Jesus Martinez GAMEZ, Appellant, v. The STATE of Texas, Appellee.
No. 015-84.
Court of Criminal Appeals of Texas.
Sept. 23, 1987.
We hold these identifications of Alquassab constitute some evidence of his death and support the jury‘s findings without regard to Carmelli‘s testimony. We are guided to our conclusion by City of Dallas v. Holcomb, 381 S.W.2d 347 (Tex. Civ.App.-Dallas), writ ref‘d n.r.e. per curiam, 383 S.W.2d 585 (Tex.1964), where that court held that the error сommitted in restricting cross-examination did not warrant reversal because, in addition to the witness complained of, the prevailing party introduced the testimony of “seven disinterested and legally qualified witnesses who testified” to the issue in dispute.
Great National responds that since Carmelli was Davidson‘s “key witness,” error associated with his testimony compels reversal. In State v. Hilton, 412 S.W.2d 41 (Tex.1967), we held that error in denying cross-examination of a witness was reversible error because that witness was “the real supporting witness” with impressive credentials and authoritative testimony. Although other favorable witnesses also testified, their testimony was suspect because of familial relationships and inconsistency. Id. at 42-43. Here, Davidson‘s witnesses identifying the body as Alquassab included immediate family members and Shamash, who offered somewhat inconsistent testimony. While we recognize that problems may be present with Davidson‘s other witnesses, their testimony constitutes some probative evidence which the jury apparently believed during its deliberations two days before Christmas 1985.
In addition to the matters disposed of here, Great National has complained of other points of error including cumulative error, improper jury argument, and denial of jury issues, which the court of appeals has not yet considered. Accordingly, we reverse the judgment of the court of appeals and remand the cause to that court for further consideration.
Sam D. Millsap, Jr., Dist. Atty., and Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
Appellant was convicted of the capital murder of Joe Banda. The jury having answered the second special issue submitted under
On appeal by virtue of a supplemental ground of error (now point) appellant contended that the trial judge was absolutely disqualified from presiding on the trial because he had served as counsel for the State in the case.
Judge Barrera testified he became Judge of the 144th District court on October 22, 1980, more than a year and a half after the State‘s announcement of ready was filed.
Susan Reed,5 who prosecuted the instant case, had no recollection of Judge Barrera participating in the case while he was a prosecutor and while she was connected with the case.
“Sec. 11. No judge shall sit in any case ... when he shall have been counsel in the case....”
“No judge or justice of the peace shall sit in any case ... where he has been of counsel for the State or the accused....”
These provisions have been held to be mandatory. Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App.1970), cert. den. 402 U.S. 914, 91 S.Ct. 1398, 28 L.Ed.2d 657 (1971); Ex parte Miller, 696 S.W.2d 908 (Tex.Cr.App.1985).
It is not necessary that an objection be made. Holifield v. State, 538 S.W.2d 123 (Tex.Cr.App.1976). The disqualification of a judge may not be waived even by consent of the parties. Tex.Jur.3d, Vol. 21, Crim.Law, § 1861, p. 772. The issue may be raised at any time. See Ex parte Miller, 696 S.W.2d 908, 910 (Tex.Cr.App.1985); Lee v. State, 555 S.W.2d 121, 122 (Tex.Cr.App.1977); Woodland v. State, 147 Tex.Cr.R. 84, 178 S.W.2d 528 (Tex.Cr.App.1944).
Under these provisions “... a judge is clearly disqualified if he has acted as coun-
As pointed out in Holifield v. State, supra, the prohibition in the Texas Constitution and
In Muro v. State, 387 S.W.2d 674 (Tex.Cr.App.1965), it was held the trial judge in a prоsecution for assault with intent to murder was not disqualified because he had been assistant district attorney at the time of the offense where the case did not come within the purview of his assignment as Assistant Criminal District Attorney, and he had no recollection of the case. See also Donald v. State, 453 S.W.2d 825, 826 (Tex.Cr.App.1969), citing Muro with approval.
In Rodriguez v. State, 489 S.W.2d 121, 123 (Tex.Cr.App.1972), this Court wrote:
“It is not shown that the trial judge, even though he was the First Assistant to the Criminal District Attorney and in charge of capital prosecutions, actually investigated, advised, or participated in this case in any way, it is therefore not shown that he ‘acted as counsel in the case’ as contemplated by the constitutional and statutory provision relied upon. See Utzman v. State, 32 Tex.Cr.R. 426, 24 S.W. 412 (1893); Muro v. State, 387 S.W.2d 674 (Tex.Cr.App.1965) and cf. Ex parte McDonald, 469 S.W.2d 173 (Tex.Cr.App.1971), and Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App.1970).” See also Prince v. State, [158 Tex.Cr.R. 65] 252 S.W.2d 945 (Tex.Cr.App.1952).
