Roger Soliz v. State ( 2011 )

MEMORANDUM OPINION
No. 04-10-00087-CR
Roger SOLIZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2009-CR-0755B
Honorable Mary D. Roman, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: January 19, 2011
AFFIRMED
Roger Soliz challenges his convictions for aggravated robbery, arguing the evidence at
trial was insufficient to corroborate the accomplice testimony. Soliz also raises a claim of
ineffective assistance of counsel. We affirm the judgment of the trial court.
BACKGROUND
Soliz was indicted for aggravated robbery with a deadly weapon (habitual). The 5-count
indictment stemmed from a robbery which occurred at Metro News Service, a telemarketing
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business located on Fredericksburg Road, on November 1, 2008. There were twenty employees
present that day. At trial, the five complainants named in the indictment—Albert Martinez, Kim
Ryle, Brenda Rodriguez, Diane Gonzalez, and Rebecca Calles—testified, as did three unnamed
complainants. The witnesses stated that at about 1:20 p.m. on Saturday, November 1, 2008,
three men entered their office and robbed them. 1 One man carried a firearm described as a
shotgun. He was described as tall, slender, and African American. Even though his face was
covered with a ski mask, all the victims unequivocally recognized him as their co-worker,
Darrell Johnson. Johnson was recognized by his voice and his mannerisms, and even by the
shoes he was wearing. The other suspects were described as Hispanic, and of the two, one was
short and one was taller, but not taller than Johnson. All three were dressed in dark clothing and
their faces were covered. Most victims paid little attention to the taller Hispanic suspect, but
Rebecca Calles stated he held a knife to her back; the same suspect also held a knife to Albert
Martinez’s throat. After their demands for money failed, the robbers searched the victims’
pockets and purses for items of value, taking purses, wallets, cell phones, and jewelry. 2 They
took two rings, a watch, two cross necklaces, a bracelet, and a pair of earrings from Martinez.
The robbers left through the back door, which led to an alley. Some of the victims ran after
them, and saw the robbers flee in a green Volvo sedan and turn right on Fredericksburg Road
headed towards Loop 410. The victims described seeing four people in the green Volvo.
Jonathan Perez testified as an accomplice witness. Perez admitted that he, Soliz, Darrell
Johnson, and Valentin Suniga committed the robbery, and that he supplied the shotgun that was
1
One witness, Norma Pacheco, who described herself as “hysterical” at the time of the robbery, stated that she did
not know how many robbers entered the building, only that she heard more than one voice.
2
The Metro News employees were normally paid on Saturday before lunch; they would use their lunch break to
cash their checks at a nearby check-cashing business and then return to work to finish out their shift. Albert
Martinez, the business manager, testified that on that particular Saturday, he did not pay his employees before lunch,
as was his custom, because the employees were going to have to stay longer than usual to meet their sales quota that
day.
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used by Johnson. He stated that the four of them traveled to and from the robbery in a green
Volvo. Suniga drove and remained in the car during the robbery. After the robbery they pawned
some of the stolen jewelry at a shop on Five Palms and Old Pearsall Road. While Suniga was
pawning the jewelry, Perez, Johnson, and Soliz walked to a nearby restaurant where they met
Soliz’s mother and her boyfriend. They agreed to park the Volvo in the backyard of Soliz’s
mother’s house. Once at Soliz’s mother’s house, her boyfriend drove Perez home in a blue
Oldsmobile. Perez acknowledged that he entered into a plea agreement with the State in
exchange for his testimony at Soliz’s trial.
Shortly after the robbery, Detective David Lozano arrested Johnson. Johnson admitted
committing the robbery, and showed Detective Lozano where he and the other men left the
Volvo and where they pawned the jewelry. Mary Soliz, appellant’s mother and the owner of the
house where the Volvo was found, told police her nephew, Valentin Suniga, left the car there and
that he was with her son. While police were at the Soliz house, a blue Oldsmobile drove up, and
a search of that vehicle revealed credit cards belonging to Rebecca Calles, Albert Martinez, and
to two other robbery victims.
