Gerald Jefferson Munoz Montano v. State

• Court: Court of Appeals of Texas
• Decided: April 26, 2021
• Docket: 05-19-00463-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed April 26, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00463-CR

GERALD JEFFERSON MUNOZ MONTANO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F18-00457-Y

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Garcia A jury convicted appellant of engaging in organized criminal activity by

committing murder and assessed punishment at sixty-five years in prison. In two

issues, appellant argues that the trial court gave the jury an erroneous accomplice

witness instruction and the evidence is insufficient to support his conviction. Finding

no reversible error, we affirm the trial court’s judgment.

I. BACKGROUND Appellant and other members of the 18th Street gang shot and killed Nahum

Villatoro because he covered up a gang tattoo on his hand. Villatoro’s body was

discovered near his car on the side of the road. The car was still running, the lights were on, the windows rolled down, and there was blood on it and all around it. Two

fired cartridge cases and three unfired rounds were discovered on the ground near

Villatoro’s body.

Appellant was charged with engaging in criminal activity by committing

murder, pleaded not guilty, and testified on his own behalf at trial. He admitted that

he was an 18th Street gang member in El Salvador, but claimed he was no longer a

member after he came to the United States. He denied any part in the murder.

The State’s trial evidence included testimony from an accomplice, Franklin

Villalobos. Villalobos told the jury he saw appellant shoot Villatoro several times.

The jury found appellant guilty of the charged offense and assessed

punishment at sixty-five years in prison. The trial court entered judgment

accordingly. Appellant timely appeals from that judgment.

II. ANALYSIS A. Accomplice Witness Instruction Franklin Villalobos drove the car transporting appellant and other gang

members to the place where Villatoro was killed and was present when appellant

shot him. En route to the scene, Villalobos was told that the gang intended to kill

Villatoro. Once there, he saw one of the gang members shoot Villatoro “through the

neck.” As Villatoro begin to run, appellant pulled out an Uzi and shot him multiple

times. After the killing, everyone piled in Villalobos’s car and they left the scene.

Villalobos then learned that Villatoro was killed because he covered up a gang tattoo.

–2– The court’s charge asked the jury to determine whether Villalobos was an

accomplice. Further, the charge instructed that if Villalobos was found to be an

accomplice, his testimony had to be corroborated.

An accomplice is someone who, under the evidence, could have been charged

with the same or a lesser-included offense as that with which the defendant was

charged. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013). In other

words, an accomplice is an individual who participates with a defendant before,

during, or after the commission of the crime, acts with the requisite culpable mental

state, and performs an affirmative act that promotes the commission of the offense

with which the defendant is charged. Id. (citing Cocke v. State, 201 S.W.3d 744, 748

(Tex. Crim. App. 2006)). If the issue is raised by the evidence, the jury must be

instructed accordingly because the accomplice-witness rule is law applicable to the

case. Id. at 513.

There are two possible accomplice-witness instructions that a trial court may

give. The court may ask the jury to decide whether the witness is an accomplice as

a matter of fact or can instruct the jury that the witness is an accomplice as a matter

of law. Zamora, 411 S.W.3d at 510. The evidence in each case dictates the type of

accomplice-witness instruction that needs to be given. State v. Ambrose, 487 S.W.3d

587, 594 (Tex. Crim. App. 2016).

A witness is an accomplice as a matter of law when 1) the witness has been

charged with the same offense as the defendant or a lesser-included offense, 2) the

–3– State charged the witness but dismissed the charge in exchange for the witness’s

testimony, or 3) the evidence is uncontradicted or so one-sided that no reasonable

juror could conclude that the witness was not an accomplice. Ash v. State, 533

S.W.3d 878, 886 (Tex. Crim. App. 2017). If the witness is an accomplice as a matter

of law, the trial court must affirmatively instruct the jury that the witness is an

accomplice and that his testimony must be corroborated. Zamora, 411 S.W.3d at

510.

If, on the other hand, the witness was never charged and the evidence

regarding the witness’s complicity is conflicting or inconclusive, the accomplice-

witness instruction should ask the jury to decide whether the witness is an

accomplice as a matter of fact; and if so, apply the corroboration requirement. Id.

A defendant cannot be convicted upon the uncorroborated testimony of an

accomplice. TEX. CODE CRIM. PROC. ANN. art. 38.14. Therefore, an accomplice’s

testimony must be corroborated by non-accomplice evidence that tends to connect

the accused to the offense. Ambrose, 487 S.W.3d at 593. “Such evidence may be

either direct or circumstantial.” Id. Moreover, the evidence standing alone need not

be sufficient to establish guilt; it must merely connect the accused to the charged

offense. Id.

