Fuentes v. State

662 S.W.2d 19, 1983 Tex. App. LEXIS 5722
CourtCourt of Appeals of Texas
DecidedJuly 21, 1983
DocketNo. 01-81-0835-CR
StatusPublished
Cited by4 cases

This text of 662 S.W.2d 19 (Fuentes 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
Fuentes v. State, 662 S.W.2d 19, 1983 Tex. App. LEXIS 5722 (Tex. Ct. App. 1983).

Opinion

OPINION

JACK SMITH, Justice.

The appellant was convicted of murder and a jury assessed his punishment at life confinement. On appeal he asserts three grounds of error.

By his first ground of error, appellant urges that the trial court erred in denying his motion for new trial, thereby refusing to grant “use” immunity to his proffered witness, Joe Hernandez, and compel testimony from him as a defense witness. Such testimony, appellant urges, would provide newly discovered evidence under Article 40.03(6), Texas Code of Criminal Procedure.

Joe Hernandez, a fifteen year old juvenile, was named by four defense witnesses at appellant’s trial as the person they saw stab the deceased to death. Hernandez, who has never been charged with the offense, was subpoenaed by appellant and was present at trial, accompanied by his attorney. On the State’s motion, he was questioned on voir dire examination out of the jury’s presence. He testified to certain preliminary questions which established the facts of his presence at the drive-in theater where the homicide occurred. He further testified that he was dressed similar to appellant, and that he heard the deceased utter insults to his (Hernandez’s) sister, her female companions, and Mexican-Americans in general. Hernandez then invoked his Fifth Amendment right against self-incrimination when appellant’s counsel’s questions focused upon his presence and activity near or at the scene of the homicide. The court refused appellant’s request to call Hernandez as a witness to compel him to invoke the Fifth Amendment in the jury’s presence.

In his motion for new trial, appellant stated that since trial, his attorneys had learned from Hernandez’s attorney, Mr. Victor Blaine, that Hernandez told Mr. Blaine two days after the homicide that he fought with the deceased on the night in question at the drive-in theater, stabbed him fatally, and disposed of the weapon, a knife, by giving it to an aunt. Appellant also alleged that Hernandez had maintained this version of the incident consistently from the time of his first consultation with Mr. Blaine; and that Mr. Blaine had stated to appellant’s counsel that he believed Hernandez would testify truthfully concerning the incident if given “use” immunity by the court. At the hearing on the motion for new trial, appellant’s attorney orally stated the above information as a proffer of Hernandez’s testimony and pointed out to the court that Hernandez was then present with his attorney in the courtroom and prepared to testify at the hearing if granted use immunity as to his testimony. The court overruled the motion for new trial.

The law is well-settled in Texas, as in most American jurisdictions, that a trial court has no power to grant immunity to a witness except on the motion of the prosecuting attorney. Ex Parte Moorehouse, 614 S.W.2d 450 (Tex.Cr.App.1981).1 See also, Ex Parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29 (Cr.App.1914) and annot., 4 A.L.R. 617 (4th Ed. 981), wherein the editors summarily state:

[21]*21... there is no authority for the proposition that the defense has an affirmative right to compel the grant of immunity in any instance.

Id. at 621. In the instant ease, the prosecutor did not request “use” immunity for Hernandez and the court did not err in denying the relief sought. Appellant’s first ground of error is overruled.

By his second and third grounds of error, appellant argues that the trial court erred in refusing to grant his request to call Joe Hernandez to testify in the jury’s presence, and in denying his motion for new trial for that reason. A review of the testimony heard at trial is necessary to place appellant’s request in focus.

The State’s two principal witnesses testified that while they were attending a movie at the McClendon Triple Drive-In Theater, in Harris County, on the night of August 4, 1980, a fight broke out between a white male and a Latin-American male. A crowd quickly gathered, and although the two witnesses alternated their attention between the movie and the fight in progress, they saw some of the members of the crowd kick the white male when he fell. They also saw the Latin-American male, whom they later identified as appellant, suddenly flash a shiny object toward the white male, who slumped to the ground. The Latin-American male disappeared as the crowd quickly dispersed. The white male died from two stab wounds to his chest. Neither of the State’s eye-witnesses saw an actual stabbing, and neither witness could affirmatively state that the shiny object was a knife.

The State’s two eyewitnesses pointed out appellant to police officers whom other bystanders had summoned, and appellant was arrested. No weapon was found. The arresting officers testified that appellant had blood in the palm of his right hand and fresh scratches on his right shoulder, consistent with the wrestling and scuffling in the altercation before the deceased was stabbed. Other State’s witnesses, who knew appellant from school, testified that he had threatened and brandished a dagger at another youth, Greg Montalbo, at the drive-in earlier that evening.

Testifying in his own behalf, appellant denied that he had stabbed the deceased, that he was present at the scene of the stabbing until after its occurrence, or that he had brandished a knife at Greg Montal-bo. He further denied that he had blood in the palm of his hand or fresh scratches on his shoulder when arrested, as the arresting officers had testified. Appellant admitted that he had brought a dagger to the movie “for protection.”

In contrast with the State’s testimony, four defense witnesses, all of whom had come to the movie with appellant, testified that they were present near the scene of the fight. They stated that they knew Joe Hernandez and saw him stab the deceased. They further testified that Hernandez acted alone and that the appellant was in the concession stand area located away from the scene of the stabbing. However, none of these defense witnesses conveyed this information to the investigating police at the scene when the appellant was arrested. Instead, they waited until the next day to go to the police station.

One of these witnesses, Orlando Zacaro, testified that when appellant returned to the area from the concession stand after the stabbing, he had advised appellant to hide his dagger in Zacaro’s truck when the two State’s witnesses pointed toward appellant. They hoped this action would lessen the likelihood of appellant being arrested. All of appellant’s witnesses denied being in the crowd which surrounded the two combatants and kicked the deceased, and all denied knowing the names of any other person present in the crowd except that of Joe Hernandez.

Appellant’s 16-year-old sister, Antoinette Fuentes, testified that she was about eight feet distant from Joe Hernandez with a clear view and saw him draw his knife and stab the deceased. She said that she, Hernandez, and Hernandez’s sister then ran away to a friend’s car and that appellant was not present at the scene until after the stabbing occurred. She later saw her brother arrested but said nothing in his [22]*22defense to the police during the investigation at the scene.

Antoinette was taken to the police station that night, where she made a written statement saying that she was at the concession stand and knew nothing of the stabbing, until she returned to her car.

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Bluebook (online)
662 S.W.2d 19, 1983 Tex. App. LEXIS 5722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuentes-v-state-texapp-1983.