Opinion
NO. 01-15-00708-CR
03-02-2017
MARIO ERNESTO PAREDES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas
Trial Court Case No. 1401543
MEMORANDUM OPINION
Appellant was involved in the shooting death of Jhon Bermudez-Gilces in the course of a robbery. The jury convicted appellant of capital murder, and he received an automatic sentence of life without the possibility of parole. We affirm.
BACKGROUND
Jhon was killed on August 31, 2013. Appellant and several others spent that day in and around the Victoria Apartments on Covington Square Drive in Houston. At trial, the State presented several videos from the apartment complex and a nearby convenience store, as well as testimony from people that appellant spent the day with, one witness to the shooting, and another person who heard shots around the time Jhon was killed.
A. Jhon's murder
Osmin Hernandez, a close friend of appellant's, lived at Victoria Apartments with his wife Ceclia. According to Ceclia's son, Jesus, appellant sometimes stayed at Osmin's apartment. Osmin and appellant are documented as members of the MS-13 gang in the Houston Police Department's gang tracker database.
Nilson Alvarado and Gerardo Arrendondo went to high school together. Nilson is Osmin's nephew. Neither are documented members of MS-13. Nilson took Gerardo to Osmin's apartment for the first time on August 31, 2013, the day Jhon was killed. Nilson then said he needed to run an errand, and he left Gerardo at the apartment with Osmin and appellant.
While Nilson was gone, the other three were sitting on Osmin's balcony when Osmin announced that he needed to "hit a lick," i.e. rob someone. Osmin called a drug dealer to deliver cocaine to his apartment with the plan to rob him. When the three walked downstairs to the parking lot to drink beer and wait, Gerardo saw that appellant had a 9mm gun. Nilson briefly returned and then left as one of the dealer's relatives, Jhon, drove into the parking lot.
Osmin, appellant, and Gerardo forced their way into Jhon's car and pushed Jhon into the backseat while Gerardo held appellant's gun on Jhon. Osmin and Jhon wrestled over a purple bag containing cocaine that Jhon had brought with him, which Osmin eventually gained control over. Either appellant or Osmin drove Jhon's car for about five or ten minutes and then pulled over in a nearby residential neighborhood.
After they stopped, Osmin told appellant you "know what to do" about Jhon. Then Osmin got out of the car with the bag of drugs they had stolen from Jhon and Jhon's backpack containing cell phones and money. Nilson was waiting nearby in his car and picked up Osmin. After Osmin got out of Jhon's car, Gerardo told Jhon to move from the back seat to the front seat. Instead, Jhon took off running. Appellant and Gerardo pursued Jhon in Jhon's car, and Nilson and Osmin followed in Nilson's car. Jhon ran into a back yard. Appellant took his gun from Gerardo and chased Jhon on foot. Appellant caught up with Jhon, shooting him in the stomach and shoulder before Jhon fell. Appellant then stood over Jhon and shot him in the head, declaring "that's how we do it in El Salvador, MS-13s."
Appellant and Gerardo ran back to Jhon's car and appellant told Gerardo to drive away. Appellant was in the backseat with the gun, and told Gerardo that if the gun had more bullets, he would have shot Gerardo because appellant does not like to leave witnesses.
Gerardo drove Jhon's car aimlessly for about 10 minutes with Nilson and Osmin following in Nilson's car. They eventually stopped and torched Jhon's car in a ditch. Nilson then drove them all back to Osmin's apartment complex. Osmin and appellant were in celebratory spirits about having stolen "dope for a couple of months" from Jhon. Osmin and appellant gave Gerardo $100 of the money they had stolen from Jhon, and appellant told him to dispose of the 9mm gun.
After appellant and Osmin got out of the car with the drugs and money, Gerardo told Nilson that he did not want to be involved. Nilson reminded him that appellant and Osmin knew where Gerardo lived with his grandmother, parents, and three brothers. The following day Gerardo wrapped the gun in newspaper and plastic and threw it into a bayou.