In Ex parte Miller, supra, the Court observed that Hathorne, supra, had construed “counsel in the case” to require an affirmative showing that the judge actually acted as counsel in the very case before him and that Rodriguez and Carter v. State, 496 S.W.2d 603 (Tex.Cr.App.1973), had followed the Hathorne interpretation.
In line with the above cases Judge Barrera, in the instant case, would not be disqualified unless the State‘s announcement of ready constituted him “counsel in the case.” The judge testified that while an Assistant Criminal District Attorney he and other assistants on occasion were asked to assist the third chair prosecutor in the court conducting the arraignment docket for the district courts trying criminal cases by preparing written announcements of ready for the State in cases often exceeding one hundred in number. The particular announcement of ready in question was on a printed form. The blanks in the form concerning appellant‘s name, the date, the cause number and the court number were filled in by handwriting which was not that of Judge Barrera but it wаs signed with his stamped signature. The judge stated he did not prepare or personally sign the document and had no recollection of stamping the same; that someone may have “stamped that for me or used my stamp.” Judge Barrera‘s lack of participation in the case has been detailed.
We agree with the Court of Appeals that the possible perfunctory act of Judge Barrera standing alone would not constitute him “counsel in the case” as contemplated
Appellant‘s second ground of review relates to the charge of the court and the sufficiency of the evidence. He contends the Court of Appeals erred in overruling his points (nee grounds) of error complaining that Richard Sanchez was an accomрlice witness as a matter of law; that the court erred in submitting to the jury as an issue of fact the question of whether Sanchez was an accomplice witness; that the evidence was insufficient to corroborate the testimony of Sanchez and that the evidence was insufficient to corroborate the testimony of Frank San Miguel, whom the court charged was an accomplice witness as a matter of law.
The capital murder indictment alleged that appellant Gamez did knowingly and intentionally cause the death of Joe Banda by shooting him with a gun on or about January 2, 1979, by employing Guadalupe Castro for remuneration in the amount of $1,000 to kill Banda by shooting him with a gun.
The facts were well summarized by the Court of Appeals as follows:
“... Frank San Miguel, who was held to bе an accomplice as a matter of law by the trial court, testified that appellant telephoned him in December, 1978, and asked if he could find someone who was willing to kill an individual for one thousand dollars. San Miguel, as a result of this phone call, arranged a meeting between Guadalupe Castro and appellant.
At this meeting it was decided that the decedent would be killed by placing dynamite in his car. San Miguel was given three hundred dollars ($300) to purchase the dynamite. Twenty-five dollars went to the actual purchase of the dynamite. San Miguel gave eighty dollars to Castro and kept the balance for himself.
“Richard Sanchez testified that he met Castro in 1977. Sanchez and Castro lived together and both worked at a fireworks stand which was managed by San Miguel. Sanсhez stated that he knew appellant hired Castro to kill the decedent; that the price was one thousand dollars, and that three hundred dollars had been paid. Sanchez testified Castro offered him one hundred dollars to help kill Banda which he refused. Despite the refusal of the one hundred dollars, Sanchez watched while San Miguel instructed Castro how to connect the dynamite and allowed his car to be used for this practice session. That evening Sanchez, knowing Castro was going to plant the dynamite to kill Banda, drove Castro to Banda‘s residence. Neither Castro nor Sanchez could open the hood of Banda‘s car. They then left and returned some four hours later after having learned how to open the hood. On this trip, Sanchez waited in the сar while Castro planted the dynamite.
“The next morning Banda started his car. The dynamite exploded destroying the car. Banda, however, was only slightly injured. Castro and Sanchez learned of the failure the next day at work. Sanchez testified appellant arrived at the fireworks stand and had a discussion with Castro in appellant‘s car. Castro emerged from the car with a newspaper which showed Banda was still alive. Castro told Sanchez he was going to finish the job by shooting Banda, and asked for Sanchez‘s help. Sanchez declined.
