Szilvasy v. State

663 S.W.2d 530, 1983 Tex. App. LEXIS 5414
CourtCourt of Appeals of Texas
DecidedNovember 23, 1983
DocketNo. 08-82-00107-CR
StatusPublished
Cited by2 cases

This text of 663 S.W.2d 530 (Szilvasy 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
Szilvasy v. State, 663 S.W.2d 530, 1983 Tex. App. LEXIS 5414 (Tex. Ct. App. 1983).

Opinion

OPINION

WARD, Justice.

This is an appeal from a jury conviction for murder. The jury assessed punishment at life imprisonment. We affirm.

Co-defendant Andrew Mazur testified on behalf of the State, receiving testimonial immunity. Mazur testified that Appellant stopped at his apartment on the afternoon of May 17,1981, and invited Mazur to drink beer at the Hondo Pass Lounge. At the lounge, the victim William Steve Simon sat down with Mazur. Appellant approached and accused Mazur of taking his amphetamines from the car. Mazur denied it and both got up to leave. In the parking lot, Appellant pointed to Simon, saying he was one of the people who “ripped off” his “speed.” Appellant approached Simon and invited him to go to a nearby convenience store and share in some more beer. Mazur [532]*532was driving his own car. Appellant entered the rear seat and Simon sat in the front passenger position. Appellant began to confront Simon with the theft of the amphetamines. Mazur heard the sound of breaking glass in the back seat. He saw Appellant grab Simon’s head from behind and cut his throat with a piece of broken glass. Appellant yelled at Mazur to drive to the desert. He drove to an isolated desert area on military property. Simon was limp by the time the car stopped. Ma-zur and Appellant removed Simon from the vehicle, and Appellant began to strip him. Appellant asked Mazur for a knife or tool. Appellant, then Mazur, put their feet on Simon’s throat to insure his death. Appellant obtained a screwdriver from the vehicle and jabbed it into Simon's head until the handle broke. Appellant then expressed a desire to take Simon’s penis as a “trophy.” With Mazur holding the penis, Appellant severed it with a piece of broken glass and carried it away in a glove. The two returned to El Paso, washed the vehicle in a commercial car wash, and cleaned themselves up at Appellant’s apartment. Later they drove to the Hondo Pass Lounge and removed Simon’s vehicle. They drove it to Juarez, Republic of Mexico, and left it unlocked with the keys in the ignition. It was never recovered. Several days later Mazur went to the desert area alone to bury the body, but was unable to locate it. On May 25, Mazur was arrested and gave a confession implicating Appellant. The latter was arrested the following morning and gave a confession placing primary responsibility on Mazur. The body was discovered on May 27. Cause of death was the injury to the throat.

The two confessions are virtually identical, merely reversing the roles played by the two co-defendants. Appellant’s confession provides more detailed allegations of the origin of the conflict with Simon. Appellant stated that Mazur was the amphetamine seller. Mazur took 1,500 tablets to the lounge to sell. A tentative sale agreement was reached with a fourth person. This individual left to secure the money. In the interim, Simon tried to make a purchase from Mazur. While this was going on, the first purchaser left the bar and apparently removed the drugs. It was Appellant’s understanding that Simon was involved in the theft by intentionally diverting Mazur’s attention. According to Appellant, Simon admitted this to Mazur, and when the co-defendants left, Appellant was driving Ma-zur’s vehicle. From that point on, the description of the murder is identical, merely reversing the roles of primary actor and party.

Ground of Error No. One alleges that there was insufficient evidence tending to connect Appellant to the commission of the offense to corroborate accomplice Ma-zur’s testimony. Walker v. State, 615 S.W.2d 728 (Tex.Cr.App.1981); Tex.Code Crim.Pro.Ann. art. 38.14 (Vernon 1979). Appellant’s own confession places him at the scene at the time of the murder. While not sufficient in itself, this is a factor which may be considered cumulatively with other corroborative evidence. Nelson v. State, 542 S.W.2d 175 (Tex.Cr.App.1976). Stephanie Narvaez, lounge cocktail waitress, and April Dann, a friend of both subjects, placed them in each other’s company immediately before and after the murder. Nar-vaez testified that Appellant was angry at having his amphetamines stolen, blamed Simon, threatened him, and scuffled with him in the parking lot. April Dann testified that she originally had the 1,500 amphetamine tablets and gave them to Appellant, not Mazur. She saw them in the early morning hours of May 18, after the murder, and observed what appeared to be blood on Appellant’s pants. Later that morning Rolando Jaume visited Dann’s apartment. Appellant was present and asked Jaume how reliable Mazur was. When Jaume asked why Appellant wanted to know, Appellant replied that he (Appellant) had killed someone the night before. Jaume did not relate this to police until July 1, but we note that the subjects were not even arrested until May 25 and 26, and the body was discovered May 27.

Further corroboration was provided by Neil Odom, an employee at the Flame [533]*533Lounge. On May 20, Odom encountered Appellant and Appellant’s roommate, Mark Quinn, in the bathroom at the lounge. Quinn told Odom, in Appellant’s presence, that Appellant “just cut this guy’s dick off, slit his throat, threw him out in the desert, and that we would read about it in the paper in a few days.” Quinn threatened that the same thing would happen to Odom’s doorman if he tried to eject them from the lounge. Appellant looked at Odom and grinned. The statement was admissible as a tacit admission, Appellant acquiescing in the veracity of Quinn’s statement by his silence. Gibson v. State, 516 S.W.2d 406, 409 (Tex.Cr.App.1974); Moree v. State, 147 Tex.Cr.R. 564, 183 S.W.2d 166 (1944). Neither Jaume’s nor Odom’s testimony was excludable as hearsay. The statement made to Jaume was an express admission by the Appellant not barred by the hearsay rule. Quinn’s statement to Odom, by itself, is hearsay but was offered for the truth of the matter only in conjunction with and subsequent to the tacit admission by Appellant.

Eliminating Mazur’s accomplice testimony, the evidence still disclosed Appellant’s presence at the murder, blood on his pants shortly after the murder, his angry confrontation with the victim immediately prior to the murder, and two subsequent admissions that he committed the offense. Furthermore, Appellant’s own confession, while not acknowledging his personal infliction of any injury, renders him liable as a party to the offense. The jury was charged on the law of party responsibility. By his own statement, Appellant thought Mazur intended to threaten or beat up Simon when he lured him to the vehicle. As the glass was placed against Simon’s throat, Mazur purportedly ordered Appellant to drive to an isolated desert area. Appellant complied and his statement offers no legally cognizable defense of duress or other compulsion. Appellant then assisted in cleaning Mazur’s vehicle and disposing of the victim’s car. Viewed in this light, Appellant’s confession provided sufficient evidence of party liability, independent of the primary liability arising out of the accomplice testimony. Ground of Error No. One is overruled.

Ground of Error No. Two complains of the court’s failure to charge the jury on the State’s burden to disprove exculpatory evidence which it introduces.

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Related

Szilvasy v. State
673 S.W.2d 418 (Court of Appeals of Texas, 1984)
Szilvasy v. State
678 S.W.2d 77 (Court of Criminal Appeals of Texas, 1984)

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Bluebook (online)
663 S.W.2d 530, 1983 Tex. App. LEXIS 5414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/szilvasy-v-state-texapp-1983.