B. The investigation
On the evening of August 31, 2013, M. Vega heard what he thought were firecrackers in his neighborhood around 7:30 p.m. The following morning, one of Vega's neighbor's discovered Jhon's body nearby. Vega's brother and the neighbor notified police.
Jhon's burnt vehicle was also later found, but no fingerprints or DNA evidence could be lifted from the murder scene or the vehicle. Jhon's family had, however, filed a missing person's report. Officer M. Dillingham with the Houston Police Department called Jhon's sister, who provided information that led Dillingham to Jhon's girlfriend Daisy. Daisy told Dillingham that she had talked to Jhon on the phone about 7:10 p.m. on August 31, 2013, as assertion consistent with phone records. Daisy also identified appellant and Osmin as possible suspects.
Dillingham obtained video footage from the parking lot of Osmin's apartment complex. The videos confirmed Nilson's car coming and going throughout the evening of August 31st. The video footage also showed Jhon's car arriving at the complex about 7:20 p.m., appellant, Osmin and Gerardo climbing into Jhon's car, and Jhon's car leaving the apartment parking lot. It further showed Nilson's car returning at 8:01 p.m. and dropping off two people who walk towards Osmin's apartment.
It is apparent from the video footage that three Hispanic men got into Jhon's car, but it is not clear enough to identify the three men. Appellant acknowledged in his statement to police, however, that he and Osmin got in Jhon's car at the relevant time. And Nilson identified each person in the security footage for police.
Appellant, Osmin, and Gerardo were arrested for Jhon's murder. Appellant voluntarily gave a statement. He admitted to having known Jhon for about one year. Appellant stated that he bought drugs from Jhon sometimes, including the evening Jhon was killed. Appellant would call Jhon's uncle, Jorge Gilces, and either Jorge or Jhon would deliver drugs. According to appellant, on August 31, Osmin called Jorge about 7:00 p.m. to set up a drug buy. Jhon arrived at Osmin's apartment about 10 minutes later with drugs for Osmin and appellant to purchase.
Appellant denied that they killed Jhon. Instead, appellant claimed that Jhon offered to give him and Osmin a ride to a nearby Shop and Go convenience store. According to appellant, he and Osmin got into Jhon's car, quickly exchanged their money for the drugs Jhon brought, and then Jhon began driving them to the store. In the meantime, Jhon got a phone call and told the caller he would meet him or her in ten or fifteen minutes. Appellant claimed that Jhon then dropped off appellant and Osmin at the store, appellant went inside to purchase beer, and then appellant and Osmin walked back to Osmin's apartment. They smoked some crack cocaine with someone that works at the apartments, and then appellant left.
Osmin gave the exact same version of events in his statement to police. Video footage from the Shop and Go store, however, demonstrated that appellant had not walked past or entered that store anytime on August 31, 2013.
Gerardo eventually led the police to Osmin's gun that appellant used to shoot Jhon. Gerardo pleaded guilty to capital murder of Jhon and to another murder. The State agreed to reduce his capital murder charge to a murder charge, resulting in a life sentence with a possibility of parole, if he testified truthfully at the trials of appellant and Osmin. At appellant's trial, Gerardo testified to the events of August 31 and, specifically, that appellant had killed Jhon.
C. The verdict and judgment
The jury found appellant guilty of capital murder, and the court sentenced him to life without the possibility of parole.
ISSUES ON APPEAL
Appellant raises the following five issues on appeal:
1. "The trial judge abused his discretion when he permitted a police officer to testify as an expert about the MS-13 gang during the guilt-innocence stage of trial, over the defendant's objection."
2. "The trial court erred when it refused Appellant's request for a jury charge on the lesser included offense of murder. This error was harmful."