Hollyann Moncado, an employee at El Buffalo Pawn Shop, located on Old Pearsall Road,
testified that she was working on the afternoon of November 1, 2008 when four men entered and
pawned three rings and a necklace. Surveillance video from inside and outside the pawn shop
was played for the jury and shows four men entering the shop and pawning jewelry. Valentin
Suniga was the first to approach Moncado and showed his driver’s license to her. Another male
was wearing a diamond cross pendant necklace that he eventually decided to pawn. Moncado
later identified that male in a photo lineup as Soliz. Moncado also identified Johnson, Suniga,
and Perez in photo lineups. Moncado stated the men appeared to be in a hurry and her boss
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began to get suspicious that the jewelry might have been obtained through foul play. After a
while, three of the men left the shop, leaving Suniga to complete the transaction. She saw
Suniga drive away alone in a green four-door car. Some of Albert Martinez’s jewelry, including
the cross necklace, was later recovered from the pawn shop.
Kris Martinez, a crime scene investigator, testified that she processed a 1995 four-door
Volvo in connection with the robbery. She recovered a purse, three wallets, a knife, and a
checkbook belonging to Katia Callado, a Metro News employee who was working the day of the
robbery, from the car. Martinez found fingerprints on the rearview mirror of the car. Detective
Robert Ramos testified that the prints were a match for Suniga and Soliz.
The jury found Soliz guilty of all five counts of aggravated robbery with a deadly
weapon. During the punishment phase, Soliz took the stand to explain his prior criminal
convictions and to also explain that he was not guilty of the current charges. Soliz stated that on
the evening of October 31, 2008, he stayed out late and slept at a friend’s home. The next
morning, his cousin, Valentin Suniga, woke him asking for money, and he told Suniga to go
away. Around 1:00 p.m., his mother picked him up so that he could do yard work at her house.
On his way there, he and his mother stopped at a restaurant on Old Pearsall Road. While at the
restaurant, he called Suniga, who said he was on his way to the area and asked Soliz to pawn
some stuff for him. Soliz agreed to do so. Suniga came to the restaurant and gave Soliz a
necklace, which Soliz offered to buy for $100 because he liked it. Suniga said it would be up to
his companions, Darrell Johnson and Jonathan Perez, to decide whether to sell it to him. They
agreed to sell the necklace to Soliz for $100 and a watch for $50. When the four men arrived at
the pawn shop, however, Soliz decided he did not want to pawn anything.
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The jury assessed sentences of 50 years on each count, and the trial court sentenced Soliz
accordingly, with an affirmative deadly weapon finding, and with all sentences to run
concurrently. Soliz timely appealed.
Corroboration of Accomplice Witness Testimony
The testimony of an accomplice witness is to be carefully scrutinized not only because of
any interest he might have, but because his testimony is evidence from a corrupt source. See
Paulus v. State, 633 S.W.2d 827, 843 (Tex. Crim. App. 1981). Therefore, Article 38.14 of the
Code of Criminal Procedure provides a conviction cannot be upheld on the basis of accomplice
testimony unless it is corroborated by “other evidence tending to connect the defendant with the
offense committed.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). The corroborating
evidence is not sufficient if it merely proves the commission of the offense. Id.; Cathey v. State,
992 S.W.2d 460, 462 (Tex. Crim. App. 1999). In reviewing the sufficiency of the corroborating
evidence, we eliminate the accomplice testimony from consideration and focus on the remaining
portions of the record to determine whether there is any evidence that tends to connect the
defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim.
App. 2001); Cathey, 992 S.W.2d at 462-63 (appellate courts should not apply legal and factual
sufficiency standard to statutorily based review of accomplice-witness testimony). The
corroborating evidence may be direct or circumstantial, and need not be sufficient by itself to
establish the defendant’s guilt; it is sufficient if the combined weight of the non-accomplice
evidence tends to connect the defendant to the offense. Solomon, 49 S.W.3d at 361; Gosch v.
State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). A defendant’s mere presence at the scene
of the crime is by itself insufficient corroboration; however, presence combined with other
suspicious circumstances may be enough to tend to connect the defendant. Cox v. State, 830
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S.W.2d 609, 611 (Tex. Crim. App. 1992); Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim.
App. 1996). Similarly, evidence the defendant was in the presence of the accomplice at or near
the time or place of the offense is proper corroborating evidence. McDuff v. State, 939 S.W.2d
607, 612 (Tex. Crim. App. 1997); Barrera v. State, 321 S.W.3d 137, 148 (Tex. App.—San
Antonio 2010, pet. ref’d).
