FERNANDO VALADEZ v. THE STATE OF TEXAS--Appeal from 174th District Court of Harris County

NUMBER 13-02-036-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

FERNANDO VALADEZ,   Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 174th District Court

of Harris County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Chief Justice Valdez

Appellant, Fernando Valadez, was charged with causing the death of Ramon Duenes with a deadly weapon, namely, a firearm. Valadez was also charged with the felony offense of engaging in organized crime through the murder of Duenes. Valadez pled not guilty to both charges. A jury found Valadez guilty of engaging in organized crime and he was sentenced to life in prison and a $10,000 fine. By six points of error, Valadez contends the trial court erred in: (1) finding the evidence legally and factually sufficient to support the conviction; (2) finding the evidence legally and factually sufficient where the testimony of Jose Arenazas was unavailable to corroborate the testimony of Steve Guerra; and (3) failing to sustain Valadez=s objection to Arenazas=s testimony regarding appellant=s participation in an unrelated homicide. We affirm.

I. FACTS

Valadez was indicted for engaging in organized criminal activity with the La Raza Unida gang, allegedly leading to the murder of Ramon Duenes on August 5, 1999. Steve Guerra testified for the State. He stated that on the night of August 5, Valadez drove an aqua green Toyota with Jesus Garcia and picked up Guerra. The three drove to a Fiesta store and Valadez and Garcia made a phone call outside of the car. Upon returning to the car, Garcia stated they had to Atake care of@ Ramon Duenes. Guerra understood they would have to kill Duenes. Guerra testified that he then called Yosvanis Valle because he was the leader of the gang, La Raza Unida, of which Valadez, Garcia and Guerra were all members. Valadez, Garcia, and Guerra then drove to Duenes=s apartment and tried to enter. Valadez carried a .22 pistol, Garcia had a shotgun and Guerra held tape and a knife. Duenes refused to open the door, so the three men left. A few minutes later, Valadez drove the Toyota back through Duenes=s apartment complex and found a group of people, including Duenes, standing on the sidewalk. Valadez drove the car close to the group and called for Duenes. As Duenes started walking to the car, Valadez and Garcia began shooting him. Valadez then drove to a motel on Interstate 45, where they met Valle.

Guerra also testified that on August 21 and 22, 1999, he, Valadez and Valle met with Jose Arenazas, another member of La Raza Unida, and attempted to rob a dope dealer. Before the attempted robbery, the group drove to Valadez=s house to pick up guns. The group failed to complete the robbery. Guerra further testified about the rules and rankings of the La Raza Unida gang.

Another State witness, Arenazas, testified that he was a member of La Raza Unida along with Garcia, Guerra and Valadez. Arenazas had discussed killing Duenes with Valle, showed Valle the way to Duenes=s apartment, and was at Valle=s house after the murder when Valadez informed them that Duenes had been Ataken care of.@ Arenazas discussed another unrelated murder involving Valadez. That offense occurred on August 15, 1999, when Arenazas, Garcia and Valadez shot and killed Carlos Escamilla.

Officer Bonsal, the lead homicide investigator of the Duenes murder, testified he learned of Duenes=s association with La Raza Unida from witnesses at the scene after the shooting of Duenes. Bonsal learned that the men who shot Duenes drove an aqua green Toyota. Three weeks after the murder, Bonsal found the Toyota and conducted a search. Bonsal found bullet holes in the side and a spent shotgun casing. The officer also searched Duenes=s apartment and found letters from prison gang members which contained Valadez=s name. Furthermore, Valadez had the rules and regulations of La Raza Unida in his possession when arrested.

The jury instructions stated a person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination of as a member of a criminal street gang, he commits or conspires to commit the offense of murder. Also, the trial court instructed the jury that Guerra was an accomplice as a matter of law, but the jury had to determine whether Arenazas was considered an accomplice to the murder of Duenes. The jury found Valadez guilty of engaging in organized crime in the murder of Duenes.

