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

MEMORANDUM OPINION
No. 04-02-00166-CR
Richard MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CR-4125B
Honorable Bill M. White, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 16, 2003

AFFIRMED

Appellant, Richard Martinez ("Martinez"), appeals his conviction for murder. Martinez raises three issues on appeal, asserting that: (1) the evidence was legally and factually insufficient to support a finding of guilt because an accomplice witness's testimony was not sufficiently corroborated; and (2) the State engaged in improper jury argument. We affirm the trial court's judgment.

BACKGROUND

Antonio Munoz ("Munoz") and his wife, Yolanda Knotts ("Knotts"), were at home on the evening of May 4, 1998. After hearing knocking, Munoz walked to the rear of the home to answer the back door. Munoz opened the door and was shot ten times by two different guns. Hearing the gunshots, Knotts hid under her bed until the shooting stopped. After the shooting, Knotts exited the front of the house and called the police from a neighbor's home. When officers arrived, she gave a statement. When the officers asked if she knew of anyone who might want to hurt her husband, she informed them that Martinez had threatened to kill her husband six months ago.

At trial, Martinez's friend Daniel Sanchez ("Sanchez") was the State's primary witness. Sanchez testified that he, Martinez, Chris Resendiz ("Resendiz") and Martinez's brothers, Gary Martinez ("Gary") and Leroy Martinez ("Leroy"), were at Sanchez's apartment before the murder. Sanchez heard Martinez and Leroy talking about going over and straightening out a guy named Bobby or Tony. He noticed that Leroy had a gun in the waist of his pants. The gun was black with a brown handle, and it looked like a gun he previously had seen in Leroy's possession.

According to Sanchez, the five men left the apartment in Leroy's black Cadillac. The group went to the Cortez store. Leroy and Martinez exited the car, and the three others left to put gas in the car. When Sanchez, Gary and Resendiz returned to the Cortez store, they were unable to find Martinez or Leroy. Outside of the store, a small crowd of six people were talking about a man who had been seen inside the store with a gun. Sanchez, Gary and Resendiz got back into the Cadillac and drove around the area trying to find Martinez and Leroy. After an unsuccessful search, Sanchez, Gary and Resendiz returned to the apartment.

Several minutes after Sanchez, Gary and Resendiz arrived back at the apartment, Leroy called and asked Sanchez to pick him up at a restaurant. Gary and Resendiz rode with Sanchez to pick up Leroy. When the three arrived at the restaurant, they found Leroy waiting by a payphone. Leroy directed Sanchez to pick up Martinez in a vacant lot near Edgewood High School. When they arrived at the vacant lot, Martinez walked out from behind the trees and got into the car. On their way back to the apartment, Martinez and Leroy were talking about guns and a struggle. At one point Leroy asked Martinez what he did with the guns, and Martinez responded, "I threw them. I don't know where." At another point in the conversation, Sanchez heard either Martinez or Leroy say, "I know I hit him because it was at close range." When they reached the apartment, Sanchez asked Martinez and Leroy about what happened, and they told him that they had shot somebody.

Resendiz's testimony mirrored much of Sanchez's testimony. Resendiz testified that he was at the apartment with Sanchez and the three Martinez brothers. He testified that he was in the car when Sanchez drove the men to the Cortez store, but when he, Sanchez and Gary returned from the gas station, Martinez and Leroy were no longer at the store. Resendiz also testified that they received a call to pick up Leroy. After picking up Leroy, they drove to a vacant lot near Edgewood High School and picked up Martinez.

Hassan Abdalla, the owner of the Cortez store, testified that about 8:30 or 9:00 on the night of the murder, two young Hispanic men with guns came into his store. He testified that he knew they had guns because he saw the brown handle of a gun sticking out of one of the men's pants. He described one of the men as wearing black jogging pants and a white T-shirt and the other as wearing a red shirt.

Jesus Rodriguez, who was working on a neighbor's roof a few houses away from Munoz's home, testified that he thought he heard firecrackers going off. Looking in the direction of the noise, he saw two men walking quickly out of a home's back gate at the corner of San Eduardo and El Paso. He noticed that the two men were walking toward San Joaquin Street. One of the men was wearing a white T-shirt and loose pants.

