De La Rosa v. State

771 S.W.2d 170, 1989 Tex. App. LEXIS 1363, 1989 WL 50574
CourtCourt of Appeals of Texas
DecidedApril 12, 1989
DocketNos. 3-87-162-CR, 3-87-191-CR and 3-87-198-CR
StatusPublished
Cited by4 cases

This text of 771 S.W.2d 170 (De La Rosa 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
De La Rosa v. State, 771 S.W.2d 170, 1989 Tex. App. LEXIS 1363, 1989 WL 50574 (Tex. Ct. App. 1989).

Opinion

ON MOTION FOR REHEARING

JONES, Justice.

The opinion and judgments handed down by this Court on February 22, 1989, are withdrawn and this opinion is filed in place of the earlier one.

Appellants were convicted by a jury of criminal conspiracy to deliver cocaine in the aggravated amount of over 400 grams. [171]*171Tex.Rev.Civ.Stat.Ann. art. 4476-15, §§ 4.02(b), 4.03(c) & (d), 4.011 (Supp.1989); Tex.Pen.Code Ann. § 15.02 (1974). The court assessed punishment at confinement for 20 years for appellant Pedro De La Rosa and 35 years for appellants Orlando Meyers and Javier Urrunaga. We will affirm the judgments of conviction.

All three appellants attack the sufficiency of the evidence to support the convictions, although their primary challenge appears to be to the sufficiency of the non-accomplice evidence to show compliance with Tex.Code Cr.P.Ann. art. 38.14 (1979). Accordingly, we are obliged first to determine whether the corroborative evidence alone meets the requirements of article 38.14, and, if so, whether that evidence together with the accomplice testimony meets the general sufficiency of evidence standard. See, e.g., Martinez v. State, 749 S.W.2d 556, 558 (Tex.App.1988, no pet.). In addition, De La Rosa and Meyers each have one evidentiary point of error.

Section 15.02 of the Penal Code provides as follows:

(a) A person commits criminal conspiracy if, with intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement.
(b) An agreement constituting a conspiracy may be inferred from acts of the parties.

Article 38.14 of the Code of Criminal Procedure provides as follows:

A conviction cannot be had upon the testimony of an accomplice unless 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.

The established rules for determining the sufficiency of corroborative evidence to satisfy article 38.14 include the following:

1. The test to determine the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is inculpatory evidence which tends to connect the accused with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not.
2. The corroborative evidence need not directly link the accused to the crime or be sufficient in itself to establish guilt.
3. All the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary.
4. The corroborative evidence may be circumstantial or direct.
5. The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused with the commission of the offense supplies the test.
6. Apparently insignificant circumstances sometimes afford satisfactory evidence of guilt and corroboration of the accomplice witness.
7. No precise rule can be laid down as to the amount of evidence that is requisite to corroborate the testimony of an accomplice, so as to sustain a conviction of the accused; therefore, each case must be considered on its own facts and circumstances.
8. Evidence merely showing the commission of an offense is not sufficient alone to corroborate an accomplice witness, but it is a factor to be considered along with other possible factors.
9. The same is true of evidence merely showing that the accused was an associate of the accomplice, or that they were together shortly before or after the commission of the crime.
10. The same is true of evidence which merely goes to show motive or opportunity of the accused to commit the crime.

[172]*172See Reed v. State, 744 S.W.2d 112 (Tex.Cr.App.1988); May v. State, 738 S.W.2d 261 (Tex.Cr.App.1987); Gamez v. State, 737 S.W.2d 315 (Tex.Cr.App.1987); Gardner v. State, 730 S.W.2d 675 (Tex.Cr.App.1987); Losada v. State, 721 S.W.2d 305 (Tex.Cr.App.1986); Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983); Paulus v. State, 633 S.W.2d 827 (Tex.Cr.App.1981).

The indictments charged seventeen persons as conspirators, and named ten more as unindicted co-conspirators. At the trial of these appellants, the State presented testimony from thirty-one witnesses, including five accomplices. Generally, the testimony related to an ostensibly significant cocaine trade in Killeen, Texas, from approximately August 1986 to approximately May 1987. Much of it related to the activities of co-conspirators who are not parties to this appeal. We will not attempt to summarize the testimony of all witnesses, but will cull out the evidence relating to each appellant individually, considering them one at a time.

Javier Urrunaga

The non-accomplice testimony that related to appellant Urrunaga may be outlined as follows:

Urrunaga had many aliases, including Javier Edgardo, Edgardo Corea, Javier Co-rea, and Jose Gonzales. His real name apparently is Javier Edgardo Urrunaga.

Urrunaga was one of five people, including Orlando Meyers and Vincent Paul Smith, an individual associated with cocaine, who were arrested at 905 Stetson on August 13, 1986, for possession of cocaine. Urrunaga was not charged with an offense, however, although cocaine was found on the premises and another co-conspirator, Lionel Callender, was charged.

In a search of Urrunaga’s residence at 305 Elm Road, lot D-37, on April 19, 1987, police found and seized the following items:

an envelope on which appeared the name of Gabriel Serrano, a co-conspirator and known cocaine dealer;
an envelope addressed to Jose Garcia, 305 Elm Rd., lot 37;
cash receipts issued to Edgardo Corea; a cash receipt in the name of Jose Gonzales;
a rental agreement (dated April 1, 1987), receipt, and Texas Power & Light connection receipt (dated March 26,1987) for 209 West Green St. # 4, all in the name of Jose Cruz;
beeper # 6285605.

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771 S.W.2d 170, 1989 Tex. App. LEXIS 1363, 1989 WL 50574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-la-rosa-v-state-texapp-1989.