Cesar Perez v. State , 437 S.W.3d 610 ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-13-00758-CR
Cesar PEREZ,
Appellant
v.
The State of
The STATE of Texas,
Appellee
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 12-12-07159-MCRAJA
Honorable Amado J. Abascal, III, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: July 2, 2014
AFFIRMED
A jury found appellant, Cesar Perez, guilty of aggregated theft of property valued between
$1,500 and $20,000 by a public servant pursuant to one scheme or continuing course of conduct,
and the trial court assessed punishment at eight years’ confinement, probated. In two issues on
appeal, appellant asserts the evidence is insufficient to (1) corroborate the accomplice witness
testimony, and (2) sustain the conviction. We affirm.
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BACKGROUND
The State indicted appellant, Martha Zamarripa, and Elisa Martinez of aggregated theft of
property valued between $1,500 and $20,000 while acting as public servants pursuant to one
scheme and continuing course of conduct. During the relevant time period, appellant served as
Justice of the Peace for Precinct 2, Maverick County (hereinafter, “the JP court”). Zamarripa and
Martinez worked as secretaries for the JP court and were named as co-defendants; however, prior
to appellant’s trial, they pled no contest to the charges against them and received deferred
adjudication in exchange for their testimony at appellant’s trial. The duties of the JP court included
collecting payments from individuals who received traffic citations within Maverick County. The
State alleged appellant, with the assistance of Zamarripa and Martinez, unlawfully appropriated
money from seven individuals who made payments at the JP court. The relevant portion of the
indictment reads:
Theft by a Public Servant
And it is further presented to the Court that the said, Cesar Perez and Martha
Zamarripa and Elisa Martinez, hereafter styled the Defendants, and before the
presentment of this indictment, in the County of Maverick and State of Texas, did
then and there, pursuant to one scheme or continuing course of conduct that began
on or about August 20, 2007, and continued until on or about October 3, 2008,
unlawfully appropriate, by acquiring or otherwise exercising control over property,
to–wit: United States currency or its equivalent, and the aggregate value of the
property obtained was $1500 or more but less than $20000, from Ruben
Montemayor, on behalf of Maverick County, Texas, the owner thereof, with intent
to deprive the owner of the property, and the defendants were then and there a
public servant, namely, Cesar Perez was Justice of the Peace, Precinct 2 of
Maverick County, Texas, and Martha Zamarripa was a secretary for Justice of the
Peace, Precinct 2 of Maverick County, Texas, and Elisa Martinez was a secretary
for Justice of the Peace, Precinct 2 of Maverick County, Texas and such property
appropriated by the defendants had therefore come into their custody, possession
or control by virtue of their status as such public servant, . . .
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Non-Accomplice Testimony
The first witness to testify was Andres Rodriguez, who testified he received “a lot” of
traffic citations from various agencies. Rodriguez testified that he received a letter on August 9,
2007, from a law firm that had been retained by Maverick County to collect an outstanding balance
of $2,163.85. On August 17, he responded to the letter by contacting Ruben Montemayor of the
Maverick County Collections Department about starting a payment plan. Montemayor told
Rodriguez he needed to speak to the JP court. According to Rodriguez, appellant told him a
payment of $600 would take care of the entire amount. On August 20, Rodriguez paid $100 to a
woman at the JP court, later identified as Martinez, and received a handwritten receipt (State’s
Exhibit 2) from her. Rodriguez further testified that, later the same day, appellant called him to
tell him he “owed more.” On August 21, Rodriguez went back to the JP court, paid another $100
to the JP court and received a second handwritten receipt (State’s Exhibit 3) from a different
woman, later identified as Zamarripa. Later that day, Rodriguez went to the Collections
Department to make payments on other outstanding citations. While there, he was told the
payments he made to the JP court did not appear in the department’s records. Instead, the records
showed his citations out of the JP court had been dismissed that day. After Rodriguez showed his
handwritten receipts to the Collections Department, he was referred to Eloy Garcia, an investigator
with the Maverick County District Attorney’s Office. Investigator Garcia asked Rodriguez if he
would be willing to make an additional $200 payment to the JP court if Investigator Garcia
provided him with the money. Rodriguez agreed, and, on August 24, he went to the JP court, gave
the money to appellant, and received a third handwritten receipt (State’s Exhibit 4) from appellant.
Rodriguez then went home and reported what happened to Investigator Garcia.