“After the bomb attempt on Banda‘s life failed, Banda moved from his home to a motel. Sanchez testified that Castro learned of Banda‘s new location from appellant a couple of days after the bombing. Sanchez was аgain asked to accompany Castro and again refused. When Castro left to do the shooting, Sanchez wished him ‘good luck.’
“Castro was successful on this trip. Banda was shot nine times with a .22 caliber rifle and died as a result of multiple gunshot wounds.
“Some six to seven hours after the shooting, Sanchez saw appellant pay Castro the seven hundred dollar balance due, and was shown Banda‘s wallet and nine spent shell casings by Castro.”
San Antonio Police Officers Silber and Ellis testified only about the antecedent assault (by dynamite) upon the deceased Banda. Dr. Nina Hollander, the medical examiner, testified only as to the cause and manner of death by gunshot wounds caused by a .22 caliber weapon. Officer Pena testified he received State‘s Exhibit No. 11, a .22 caliber Glеnfield rifle from a confidential informant. Officer Stingle testified the bullets removed from the body of the deceased were consistent with having come out of the barrel of a gun like State‘s Exhibit No. 11. John Chapa Garcia admitted knowing San Miguel and Sanchez, but refused to testify as to any material issues. Officer Michalec testified Garcia provided him with information about the murder alleged which led him to arrest Guadalupe Castro. After Castro gave a confession, Michalec testified that appellant Gamez became a suspect. Michalec testified his investigation revealed that Eleverta Hernandez, who was a friend of both the appellant and the deceased, helped the deceased to check into the motel where his body was latеr found by the officers.
The court in its charge to the jurors instructed them that Frank San Miguel was an accomplice witness as a matter of law. The court, however, submitted the question of whether Richard Sanchez was an accomplice witness to the jury or a fact issue, and carefully instructed the jury that one accomplice witness cannot corroborate another accomplice witness.
The jury found the defendant guilty.
“A conviction cannot be had upon the testimony of an accomplice witness unless that testimony is corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.”
It has been said before and after the adoption of the 1974 Penal Code that an accomplice witness is someone who participated with another before, during or after the commission of a crime. Brooks v. State, 686 S.W.2d 952, 957 (Tex.Cr.App.1985); Harris v. State, 645 S.W.2d 447 (Tex.Cr.App.1983); May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981); Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980), and cases there cited; Easter v. State, 536 S.W.2d 223, 226 (Tex.Cr.App.1976); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974).
One is not an accomplice witness, however, who cannot be prosecuted for the offense with which the accused is charged. Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1979); Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978); Russell v. State, supra; Brooks v. State, supra. Thus the test to be applied is whether a prosecution will be against the individual under the indictment by which the accused was charged. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979); May v. State, supra. See also Villarreal v. State, supra.
If a State‘s witness has no complicity in the offense for which an accused is on trial, his or her testimony is not that of an accomplice witness whatever may have been his complicity with the accused in the commission of other offenses. Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627 (Tex.Cr.App.1958), cert. den. 359 U.S. 965, 79 S.Ct. 876, 3 L.Ed.2d 834 (1959); McClanahan v. State, 394 S.W.2d 499 (Tex.Cr.App.1965); Johnston v. State, 418 S.W.2d 522 (Tex.Cr.App.1967); Eremita v. State, 420 S.W.2d 609 (Tex.Cr.App.1967); Easter v. State, supra, at p. 225; Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Carrillo v. State, supra; Brooks v. State, supra; Singletary v. State, supra.
The mere fact that a witness was present when the crime was committed does not сompel the conclusion the witness is an accomplice witness. Brooks v. State, supra; Brown v. State, 640 S.W.2d 275 (Tex.Cr.App.1982); Arney v. State, 580 S.W.2d 836 (Tex.Cr.App.1979); Easter v. State, supra, at p. 225. Further, a witness is not deemed an accomplice witness because he knew of the crime but failed to disclose it or even concealed it. Easter v. State, supra, at p. 225; Carrillo v. State, supra. See also Villarreal v. State, supra; Russell v. State, supra. See also Wade v. State, 367 S.W.2d 337 (Tex.Cr.App.1963); Walker v. State, 149 Tex.Cr.R. 501, 196 S.W.2d 515 (Tex.Cr.App.1946); Herndon v. State, 82 Tex.Cr.R. 232, 198 S.W. 788 (Tex.Cr.App.1917).