Maria Valadez, who lives close to Edgewood High School, testified that she saw two men coming out of an alley across from her home. She described one man as wearing a red T-shirt and the other as wearing a white T-shirt. She said that the man in white kept walking toward Edgewood High School while the man in the red T-shirt ducked into a vacant lot across the street.

Another neighbor, Rebecca Gallegos, testified that she saw a dark Cadillac speed by the vacant lot on the night of the murder. When the vehicle stopped, she saw a man come out of the vacant lot and get into the passenger side of the vehicle.

Dr. Jan Garavaglia, the doctor who performed the autopsy on Munoz, stated that Munoz was shot near the ear at close range. Dr. Garavaglia testified that it was likely that the gun was fired while in contact with Munoz's skin. He testified that Munoz had been shot by two different guns.

The Bexar County Crime Lab's firearm examiner, Ed Love, testified that two types of guns were used on Munoz. He testified that a firearm found in the vacant lot by Edgewood High School was a match to the bullets that were recovered from Munoz's body. Love testified that the gun was used to fire at least nine rounds at Munoz.

An accomplice witness instruction pertaining to the testimony of Danny Sanchez was given to the jury. The jury returned a verdict of guilty and sentenced Martinez to a term of thirty years.

ACCOMPLICE WITNESS/CORROBORATION

Martinez's first two issues challenge the sufficiency of the evidence corroborating Sanchez's testimony. Martinez initially asserts that Resendiz's testimony cannot be used to corroborate Sanchez's testimony because Resendiz also was an accomplice to the murder.

The defense did not request an accomplice witness instruction with regard to Resendiz, and the court did not give one. During the charge conference, defense counsel requested an accomplice witness instruction with regard to Danny Sanchez and then stated, "And I think Chris could be an accomplice, but I don't know if that was established or not. I think Danny - it was established that he was an accomplice. I think Chris is questionable." Later in the conference after the State objected to any reference to Chris Resendiz as an accomplice, defense counsel responded, "That is why I suggested, Your Honor, that I don't think there was enough there for Chris, but that there was for Danny, Your Honor."

"[O]mission of an unrequested jury instruction 'applicable to the case' calls for a new trial only when the defendant was greatly disadvantaged thereby." Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991) "This degree of harm, sufficiently serious to be called 'egregious,' is present whenever a reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive by the error." Id. "Our law requires that [accomplice witness] testimony be corroborated by evidence connecting appellant with the offense before conviction is warranted." Id.; see also Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). "Failure to inform the jury of this requirement makes it possible for rational jurors to convict even absent corroboration which they find convincing." Saunders, 817 S.W.2d at 692. "But, if the omission is not made known to the trial judge in time to correct his error, appellate review must inquire whether jurors would have found the corroborating evidence so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Id.

In conducting a sufficiency review under the accomplice witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is other evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). The corroborating evidence need not directly connect the defendant to the crime, nor be sufficient by itself to establish guilt. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Evidence of the defendant's presence at the scene, coupled with other suspicious circumstances, even seemingly insignificant ones, may well be enough to connect the defendant to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). All of the facts and circumstances in evidence may be looked at to determine whether an accomplice's testimony is corroborated. Munoz v. State, 853 S.W.2d 558, 560 (Tex. Crim. App. 1993).

We will assume for purposes of this opinion that an accomplice witness instruction should have been given with regard to Resendiz despite defense counsel's statements to the contrary. Excluding the testimony of both Sanchez and Resendiz, we find the non-accomplice testimony tends to connect Martinez to the crime.

