Matias Morin, Iii v. State ( 2000 )

NUMBER 13-99-119-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

MATIAS MORIN, III

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 332nd District Court of Hidalgo County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Justice Dorsey

This is an appeal of Matias Morin, III's second conviction for the murder of Javier Cantu. The jury had previously convicted him of the murder and assessed his punishment at sixty years in prison. We reversed the conviction due to improper admission of hearsay and remanded the cause for a new trial. Morin v. State, 960 S.W.2d 132 (Tex. App.--Corpus Christi 1997, no pet.). On retrial the jury convicted him of the murder and assessed his punishment at sixty-two years in prison and a $10,000 fine. At sentencing the trial court reduced the punishment to sixty years in prison. By three issues appellant complains that the trial court erred in admitting evidence from the first trial, erred in denying his motion for new trial, and he challenges the factual sufficiency of the evidence. The State brings one cross-point. We reform the judgment, and as reformed, we affirm.

I. Factual Background

The State's chief witness, Javier Andres "Andy" Cespedes, was an accomplice in the crime. He testified that in August, 1993, he was with appellant, Marc Morin, and Javier Cantu. Marc gave some cocaine to Cantu and asked him to sell it. Cantu left with the cocaine but later returned it because he could not sell it. Appellant then took the cocaine to Houston and tried to sell it there. However the buyers threatened to kill him when they discovered that the cocaine was "cut up," meaning that it was not strong enough. Afterwards appellant blamed Cantu for nearly getting him killed and said that Cantu "had to go down."

On August 26, 1993, appellant and Andy went to a store where appellant bought a box of shotgun shells. After buying the shells they drove to Andy's house and loaded two shotguns and a 9 millimeter gun. Andy kept the guns in his bedroom. They wrapped towels around the guns and put the guns in the back of the van which appellant was driving. After picking up Marc the trio decided that appellant would call Cantu over the telephone and ask him to go to a location near a canal in the Edinburg, Texas, area. Appellant would take him to the canal where Marc and Andy would be waiting in the van. They decided that each person would shoot Cantu one time at the canal. After agreeing on the plan they returned to appellant's house. Appellant called Cantu and then told Marc and Andy that Cantu was "on his way" and "to take off to the canal" and wait there. When appellant and Cantu arrived at the canal Andy aimed a shotgun at Cantu's head. Andy testified that "Mat [appellant] is looking at me, so he takes two steps back and then he looks back at me and nods his head. That's when I pulled the trigger and he [Cantu] falls down." Andy shot Cantu three more times with the shotgun and six times with the 9 millimeter. Afterwards appellant, Marc, and Andy drove to the home of Isaac Fuentes. Appellant and Isaac took the two guns used in the murder out of the van and then washed the van.

Eulogia Cantu testified that on August 26, 1993, she and her son, Javier Cantu, were at home. She saw him using the telephone. After hanging up he told her that he was going to meet appellant. He left the house about 7:20 p.m.

Jose Cespedes, Andy's brother, testified that a couple of days before the murder he saw what looked like a machine gun underneath the bed in the bedroom where he and Andy slept. Around noon on the day of the murder Jose was home when Andy and appellant came to the house and went into the bedroom where the machine gun was located. They stayed in the bedroom for twenty minutes. When they came out Andy was carrying the machine gun which was wrapped in a towel. Jose saw them get into a van and leave.

Appellant testified that he had gone to Houston prior to Cantu's murder, but he denied that he had tried to sell any cocaine there. He testified that on the day of the murder he and Cantu went to the canal because Cantu wanted to talk to Marc. Appellant and Cantu arrived at the canal about 7:30 p.m. They got out of Cantu's car and walked to the van. While appellant stood near the van he heard an "explosion." He panicked and got into the van. He heard some more explosions or shots and then Andy threw a shotgun inside the van. He then saw Andy take a machine gun out of the van. He tried to take the gun away from Andy, but Andy cocked it in his face. Appellant got into the van and closed the door. He heard another shot and then Andy got into the van. After the shooting Marc and Andy dropped off appellant at Isaac Fuentes' house. Appellant's testimony was that he did not nod his head at Andy before Andy had shot Cantu. He denied saying that Cantu had to go down, and he denied having anything to do with the murder.

Isaac Fuentes testified that he went with appellant to Houston. He stated that he was with appellant during the entire trip and that appellant did not try to sell any cocaine there.

Eli Armenta, Andy's neighbor, testified that on the day of the murder no one was at Andy's home until Andy's mother arrived about 5:00 p.m. He never saw the Morin family van at Andy's home that day.

II. Sufficiency of the Evidence

By his first issue appellant challenges the factual sufficiency of the evidence to support his conviction.

