Gutierrez, Juan Luis v. State

Opinion issued November 21, 2002 In The Court of Appeals For The First District of Texas NOS. 01-01-00991-CR 01-01-00992-CR JUAN LUIS GUTIERREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Cause Nos. 849473 & 873088 O P I N I O N A jury convicted appellant, Juan Luis Gutierrez, of murder and aggravated robbery, found the enhancement allegation in the indictment of each case true, and assessed punishment at confinement for 99 years in the murder case and 60 years in the aggravated robbery case. On appeal, appellant contends (1) the evidence was legally insufficient to convict him of either offense because the accomplice witness testimony offered by the State was not corroborated, (2) the evidence was legally and factually insufficient to convict him as a party to either offense because the State failed to prove the guilt of another person as the primary actor, (3) he received ineffective assistance of counsel, and (4) the convictions violated his state and federal protections against double jeopardy. We affirm. Background The jury charge in this case named Pete Castillo and Francisco Martinez as accomplice witnesses. Both men testified against appellant at trial. The relevant evidence, viewed in the light most favorable to the verdict, was as follows: 1. Accomplice Witness Testimony A. Pete Castillo Castillo testified that Raul Cardenas told him that appellant had a job for them. Appellant, Castillo, Cardenas, Francisco Martinez, and Jose Zavala met at Castillo’s house to plan a robbery. Appellant told them that he knew some guys that wanted to buy cocaine and said that the job would be easy because Joe Tijerina, the proposed victim, trusted appellant. Appellant’s plan was to take a kilogram of fake cocaine and try to and exchange it with the Tijerina for $16,000. While planning the exchange, appellant saw that Zavala had a .357 handgun and Cardenas had a .40 caliber handgun. If Tijerina realized the cocaine was fake, appellant instructed his coconspirators to take the money at gunpoint. Appellant did not plan to go with the others to make the exchange. While they were planning the robbery, Castillo noticed appellant using a cell phone but could not hear what was being said. Before the planned exchange, appellant took the other men over to Tijerina’s house so they would know where to deliver the fake cocaine. No one got out of the car the first time they drove to Tijerina’s house. The five men then went back to Castillo’s garage to wait while appellant made contact with Tijerina. After several hours, appellant made a phone call and then told the four other men to “get ready and go over there.” Castillo drove one car, accompanied by Cardenas, Martinez, and Zavala. Appellant followed in another car, which was driven by Cardenas’s brother. Once the men arrived at Tijerina’s house, Zavala and Martinez got out of the car, and Tijerina came outside to meet them. They spoke to Tijerina on the porch for about two minutes, and then left. Zavala told the other men that he “wasn’t going to do it,” because he knew Tijerina. However, appellant called and the men decided to go ahead with the plan. About an hour later, the men returned to Tijerina’s house. This time Cardenas and Martinez got out, and Zavala remained in the car with Castillo. Appellant was still driving around in another car and communicating with the four men by cell phone. Cardenas and Martinez followed Tijerina in the house, and Castillo heard gunshots a few seconds later. As he began to speed away, Castillo saw Martinez running toward the car, still carrying his gun. Cardenas fell on the front porch and dropped his gun, but kept running toward the car. After Martinez and Cardenas got in the car, Castillo sped away. Appellant followed Castillo back to Castillo’s grandmother’s house. He told Martinez to hide the car and then asked the men, “[D]id you all get anything?” When he found out the men did not get any money, appellant was upset. Appellant and Zavala then went back to Tijerina’s house to try and retrieve Cardenas’s gun, but the house was surrounded by police. The men were arrested four months later. B. Francisco Martinez Martinez’s testimony about the planning of the robbery was very similar to Castillo’s testimony. He, too, testified that the four men met at Castillo’s to plan the robbery and that appellant said the job would be easy because Tijerina was a good friend of appellant’s and would trust him. Cardenas further explained that appellant thought Tijerina would be easy to rob “because once we pulled out the guns on [Tijerina], he would get scared and give up the money quickly, because he had been shot recently, about six months before the incident.” Martinez also testified that all five men drove by Tijerina’s house so that appellant could show them where Tijerina lived. The men then went back to Castillo’s and waited for appellant to contact Tijerina, which he did about three hours later. After that telephone call, appellant told the four men to “go over there.” Castillo drove and appellant followed in another car with Cardenas’s brother. Martinez and Zavala