, Manuel, and Fernando started beating him again. Gallegos and Nick took Flipside further back in the backyard, and Elizabeth testified that it was too dark to see what happened. Someone then asked for a sheet.

Accomplice Witness

In his first point of error, Gallegos contends the trial court erred in denying his request for a jury instruction on the law of accomplice witness as a matter of fact with regard to Jeremy Blades. In determining whether the trial court erred in its charge, we must first determine whether the evidence raised a question as to whether Blades was an accomplice witness.

An accomplice witness is someone who participates with the accused before, during or after the commission of the crime for which the accused is standing trial. Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991); Husting v. State, 790 S.W.2d 121, 124 (Tex. App.--San Antonio 1990, no pet.). If the witness cannot be prosecuted for the offense with which the accused is charged, the witness is not an accomplice as a matter of law. Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986), cert. denied, 492 U.S. 925 (1989); Husting v. State, 790 S.W.2d at 124. The mere presence of the witness at the scene of the crime is insufficient to make the witness an accomplice witness. Kunkle v. State, 771 S.W.2d at 439; Husting v. State, 790 S.W.2d at 124. Furthermore, a witness's failure to disclose or report an offense, or even active concealment of the offense by the witness, will not make the witness an accomplice witness. Kunkle v. State, 771 S.W.2d at 439; Husting v. State, 790 S.W.2d at 124. In order to be an accomplice witness, there must be some evidence of an affirmative action on the witness's part to assist in the commission of the offense. Kunkle v. State, 771 S.W.2d at 440.

Although Adams testified that Blades provided Gallegos with a sheet that was used to wrap Flipside's body, this testimony does not raise a fact question as to whether Blades was an accomplice because the act of concealing an offense cannot support an accomplice witness finding. Jackson v. State, 933 S.W.2d 696, 697-98 (Tex. App.--San Antonio 1996, pet. ref'd). However, Crystal Martinez testified that Blades placed his hand over Flipside's mouth, threatened to kill him if he was not quiet, and remained in the room with the door closed. In addition, Crystal stated that Blades "was cutting." Although it is unclear what she meant by this statement, Crystal also stated that Flipside had blood on his face when he was taken to the back yard. The jury could infer from this testimony that Blades was cutting Flipside's face. Crystal also testified that Blades was among the individuals who brought Flipside from the back bedroom to the back yard where he was beaten and stabbed. Finally, Blades went to the front yard to look for police.

Crystal's testimony conflicts with the testimony of the other three witnesses. Based on this conflict in the evidence, we hold that Crystal's testimony regarding Blades's action in placing his hand over Flipside's mouth, threatening to kill him, "cutting him," remaining in the closed room, and assisting the individuals in bringing Flipside to the backyard, where he was beaten and killed, were sufficient affirmative acts to raise a question of fact as to Blades's status as an accomplice witness, and the jury should have been so instructed. See Kunkle v. State, 771 S.W.2d at 440; Harris v. State, 645 S.W.2d 447, 456 (Tex. Crim. App. 1983). Having determined that the trial court erred in denying Gallegos's requested instruction, we must determine whether such error resulted in harm to Gallegos. See Posey v. State, No. 427-96, slip op. at 7 (Tex. Crim. App. Mar. 25, 1998).

Gallegos preserved error in this case through a proper request for an accomplice witness instruction as to Blades. Therefore, reversal is required if Gallegos can show some harm from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The actual degree of harm "must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record as a whole." In this case, the jury was given an instruction regarding accomplice witness, which was applied with respect to Adams. If the jury believed Blades fit the definition of an accomplice witness, it had the opportunity to apply the same instruction to him. Furthermore, the jury could have discounted Blades's testimony because he testified as a reluctant witness and because his first statement to the police denied any knowledge regarding the murder. With regard to the state of the evidence, three other eyewitnesses implicated Gallegos, even if Blades's testimony is not considered. Gallegos does not dispute that at least two of those witnesses could not be considered accomplice witnesses. In view of the entire jury charge and the state of the evidence, we hold the trial's denial of the requested jury instruction to be harmless. Gallegos's first point of error is overruled.

Jury Argument

In his second point of error, Gallegos asserts that the trial court erred in denying his motion for mistrial following improper jury argument by the prosecutor during the punishment phase of the trial. Gallegos contends the prosecutor's comment was an attempt to switch the burden of proof.(7)

Although Gallegos's trial counsel objected to the comment and requested a mistrial, he did not request an instruction to disregard.

In order to preserve jury argument error for appellate review, the defendant must (1) make an objection; (2) request an instruction to disregard; and (3) make a motion for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); Bruns v. State, 924 S.W.2d 176, 178 (Tex. App.--San Antonio 1996, no pet.). An instruction to disregard generally cures any error committed by an improper comment during jury argument. Brooks v. State, 642 S.W.2d 791, 798 (Tex. Crim. App. 1982); Bruns v. State, 924 S.W.2d at 178. In this case, Gallegos failed to preserve error by not requesting an instruction to disregard. Gallegos's second point of error is overruled.

Conclusion

Although the trial court erred in denying Gallegos's request for a jury instruction on accomplice witness as a matter of fact with respect to Jeremy Blades, the error was harmless. Gallegos did not properly preserve error with regard to the allegedly erroneous comment by the prosecutor during closing argument. The judgment of the trial court is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. In detailing the testimony of the four witnesses, we have attempted to note where the different accounts are inconsistent. The witnesses were also inconsistent in their testimony regarding whether beer was being consumed on the night of the murder.

2. Two girls named Crystal were at Blades's house the night of the murder. Adams did not specify which Crystal was in the bedroom.

3. Crystal's testimony does not detail any beating of Flipside in the yard before the individuals went into the bedroom.

4. Elizabeth's testimony is inconsistent with Adams testimony that the welcome-back party was for Blades.

5. Elizabeth's testimony does not mention Flipside insulting the gangs.

6. Elizabeth testified that the lights were on, while Adams testified that the lights were off.

7. Specifically, Gallegos complains of the following cross-examination of him by the prosecutor:

Q: Joker's been waiting around here for the past few days, hasn't he?

A. Yes, he is.

Q. All right. And he was present at the offense, wasn't he?

A. Yes, he was, sir.

Q. All right. And you could have called him as a witness if you wanted to?

A. Yes, sir.

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