Gerald Jefferson Munoz Montano v. State ( 2021 )

AFFIRMED and Opinion Filed April 26, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00463-CR
GERALD JEFFERSON MUNOZ MONTANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F18-00457-Y
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Garcia
Opinion by Justice Garcia
A jury convicted appellant of engaging in organized criminal activity by
committing murder and assessed punishment at sixty-five years in prison. In two
issues, appellant argues that the trial court gave the jury an erroneous accomplice
witness instruction and the evidence is insufficient to support his conviction. Finding
no reversible error, we affirm the trial court’s judgment.
I. BACKGROUND
Appellant and other members of the 18th Street gang shot and killed Nahum
Villatoro because he covered up a gang tattoo on his hand. Villatoro’s body was
discovered near his car on the side of the road. The car was still running, the lights
were on, the windows rolled down, and there was blood on it and all around it. Two
fired cartridge cases and three unfired rounds were discovered on the ground near
Villatoro’s body.
Appellant was charged with engaging in criminal activity by committing
murder, pleaded not guilty, and testified on his own behalf at trial. He admitted that
he was an 18th Street gang member in El Salvador, but claimed he was no longer a
member after he came to the United States. He denied any part in the murder.
The State’s trial evidence included testimony from an accomplice, Franklin
Villalobos. Villalobos told the jury he saw appellant shoot Villatoro several times.
The jury found appellant guilty of the charged offense and assessed
punishment at sixty-five years in prison. The trial court entered judgment
accordingly. Appellant timely appeals from that judgment.
II. ANALYSIS
A. Accomplice Witness Instruction
Franklin Villalobos drove the car transporting appellant and other gang
members to the place where Villatoro was killed and was present when appellant
shot him. En route to the scene, Villalobos was told that the gang intended to kill
Villatoro. Once there, he saw one of the gang members shoot Villatoro “through the
neck.” As Villatoro begin to run, appellant pulled out an Uzi and shot him multiple
times. After the killing, everyone piled in Villalobos’s car and they left the scene.
Villalobos then learned that Villatoro was killed because he covered up a gang tattoo.
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The court’s charge asked the jury to determine whether Villalobos was an
accomplice. Further, the charge instructed that if Villalobos was found to be an
accomplice, his testimony had to be corroborated.
An accomplice is someone who, under the evidence, could have been charged
with the same or a lesser-included offense as that with which the defendant was
charged. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013). In other
words, an accomplice is an individual who participates with a defendant before,
during, or after the commission of the crime, acts with the requisite culpable mental
state, and performs an affirmative act that promotes the commission of the offense
with which the defendant is charged. Id. (citing Cocke v. State, 201 S.W.3d 744, 748
(Tex. Crim. App. 2006)). If the issue is raised by the evidence, the jury must be
instructed accordingly because the accomplice-witness rule is law applicable to the
case. Id. at 513.
There are two possible accomplice-witness instructions that a trial court may
give. The court may ask the jury to decide whether the witness is an accomplice as
a matter of fact or can instruct the jury that the witness is an accomplice as a matter
of law. Zamora, 411 S.W.3d at 510. The evidence in each case dictates the type of
accomplice-witness instruction that needs to be given. State v. Ambrose, 487 S.W.3d
587, 594 (Tex. Crim. App. 2016).
A witness is an accomplice as a matter of law when 1) the witness has been
charged with the same offense as the defendant or a lesser-included offense, 2) the
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State charged the witness but dismissed the charge in exchange for the witness’s
testimony, or 3) the evidence is uncontradicted or so one-sided that no reasonable
juror could conclude that the witness was not an accomplice. Ash v. State, 533
S.W.3d 878, 886 (Tex. Crim. App. 2017). If the witness is an accomplice as a matter
of law, the trial court must affirmatively instruct the jury that the witness is an
accomplice and that his testimony must be corroborated. Zamora, 411 S.W.3d at
510.
If, on the other hand, the witness was never charged and the evidence
regarding the witness’s complicity is conflicting or inconclusive, the accomplice-
witness instruction should ask the jury to decide whether the witness is an
accomplice as a matter of fact; and if so, apply the corroboration requirement. Id.
A defendant cannot be convicted upon the uncorroborated testimony of an
accomplice. TEX. CODE CRIM. PROC. ANN. art. 38.14. Therefore, an accomplice’s
testimony must be corroborated by non-accomplice evidence that tends to connect
the accused to the offense. Ambrose, 487 S.W.3d at 593. “Such evidence may be
either direct or circumstantial.” Id. Moreover, the evidence standing alone need not
be sufficient to establish guilt; it must merely connect the accused to the charged
offense. Id.