Next, Carlos Pereda, an auditor for Maverick County, testified. He said Montemayor
contacted him and stated there was “a problem . . . in the JP office because . . . somebody had
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walked in with a receipt that wasn’t recorded in the books.” Pereda stated his office could not find
a payment corresponding to the handwritten receipts. Pereda testified that when people make
payments at the JP court, a computerized receipt (referred to as a “Pro-Com” receipt) should be
generated; therefore, he was troubled by the fact that Rodriguez’s receipts were handwritten, which
meant the payments were taken outside the system. Pereda next attempted to discover whether the
money Rodriguez paid had been deposited with Maverick County. He could find no deposit with
the county. Pereda then contacted the district attorney’s office and spoke to Investigator Garcia
and Robert Little, an assistant district attorney. During their discussion, they decided to ask
Rodriguez to take additional money to the JP court. Rodriguez agreed and after he paid the money
to appellant, Pereda’s office waited for a month or two to see if the money would be deposited;
however, it never was. Pereda stated their suspicions about the JP court were also raised by the
fact that the previous Precinct 2 Justice of the Peace collected approximately $484,000 over a
fifteen-month period before she left office; but when appellant took office, the collections for his
first nine months amounted to only $85,519 and for his next full fiscal year, he collected only
$172,714—approximately $260,000 over a twenty-one-month period, significantly less than the
prior Precinct 2 Justice of the Peace.
Investigator Garcia testified that Pereda initially informed the district attorney’s office
about money missing from the JP court and referred Investigator Garcia to Rodriguez. Investigator
Garcia stated Rodriguez informed him of the $200 he had already paid to the JP court and provided
him the two handwritten receipts he had received. Investigator Garcia testified he received
approval to provide Rodriguez with $200 in order to find out where the money being paid to the
JP court was “winding up.” According to Investigator Garcia, Rodriguez agreed to take the $200
provided to him to the JP court. After Rodriguez gave the $200 to appellant, Rodriguez gave
Investigator Garcia the third handwritten receipt he received from appellant. Investigator Garcia
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further testified that approximately one week later, the Texas Rangers took over the investigation
and executed a search of the JP court office and seized evidence related to the investigation. After
the execution of the search warrant, appellant and both co-defendants were taken to a Department
of Public Safety office where Investigator Garcia witnessed appellant give Zamarripa “a hard
stare.”
Juan Perez testified he received a collection letter in 2008 for a 2005 traffic citation, which
he had not paid. Perez stated he went to the JP court and gave a woman a money order for $257.35
for which he received a handwritten receipt (State’s Exhibit 6). He testified he did not deal directly
with appellant, and his citation was subsequently dismissed.
Ricardo Hernandez testified he accrued numerous citations over the course of several years
that he simply “threw away.” Hernandez testified he gave $600 cash to Martinez and received six
Pro-Com receipts (State’s Exhibits 9–14) referencing payments totaling $500 and two handwritten
receipts referencing payments totaling $100 (State’s Exhibits 7 & 8). After he paid the $600,
Hernandez was not contacted by the JP court or the collections department again.
Next, Guadalupe Galindo testified she received a letter from the Collections Department
regarding a citation her deceased husband, Ildefonso Galindo, received before his death. Galindo
stated she had already paid several citations and produced a handwritten receipt (State’s Exhibit
16) from the JP court referencing a $225.85 cash payment made on March 24, 2008.
Gabriel Garcia testified that in April or May of 2008, he spoke to appellant about a traffic
citation and appellant told him that “it would be $300 to take care of it . . . .” By that, Gabriel said
appellant meant he would clear his entire driving record, which showed several outstanding
citations. Gabriel testified he gave the cash directly to appellant, but did not receive a receipt. A
few months later, Gabriel received a notice that his citation was still pending. Gabriel stated he
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went back to the JP court and spoke to one of the women in the office. As far as he knows, the
citations were later removed from his record.
Next, Montemayor, the Collections Supervisor for Maverick County, testified that the
department first became aware of an issue with the JP court when several people, who had received
a collection letter from his department, began contacting the department stating that they had
already paid their outstanding citations. His concern grew when Rodriguez presented the
handwritten receipts he had received from the JP court and because the corresponding citations
showed they had been “dismissed” in the Pro-Com system. Montemayor also testified that the
investigation uncovered two additional handwritten receipts: one issued to Juan Delgado for $150
(State’s Exhibit 17) and one issued to Rosalinda Cervera Parra for $238 (State’s Exhibit 18).
