                              NUMBER 13-07-270-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

ERNESTO GONZALEZ,                                                             Appellant,

                                            v.

THE STATE OF TEXAS ,                                                          Appellee.



    On appeal from the 94th District Court of Nueces County, Texas.


              CONCURRING MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Yañez and Benavides
          Concurring Memorandum Opinion by Justice Yañez
      I concur with the result, but respectfully disagree with the majority's conclusion that
appellant was entitled to an accomplice witness instruction.
      The evidence in this case is not sufficient to connect Juarez to the arson as a
blameworthy participant.1 There is no evidence in the record that Juarez solicited,
encouraged, or directed appellant and Rios to commit the arson.2 Therefore, in order to
assist in the commission of the offense, Juarez must have aided or attempted to aid Rios
to commit the offense.3
         There is neither conflicting nor unclear evidence that, when Juarez allowed Rios
to borrow the truck, she had full knowledge that Rios and the men were going to commit
the arson. In other words, there is no evidence that Juarez loaned her mother's truck to
Rios so that he could drive to Ybanez's house to commit the arson. Although Juarez
heard the men state that they wanted to commit the arson and loaned her mother's truck
to Rios, "there must still be some evidence of an affirmative act on the part of the witness
to assist in the commission of the charged offense before such an instruction is required."4
Reliance may be placed on actions which show an understanding and common design
to do a certain act.5 Evidence that Juarez loaned the truck to Rios does not establish that
Juarez, Rios, and appellant had an understanding and common design to commit the
offense of arson without evidence that Juarez knew that Rios borrowed the truck to



         1
             Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006).
         2
             See T EX. P E N AL CODE A NN . § 7.02(a)(2) (Vernon 2003) ("A person is criminally responsible for an
o ffe n s e c o m m i tte d by the conduct of another if . . . acting with intent to promote or assist the commission o f
th e o ffe nse, he solicits, encourages, directs, aids, or attempts to aid the other person to commit th e
offense. . . .").
         3
             See id.
        4
          Druery v. State, 225 S.W.3d 491, 499 (Tex. Crim. A p p . 2007) (citing Kunkle v. State, 771 S.W.2d
435, 440 (Tex. Crim. App. 1986)).
         5
             Smith v. State, 781 S.W.2d 675, 678 (Tex. App.–Dallas 1989, pet. ref'd).

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commit the offense.6 Here, the evidence does not show that when Juarez gave Rios the
keys, Juarez was acting together with the men, contributing her part towards the
execution of the arson. 7 Therefore, there is no evidence that she was assisting the
commission of the arson.8
        Relying on Phillips v. State,9 the majority concludes that Juarez assisted in the
commission of the offense by providing the necessary transportation to the men. The
majority states that "[a] person who provides transportation for another person, knowing
that the other person intends to commit a crime, is an accomplice under the law of
parties." However, in Phillips, the court found that the witness had full knowledge that the
appellant was intending to commit the arson when the witness provided the
transportation.10 In that case, the court reasoned that the witness was an accomplice if,
knowing the unlawful intent of the appellant, the witness furnished his horse to the
appellant so that the appellant could ride to the place where the arson was committed.11
        The majority asserts that Juarez admitted that when Rios asked to borrow the keys

        6
            See id.
        7
         See Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986) (en banc); Mullins v. State , 173
S.W.3d 167, 174 (Tex. App.–Fort Worth 2005, no pet.); Smith, 781 S.W.2d at 678.
         8
           See Kunkle, 771 S.W.2d at 439-41 (concluding that individual who knew of planned robbery, failed
to abandon group, allowed victim to be induced into vehicle, would have told group if police were coming, and
was present when the victim was shot in head was not accomplice witness as matter of fact absent affirmative
act); see also Ferguson v. State, 573 S.W.2d 516, 523-24 (T e x. Cri m. App.1978) (determining that witness
who owned the murder weapon, knew that the appel l ant planned on "robbing a store" that night, hid the knife
unde r a p illow, and spent money he knew was obtained during the robbery had not aided in the commission
of capital murder).
        9
            Phillips v. State, 17 Tex. Ct. App. 169 (1884).
        10
             See id. at 174.
        11
             See id. at 175.

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to the truck, she knew what the men were about to do. I do not agree.12 Defense counsel
asked Juarez, "Well, you gave them the keys and you knew—what you're testifying to, you
knew what they were going to do—" Juarez responded, "Yes." Assuming that Juarez
meant to respond "Yes" to both statements, her response shows only that she gave Rios
the keys and that she knew that Rios and appellant were planning to "cocktail" Ybanez's
house. However, this testimony does not show that Juarez was aware that Rios wanted
to borrow the truck so that he could drive to Ybanez's house to commit the offense. In
fact, the evidence shows that when Rios asked to borrow the truck, he told Juarez that
he "needed to take care of some business."
        The parties did not present conflicting or unclear evidence that Juarez assisted in
the arson.13 Juarez did not help appellant or his accomplices plan the offense; she did not
help them obtain the Molotov cocktails used in the offense; she was not present during
the commission of the offense; she did not encourage the offense by either words or
agreement; and she did not participate in the commission of the offense.14 I cannot agree
that a question of fact was raised because Juarez loaned her mother's truck to Rios,
without evidence that she had full knowledge that the men would use the truck to commit


        12
           See Rios v. State, No. 13-07-00264-CR, 2008 Tex. App. LEXIS 6524, *20 (T e x. A p p .–Corpus
Christi Aug. 26 2008, no pet.) (mem. op.) (n o ti n g that "Juarez's statement at trial was far from a clear
'admission' that she had participated in the crime as an accomplice").
        13
             See Cocke, 201 S.W.3d at 748.
         14
            See Salinas v. State, 1 6 3 S .W .3 d 7 3 4 , 739 (Tex. Crim. App. 2005); Hoang v. State, 263 S.W.3d.
18, 22 (Tex. App.–Houston [1st Dist.] 2006, pet. ref'd) ("Evidence is sufficient to su stain a conviction under
the law of parties i f i t s h o ws that the defendant was physically present at the commission of the offense and
encouraged the commission of the offense either b y words or other agreement.") (citing Tarpley v. State, 565
S.W.2d 525, 529 (Te x . Cri m . A p p . 1978); Miller v. State, 83 S.W.3d 308, 313-14 (Tex. App.–Austin, 2002,
no pet.)).

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the arson.15
         Therefore, I would conclude that the trial court was not required to provide an
accomplice witness instruction and did not err in failing to do so.16 I would further
conclude that because the facts in this case did not warrant an accomplice witness
instruction, appellant has not shown that trial counsel's performance was deficient by not
requesting such an instruction.17




                                                                 LINDA REYNA YAÑEZ,
                                                                 Justice



Do not publish. TEX. R. A PP. P. 47.2(b).
Concurring Memorandum Opinion delivered and filed
this the 30th day of July, 2009.




         15
           See Druery, 225 S.W.3d at 498 (providing that a witness is not an accomplice to a crime merely
because she knows of an offense and fails to disclose it, nor does she become an accomplice by concealing
the offense); Cocke, 201S.W.3d at 748.
         16
              Cocke, 201 S.W.3d at 748.
        17
           Thompson v. State, 9 S.W.3d 808, 812, 814 (Tex. Crim. App . 1999) ("Failure to make the required
showing of . . . defici e n t p e rfo rm a n c e . . . defeats the ineffectiveness claim."); see Strickland v. Washington,
466 U.S. 668, 689, 694 (1984).

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