The evidence in a case determines what jury instruction needs to be given on an accomplice witness. When the evidence clearly shows the witness is an accomplice witness as a matter of law, the trial court must so instruct the jury. Harris v. State, supra at p. 454; Arney v. State, supra, at p. 836; Allen v. State, 461 S.W.2d 622 (Tex.Cr.App.1970). When there is a question from the evidence whether a witness is an accomplice witness, it is then proper to submit that fact issue to the jury, and this is sufficient even though the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice witness аs a matter of law. Harris v. State, supra, at p. 454; Brown v. State, supra; May v. State, supra; Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975); Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969), and cases there cited. See also Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975). If the evidence is clear that the witness is not an accomplice witness, no charge need be given to the jury either that the witness is an accomplice witness as a matter of law or in the form of a fact issue whether the witness is an accomplice witness. Villarreal v. State, supra, at p. 51; Harris v. State, supra, at p. 456.
The careful trial judge decided to submit to the jury the fact issue of whether Sanchez was an accomplice witness which is proper when there is some question or doubt whether the witness is an accomplice witness. We cannot say the trial court erred in submitting such fact issue to the jury. May v. State, supra, at 340; Carrillo v. State, supra; Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975); Zitterich v. State, 502 S.W.2d 144 (Tex.Cr.App.1973). Further, the court instructed the jury that Frank San Miguel was an accomplice witness as a matter of law and instructed the jury that one accomplice witness cannot corroborate another accomplice witness. See May v. State, supra, at 339; Caraway v. State, supra; Chapman v. State, 470 S.W.2d 656 (Tex.Cr.App.1971).
In light of the evidencе, the court‘s charge and jury‘s verdict at the guilt stage of the trial it is clear that the jury found that Sanchez was not an accomplice witness. See May v. State, supra, at 340. His testimony did not need to be corroborated, and his testimony was sufficient to corroborate Frank San Miguel‘s testimony.10
The ground of review as to the charge of the court and the sufficiency of the evidence to sustain the conviction is overruled.
The judgment of the Court of Appeals is affirmed.
WHITE, J., not participating.
CLINTON, Judge, dissenting and concurring.
The opinion of the Court states, “We granted appellant‘s petition for discretionary review to determine the correctness of the decision below.” Maj. Opinion, at 317.
While that or a similar broad statement of a “reason” for granting rеview does appear from time to time in an opinion, this Court has declared to the bench and bar “the character of reasons” we will consider in determining whether to grant review. See
In the instant cause the opinions delivered in the San Antonio Court of Appeals are published, and there is a dissent to the majority opinion “upon a material question of law necessary to its decision“-indeed, one arising under our own Constitution and statute.
So much for mandatory provisions that may not be waived by the parties. Maj. Opinion, at 318-319. To thus reducing their intended purpose and effect to an exercise in semantics, I respectfully dissent.
Furthermore, at the time this PDR was granted some members of the Court were сoncerned with an increasingly recurring statement of what we deemed to be an erroneous test for determining sufficiency of evidence to corroborate accomplice testimony that was utilized in the majority opinion below, viz:
“We hold there is sufficient evidence to corroborate San Miguel‘s testimony more likely than not.”
Gamez v. State, supra, at 126 (my emphasis here and throughout). After granting review in this cause but before deciding it, the occasion arose for this Court to disapprove a similar statement in an opinion by another court of appeals, viz:
“The corroborative evidence need not directly link the accused to the crime or be sufficient alone to establish guilt; it need only make the accomplice testimony more likely to be true than nоt. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).”
Vertz v. State, 702 S.W.2d 196 (Tex.Cr.App.1986).
Again today the opinion of the Court disavows that “test.” Maj. Opinion, at 323, n. 7. I join that part of the opinion.
TEAGUE, Judge, concurring and dissenting.
To this Court sustaining the San Antonio Court of Appeals’ holding that Richard Sanchez was not an accomplice witness as
I pause to point out that oftentimes the fact that at least four (4) members of this Court vote to grant a petition for discretionary review should never mean, in my view, that that decision is written in stone. We are human and, to err, is of course human. I confess: Many times I have voted to grant a petition for discretionary only because I felt at the time that sufficient study had not been made by this Court regarding the issue on which the party seeks review, but that later on more study might be devoted by this Court‘s members to the issue on which the petition was granted. However, later, after I have personally gone over the issue in more detail, or after another member of this Court has carefully gone over the issue in more detail, as Presiding Judge Onion, the author of the majority opinion, has most certainly done in this instance, sometimes it then becomes apparent or obvious to me that those of us who voted to grant the petition should have voted to refuse, rather than grant, the petition. In this instance, as to appellant‘s contentions that Sanchez was an accomplice witness as a matter of law and that the evidence was insufficient, I have now concluded that this Court should not have granted the appellant‘s petition to review the court of appeals’ holdings on these contentions. Thus, I now vote to put the improvidently granted stamp to these contentions, and also would delete from the majority opinion everything that relates to them because, in all due respect to Presiding Judge Onion, the author, I do not find anything he states therein adds anything whatsoever to the jurisprudence of this State, and the facts of this case are not of such significance that they warrant a place in the lawbooks.