Montemayor also testified extensively regarding State’s Exhibit 23, citation record print-outs from
the Pro-Com system submitted under a business records affidavit. State’s Exhibit 23 contained
Pro-Com records from seven individuals who had received citations: Rodriguez, Galindo,
Hernandez, Cervera Parra, Perez, Delgado, and Gabriel Garcia. The documents show that a
number of citations had been entered as “dismissed” in the Pro-Com system. Montemayor
confirmed that when the “dismissed” disposition is used, the county does not collect money for
the citations.
With respect to the citation records, Montemayor testified: (1) Rodriguez’s records show
that on August 21, 2007, seven citations were “dismissed” in the Pro-Com system, and the county
did not receive any of the $400 Rodriguez paid to the JP court; (2) Galindo’s records show that on
March 24, 2008, one citation was “dismissed,” and the county did not receive any of the $225.85
Galindo paid to the JP court; (3) Hernandez’s records show that on December 14, 2007, the county
collected $500 of Hernandez’s $600 payment, leaving $100 unaccounted for; (4) Cervera Parra’s
records show that on April 8, 2008, two citations were “dismissed,” and the county received $25
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of Cervera Parra’s $238 payment, leaving $213 unaccounted for; (5) Perez’s records show that on
February 15, 2008, one citation was “dismissed,” and the county received $52 of Perez’s $257.35
payment, leaving $205.35 unaccounted for; 1 (6) Delgado’s records show that on October 10, 2008,
one citation was “dismissed,” and the county did not receive any of the $150 Delgado paid to the
JP court; and (7) Gabriel Garcia’s records show that on April 15, 2008, two citations were
“dismissed,” and the county did not receive any of the $300 Gabriel Garcia paid to the JP court. 2
Montemayor further testified he trained appellant how to use the Pro-Com system, and stated
appellant knew how to enter citation dispositions in the Pro-Com system, including the
“dismissed” disposition that does not require the county to collect any money.
Finally, Ignacio Banda, retired computer supervisor for Maverick County, testified that the
JP court often experienced computer problems that were reported by appellant, Zamarripa, and
Martinez. He also confirmed Zamarripa reported that “there were a lot of dismissed cases going
on,” and that she wanted him to relay the information to the county auditor, which he did. Banda
testified Zamarripa reported this information on more than one occasion.
Accomplice Testimony
Martinez testified she signed the first handwritten receipt given to Rodriguez for his $100
payment, Galindo’s handwritten receipt for $225.85, and Parra’s handwritten receipt for $238. She
also confirmed Zamarripa signed Rodriguez’s second handwritten receipt for $100, Perez’s
handwritten receipt for $257.35, both of Hernandez’s handwritten receipts totaling $100, and
Delgado’s handwritten receipt for $150. She stated appellant signed Rodriguez’s third handwritten
1
Both parties agree Perez paid $257.35 and the county received $52.00 of that payment. Therefore, the correct amount
unaccounted for should be $205.35. However, both parties reference Perez’s amount unaccounted for as $235.35.
This appears to be merely a mathematical error.
2
No receipt was produced for this payment. This amount is based on Gabriel’s testimony and corresponding affidavit.
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receipt referencing his third payment of $200. Martinez also testified appellant knew how to
operate the Pro-Com system and knew how to enter a “dismissed” disposition. Martinez denied
stealing any of the money unaccounted for and stated that handwritten receipts were often used
because the Pro-Com system was “always down.” She testified appellant would meet with
offenders during and after normal business hours and would dismiss “a lot” of citations. She also
confirmed that she provided the Texas Rangers a written statement. In that statement, she stated
that if the JP court was doing things correctly, they would issue Pro-Com receipts; otherwise, they
would issue handwritten receipts if appellant was going to keep the money. On cross-examination,
she explained that although Hernandez received six Pro-Com receipts, the two handwritten receipts
might have been issued because the Pro-Com system may have frozen or broken down.
Next, Zamarripa testified she took a $100 payment from Rodriguez. She stated she gave
the money to appellant upon his request and received $25 “not to say anything.” Appellant kept
the remainder. With respect to Rodriguez’s third handwritten receipt, Zamarripa testified she filled
out Rodriguez’s name; however, the remainder of the receipt was completed by appellant. She
stated she did not fill out the entire receipt because she “didn’t feel that [she] should be doing
things—being involved in . . . dismissing citations for money.” Zamarripa also stated she received
$25 of Rodriguez’s $200 payment.
Zamarripa also confirmed she filled out the handwritten receipt for Perez’s $257.35
payment; however, she stated she did not keep any money from that payment and that appellant
“probably got it.” She also confirmed appellant knew how to operate the Pro-Com system and
knew how to enter citations as “dismissed.” She testified appellant would dismiss “a lot” of
citations, and that appellant had asked her if there was “anything we can do about getting money.”