Appellant argues, and the State concurs, that the charge should not have

included an accomplice-as-a-matter of fact instruction because Villalobos was an

accomplice as a matter of law. We agree. Villalobos’s complicity was neither

–4– conflicting nor inconclusive. The evidence showed that Villalobos knew the others

were planning to kill Villatoro but he kept driving anyway. Therefore, Villalobos

was an accomplice as a matter of law and the instruction is erroneous. See Herron v.

State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).

Because appellant did not object to the charge, reversal follows only if the

record demonstrates the error resulted in egregious harm. See Casanova v. State, 383

S.W.3d 530, 533 (Tex. Crim. App. 2012); Zamora, 411 S.W.3d at 515 (stating an

accomplice-witness instruction must be analyzed under Almanza). Under the

egregious harm standard, the omission of an accomplice-witness instruction is

generally harmless unless the non-accomplice evidence is “so unconvincing in fact

as to render the State’s overall case for conviction clearly and significantly less

persuasive.” Herron, 86 S.W.3d at 632; see also Vasquez v. State, No. 05-15-00588-

CR, 2016 WL 912178, at *5 (Tex. App.—Dallas Mar. 10, 2016 no. pet) (mem. op.,

not designated for publication). But if non-accomplice evidence connects the

defendant to the offense, then the purpose of the instruction is fulfilled, and its

omission is harmless. Herron, 86 S.W.3d at 632; see also Garcia v. State, 578

S.W.3d 106, 129–30 (Tex. App.—Beaumont 2019, pet. ref’d) (applying Herron

standard to a jury charge in which the trial court gave an accomplice-as-a-matter-of-

fact instruction when the defendant was entitled to accomplice-as-a-matter-of-law

instruction).

–5– Corroborating evidence from other sources tending to connect appellant to the

offense was admitted during trial. Specifically, two witnesses testified that appellant

told them he killed Villatoro, and appellant’s cell phone records place him at the

scene of the crime.

Carlos Mejia was the first witness who testified that appellant told him he

killed Villatoro. Mejia runs a construction business and appellant and several of his

friends, including a man known as “Mysterio” work for Mejia. Mejia knows that

appellant, Mysterio, and some of his other employees are members of the 18th Street

gang.

On the Friday before the murder, Mejia picked appellant up for work.

Mysterio was there, as well as a man (later identified as Villatoro) that Mejia did not

know. Mejia thought that Villatoro looked upset, but appellant told him not to worry

about Villatoro “because one of these days we’re going to kill him.”

The following Monday, Mysterio looked “concerned.” He told Mejia that “he

had screwed up his life because he had gone to kill . . . [Villatoro].” Appellant and

Mysterio then told Mejia that they “shot [Villatoro] with a .40 and a [sic] Uzi.”

Jorge Velasco also testified that appellant told him he shot and killed

Villatoro. Velasco is a member of the 18th Street gang. Velasco said that he and

appellant were members of the same clique of the 18th Street gang and Villatoro was

a member of a different clique. Before Villatoro was killed, the local leader of the

gang called Velasco to discuss how Villatoro had violated gang rules by erasing a

–6– gang tattoo. After Villatoro was killed, appellant called Velasco and told him they

killed Villatoro. Appellant said that Villalobos, who was not a gang member, drove

the vehicle and another gang member shot Villatoro. Villatoro ran. Then, appellant

shot and killed Villatoro.

Dash-cam video from a witness who drove by the crime scene showed the

time frame of the murder as between 5:00 and 6:30 p.m. Appellant’s cell phone

records placed him at the scene during that time frame. Detective Chad Prda

explained how he mapped out the location of appellant’s and Villatoro’s phones on

the day of the murder. At about 4:00 p.m., appellant’s and Villatoro’s phones were

in the vicinity of the apartment complex where appellant and Mysterio lived. At

around 5:50 p.m., Villatoro’s phone began moving south, and at around 6:00 p.m.

appellant’s and Villatoro’s phones were near each other in the vicinity of Post Oak

Road near Hutchins.1 The phones stayed in that area for the next fifteen to twenty

minutes. After that, appellant’s phone left the area.

Mejia’s and Velasco’s testimony, together with the cell phone records, tend

to connect appellant to the offense. Therefore, the purpose of the accomplice-witness

instruction was fulfilled, and the court’s erroneous instruction was harmless. Herron,

86 S.W.3d at 632; Garcia, 578 S.W.3d at 130. We resolve appellant’s first issue

against him.

1 Villatoro’s body and car were discovered on Post Oak Road.

–7– B. Sufficiency of the Evidence

Appellant’s second issue argues that the evidence is legally insufficient under

Jackson because Villalobos’s accomplice witness testimony was not sufficiently

corroborated. This argument, however, conflates two standards: the Jackson legal-

sufficiency standard, and the statutory corroboration standard.