The testimony of Abdalla placed Martinez and Leroy in the Cortez store with a gun at 8:30-9:00 that evening. Abdalla's testimony also identified one of the men as wearing a white T-shirt and black pants. Rodriguez saw two Hispanic males leaving the area of the shooting. He testified that one of the men was wearing a white T-shirt and loose pants. Valadez saw two men come out of the lot across the street from her house. She testified that one man had on a white T-shirt and the other a red T-shirt. The man with the red T-shirt ducked into the vacant lot and hid behind some trash. Gallegos testified that she saw a dark Cadillac pull up to the lot the night of the murder. She saw a man walk out of the vacant lot and get into the passenger side of the vehicle. Sanchez testified that he heard one of the brothers say that he knew he had hit him because it was at close range. Dr. Garavaglia testified that Munoz was shot by the ear at very close range. The Bexar County Crime Lab's firearms examiner, Love, testified that a firearm found in the vacant lot described by Sanchez, Valadez, Gallegos and Resendiz was a match to the bullets that were recovered from Munoz's body.

When considered without the testimony of Sanchez and Resendiz, the non-accomplice evidence reasonably connects Martinez to the crime and corroborates the accomplice witness testimony, and the trial court's error, if any, in failing to provide an accomplice witness instruction with regard to Resendiz was harmless. Martinez's first and second issues are overruled.

IMPROPER ARGUMENT

In his final issue, Martinez argues that the trial court committed reversible error by allowing the State to engage in improper jury argument. Specifically Martinez argues that the State improperly attacked defense counsel during closing arguments. During the State's closing argument, the assistant district attorney said the following:

STATE: I just want to go over some of the things that defense counsel touched upon. I want to go over one thing that is in the charge the Judge gives you. And it is very important. And there is reason why it is in here. It says: "You are instructed that the statements of counsel," that includes me, that includes Mr. Gonzalez, and that includes the defense attorney, "made during the course of the trial or during the argument, if not supported by evidence, or statements of law made by these instructions, are to be wholly disregarded." We, as attorneys, have a lot of power. We really do. I can ask you, on the witness stand, any question I want. Anything. I can come up to you and say, "Sir, when did you stop beating your wife?" And what would your answer be? "I have never beaten my wife, of course." What is my implication by my question? That he did.

DEFENSE: Your Honor, I want to - I would object to improper argument, trying to, basically, hit at my client over defense counsel.

COURT: The objection is overruled. Go ahead counsel.

STATE: What is the evidence in the case? The evidence is his answer that he has never beaten his wife. That is the evidence. So you have to be careful about what you listen to and what you look for, for the evidence, because the evidence is not our questions. The evidence is the answer from the witness stand and the physical evidence in the case. So you have to keep that in mind. So, you don't - because you don't base your verdict on insinuation. You don't base your verdict on innuendo or implication. You base it on the evidence. And what evidence is - from Ms. Knotts is that they haven't had a burglary since she and Tony got together, over 10 years ago.

Four specific categories constitute proper jury argument. Counsel may summarize the evidence presented at trial, make reasonable deductions drawn from the evidence, answer opposing counsel's arguments, or make a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Martinez insists that the State's argument did not fall into one of the four categories but instead was a direct attack on defense counsel. The State responds that it was not attempting to attack defense counsel. Instead, the State argues that it was responding to the following argument raised by defense counsel:

DEFENSE: And that is correct. I mean, what I have to say is what I remember the evidence saying. What they have to say is what they remember the evidence saying. You are the judges of what was really said. And all I can tell you is that Yolanda Knotts sat there and said she didn't like to remember the bad stuff. She did say that. And that I do remember. And she denied anything bad ever happening to her, and he was a great husband. He was a great father, but the kids didn't like him. Why? We don't know. But that is - that is the circumstances. You heard her testimony. There is something going on there. There is something she is hiding.

Defense counsel was directing the jury to look past the witness's actual testimony and to consider what she did not say. When defense counsel asked the jury to focus on what Knotts was hiding, defense counsel was referring to Knotts's testimony denying that her husband had ever abused her. Defense counsel asked the jury to focus on what Knotts was not saying, and the State responded to that argument by telling the jury that it should focus only on what Knotts did say. The State's argument was in response to opposing counsel's argument. Responding to opposing counsel's argument is proper. Jackson, 17 S.W.3d at 673. The trial court did not err in allowing the State's argument. Martinez's third issue is overruled.

CONCLUSION

The trial court's judgement is affirmed.

Sandee Bryan Marion, Justice

DO NOT PUBLISH