Looking to the non-accomplice evidence in the record, Hollyann Moncado testified that
Soliz, along with Johnson, Perez, and Suniga, came to the El Buffalo Pawn Shop on the
afternoon of November 1, 2008 and pawned a diamond cross pendant necklace in exchange for
$450. She stated the men appeared impatient. Surveillance video from the pawn shop showing
all four men was played for the jury. Possession by the accused of fruits of the crime tends to
connect him with the commission of the crime and may be sufficient corroboration of
accomplice witness testimony. Lyman v. State, 540 S.W.2d 711, 714 (Tex. Crim. App. 1976)
(citing Edwards v. State, 427 S.W.2d 629, 633 (Tex. Crim. App. 1968)). Further evidence shows
that Soliz’s fingerprints were on the rearview mirror of the Volvo that was parked at his mother’s
house after the robbery, the same car that the victims saw leaving the robbery. A search of the
Volvo revealed personal items belonging to victims of the robbery.
We conclude the non-accomplice evidence detailed above sufficiently corroborates the
accomplice witness’s testimony. The getaway vehicle found at Soliz’s mother’s house—with his
fingerprints on it and items from the victims found inside—as well as the pawn shop video and
Moncado’s testimony, link Soliz to the aggravated robbery. Thus, the combined weight of the
non-accomplice evidence sufficiently “tends to connect” Soliz to the robbery. Gosch, 829
S.W.2d at 777; Barrera, 321 S.W.3d at 149. Accordingly, we overrule Soliz’s first issue on
appeal.
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Ineffective Assistance of Counsel
Next, Soliz alleges he received ineffective assistance of counsel when his trial attorney
failed to yield to his request to testify to his innocence at the guilt/innocence phase of the trial.
Soliz did testify on his own behalf at the penalty phase. He explained his prior criminal history,
denied that he was guilty of the current robbery charges, and stated that he did not meet up with
Valentin Suniga and the other two robbers until just prior to their trip to the pawn shop. At the
end of his testimony, Soliz explained that he did not testify at the guilt/innocence phase because
his attorney advised him not to do so: “You advised me not to because of the State bringing up
my charges, my past, and I didn’t think - - you said you didn’t want the jury to see that I had a
record. . . . But I asked you to, because of the good things that I’ve done . . . That’s why I came
to a jury trial.” In closing argument, defense counsel started by saying, “I may have made a
mistake. I told him not to testify. I didn’t think he should. It’s been my experience that once a
jury hears that someone has had that much criminal history, they tend to quit listening to other
things.”
Under the well-established standard articulated in Strickland v. Washington, a defendant
seeking to challenge counsel’s representation must show that his counsel’s performance (1) was
deficient and (2) prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009); see also Johnson v. State, 169
S.W.3d 223, 235-36 (Tex. Crim. App. 2005) (providing that an allegation that defendant’s right
to testify was denied by defense counsel is analyzed under both prongs of Strickland). To
establish deficiency “the appellant must prove by a preponderance of the evidence that his
counsel’s representation objectively fell below the standard of professional norms.” Mitchell v.
State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). To establish prejudice, the appellant “must
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show there is a reasonable probability that, but for his counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. “Reasonable
probability” is a “probability sufficient to undermine confidence in the outcome,” meaning
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687, 694.
Defense counsel shoulders the primary responsibility to inform the defendant of his right
to testify, including the fact that the ultimate decision belongs to the defendant. Johnson, 169
S.W.3d at 235. While the defendant must make the ultimate decision on whether to testify,
counsel may advise him on the advantages and disadvantages of testifying. See Sapata v. State,
574 S.W.2d 770, 771 (Tex. Crim. App. 1978). Soliz does not claim that counsel misled him into
believing that he was not permitted to testify, only that counsel advised him not to. The record
does not contain evidence suggesting that Soliz was unaware that he had the authority to decide
for himself whether to testify or that counsel failed to so inform him; he was not denied the right
to testify. Accordingly, we conclude Soliz failed to show that counsel’s performance was
deficient. Because Soliz has failed to establish the first Strickland prong, he cannot prevail on
his claim of ineffective assistance of counsel. We therefore overrule his second issue on appeal,
and affirm the judgment of the trial court.
Phylis J. Speedlin, Justice
DO NOT PUBLISH
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