II. FAILURE TO CORROBORATE

In his first two points of error, Valadez claims the evidence was legally and factually insufficient to support a conviction for engaging in organized criminal activity because the State failed to corroborate the testimony of Steve Guerra. The trial court instructed the jury that Guerra was an accomplice witness as a matter of law. Texas law mandates the testimony of an accomplice witness must be corroborated. See Tex. Code Crim. Proc. Ann. ' 38.14 (Vernon 1979). Legal and factual sufficiency standards of review do not apply to evaluating sufficiency of corroboration of accomplice testimony. Cathey v. State, 992 S.W.2d 460, 463 (Tex. Crim. App. 1999). The test regarding the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the remaining evidence to determine whether incriminating evidence exists which tends to connect the defendant with the commission of the offense. See Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988); Hernandez v. State, 52 S.W.3d 268, 279 (Tex. App.BCorpus Christi 2001, pet. denied). Each case must be considered under its own facts and circumstances. See Reed, 744 S.W.2d at 126. Insufficient evidence to corroborate an accomplice witness requires an acquittal. See Cathey, 992 S.W.2d at 463 n.2.

A conviction cannot be had upon testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense. See Edwards v. State, 427 S.W.2d 629, 632 (Tex. Crim. App. 1968); Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 1999). In the case at bar, the testimony of Steve Guerra related to the murder of Duenes. Guerra testified about how he and Jesus Garcia were involved with Valadez in killing and shooting Duenes.

We must now view all of the evidence, excluding Guerra=s testimony, to determine whether other incriminating evidence exists to connect Valadez with engaging in organized criminal activity. See Reed, 744 S.W.2d at 125-26. To convict Valadez, the State must produce evidence showing more than a strong suspicion of guilt. See Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). The State sought to corroborate Guerra=s testimony through the testimony of Jose Arenazas. Arenazas testified that Valadez told him that Duenes Ahad been taken care of@ but did not give any details of the shooting. Arenazas also testified that he and others, including Valadez, were members of the La Raza Unida gang and that Garcia told Arenazas that Duenes had to be killed. Moreover, the record reflects evidence beyond the testimony of Arenazas which connects Valadez with the crime and corroborates Guerra=s testimony.

No precise rule can be formulated as to the amount of evidence required to corroborate the testimony of an accomplice witness. See Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). However, gang membership or affiliation is sufficient to tend to connect a defendant with a gang-related crime and corroborate the testimony of an accomplice witness. See Vasquez, 67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002); Casias v. State, 36 S.W.3d 897, 901-02 (Tex. App.BAustin 2001, no pet.)(holding display of gang signs tends to connect a person with a gang-related murder). Guerra testified that on the day Duenes was murdered, Valadez picked him up in a Toyota which belonged to Valadez=s girlfriend. Guerra stated that Valadez drove the Toyota at the time of Duenes=s murder. Sergeant Kirk Bonsal testified he searched the Toyota and found a spent shotgun casing. Furthermore, Guerra described the car used in the attempted robbery by Valadez and other gang members. The police searched the car and found two shotguns and a .22 caliber handgun. An expert from the Forensic Firearms Lab testified that the shotgun casing found in Valadez=s girlfriend=s vehicle came from the gun found in the other car. The evidence presented tends to connect Valadez with the vehicle and weapons used in the murder of Duenes and corroborates Guerra=s testimony. See Reed, 744 S.W.2d at 126. We conclude, based on Arenazas=s testimony and the testimony of the police officers, sufficient evidence exists to associate Valadez with the murder of Duenes while engaging in organized criminal activity in connection with La Raza Unida. Gill, 873 S.W.2d at 58. Valadez=s first and second points of error are overruled.

III. UNAVAILABILITY OF JOSE ARENAZAS

Valadez=s third and fourth points of error claim the evidence was legally and factually insufficient to support a conviction when the testimony of Arenazas was unavailable to corroborate the testimony of Guerra. We previously found that legal and factual sufficiency standards of review do not apply to evaluating the sufficiency of corroboration of accomplice testimony. See Cathey, 992 S.W.2d at 462-63. Valadez argues Arenazas=s participation in the Duenes murder classifies him as an accomplice and the State cannot corroborate accomplice witness testimony with the testimony of other accomplice witnesses. See McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim. App. 1996). We must first determine whether or not Arenazas is an accomplice witness. If so, we must review all the evidence excluding the testimony of Guerra and Arenazas to determine whether the evidence tends to connect the defendant with the offense. Reed, 744 S.W.2d at 125.