3. "The trial court erred when it failed to sua sponte instruct the jury that Nilson Alvarado was an accomplice as a matter of law or, in the alternative, that jurors should determine whether he was an accomplice as a matter of fact, and failed to give the appropriate corroboration instruction. This error was egregiously harmful."
4. "The state's evidence was legally and factually insufficient to prove that Appellant committed the offense of capital murder."
5. "Texas' denial of factual sufficiency review on appeal of criminal trials violates the Constitutional guarantees of equal protection and due process."
SUFFICIENCY OF THE EVIDENCE
In his fourth point of error, appellant argues that the trial evidence was insufficient to demonstrate he committed capital murder. In his fifth point of error, appellant complains that Texas courts' failure to conduct a separate factual sufficiency review of the evidence in criminal cases violates his right to equal protection and due process.
A. Legal and Factual Sufficiency of the Evidence
In Brooks v. State, the Court of Criminal appeals held that legal sufficiency review is the only standard applicable in a criminal case, essentially merging legal and factual sufficiency review. 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) (holding Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979) legal sufficiency standard governs sufficiency review in Texas criminal cases). Appellant argues that this standard creates an unconstitutional "barrier to meaningful review of whether the state has proved its case beyond a reasonable doubt." The State responds that, because the Court of Criminal Appeals "has deliberately and unequivocally interpreted the law in a criminal matter, [this Court] must adhere to its interpretation." Mason v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). Because we "are bound to follow the Court of Criminal Appeals' articulation of the standard of review," we overrule appellant's fifth point of error and accordingly apply the Brooks standard for reviewing sufficiency of the evidence.
B. Sufficiency of the Evidence
1. Applicable Law and Standard of Review
The jury was properly charged on the statutory definitions of murder, capital murder, robbery, theft, conspiracy and the law of parties. A person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (West Supp. 2016). A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX. PENAL CODE ANN. § 29.02(a)(1)-(2) (West Supp. 2016). Theft is the unlawful appropriation of property with the intent to deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03 (West Supp. 2016). Appropriation of property is unlawful if it is without the owner's effective consent. Id. § 31.03(b)(1).
A person may be guilty as a party to capital murder if the defendant committed the offense by his own conduct or by the conduct of another for which he is criminally responsible. TEX. PENAL CODE ANN. § 7.01(a) (West Supp. 2016); see Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). "If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy." TEX. PENAL CODE ANN. § 7.02(b) (West Supp. 2016). A defendant in a capital murder case may be convicted solely on a conspiracy theory of culpability contained in the jury charge. Love v. State, 199 S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (citing Fuller v. State, 827 S.W.2d 919, 932-33 (Tex. Crim. App. 1992)). The State, therefore, is not required to present evidence of a defendant's intent to kill as long as the evidence establishes that a felony was committed as a result of a conspiracy and the murder should have been anticipated in carrying out the conspiracy to commit the underlying felony. Ruiz v. State, 579 S. W.2d 206, 209 (Tex. Crim. App. 1979).
When reviewing whether there is sufficient evidence to support a criminal conviction, the standard of review we apply is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This standard tasks the factfinder with resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts. Id. On appeal, reviewing courts "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination. See Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015) (citing Hooper v. State, 214 S.W.3d 9, 12 (Tex. Crim. App. 2007)). Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013).
2. Analysis
Appellant argues that the evidence does not establish that he intended to rob, or knowingly participated in the robbery of, Jhon as an element of his capital murder conviction. The State responds that the evidence demonstrated a plan to rob Jhon of both drugs and money and that a gun was brought along to carry out that plan, sufficiently establishing that appellant either intended to rob Jhon or knowingly participated in his robbery. We agree with the State.
When appellant was first interviewed, he stated that he had bought drugs from Jorge and Jhon previously, and that Osmin called Jorge to deliver drugs for both Osmin and appellant to purchase the day Jhon was killed. According to appellant's statement, when Jhon arrived at Osmin's apartment complex, Jhon offered to give Osmin and appellant a ride to the store. Appellant claimed that only he and Osmin got into Jhon's car, that they quickly finished their drug purchase, and that Jhon dropped them at the store and continued on to another destination. Finally, appellant claimed that he and Osmin walked back to Osmin's apartment from the store. Osmin provided the exact same version of events to police.