However, I do find that this Court acted quite properly when it originally granted appellant‘s petition to review the holding by the court of appeals that the trial judge in this cause was not disqualified. See Gamez v. State, 665 S.W.2d 124 (Tex.App.-4th 1983). The majority opinion affirms this holding. I dissent because the case law in point will simply not support the holding that the trial judge in this cause was not disqualified.
Our Constitution provides in part, see
Given the facts of this case, I find that the “key” in deciding the issue, whether the trial judge in this cause was disqualified, is whether the record clearly reflects that he participated in the case as “counsel for the State.” If hе “participated” in the case, no matter how slight or perfunctory, he is then disqualified; if he did not “participate“, then he was not disqualified.
One common definition for the word “participate” is to take part in something with others. See Webster‘s Ninth New Collegiate Dictionary 858 (1985 edition); The American Heritage Dictionary of the English Language 955 (1973 edition).
The appellate record of this cause reflects that all that Judge Barrera, the trial judge in this cause, did was to “probably” personally place his signature stamp on the State‘s announcement of ready forms for the prosecutor who was handling arraignments for the State on that particular day. Did this amount to him “participating” in the case? Of course it did, even though his “participation” was ever so slight and ever so perfunctory. See the San Antonio Court of Appeals original decision in this cause, in which it abаted the cause to the trial court for a hearing on the issue. Gamez v. State, 644 S.W.2d 879 (Tex.App.-4th 1983). Justice Butts pointed out in the dissenting
In the dissenting opinion that Justice Butts filed to the decision of the court of appeals to abate the cause to the trial court for a hearing, see 644 S.W.2d 879, she further pointed out the following:
In the present case what the then assistant district attorney, now the trial judge, did was to sign his name in his official capacity as counsel for the State to a pleading. Whether he tried the case or participated at trial doesnot matter. The same is true of any assistant district attorney who signed the State‘s motions in the case but did not participate in the trial. Further, the fact that a ‘stamp’ of the State Attorney‘s signature may have been used does not matter. This was a pleading upon which all parties in the case relied. The fact that the pleading was an announcement of the State that the State was ‘ready’ for trial in the case signifies that it was relied upon by the State to protect its position. Just as importantly the appellant could not raise the defense [sic] that the State was not ready for trial, which defense [sic] was now made automatically unavailable by the very pleading. (881).
When the case next reached the court of appeals, that Court overruled appellant‘s contention that Judge Barrera was disqualified, holding: “We are of the opinion that this merely perfunctory act of Judge Barrera standing alone is not enough to bring the judge within the ambits of either the Constitution‘s or Cоde of Criminal Procedure‘s restrictions. Lee v. State, 555 S.W.2d 121, 122 (Tex.Cr.App.1977).” (128). Given what this Court approved in Lee, supra, I find that the court of appeals’ reliance upon that case as authority for its holding that Judge Barrera was not disqualified is sorely misplaced.
This Court‘s majority opinion in this cause merely cites, but does not discuss, Lee, supra, which I find, like Justice Butts of the courts of appeals did, as far as being factually in point, is the latest expression by this Court on the subject. This Court in Lee, supra, held that the issue was so serious that it did not even have to be raised on direct appeal. Given the facts and what this Court approved in Lee, supra, I am compelled to agree with Justice Butts’ implicit finding that she made in both of her dissenting opinions that she filed in the court of appeals that although Lee is not a “white horse” case, it is to these eyes most certainly grayish in color, and should be discussed, and not merely cited in the majority opinion, and, of course, distinguished, which I find is impossible, and perhaps that is why it is not discussed in the majority opinion.