A witness is an accomplice when the witness acts with intent to promote or assist in the commission of the offense with which the accused is charged and solicits, encourages, directs, aids or attempts to aid the accused in commission of the offense. See Tex. Pen. Code. Ann. ' 7.02(b) (Vernon 1994); see also De La Rosa v. State, 919 S.W.2d 791, 794 (Tex. App.BSan Antonio 1996, pet. ref=d). The participation must involve an affirmative act committed by the witness to promote the commission of that offense. See Kutzner v. State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999). Arenazas testified that he drove Garcia to Duenes=s apartment a few days before the murder. Arenazas knew of Garcia=s intent to kill Duenes because of a power struggle within the gang. Gang membership, even if combined with presence at the scene of a crime and/or concealment of a crime, is not necessarily sufficient to support a finding of accomplice status. See Medina v. State, 7 S.W.3d 633, 641-42 (Tex. Crim. App. 1999). A witness is not an accomplice witness merely because he may have known of the offense and did not disclose it or even concealed it. Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986).

Furthermore, Arenazas testified about his participation in another homicide case involving Valadez and La Raza Unida. However, complicity with an accused in the commission of another offense does not make that witness an accomplice in the offense for which the accused is on trial if there is no showing of the witness=s complicity in that particular offense. Id. There is no evidence that Arenazas made any affirmative act to promote the commission of the crime either before, during or after the offense. Arenazas was not an accomplice as a matter of law or fact. See McFarland, 928 S.W.2d at 514. Therefore, we find the evidence sufficient to corroborate the testimony of Guerra. Valadez=s third and fourth points of error are overruled.

IV. UNRELATED HOMICIDE OFFENSE

In his fifth and sixth points of error, Valadez complains the trial court erred in overruling the objection to Arenazas=s testimony about Valadez=s participation in an unrelated homicide offense, namely the murder of Carlos Escamilla. Valadez contends the unrelated homicide offense was irrelevant and the probative value of the offense was substantially outweighed by the prejudicial effect. The admission or exclusion of evidence is within the discretion of the trial court, including the admission of an extraneous offense. Tex. R. Evid. 404(b); Hernandez, 52 S.W.3d at 281. Even if it would reach a different result, an appellate court may not reverse a trial court as long as the ruling falls within the zone of reasonable disagreement. See Montgomery, 810 S.W.2d at 391. A party may introduce evidence if it serves to make more or less probable (1) an elemental fact, or (2) an evidentiary fact. See Hernandez, 52 S.W.3d at 281-82. In order for an extraneous offense to be admissible, a two-part test must be met. Id. at 282. First, the transaction must be relevant to a material issue in the case. Id. Second, the relevancy value of the evidence must outweigh its inflammatory or prejudicial effect. See Montgomery, 810 S.W2d at 390-91; Hernandez, 52 S.W.3d at 282.

In the case at bar, the extraneous evidence in question involved the murder of Carlos Escamilla during an arranged meeting at a gas station with Valadez and other members of La Raza Unida. Evidence of Valadez=s involvement with La Raza Unida was relevant to prove he committed murder in combination with a criminal street gang. See Hernandez, 52 S.W.3d at 282. Therefore, evidence of extraneous offenses, such as the murder of Escamilla, remain relevant to prove Valadez=s involvement with the gang, an essential element in the case. Id.

We must also examine all of the evidence to determine whether, in light of the extraneous offense, the probative value is not substantially outweighed by its prejudicial effect. See Caddell v. State, 865 S.W.2d 489, 492 (Tex. App.BTyler 1993, no pet.). An extraneous offense is relevant if it logically tends to make the existence of some fact or consequence more or less probable. Id.; see also Montgomery, 810 S.W.2d at 390. Valadez=s participation in other gang-related activities, including murder, tends to make it more probable that he engaged in organized criminal activity by murdering Duenes. The probative value is not outweighed by the prejudicial effect. Id. Therefore, we find the trial court=s ruling falls within the zone of reasonable disagreement and does not constitute an abuse of discretion. See Montgomery, 810 S.W.2d at 391. Valadez=s fifth and sixth points of error are overruled.

Accordingly, the judgment of the trial court is affirmed.

ROGELIO VALDEZ Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 10th day of October, 2002.