A. Accomplice Testimony

Under article 38.14 of the Texas Code of Criminal Procedure a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the accused with the offense; the evidence is insufficient if it merely proves the commission of the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). It is not necessary that the corroborating evidence directly connect the accused to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Id. If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense the requirement of article 38.14 has been fulfilled. Id.

In the instant case the evidence showed that shortly before he died Cantu told his mother that he was going to see appellant. Appellant testified that he was at the murder scene with his family's van. Further on the day of the murder Jose Cespedes saw appellant and Andy carrying a machine gun wrapped in a towel out of the house and then leave in a van with appellant driving. We conclude that the combined weight of the non-accomplice evidence tends to connect appellant to the murder and provides sufficient corroboration. See Morin, 960 S.W.2d at 137.

B. Factual Sufficiency

In the instant case the application paragraph provided that the jury could convict appellant of murder if they found beyond a reasonable doubt that Javier Andres Cespedes intentionally or knowingly caused Cantu's death by shooting him with a deadly weapon, to-wit; a firearm, and that appellant "knew of the intent, if any, of said JAVIER ANDRES CESPEDES to shoot and kill the said JAVIER CANTU and the Defendant acted with intent to promote or assist the commission of the offense by JAVIER ANDRES CESPEDES to commit the offense of causing the death of JAVIER CANTU, . . . ."

Upon applying the factual sufficiency standard set forth in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) to the case before us, we conclude that a rational jury could have found that Andy intentionally killed Cantu with a deadly weapon. We also conclude that a rational jury could find that appellant knew of Andy's intent to kill Cantu, because appellant participated in the planning of Cantu's murder. Further when Andy aimed the shotgun at Cantu, appellant stepped back and nodded his head. Andy then fired at Cantu. Appellant acted with intent to promote or assist in the commission of the offense, because he bought the shotgun shells, helped Andy load the guns, helped Andy load the guns into the van, and asked Cantu to come to the canal where he was killed. We hold that the verdict is not so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. We overrule the first issue.

II. Prior Testimony

By his second issue appellant contends that the trial court erred when it allowed the State to introduce into evidence Dr. Ruben Santos' autopsy report, along with his testimony from the Appellant's first trial. Dr. Santos, who performed Cantu's autopsy, testified at the earlier trial, but had died prior to Appellant's re-trial. At the second trial the State sought to introduce his testimony from the earlier trial by reading it before the jury. Appellant objected on the basis that this would deny him the right to confrontation. The trial court overruled the objection, and the State read his testimony to the jury.

Dr. Santos testified on direct examination that Cantu was shot ten times. He had six distant-type gunshot wounds to the right side of the face. He received one shotgun wound to the front of the right ear. Dr. Santos said that although he was not a ballistics expert this wound was made from a range of between three to five feet. Cantu had three other shotgun wounds. He said that these wounds "were of a close range type" because he found wads in each of the perforations. He did not know the order in which the shots were fired, nor which were fired first.

On cross-examination counsel questioned him about the shotgun wound to Cantu's head. His testimony was that generally speaking this wound was inflicted at a distance of three to five feet. Counsel also questioned him about the trajectory of the gunshot wounds to Cantu's face. Dr. Santos said that they were fired from Cantu's right side.

Appellant argues that Dr. Santos' prior testimony was neither offered nor developed on cross-examination concerning (1) the distance from which each shot was fired, and (2) the sequence of the shots. Appellant argues, therefore, that he was denied the right of confrontation on these issues and the testimony of Dr. Santos should have been excluded. We disagree.

Rule 804(b)(1) of the Texas Rules of Evidence states that the following are not excluded if the declarant is unavailable as a witness: "(1) In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. . . ." Tex. R. Evid. 804(b)(1).

This rule does not require that in order for prior testimony to be admitted as an exception to the hearsay rule the opponent of the evidence have had an identical motive to challenge the testimony at the prior proceeding as he now has at trial; rather, it requires only that he have had a "similar" motive. Coffin v. State, 885 S.W.2d 140, 147 (Tex. Crim. App. 1994). Neither the form of the proceeding, the theory of the case, nor the nature of the relief sought need be the same. Id. Only the particular issue about which the testimony was first offered must be substantially similar to the issue upon which offered in the current action. Id. As with opportunity, similar motive vel non must be determined on a case-by-case basis, according to the particular facts and circumstances. Id. Cf. Russell v. State, 604 S.W.2d 914 (Tex. Crim. App. 1980) (for purposes of confrontation guarantee, determination whether accused had opportunity to cross-examine witness at prior proceeding is a fact-bound inquiry).