In Lee, supra, the record reflected that when the trial judge in that cause was an assistant district attorney, and while acting in his position as Chief of the Trial Division of the District Attorney‘s Office, he merely reviewed the file on the case and wrote defense counsel a letter informing him, inter alia, that, as Chief, he could not recommend to counsel anything less than life imprisonment for counsel‘s client, and advised defense counsel to get ready for trial. This Court held that these acts clearly constituted “participation” in that case and ruled that the trial judge was disqualified because of those acts of participation.
Judge Barrera was also disqualified from sitting in this cause under Bradshaw v. McCotter, 796 F.2d 100 (5th Cir.1986) and Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir.1986). On original submission, the Fifth Circuit was confronted with the issue whether, as a matter of federal constitutional law, Judge Vollers of this Court, who never in the technical sense “participated” in that case, but whose prior relationship to the case was only because his name and position of State‘s Attorney, which position he оccupied before becoming a judge on this Court, had been placed on the brief that was filed by the local district attorney, was disqualified from sitting in that case solely and only for that reason. The Fifth Circuit, on original submission, not only found that Judge Vollers should have disqualified himself in that case, it is also held that there was no need on the part of the defendant to even show harm. On rehearing, the Court, after concluding that because Judge Vollers’ vote in that case was not controlling, denied the defendant relief. However, the Court on rehearing made it expressly clear that it was not backing off on its finding that Judge Vollers should have disqualified himself in that case. Thus, contrary to what footnote 8 of this Court‘s majority opinion might insinuate, the Fifth Circuit did not modify its “conclusion in its original opinion thаt Judge Vollers should have disqualified himself in all cases in which his name appeared on the brief as a prosecutor.” (101). Therefore, given the facts of Bradshaw v. McCotter, supra, if Judge Vollers was not qualified to sit in that cause, then I do not understand how this Court can hold that Judge Barrera was qualified to sit in this cause, and what is stated in footnote 8 of the majority opinion is totally unpersuasive to show that Judge Barrera was not disqualified.
For the above and foregoing reasons, I respectfully dissent to the majority opinion‘s erroneous holding that Judge Barrera was not disqualified to sit in this cause.
CONSOLIDATED CAPITAL SPECIAL TRUST, Appellant, v. James M. SUMMERS, Trustee, and English Village Apartments, Ltd., Appellees.
No. C14-85-873-CV.
Court of Appeals of Texas, Houston (14th Dist.).
April 23, 1987.
Rehearing Denied Aug. 13, 1987.
Notes
“The announcement of ‘ready’ in the pleading forclosed a possible defense, regardless whether a stamped or handwritten signature of a State‘s Attorney was employed. The State relied upon the pleading to forstall any defense that the State was not ready for trial whether or not an assembly line method of stamping official prosecuting attorneys’ signatures to several pleadings produced this result.” (Emphasis supplied.)
Justice Butts then relied upon Lee v. State, 555 S.W.2d 121 (Tex.Cr.App.1977), comparing the letter in that case to the “pleading” in this case. It should be noted that the above comments relate obviously to the Texas Speedy Trial Act (Lee, supra, is distinguishable on the facts. There the judge was the former assistant district attorney who was Chief of the Trial Division and who reviewed the file in the particular case, found the defendant‘s record deplorable and refused in a letter to defense counsel to make a recommendation less than life imprisonment. None of these facts are present in the instant case.
“Q. Okay, now did Guadalupe [Castro] try to get you to help him kill Joe Banda?
“A. Yes.
“Q. Okay, what did he offer you?
“A. He offered me a hundred dollars.
“Q. Okay. And what did you tell him?
“A. I said no.
“Q. Okay. Now, was that before the bombing or after the bombing?
“A. It was before.”
After appellant met with Castro and advised him Banda survived the bomb attempt, Castro said he was going to shoot Banda. Thereafter the record reflects the following on interrogation of Sanchez:“Q. Did he [Castro] ask you to go with him to shoot him?
“A. Yes.
“Q. And did you help him?
“A. No.
“Q. Did you help him shoot him in any manner?
“A. No.
*
*
*
*
*
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“Q. Okay, were you with him when he shot Joe Banda?
“A. No.
“Q. Did you help him plan going and killing Joe Banda?
“A. No. I had nothing to do with that.
“Q. Do you know if there was anyone with him when he went to kill Joe Banda?
“A. Yes, there was.
“Q. And who was that?
“A. Jesse DeLaRosa.”
San Miguel‘s testimony was corroborated by “other evidence tending to connect” appellant with the offense committed.