The Jackson sufficiency standard involves reviewing all evidence in the light

most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the crime, as defined by the hypothetically

correct jury charge, beyond a reasonable doubt. Zuniga v. State, 551 S.W.3d 729,

732–33 (Tex. Crim. App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). Whether an accomplice witness’s testimony was corroborated is not

relevant under Jackson, which considers all evidence and does not disregard

accomplice testimony. See McDuff v. State, 939 S.W.2d 607, 613–14 (Tex. Crim.

App. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

On the other hand, the corroboration standard is not derived from federal or

state constitutional principles that define legal sufficiency standards. Druery v. State,

225 S.W.3d 491, 492 (Tex. Crim. App. 2007). Rather than challenging the

sufficiency of the evidence to support the verdict, it measures the non-accomplice

evidence that tends to connect the accused to the offense. See Cannon v. State, Nos.

05-13-01109-CR, 05-13-01110-CR, 2014 WL 3056171, at *5 (Tex. App.—Dallas

Jul. 7, 2014, no pet.) (mem. op., not designated for publication).

–8– We have concluded that there is sufficient non-accomplice evidence to

connect appellant to the offense. Moreover, we consider all evidence—including the

accomplice witness testimony—in our sufficiency review under Jackson. See

McDuff, 939 S.W.2d at 614.

The legal sufficiency standard accounts for the factfinder’s duty to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2011). Therefore, in analyzing legal sufficiency, we determine whether the

necessary inferences are reasonably based upon the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict. Id.

As relevant here, a person commits the offense of engaging in organized

criminal activity if “with the intent to establish, maintain, or participate in a

combination or in the profits of a combination or as a member of a criminal street

gang, the person commits . . . murder.” TEX. PENAL CODE ANN. § 71.02(a)(1). A

person commits murder if he 1) intentionally or knowingly causes the death of an

individual or 2) intends to cause serious bodily injury and commits an act clearly

dangerous to human life that causes the death of an individual. TEX. PENAL CODE

ANN. §§ 19.02(b)(1), (2).

The evidence showed that appellant was a member of a criminal street gang.

A criminal street gang is “three or more persons having a common identifying sign

–9– or symbol or an identifiable leadership who continuously or regularly associate in

the commission of criminal activities.” TEX. PENAL CODE ANN. § 71.01(d).

Eugenio Vela, a Homeland Security Special Agent, testified that the 18th

Street gang is a transnational street gang with thousands of members. The gang’s top

leadership is now in El Salvador. The gang is involved in many types of crime,

including “extortion, robberies, home invasions, dealing drugs [and] homicides.”

Members use specific hand signs to identify themselves and the gang uses symbols

that appear in members’ tattoos.

Vela testified that appellant was a member of the 18th Street gang and

identified appellant in a photograph with other gang members “throwing” a gang

sign. He also identified photographs of appellant’s gang tattoos.

Velasco, Villalobos, and Mejia also testified that appellant was a gang

member. Appellant admitted he was a gang member when he was in El Salvador.

Dr. Tracy Dyer, deputy chief medical examiner for Dallas County, performed

the autopsy on Villatoro. Villatoro had been shot five times in the neck and head.

While each gunshot wound on its own would “potentially” have been fatal, taken

together, they “absolutely” were fatal and caused Villatoro’s death.2

2 Villatoro also had three gunshot wounds on his left hand. These wounds were consistent with Villatoro putting his hand in front of his face as he was being shot.

–10– One of the bullets recovered from Villatoro’s body and two of the cartridge

cases from the scene were fired from a .40 Smith & Wesson.3 Two other bullets

recovered from Villatoro’s body were of a different caliber and did not come from

that gun.

As previously discussed, Mysterio and appellant told Mejia that they shot

Villatoro with a .40 and an Uzi. Villalobos saw appellant shoot Villatoro and

identified a photograph of appellant with the Uzi. Appellant’s cell phone records

also place him at the scene of the crime.

Appellant’s critique of Mejia’s and Velasco’s credibility and alleged

inconsistencies in the evidence is not persuasive. The jury is the exclusive judge of

the credibility of witnesses and the weight to be given their testimony and only the

jury may resolve conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111

(Tex. Crim. App. 2000).

Under these circumstances, a rational jury could have found all the elements

of the charged offense beyond a reasonable doubt and the evidence is sufficient to

support the conviction. Appellant’s second issue is resolved against him.

3 The .40 Smith & Wesson was recovered about two months after the murder when Villalobos and others were pulled over during a traffic stop. –11– III. CONCLUSION

Having resolved all of appellant’s issue against him, we affirm the trial court’s

judgment.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 190463F.U05

–12– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

GERALD JEFFERSON MUNOZ On Appeal from the Criminal District MONTANO, Appellant Court No. 7, Dallas County, Texas Trial Court Cause No. F18-00457-Y. No. 05-19-00463-CR V. Opinion delivered by Justice Garcia. Justices Myers and Partida-Kipness THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 26, 2021

–13–