Gerardo on the other hand testified that Osmin called Jorge to deliver drugs so that Osmin and appellant could rob him. Appellant had a gun with him as they waited for Jorge. Jhon showed up instead. According to Gerardo, he got into Jhon's vehicle with Osmin and appellant, Osmin took Jhon's drugs and money and told appellant to "take care of" Jhon. Finally, according to Gerardo, Nilson returned them all to Osmin's apartment after appellant shot Jhon and they torched Jhon's car. Appellant and Osmin were in a celebratory mood because they had stolen enough drugs to last a couple of months. And, while Nilson denied being at the murder scene or the site where Jhon's car was dumped, Nilson did testify that he picked up Osmin from one location, Gerardo and appellant from another, and then drove the three to Osmin's apartment. Nilson also testified that one of the back-seat occupants had a gun, but he was not sure who.
In sum, appellant and the State agree that Jhon delivered drugs to Osmin's apartment complex and that Osmin and appellant got into Jhon's car. Jhon was killed about ten minutes after Osmin and appellant got into Jhon's car. The parties' versions diverge as to what happened in that ten minutes. Gerardo testified that appellant brought a gun, the parties then robbed Jhon, killed him, and torched his car. Gerardo and Nilson agree that Nilson then drove appellant, Osmin, and Gerardo back to Osmin's apartment and that one of them still had the gun. In contrast, appellant's and Osmin's story was that Jhon picked appellant and Osmin up, they purchased their drugs from Jhon, they got out of Jhon's car to buy beer, and the two of them walked back to Osmin's apartment. Appellant's version is contradicted, and the State's theory is corroborated, by other evidence. The video footage of the apartment's parking lot shows three people, not two, getting into Jhon's car when it arrives, including one person climbing into the driver's seat. The video footage at the Shop and Go store shows Jhon's car driving past the store, and reflects that neither appellant nor Osmin entered the store that day. Finally, the video footage from the apartments shows the parties all returning in Nilson's car, not on foot. Gerardo testified that the plan was to rob Jhon for his drugs, and that appellant brought a gun. Gerardo later led the police to that gun. Nilson likewise contradicted appellant's version by testifying that he drove appellant, Osmin, and Gerardo back to Osmin's apartments and that one of them had a gun.
The jury is the sole judge of the credibility of witnesses and the weight to give testimony, and our role on appeal is simply to ensure that the evidence reasonably supports the jury's verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Given the evidence that appellant and Osmin fabricated their alibi for the window of time in which Jhon was murdered, and given the testimony of Gerardo and Nilson, which is corroborated by the video footage from the apartments and the convenience store and Gerardo's ability to point police to the exact location of the discarded murder weapon, we conclude the evidence reasonably supports the jury's verdict, including appellant's agreement with Osmin to rob Jhon. See Tatum v. State, 431 S.W.3d 839, 841 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) ("The jury reasonably may infer facts from the evidence presented, credit the witnesses it chooses to credit, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit.").
We overrule appellant's fourth point of error.
GANG EVIDENCE
In his first point of error, appellant argues that the trial court erred by allowing Officer Sosa to present expert testimony about the MS-13 gang. Officer Sosa was one of the original crime scene investigators of Jhon's murder. Appellant's counsel acknowledged that he was an appropriate fact witness, but objected to Sosa's testifying as a gang expert:
[Appellant's counsel]: Yes, sir. Your Honor, just before we start, the State's going to call Officer Sosa. And he's going to testify — I believe he's going to testify as a gang expert on MS-13 and —
[STATE]: Well, he's also an investigating officer who discussed MS-13 with the defendant and the codefendants, and he did investigations. So he's not — there's other things that he's going to testify to.