When the Texas Rangers became involved, Zamarripa was asked to go to a Department of Public
Safety office. When she arrived, appellant approached her truck and told her “to shut up and don’t
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say anything,” which she interpreted as a threat. After her interview with the Texas Rangers,
Zamarripa did not return to the JP court and appellant terminated her employment on December
30, 2008.
ACCOMPLICE WITNESS CORROBORATION
In his first issue, appellant asserts the evidence is insufficient to corroborate the accomplice
witness testimony.
1. Standard of Review
“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.” TEX. CODE CRIM. PROC. ANN.
art. 38.14 (West 2005). Article 38.14, known as the accomplice witness rule, does not require the
non-accomplice evidence to be sufficient in itself to establish the accused’s guilt beyond a
reasonable doubt. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). To determine whether
there is sufficient corroborating evidence, we exclude all accomplice witness testimony from
consideration and then examine the remaining portions of the record to see if there is “some non-
accomplice evidence which tends to connect the accused to the commission of the offense alleged
in the indictment.” Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (emphasis in
original). The non-accomplice evidence may be direct or circumstantial, and must simply link the
accused in some way to the commission of the crime, such that rational jurors could conclude this
evidence sufficiently tended to connect appellant to the offense. Smith v. State, 332 S.W.3d 425,
442 (Tex. Crim. App. 2011). The “tends-to-connect” standard does not present a high threshold.
Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.—Austin 2002, no pet.). Even insignificant
circumstances may satisfy this standard. Id. No precise rule can be formulated regarding the
amount of evidence that is required to corroborate the testimony of an accomplice witness; each
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case must be judged on its own facts. Gill, 873 S.W.2d at 48. When reviewing corroboration
under the accomplice witness rule, we view the evidence in the light most favorable to the jury’s
verdict. Id.
2. Analysis
Excluding the testimony of Zamarripa and Martinez, appellant argues the only evidence
tending to connect him to the offense was the testimony of Rodriguez and Gabriel Garcia.
Therefore, he asserts “the only evidence introduced showed that appellant could have received
only $700 of the county’s money.” We disagree.
Appellant’s argument relies on a lack of certain evidence, namely, evidence that shows he
personally received the remainder of the money unaccounted for that was collected by the JP court.
His argument, however, overlooks other evidence presented in this case. In addition to the
testimony of Rodriguez and Gabriel Garcia, the State introduced testimony from Galindo,
Hernandez, Perez, and Montemayor; the handwritten receipts issued by the JP court; and the
citation record print-outs from the Pro-Com system. Appellant concedes the State presented
sufficient evidence tending to connect him to $700 of the money unaccounted for—$400 from
Rodriguez and $300 from Gabriel Garcia. However, in addition to this amount, Galindo,
Hernandez, and Perez testified they paid a total of $583.20 that was collected by the JP court. The
State also introduced the handwritten receipts which confirm the money was collected by the JP
court. Montemayor’s testimony established that out of the $583.20 collected, Maverick County
received only $52, leaving $531.20 unaccounted for. Cervera Parra and Delgado did not testify at
trial. However, the State introduced the handwritten receipts they received from the JP court into
evidence, totaling an additional $388 that was collected by the JP court. Montemayor testified that
out of the $388 paid by Cervera Parra and Delgado, Maverick County received only $25, leaving
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$363 unaccounted for. Additionally, the Pro-Com records show that on or about the time the JP
court collected the money from these individuals, many of their citations were “dismissed.”
We conclude the combined weight of this non-accomplice evidence, viewed in the light
most favorable to the jury’s verdict, sufficiently tends to connect appellant to the commission of
aggregated theft of property valued between $1,500 and $20,000 by a public servant pursuant to
one scheme or continuing course of conduct. Therefore, we hold Zamarripa’s and Martinez’s
testimony was sufficiently corroborated by other evidence tending to connect appellant to the
charged offense.
SUFFICIENCY OF THE EVIDENCE
In his second issue, appellant asserts the evidence is factually insufficient to support his
conviction. Having concluded there is sufficient non-accomplice evidence corroborating the
testimony of Zamarripa and Martinez, we will include their testimony in our evaluation of the legal
sufficiency of all the evidence to support appellant’s conviction.
1. Standard of Review
Although appellant challenges the factual sufficiency of the evidence, the Texas Court of
Criminal Appeals has held “the Jackson v. Virginia legal-sufficiency standard is the only standard
that a reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable doubt.”