Appellant argues, and the State concurs, that the charge should not have
included an accomplice-as-a-matter of fact instruction because Villalobos was an
accomplice as a matter of law. We agree. Villalobos’s complicity was neither
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conflicting nor inconclusive. The evidence showed that Villalobos knew the others
were planning to kill Villatoro but he kept driving anyway. Therefore, Villalobos
was an accomplice as a matter of law and the instruction is erroneous. See Herron v.
State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).
Because appellant did not object to the charge, reversal follows only if the
record demonstrates the error resulted in egregious harm. See Casanova v. State, 383
S.W.3d 530, 533 (Tex. Crim. App. 2012); Zamora, 411 S.W.3d at 515 (stating an
accomplice-witness instruction must be analyzed under Almanza). Under the
egregious harm standard, the omission of an accomplice-witness instruction is
generally harmless unless the non-accomplice evidence is “so unconvincing in fact
as to render the State’s overall case for conviction clearly and significantly less
persuasive.” Herron, 86 S.W.3d at 632; see also Vasquez v. State, No. 05-15-00588-
CR, 2016 WL 912178, at *5 (Tex. App.—Dallas Mar. 10, 2016 no. pet) (mem. op.,
not designated for publication). But if non-accomplice evidence connects the
defendant to the offense, then the purpose of the instruction is fulfilled, and its
omission is harmless. Herron, 86 S.W.3d at 632; see also Garcia v. State, 578
S.W.3d 106, 129–30 (Tex. App.—Beaumont 2019, pet. ref’d) (applying Herron
standard to a jury charge in which the trial court gave an accomplice-as-a-matter-of-
fact instruction when the defendant was entitled to accomplice-as-a-matter-of-law
instruction).
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Corroborating evidence from other sources tending to connect appellant to the
offense was admitted during trial. Specifically, two witnesses testified that appellant
told them he killed Villatoro, and appellant’s cell phone records place him at the
scene of the crime.
Carlos Mejia was the first witness who testified that appellant told him he
killed Villatoro. Mejia runs a construction business and appellant and several of his
friends, including a man known as “Mysterio” work for Mejia. Mejia knows that
appellant, Mysterio, and some of his other employees are members of the 18th Street
gang.
On the Friday before the murder, Mejia picked appellant up for work.
Mysterio was there, as well as a man (later identified as Villatoro) that Mejia did not
know. Mejia thought that Villatoro looked upset, but appellant told him not to worry
about Villatoro “because one of these days we’re going to kill him.”
The following Monday, Mysterio looked “concerned.” He told Mejia that “he
had screwed up his life because he had gone to kill . . . [Villatoro].” Appellant and
Mysterio then told Mejia that they “shot [Villatoro] with a .40 and a [sic] Uzi.”
Jorge Velasco also testified that appellant told him he shot and killed
Villatoro. Velasco is a member of the 18th Street gang. Velasco said that he and
appellant were members of the same clique of the 18th Street gang and Villatoro was
a member of a different clique. Before Villatoro was killed, the local leader of the
gang called Velasco to discuss how Villatoro had violated gang rules by erasing a
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gang tattoo. After Villatoro was killed, appellant called Velasco and told him they
killed Villatoro. Appellant said that Villalobos, who was not a gang member, drove
the vehicle and another gang member shot Villatoro. Villatoro ran. Then, appellant
shot and killed Villatoro.
Dash-cam video from a witness who drove by the crime scene showed the
time frame of the murder as between 5:00 and 6:30 p.m. Appellant’s cell phone
records placed him at the scene during that time frame. Detective Chad Prda
explained how he mapped out the location of appellant’s and Villatoro’s phones on
the day of the murder. At about 4:00 p.m., appellant’s and Villatoro’s phones were
in the vicinity of the apartment complex where appellant and Mysterio lived. At
around 5:50 p.m., Villatoro’s phone began moving south, and at around 6:00 p.m.
appellant’s and Villatoro’s phones were near each other in the vicinity of Post Oak
Road near Hutchins.1 The phones stayed in that area for the next fifteen to twenty
minutes. After that, appellant’s phone left the area.
Mejia’s and Velasco’s testimony, together with the cell phone records, tend
to connect appellant to the offense. Therefore, the purpose of the accomplice-witness
instruction was fulfilled, and the court’s erroneous instruction was harmless. Herron,
86 S.W.3d at 632; Garcia, 578 S.W.3d at 130. We resolve appellant’s first issue
against him.
1
Villatoro’s body and car were discovered on Post Oak Road.
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B. Sufficiency of the Evidence
Appellant’s second issue argues that the evidence is legally insufficient under
Jackson because Villalobos’s accomplice witness testimony was not sufficiently
corroborated. This argument, however, conflates two standards: the Jackson legal-
sufficiency standard, and the statutory corroboration standard.