[Appellant's Counsel]: What I'm speaking to is just the gang part, Your Honor. There was — in my client's statement he was asked is he an MS-13 member. He said yes. But beyond that, my objection is going to be — I'm just going to make an objection before, so we can take care [of] it now, is that it's prejudicial to go into what MS-13 does, that it's probative effect outweighs its — sorry — it's probative value outweighs its prejudicial effect.
THE COURT: Let me say this. I don't know what he's going to say or what his expertise is or anything about him. I'm just saying now I'll overrule the objection, but please make it timely. Just say, I object consistent with what we talked about. Can you do that?
[Appellant's Counsel]: Yes, I can.
After Sosa testified that he specializes in Hispanic prison gangs and criminal street gangs, he explained that he had special FBI training specific to the MS-13 gang. When Sosa was asked what MS-13 stands for, appellant's attorney lodged the "previous objection that I had to this matter," which the trial court overruled.
Sosa then testified that MS-13 is considered an "international criminal street gang," which is defined as a gang with an established hierarchy with codes of conduct and rules of discipline. Sosa testified about each level of leadership, and the recruitment process. The gang targets young kids between 10 and 15 years' old, enticing them with drugs and girls. Once a youth is lured in, he has to perform a criminal act as part of the initiation process.
Osmin and appellant told Sosa that they both belonged to MS-13 and identified their cliques. They later claimed that they were no longer MS-13 members. Sosa did not believe that assertion, because "MS-13 is blood in, blood out." He explained that means that you have to kill someone or die to get out once you are a member. In addition, Sosa pointed out that Osmin and appellant continued to spend time together and continued their criminal activity. In addition, there was distinctive MS-13 graffiti at Osmin's apartment complex. Finally, Sosa believed that Osmin and appellant were grooming Gerardo to join MS-13.
A. Parties' Arguments
Appellant asserts that this testimony during the guilt-innocent phase of his trial about MS-13 was not probative and was highly prejudicial. Specifically, appellant argues that "there was no evidence that either crime was committed under orders from anyone involved in MS-13, or that it was committed for the gang's benefit." Rather, he contends, this was a drug-related crime.
The State responds that appellant waived his complaint about Sosa's MS-13 testimony. Alternatively, the State argues that "even assuming appellant preserved this issue, evidence about the gang in which appellant was not only documented as a member, but invoked its name during the course of committing this crime, had substantial probative value because it was relevant to prove his motive for the shooting."
B. Applicable Law and Standard of Review
Relevant evidence is generally admissible. See TEX. R. EVID. 402; Erazo v. State, 144 S.W.3d 487, 499 (Tex. Crim. App. 2004). Irrelevant evidence is inadmissible. TEX. R. EVID. 402. "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. "The court may exclude relevant evidence if its probative value is substantially outweighed by . . . unfair prejudice." TEX. R. EVID. 403.
We presume that relevant evidence is more probative than prejudicial. Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). The objecting party has the burden of demonstrating that the prejudicial effect of the evidence substantially outweighed its probative value. See Montgomery v. State, 810 S.W.2d 372, 377 (Tex. Crim. App. 1990). Once a Rule 403 objection is lodged, the trial court must weigh the probative value of the evidence against the potential for unfair prejudice or confusing or misleading the jury. See Andrade, 246 S.W.3d at 227; Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). The following criteria inform that determination: (1) the probative value of the evidence; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence to prove a fact of consequence. Andrade, 246 S.W.3d at 228; Shuffield, 189 S.W.3d at 787.
"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Montgomery, 810 S.W.2d at 377; TEX. R. EVID. 404(b); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Such evidence, however, may "be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident." TEX. R. EVID. 404(b).