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); accord Tiller v. State, 362 S.W.3d
125, 127 (Tex. App.—San Antonio 2011, pet. ref’d). Under this standard, when reviewing the
sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most
favorable to the verdict to determine whether any rational juror could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Brooks, 323 S.W.3d at 895. When applying this standard, we are “required to defer to the jury’s
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credibility and weight determinations because the jury is the sole judge of the witness’ credibility
and the weight to be given their testimony.” Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S.
at 319) (emphasis in original). Each fact need not point directly and independently to the guilt of
the accused, as long as the cumulative force of all the evidence, coupled with the reasonable
inferences to be drawn therefrom, is sufficient to support the conviction. See Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence
and may alone be sufficient to establish guilt. Id. We do not ask whether we believe the evidence
at trial established guilt beyond a reasonable doubt, instead, we consider only whether the jury
reached a rational decision. Brooks, 323 S.W.3d at 899.
2. Analysis
As alleged in this case, a person commits the offense of theft if he unlawfully appropriates
property with intent to deprive the owner of property valued at $1,500 or more, but less than
$20,000. TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A) (West 2011). “Appropriation of property
is unlawful if it is without the owner’s effective consent.” Id. § 31.03(b)(1). A person acts with
intent when it is the person’s conscious objective or desire to engage in the conduct or cause the
result. Id. § 6.03(a). Intent may be inferred from the circumstances. See Moreno v. State, 702
S.W.2d 636, 641 (Tex. Crim. App. 1986). Multiple thefts committed pursuant to one scheme or
continuing course of conduct, even if committed at different times and against different victims,
may be aggregated within one offense for the purposes of determining the grade of the offense.
TEX. PENAL CODE § 31.09; see De La Fuente v. State, 264 S.W.3d 302, 318 (Tex. App.—San
Antonio 2008, pet. ref’d). “Where an indictment charges an individual with the appropriation of
property in an aggregated amount pursuant to one scheme or continuing course of conduct, the
State is not required to prove each individual appropriation.” De La Fuente, 264 S.W.3d at 318
(citing Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990)). “The evidence is sufficient
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if the State shows the defendant illegally appropriated enough property to meet the aggregated
value alleged.” Id.
On appeal, appellant asserts the evidence is insufficient because there is no evidence to
show that he committed each individual theft pursuant to the alleged scheme or continuing course
of conduct. He argues the evidence is insufficient because the only evidence connecting him to
the unlawful appropriation of money was the testimony of Rodriguez, Gabriel Garcia, and
Zamarripa’s testimony that appellant “probably got [Perez’s $205.35],” or a total of $905.35.
Here, appellant’s argument again overlooks much of the evidence presented in this case.
Appellant concedes the evidence is sufficient to support that he stole $905.35. However, the
evidence also shows that an additional $688.85 was collected by the JP court that was never
received by Maverick County. In addition to the testimony of Galindo, Hernandez, Perez, and
Montemayor; the handwritten receipts issued by the JP court; and the traffic record print outs from
the Pro-Com system discussed above, Martinez testified the handwritten receipts were used when
appellant would keep the money. Both Zamarripa and Martinez testified they did not personally
take any of the money unaccounted for (with the exception of Zamarripa accepting $50 given to
her by appellant not to say anything). Zamarripa also testified appellant was involved in dismissing
citations for money, and reported the situation to Banda on numerous occasions.
The testimony of Zamarripa, Martinez, the Maverick County employees, and the witnesses
who made payments at the JP court, along with the handwritten receipts and Pro-Com records,
constitute sufficient evidence for a reasonable jury to find appellant guilty of the alleged offense.
As the sole judge of the weight and credibility to give witnesses’ testimony, the jury was entitled
to weigh the witnesses’ testimony and credibility and to accept or reject it. See Brooks, 323 S.W.3d
at 899. Viewing the evidence in the light most favorable to the verdict, we hold the evidence is
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sufficient to support beyond a reasonable doubt that appellant unlawfully appropriated more than
$1,500 with the intent to deprive Maverick County of this sum.
CONCLUSION
We conclude the record contains sufficient independent evidence tending to connect
appellant to the alleged offense, and the evidence is sufficient to support appellant’s conviction of
aggregated theft of property valued between $1,500 and $20,000 while acting as a public servant
pursuant to one scheme and continuing course of conduct. Therefore, we affirm the trial court’s
judgment.
Sandee Bryan Marion, Justice
PUBLISH
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