In the instant case the State offered Dr. Santos' prior testimony and autopsy report to show the cause of death. This evidence was offered at the second trial for the same reason, which meets the requirement of Rule 804(b)(1). The issues which appellant says were not developed--the distance from which each shot was fired and the sequence of the shots--were developed on direct and cross-examination at the first trial. Appellant had an opportunity and similar motive to develop the testimony at his first trial. We hold that appellant was not denied his right to confrontation on these issues and that the trial court did not err by admitting the testimony and autopsy report. See Tex. R. Evid. 804(b)(1); Coffin, 885 S.W.2d at 147. We overrule the second issue.

III. Motion For New Trial

By his third issue appellant asserts that the trial court erred in denying his motion for new trial based upon jury misconduct. Appellant filed a motion for new trial on December 22, 1998. The hearing was set for February 26, 1999, at which time the State argued that the motion had been overruled by operation of law on February 16, 1999. After hearing argument from both sides the trial court found that it did not have jurisdiction to hear the motion.

When a motion for new trial is presented to the trial court the party presenting it has the burden to see that the hearing thereon is set for a date within the trial court's jurisdiction. Crowell v. State, 949 S.W.2d 37, 38 (Tex. App.--San Antonio 1997, no pet.). Rule 21.8(a) of the Texas Rules of Appellate Procedure provides that a trial court must rule upon a motion for new trial within seventy-five days after imposing or suspending sentence in open court. Rule 21.8(c) says that a motion not timely ruled on by written order will be deemed denied when the period prescribed in Rule 21.8(a) expires. In the instant case the court imposed sentence on November 30, 1998. Thus the motion was overruled by operation of law on February 16, 1999.⁽¹⁾ Because the court had not ruled on the motion by February 16, 1999 the motion is deemed denied. Tex. R. App. P. 21.8(c). We overrule the third issue.

IV. Punishment

By one cross-point the State asserts that the trial court erred in reducing the punishment from sixty-two years in prison and a $10,000 fine to a sixty-year sentence with no fine. In the first trial the jury assessed punishment at sixty years in prison. At the second trial the jury assessed punishment at sixty-two years in prison and a $10,000 fine. After the jury had assessed punishment in the second trial the trial court held a hearing to pronounce sentence. At this hearing defense counsel requested that the court reduce the punishment to that assessed by the jury in the first trial. Counsel testified to the court that after the second trial had concluded, and the court had informed the jurors that counsel for both sides wanted to speak to them, he had talked to the foreperson of the jury, who stated that "they had taken into consideration at some point the previous 60-year sentence that had been imposed" against appellant in the first trial. Counsel stated that this information could only have come from outside the trial because no evidence was presented at trial concerning the sixty-year sentence.

The State's attorney then told the court that his understanding of what had happened was that there were "eight people who had punishment range of between 75 and life and that it was a compromise down as far as the 62 years but, in fact, they hadn't considered that in assessing the punishment that they did in this particular case. . . ." After hearing argument the court sentenced appellant to sixty years in prison.

In Chaffin v. Stynchcombe, 412 U.S. 17 (1973) the Court considered whether the Due Process Clause of the Fourteenth Amendment barred the jury from rendering higher sentences on retrials following reversals of prior convictions. The Court stated that "The rendition of a higher sentence by a jury upon retrial does not violate the Double Jeopardy Clause. Nor does such a sentence offend the Due Process Clause so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness." Id., at 36. (emphasis added). Both before and after Chaffin the court of criminal appeals has reached the same result. See Jackson v. State, 766 S.W.2d 504, 507 (Tex. Crim. App. 1985) (quoting the Chaffin rule), and cases cited therein.

In the instant case even if the jury was informed about the sixty-year sentence the record does not show that the second sentence was a product of the jury's vindictiveness. There is no presumption of vindictiveness when, as in this case, a jury assesses the subsequent punishment. Wiltz v. State, 863 S.W.2d 463, 466 (Tex. Crim. App. 1993) (citing Chaffin).

Moreover, courts have no power to change a jury's verdict unless it is with the jury's consent and before they have dispersed. Ramirez v. State, 587 S.W.2d 144, 145 (Tex. Crim. App. 1979); Ex parte McIver, 586 S.W.2d 851, 854 (Tex. Crim. App. 1979); Beasley v. State, 718 S.W.2d 304, 305 (Tex. App.--Amarillo, 1985, no pet.). The record does not show that the jury had consented to the trial court's reduction of the sentence. Thus the trial court had no authority to alter the verdict. We sustain the cross-point.

We reform the judgment to show a sentence of sixty-two years in the Texas Department of Criminal Justice, Institutional Division and a $10,000 fine. As reformed, the judgment is affirmed.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 17th day of August, 2000.

1. The seventy-fifth day was February 13, 1999, which was a Saturday. Monday, February 15, 1999, was the President's Day holiday.