We review a trial court's decision regarding the admissibility of evidence for abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the court's decision if it lies within the "zone of reasonable disagreement." Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). A court abuses its discretion when it acts without reference to any guiding rules or principles. Montgomery, 810 S.W.2d at 380. If the trial court's evidentiary ruling is reasonably supported by the record and correct on any applicable theory of law, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
C. Analysis
Gang affiliation may be relevant to a defendant's guilt if that affiliation demonstrates a potential motive for committing a crime. See, e.g., Vasquez v. State, 67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002) (evidence of defendant's gang affiliation was relevant and admissible over challenges under Rules 401, 402, 403, and 404 to show motive for gang-related crime); Smith v. State, 355 S.W.3d 138, 154 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) ("Gang membership is admissible to show bias, motive, or intent, or to refute a defensive theory."); Tibbs v. State, 125 S.W.3d 84, 89 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (evidence of defendant's gang involvement was admissible to rebut defendant's theory that the shooting was in self-defense).
This case presents a slightly different issue, as appellant did not object to evidence about his gang membership. Rather, his objection was lodged at Sosa's additional explanations about MS-13 organization, leadership hierarchy, membership, and recruitment. We disagree with appellant's assertion that this testimony was not relevant. The State's theory was that appellant and Osmin (who were in their 30s), were luring Gerardo (a teenager) into MS-13. Sosa testified that MS-13 was primarily an El Salvadorian gang and that younger recruits were made to participate in crimes. Appellant's argument that this evidence does not go directly to an element of capital murder ignores that this testimony gives context to explain potentially why Osmin and appellant took Gerardo with them to rob Jhon (i.e., as a gang-initiation exercise). It also gives context to appellant standing over Jhon's body and shooting him in the head while telling Gerardo "that's how we do it in El Salvador, MS-13s."
Because we conclude that Sosa's MS-13 testimony was probative, we may only conclude the trial court abused its discretion if the prejudicial effect of the evidence substantially outweighed its probative value. See Montgomery, 810 S.W.2d at 377. We hold that it did not. Unfair prejudice is "an undue tendency to suggest [a] decision on an improper basis, commonly, though not necessarily, an emotional one." Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999) Appellant himself admitted to being a member of MS-13, and that information was already before the jury. Sosa's additional elaborations about MS-13's structure and procedures were brief and not so inflammatory as to likely prejudice the jury in an improper way.
We overrule appellant's first point of error.
JURY CHARGE
In his second point of error, appellant contends the trial court's refusal to include the lesser-included offense of murder in the jury's charge was harmful error. In his third point of error, appellant argues that the trial court should have sua sponte instructed the jury that Nilson was an accomplice as a matter of law, or in the alternative, that the jury should have been instructed to determine whether he was an accomplice as a matter of fact. According to appellant, the failure to so instruct the jury, along with an appropriate instruction that an accomplice's testimony must be corroborated, was egregiously harmful to appellant, entitling him to a new trial.
A. Standard of Review
Review of alleged jury-charge error is a two-step process. First, we must determine whether error exists in the charge. Second, if there is error, the court must determine whether the error caused sufficient harm to require reversal of the conviction. When there is an objection to preserve the error, the appellate court only looks for "some harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other grounds by Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). If a proper objection is not made at trial the defendant must claim that the error was "fundamental"; reversal is warranted only if the error is so egregious and created such harm that the defendant "has not had a fair and impartial trial"—in short "egregious harm." Id.
B. Lesser-Include Offense
A two-step inquiry determines if a jury instruction on a lesser-included offense is appropriate. First, it must qualify as a lesser-included offense under article 37.09 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2013); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). This is a question of law. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). Second, some evidence must exist in the record that would permit a jury to rationally find that if the appellant is guilty, he is guilty only of the lesser offense. Hall, 225 S.W.3d at 536.
The State concedes that "[m]urder is a lesser-included offense of capital murder." Young v. State, 283 S.W.3d 854, 876 (Tex. Crim. App. 2009). It argues, however, that appellant has not shown there is evidence that would permit a jury to rationally find that, if he is guilty, he is guilty only of murder, but not capital murder. See State v. Meru, 414 S.W.3d 159, 163 (Tex. Crim. App. 2013). We agree.