got out and spoke with Tijerina, but left because he did not yet have the money. When they got back in the car, Zavala indicated that he wanted to back out because he knew Tijerina, and all the men “agreed that it was a sign . . . not to go back.” However, appellant called and the men agreed to go forward with the plan. The men returned to Tijerina’s house and appellant, again, followed in another car. Martinez and Cardenas got out. After speaking with Tijerina, Martinez got the fake cocaine out of the car and the two men followed Tijerina inside. Martinez testified that he saw four other men that he did not know sitting on the couches in the house. Cardenas told Tijerina to “show him the money,” and Tijerina responded to “show him the dope first.” Then Cardenas shot Tijerina and the two men fled to the car Castillo had waiting. Cardenas tripped on the way out and dropped his gun. Appellant followed the men back to Castillo’s, where appellant asked them if they had gotten any money. When they told him they had not, appellant was shocked. Appellant was not upset that Tijerina had been shot, but he was surprised. Appellant told Martinez to hide his car. Martinez believed that appellant and Cardenas’s brother went back to the crime scene to try and retrieve Cardenas’s gun. 2. Non-Accomplice Witness Evidence A. Larry Hernandez Larry Hernandez testified that, on the day of the shooting, he and David Garza went over to Tijerina’s house because the men were planning to go out to dinner with some girls. Hernandez became impatient because he was ready to leave, but Tijerina was waiting for a telephone call. Tijerina spoke to someone named “Guero” on his cell phone, and, approximately 20 minutes later, two men came over to the house and talked to Tijerina on the porch. After less than two minutes, the men left. Michael Chavarria then came over to the house carrying a blue bag. Tijerina then got another telephone call, after which he stated “Guero” is not coming. Shortly thereafter, the two men that had been with Tijerina on the porch returned. Within minutes, Hernandez saw the first man, later identified as Cardenas, demand money and then shoot Tijerina. Hernandez said the men then started shooting towards him. Hernandez was hit twice, once in the back and once in the leg. Michael Chavarria was also shot, but David Garza was not. Chavarria ran out the front door and David Garza called an ambulance. B. David Garza Garza testified that he, Larry Hernandez, and Tijerina had plans to go to dinner, so they met at Tijerina’s brother’s house. While they were waiting, Tijerina was talking on the cell phone and making a lot of calls. Garza did not know who Tijerina was talking to, but he knew Tijerina was waiting for someone by the name of “Guero.” Mike [Chavarria] arrived while Tijerina was talking on the phone. Shortly after Chavarria arrived, two men came to the house. While these men were talking to Tijerina, one of them pulled a gun and began shooting. Garza ran toward the back of the house and was not hit by any of the bullets. Garza ultimately called 911 from Tijerina’s cell phone. Garza found a gun on the sidewalk, picked it up with his sleeve, and put it in a trash can. When the police got to the scene, he showed them the gun. C. Cell Phone Records Jordan Kurtz, a law enforcement relations specialist for Voicestream Wireless, testified that Voicestream records showed that on January 29, 2000, 18 calls were made from Maria Alicia Lugo’s cell phone to Veronica Gutierrez’s cell phone. Lugo is Tijerina’s grandmother and Gutierrez is appellant’s wife. Tijerina’s father testified that Tijerina was using his grandmother’s cell phone on the day of the offense. D. Appellant’s Nickname Houston Police Officer Hernandez identified appellant in court and testified that he knew appellant went by the nickname, “Guera.” Accomplice Witness Testimony Corroboration In points of error one and two, appellant contends the evidence was legally insufficient to convict him of either offense because the State failed to sufficiently corroborate the testimony of the accomplice witnesses. We determine whether any accomplice testimony requiring corroboration has in fact been corroborated by eliminating from consideration the accomplice testimony and then examining the remaining inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. See McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). The non-accomplice evidence need not be sufficient, in itself, to support a conviction, and the accomplice witness rule is not governed by federal or state constitutional standards. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Here, the telephone calls from Tijerina to appellant on the day of the murder tend to connect appellant to the offense. Larry Hernandez testified that while he was waiting for Joe Tijerina, Tijerina was on the telephone with someone, and that when he hung up, Tijerina said “Guero is not coming.” Houston Police Officer Hernandez testified that Appellant was known as “Guero.” David Garza testified that he was waiting with Hernandez, while Tijerina talked with someone on the phone. Garza knew that Tijerina was waiting for someone named “Guero.” Tijerina was using a telephone registered to his grandmother, Maria Alicio Lugo, on the day he was murdered. Telephone records showed that over 14 calls were made from the telephone Tijerina was using to a telephone registered to Veronica Gutierrez, appellant’s wife. Thus, we conclude that the requirements of the accomplice witness rule were satisfied in this case. Accordingly, we overrule points of error one and two. Proof of Guilt of the Principal The jury charge authorized appellant’s conviction as a party to the robbery and murder of Tijerina. In points of error three through six, appellant contends the evidence was legally and factually insufficient to convict him of either offense as a party because the State did not prove the guilt of another person as the primary actor in the offense. We follow the usual standard of review for determining the sufficiency of the evidence. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual sufficiency). Appellant points out that, as of the time of this trial, none of the other accomplices had been convicted and sentenced for their participation in the offenses. Appellant’s argument is without merit. To convict a defendant as a party, the State must prove conduct that constitutes an offense combined with an act by the defendant committed with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). In a prosecution as a party, it is no defense “that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class or offense, or is immune from prosecution.” Tex. Code Crim. Proc. Ann. art. 7.03(2) (Vernon 1994). Under article 7.03, the fact Cardenas and Martinez had not been sentenced as of the date of appellant’s trial, and that Castillo was never charged, is irrelevant. There was sufficient proof in the record that Cardenas shot Tijerina during a botched robbery, and that appellant assisted Cardenas by planning the fake cocaine deal giving rise to the robbery, driving with Cardenas and the others to show them where Tijerina lived, and then going back to the murder scene to try and retrieve the gun Cardenas dropped during the incident. Thus, we hold the evidence is legally and factually sufficient to show that appellant solicited, encouraged, directed, or aided Cardenas in committing the offenses of aggravated robbery and murder. Accordingly, we overrule points of error three through six. Ineffective Assistance of Counsel In point of error seven, appellant contends his counsel was ineffective for failing to object to seven instances of the admission of hearsay evidence. To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, appellant must demonstrate that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Howland v. State, 966 S.W.2d 98, 104 (Tex. App.—Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, appellant must establish that counsel’s performance was so prejudicial that it deprived him of a fair trial. Id. Thus, appellant must show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Although appellant filed a motion for new trial, he did not allege ineffective assistance of counsel in the motion, nor is the record sufficient to show why counsel failed to object. We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.—Houston [1st Dist.] 1996, no pet.). Reviewing the record, therefore, we must presume that appellant’s trial counsel’s strategy was sound. Gamble, 916 S.W.2d at 93. Appellant has failed to meet the first prong of the Strickland test. Accordingly, we overrule point of error seven. Double Jeopardy In point of error eight, appellant contends that his “convictions for murder and aggravated robbery constitute double jeopardy because the elements of both indictments contain proof of the same elements for conviction and the aggravated robbery would be a lesser included offense of murder.” The double jeopardy clause of the United States Constitution provides three protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. Cervantes v. State, 815 S.W.2d 569, 573 (Tex. Crim. App. 1991). Because appellant was subjected to only one trial, the issue is whether he received multiple punishments for the same offense. To make this determination, we must examine the statutes that define the two offenses to see whether each statute requires proof of an additional element that the other does not; this is referred to as the Blockburger test. See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). Aggravated robbery and murder are separate offenses. Mack v. State, 772 S.W.2d 162, 165 (Tex. App.—Dallas 1989, no pet.). Murder requires proof of death; aggravated robbery does not. Aggravated robbery requires proof of intent to commit theft; murder does not. Compare Tex. Pen. Code Ann. § 19.02 (Vernon 1989) (murder) & Tex. Pen. Code Ann. § 29.03 (Vernon Supp. 2002) (aggravated robbery). Because the two statutes pass the Blockburger test, appellant did not face double jeopardy. We overrule point of error eight. Conclusion We affirm the judgments. Sherry Radack Justice Panel consists of Justices Nuchia, Jennings, and Radack. Do not publish. Tex. R. App. P. 47.