The Jackson sufficiency standard involves reviewing all evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the crime, as defined by the hypothetically
correct jury charge, beyond a reasonable doubt. Zuniga v. State, 551 S.W.3d 729,
732–33 (Tex. Crim. App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Whether an accomplice witness’s testimony was corroborated is not
relevant under Jackson, which considers all evidence and does not disregard
accomplice testimony. See McDuff v. State, 939 S.W.2d 607, 613–14 (Tex. Crim.
App. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
On the other hand, the corroboration standard is not derived from federal or
state constitutional principles that define legal sufficiency standards. Druery v. State,
225 S.W.3d 491, 492 (Tex. Crim. App. 2007). Rather than challenging the
sufficiency of the evidence to support the verdict, it measures the non-accomplice
evidence that tends to connect the accused to the offense. See Cannon v. State, Nos.
05-13-01109-CR, 05-13-01110-CR, 2014 WL 3056171, at *5 (Tex. App.—Dallas
Jul. 7, 2014, no pet.) (mem. op., not designated for publication).
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We have concluded that there is sufficient non-accomplice evidence to
connect appellant to the offense. Moreover, we consider all evidence—including the
accomplice witness testimony—in our sufficiency review under Jackson. See
McDuff, 939 S.W.2d at 614.
The legal sufficiency standard accounts for the factfinder’s duty to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2011). Therefore, in analyzing legal sufficiency, we determine whether the
necessary inferences are reasonably based upon the combined and cumulative force
of all the evidence when viewed in the light most favorable to the verdict. Id.As relevant here, a person commits the offense of engaging in organized
criminal activity if “with the intent to establish, maintain, or participate in a
combination or in the profits of a combination or as a member of a criminal street
gang, the person commits . . . murder.” TEX. PENAL CODE ANN. § 71.02(a)(1). A
person commits murder if he 1) intentionally or knowingly causes the death of an
individual or 2) intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual. TEX. PENAL CODE
ANN. §§ 19.02(b)(1), (2).
The evidence showed that appellant was a member of a criminal street gang.
A criminal street gang is “three or more persons having a common identifying sign
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or symbol or an identifiable leadership who continuously or regularly associate in
the commission of criminal activities.” TEX. PENAL CODE ANN. § 71.01(d).
Eugenio Vela, a Homeland Security Special Agent, testified that the 18th
Street gang is a transnational street gang with thousands of members. The gang’s top
leadership is now in El Salvador. The gang is involved in many types of crime,
including “extortion, robberies, home invasions, dealing drugs [and] homicides.”
Members use specific hand signs to identify themselves and the gang uses symbols
that appear in members’ tattoos.
Vela testified that appellant was a member of the 18th Street gang and
identified appellant in a photograph with other gang members “throwing” a gang
sign. He also identified photographs of appellant’s gang tattoos.
Velasco, Villalobos, and Mejia also testified that appellant was a gang
member. Appellant admitted he was a gang member when he was in El Salvador.
Dr. Tracy Dyer, deputy chief medical examiner for Dallas County, performed
the autopsy on Villatoro. Villatoro had been shot five times in the neck and head.
While each gunshot wound on its own would “potentially” have been fatal, taken
together, they “absolutely” were fatal and caused Villatoro’s death.2
2
Villatoro also had three gunshot wounds on his left hand. These wounds were consistent with
Villatoro putting his hand in front of his face as he was being shot.
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One of the bullets recovered from Villatoro’s body and two of the cartridge
cases from the scene were fired from a .40 Smith & Wesson.3 Two other bullets
recovered from Villatoro’s body were of a different caliber and did not come from
that gun.
As previously discussed, Mysterio and appellant told Mejia that they shot
Villatoro with a .40 and an Uzi. Villalobos saw appellant shoot Villatoro and
identified a photograph of appellant with the Uzi. Appellant’s cell phone records
also place him at the scene of the crime.
Appellant’s critique of Mejia’s and Velasco’s credibility and alleged
inconsistencies in the evidence is not persuasive. The jury is the exclusive judge of
the credibility of witnesses and the weight to be given their testimony and only the
jury may resolve conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111
(Tex. Crim. App. 2000).
Under these circumstances, a rational jury could have found all the elements
of the charged offense beyond a reasonable doubt and the evidence is sufficient to
support the conviction. Appellant’s second issue is resolved against him.
3
The .40 Smith & Wesson was recovered about two months after the murder when Villalobos and
others were pulled over during a traffic stop.
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III. CONCLUSION
Having resolved all of appellant’s issue against him, we affirm the trial court’s
judgment.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
190463F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GERALD JEFFERSON MUNOZ On Appeal from the Criminal District
MONTANO, Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F18-00457-Y.
No. 05-19-00463-CR V. Opinion delivered by Justice Garcia.
Justices Myers and Partida-Kipness
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered April 26, 2021
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