Appellant contends that "[i]f Appellant did not have a role in the robbery that preceded [Jhon's] death, he could have been found guilty of murder, but not capital murder." He argues that there was no evidence that he knew of a plan to rob Jhon. Appellant acknowledges that Osmin talked earlier in the day about robbing someone because they needed more drugs and money, but claims that he did not know Osmin meant to rob Jhon. Appellant posits that jurors might have concluded that Osmin alone robbed Jhon and that appellant and Gerardo then drove Jhon to another location to kill him. According to appellant, he was thus entitled to a lesser-included instruction on murder. In response, the State points out that the appellant was charged as a principal and as a party or co-conspirator to the capital murder, meaning he was responsible not only for his own actions, but also the actions of his co-defendants, including aggravated robbery.
The State also correctly notes that the only competing theories supported by the evidence were that (1) Osmin and appellant planned to rob Jhon and appellant brought a gun along for that purpose, or (2) Osmin and appellant bought drugs from Jhon and then Jhon was murdered by an unknown person after dropping off Osmin and appellant at the store. "The fact that the State in proving capital murder may also have proved a lesser offense does not entitle a defendant to a charge on the lesser offense." Cordova v. State, 698 S.W.2d 107, 113 (Tex. Crim. App. 1985). There must be evidence that the defendant was only guilty of a lesser offense. Id. Under these two factual scenarios presented at trial, the jury could convict or acquit for capital murder. But, contrary to appellant's argument, no evidence presented at trial supported the theory appellant now advances on appeal, i.e., that Osmin robbed Jhon without appellant's advance knowledge, and then appellant and Gerardo took Jhon to a separate location and killed him for reasons unrelated to the robbery. Because no evidence supported this theory that appellant was guilty of only murder, but not capital murder, a submission of a lesser-included instruction on murder was not warranted and the trial court did not err in refusing to submit that instruction. E.g., Armstrong v. State, 179 S.W.3d 84, 87-88 (Tex. App.—Fort Worth 2005, no pet.) (complainant killed by appellant seeking to collect a debt who argued he lacked intent to commit robbery; lesser-included offense instruction not proper because no trial evidence established that appellant was only guilty of murder, but not capital murder); Meeks v. State, 135 S.W.3d 104, 113-14 (Tex. App.—Texarkana 2004, pet. ref'd) (complainant killed by appellant who argued that robbery was an afterthought to murder such that murder was not in course of robbery; lesser-included offense instruction not warranted because no trial evidence established appellant was only guilty of murder, but not capital murder).
We overrule appellant's second point of error.
D. Accomplice Instruction
"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 2013). An accomplice is any person who, with the requisite culpable mental state, participated with the accused before, during, or after the crime by performing some affirmative act that promoted its commission. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). Mere presence at a crime scene does not make an individual an accomplice, nor is an individual an accomplice merely because he has knowledge about a crime and fails to disclose that knowledge. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998).
A person is considered an accomplice as a matter of law if he could be prosecuted for the same offense as the defendant or for a lesser included offense. Id. at 454-55. The test is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice. Id. at 455. If the evidence clearly shows that the witness was an accomplice as a matter of law, the trial court must so instruct the jury; otherwise, the court should present the matter for consideration by the jury. Id. The trial court is obligated to instruct the jury accordingly, sua sponte. Zamora v. State, 411 S.W.3d 504, 513 (Tex. Crim. App. 2013). "[N]on-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve." Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). When, as here, a defendant fails to object to lack of an instruction, we review for "egregious harm." Zamora, 411 S.W.3d at 513.
