Calamaco v. State

650 S.W.2d 913, 1983 Tex. App. LEXIS 4270
CourtCourt of Appeals of Texas
DecidedApril 13, 1983
DocketNo. 04-81-00492-CR
StatusPublished
Cited by4 cases

This text of 650 S.W.2d 913 (Calamaco v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Calamaco v. State, 650 S.W.2d 913, 1983 Tex. App. LEXIS 4270 (Tex. Ct. App. 1983).

Opinions

OPINION

BUTTS, Justice.

This is an appeal from a conviction for the offense of murder. Punishment was assessed, after appellant was found guilty, by the jury at fifteen (15) years’ imprisonment. We affirm.

Appellant submitted to the trial court three objections to the charge in one instrument: (1) that there was no evidence or insufficient evidence to justify the submission of the parties charge, (2) that the parties charge shifted and altered the burden of proof as to the essential elements of the offense, and (3) that the parties charge tended to eliminate and dispense with proof of the element of intent relative to the offense charged.

The evidence shows this was a trial of co-defendants, both charged with the shooting death of David Valdez. It is undisputed that Valdez died as the result of a shootout on February 8, 1980, with appellant and four others, the fatal encounter occurring outside an icehouse. The deceased’s brother, Jerry Valdez, testified that one of the men pointed a gun at him and fired it, striking him in the arm. He said Carlos Calamaco stood next to Tony Rodriguez and that appellant had a gun in his hand, a long-barrelled pistol. He stated Antonio Valenzuela, the co-defendant, held a short-barrelled weapon, Robert Calamaco had a gun, and a fifth man used a silver-colored gun. He saw the guns “going off” and “fire coming out of them and stuff.” “I saw fire coming out of his [appellant’s] gun also.” The witness was struck by a bullet in the back as he attempted to get up. Valenzuela, the co-defendant, was also firing his gun, according to the testimony of Valdez. He repeated that Carlos Calamaco continued shooting, along with the others, at the time his brother was shot. He said he saw Valenzuela driving the car as it left the scene, a San Antonio icehouse. “I saw Carlos Calamaco in the back on the right back seat with a gun in front of his face like this.” He described it as a long-bar-relled revolver.

[915]*915Appellant testified he drove the automobile to a hospital and discovered that someone had placed guns in the seat between him and his wounded brother, Robert. He stated he threw the guns in a trash can outside the hospital. Both appellant and Valenzuela testified that Valenzuela had gone across the street to a store to get change to use an outside telephone and that neither he or the co-defendant participated in the shooting at all. Valenzuela disclaimed any knowledge of guns or use of them by himself or any of the others. The testimony that he was inside the store was refuted by John and Adrian Wong, brothers who worked for their grandfather, the proprietor of the store.

The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Daniels v. State, 600 S.W.2d 813, 815 (Tex.Cr.App.1980); LaFoon v. State, 543 S.W.2d 617, 620 (Tex.Cr.App.1976). The jury may choose to believe or disbelieve any witness. We find the evidence sufficient to justify submission of the parties charge.

Appellant relies upon Zuckerman v. State, 591 S.W.2d 495 (Tex.Cr.App.1979) and Zuckerman v. State, 591 S.W.2d 497 (Tex.Cr.App.1979) to uphold his argument that the court’s charge on parties shifted the burden of proof from the State to the appellant. In those cases the charge authorized the jury to convict each appellant on a finding that only his co-defendant committed the offense. It is elementary that a defendant must be found to have committed the offense personally or that he be found to be criminally responsible for the acts of his co-defendant. The Zuckerman error is not present in this case. We understand the related argument to be that appellant must have known the other person was engaged in knowingly, intentionally committing the unlawful act and must knowingly aid, abet, assist and encourage the intentional act of the other. The instant jury charge with its definitions and instructions, as given, afforded this protection to appellant. See Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980).

The charge to the jury1 conformed generally with Texas practice, first submitting the abstract principles of law followed by the application of that law to the facts of the case. Finley v. State, 527 S.W.2d 553, 555 (Tex.Cr.App.1975). In the present case the trial court first defined “parties” by tracking the statute. Tex.Penal Code Ann. §§ 7.01(a), (b), 7.02(a)(2) (Vernon 1974).

We find that all of the elements of the offense of murder were included in applying the law to the facts of this case. Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 1974). We further find that the evidence supports submission of the jury charge either on the theory of appellant’s guilt because of his own acts or because of his responsibility for the acts of his co-defendant or other persons at the scene.

[916]*916Appellant has cited no authority to demonstrate how the substantive charge as submitted shifted the burden of proof as to the substantive elements of the offense of murder. We point out that the legal term “parties” and its defined components do not attain the posture of essential elements of the offense, as does, for instance, the culpable mental state, Compare Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982); Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). We overrule the contention.

In still the same ground of error appellant questions that sufficient proof could be made because the jury charge on parties eliminated the necessity of proof by the State of intent to commit murder. He argues there should have been separate findings that appellant committed the act or that another committed the act of killing. We do not agree. It is permissible for the jury in determining whether appellant participated as a party, to look to events occurring before, during, and after the commission of the offense as well as to actions of the parties which show an understanding and common design to murder the deceased. Barron v. State, 566 S.W.2d 929, 931 (Tex.Cr.App.1978), where the defendant accompanied the shooter to the scene and stood 25 feet away from him and drove him from the scene after the shooting. The jury charge in that case tracked § 7.02(a)(2), supra, and that court found the evidence sufficient to support the conviction.

A trial court may charge the jury on the law of parties even though there is no such allegation in the indictment. English v. State, 592 S.W.2d 949, 955 (Tex.Cr.App.1980), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120; Pitts v. State, 569 S.W.2d 898, 900 (Tex.Cr.App.1978). In this case there was sufficient evidence to establish appellant’s intent to commit the offense as the primary actor as well as to commit the offense as a party.

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650 S.W.2d 913, 1983 Tex. App. LEXIS 4270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calamaco-v-state-texapp-1983.