The jury charge in this case defined the term "accomplice" and instructed the jury that an accomplice's testimony must be corroborated. The charge also instructed the jury that Gerardo was an accomplice as a matter of law, but was silent as to Nilson:
An accomplice, as the term is here used, means anyone connected with the crime charged, as a party thereto, and includes all
persons who are connected with the crime by unlawful act or omission on their part transpiring either before or during the time of the commission of the offense, and whether or not they were present and participated in the commission of the crime. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible or by both. Mere presence alone, however, will not constitute one a party to an offense.
A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. The term "conduct" means any act or omission and its accompanying mental state.
You are instructed that a conviction cannot be had upon the testimony of an accomplice unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.
The witness, Gerardo Arredondo, is an accomplice, if an offense was committed, and you cannot convict the defendant upon his testimony unless you further believe that there is other evidence in the case, outside of the testimony of Gerardo Arredondo tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him.
Appellant contends that, like Gerardo, Nilson was an accomplice as a matter of law. Alternatively, he argues that the trial court should have instructed the jury to first determine if Nilson was an accomplice and, if so, to require non-accomplice corroboration before finding him guilty.
We agree with the State that an instruction that Nilson was an accomplice as a matter of law was not warranted. Dillingham testified that Nilson was not charged with a crime because there was insufficient evidence to do so. There was no testimony that he was present for discussions about robbing Jhon, and the testimony and videotapes from Osmin's apartment complex confirm that Nilson left the complex shortly before Jhon arrived.
Assuming that an instruction as to whether Nilson was an accomplice in fact was appropriate given the conflicting testimony about whether he was present when Jhon was murdered and whether he aided in disposing of appellant's gun, we conclude that appellant has not shown egregious harm. The premise of appellant's argument is that the only evidence against appellant was testimony from Nilson and Gerardo—two accomplices that cannot corroborate each other's testimony. See Cohea v. State, 845 S.W.2d 448, 452 (Tex. App.—Houston [1st Dist.] 1993, pet. ref'd) ("Accomplice testimony by one witness cannot be corroborated by testimony of another accomplice."). Accordingly, appellant claims he was harmed because—without a proper instruction—the jury did not know it had to disregard the testimony of Gerardo and Nilson, which would have left the jury with no evidence upon which to convict appellant.
We disagree because, even disregarding Nilson's testimony completely, there was other evidence corroborating Gerardo's accomplice testimony. Corroborating evidence need not directly connect a defendant to an offense or be sufficient by itself to establish guilt. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). "The evidence must simply link the accused in some way to the commission of the offense and show that rational jurors could conclude that the evidence sufficiently tended to connect the accused to the offense." Hernandez v. State, 454 S.W.3d 643, 648 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). The corroborating evidence may be direct or circumstantial. See Smith, 332 S.W.3d at 442. "Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration." Torres v. State, 137 S.W.3d 191, 196 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
Appellant admitted to being in Jhon's car shortly before Jhon was murdered. Smith, 332 S.W.3d at 442-43 ("[P]roof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction."). Appellant had a motive for both the robbery and the murder. He admitted he and Osmin planned to buy drugs from Jhon the day he was murdered. Appellant also admitted being a member of MS-13. Sosa testified that he believed that appellant was still an MS-13 member that was luring Gerardo into MS-13, which gave appellant a motive beyond covering up the drug robbery to kill Jhon while Gerardo was present. Smith, 332 S.W.3d at 442 ("Motive and opportunity evidence is insufficient on its own to corroborate accomplice-witness testimony, but both may be considered in connection with other evidence that tends to connect the accused to the crime."). While appellant and Osmin admitted in their statements to police that they had gotten into Jhon's car shortly before he died, the alibi they gave claiming that Jhon dropped them off at a store was demonstrably false. These circumstances, taken together, tend to connect appellant to Jhon's robbery and death.
Because appellant has not shown he was egregiously harmed by the trial court's failure to instruct the jury to determine if Nilson was an accomplice in fact, we overrule appellant's third point of error.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland. Jennings, J. concurring. Do not publish. TEX. R. APP. P. 47.2(b).