                                   NO. 07-10-0175-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     APRIL 7, 2011


                                MICHAEL G. GONZALES,

                                                                  Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                          _____________________________

           FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

     NO. 2007-417,076; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING


                                 Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Michael G. Gonzales was convicted of aggravated assault on a public servant.

In seeking a reversal of that conviction, he contends 1) the jury charge should have

contained an instruction that Adrianna Carrasco and Juan Aguilar were accomplices as

a matter of law, and 2) there is legally insufficient evidence to corroborate the testimony

of those two persons. We affirm the judgment.
      Background

      On September 15, 2006, appellant, Juan Zuniga, his girlfriend Carrasco, and

Aguilar met at a house, obtained a white F-150 truck, traveled to the area around

Memphis and 65th Street in Lubbock and parked at an apartment complex. Appellant

and Zuniga were planning to break into a nearby house inhabited by Toni Mari Luna, a

drug dealer, and take a big screen television. While walking into the area, appellant and

Zuniga were observed by Officer Mark Wall, who became suspicious of their actions

and stopped his vehicle, activated his spotlight, and prepared to get out of his car. He

then saw one of the men reach into his waistband and begin firing a gun at the vehicle.

The police car was struck multiple times before the two men ran away.

      When Carrasco and Aguilar heard gunshots, they initially drove the truck away.

After circling the block, they returned to the apartment complex in case appellant and

Zuniga came back. Appellant soon returned to the truck, got in the driver’s seat, and

drove off. Zuniga called appellant on his phone in a few minutes and later met the

others back at the house where they had obtained the truck.

      Issue 1 – Accomplices as a Matter of Law

       The trial court left it to the jury to decide whether Carrasco and Aguilar were

accomplices, but appellant argues the court should have instructed the jury that they

were accomplices as a matter of law and that it could not convict him based on their

uncorroborated testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005)

(stating that a conviction may not rest upon the testimony of an accomplice unless that

testimony is corroborated by other evidence tending to connect the defendant to the

offense). A person is an accomplice to a crime when he participates before, during, or

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after its commission with the appropriate mental state. Paredes v. State, 129 S.W.3d

530, 536 (Tex. Crim. App. 2004). He does not become an accomplice merely because

he is present at the scene of a crime or because he has knowledge of a crime but fails

to disclose it or conceals it. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App.

1998). He must engage in an affirmative act or omission to promote the commission of

the offense. Id. Furthermore, unless the evidence clearly shows that the witness was

an accomplice as a matter of law, the decision must be left to the jury. Cocke v. State,

201 S.W.3d 744, 747-48 (Tex. Crim. App. 2006).

       Appellant assumes that because Carrasco and Aguilar knew that appellant and

Zuniga intended to steal an item from Luna, they were parties to the offense of

aggravated assault on a police officer. Yet, nothing in the record shows that either

knew that appellant and Zuniga were armed with weapons that night or that they

intended to use them against a police officer. Aguilar testified that he did not know that

there would be any shooting. Further, Carrasco stated she “panicked” when she heard

gunshots, and Aguilar testified that he was “scared.” Complicity in the commission of

another offense apart from the charged offense does not make the testimony that of an

accomplice. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); see also

Carraway v. State, 550 S.W.2d 699, 702 (Tex. Crim. App. 1977) (stating that the mere

fact a witness had complicity in the commission of other offenses does not make his

testimony that of an accomplice for the offense for which the accused is on trial if there

is no showing of his complicity in that offense).

       However, appellant argues that a co-conspirator is an accomplice and liable

under §7.02 of the Penal Code. That section provides: “If, in the attempt to carry out a

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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) (Vernon 2003). Assuming that

these four persons were co-conspirators, there is still no evidence that they ever

discussed the use of guns or any other kind of force or that Carrasco and Aguilar knew

that the other two men were carrying guns. See Davis v. State, 276 S.W.3d 491, 495

(Tex. App.–Waco 2008, pet. ref’d) (evidence that the defendant knew his co-

conspirators might use guns in the course of a robbery can be sufficient to demonstrate

that the defendant should have anticipated the possibility of murder occurring). Aguilar

testified that appellant and Zuniga left the pickup to see if anyone was at home at the

residence from which they intended to steal.      Thus, there is some question as to

whether the burglary would have even taken place unless that house was unoccupied.

At most, there is a fact question as to what Carrasco and Aguilar knew and their intent.

Therefore, the court acted appropriately in submitting the issue to the jury.       See

Martinez v. State, 252 S.W.3d 649, 652 (Tex. App.–Amarillo 2008, pet. ref’d) (stating

that when the circumstances could be reasonably interpreted as indicating that the

witness unwittingly helped the defendant to commit the crime, a fact question existed as

to whether he was an accomplice).

      Sufficiency of the Evidence

      Because the jury could have concluded that Carrasco and Aguilar were not

accomplices, their testimony tended to connect appellant to the crime by his presence in

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the area in dark clothing as described by Officer Wall, the gunshots occurring shortly

after appellant left the truck where Carrasco and Aguilar remained, and the return of

appellant to the vehicle shortly after the gunshots. Nevertheless, there was additional

evidence, apart from that of Carrasco, Aguilar, and Zuniga that tended to connect

appellant to the offense including evidence that 1) Wall picked appellant’s picture out of

a photo line-up and stated he was 80% sure that he was one of the persons who fired at

him, 2) a trustee at the jail testified that when he asked appellant if he was in jail for

shooting at police, appellant responded, “well, I wasn’t trying to kill anybody; I was just

trying to get him to stop following us,”1 3) Eric Martinez stated that appellant sold a .40

caliber gun to someone Martinez knew and that was the make of one set of shell

casings found at the scene, 4) appellant told Martinez that he had been going to rob

Luna and “that a cop had pulled up and they fired,” and 5) appellant told Martinez he

tripped over a hill when running away from the officer and such a hill was located in that

area. Evidence tending to connect one to the charged offense need not be sufficient

itself to establish guilt nor directly link the accused to the commission of the offense.

Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The evidence we have

described here satisfies the requirement that it tend to connect appellant to the charged

offense and, because it does so, that evidence, as well as the testimony of the

accomplices, is legally sufficient to sustain the conviction.



       1
         Although not raised as an issue on appeal, a defendant may not be convicted of an offense on
the testimony of a person to whom the defendant made a statement against the defendant’s interest
during a time when the person was imprisoned in the same correctional facility as the defendant unless
corroborated by other evidence tending to connect the defendant with the offense. TEX. CODE CRIM.
PROC. ANN. art. 38.075(a) (Vernon Supp. 2010).

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      Accordingly, we overrule appellant’s issues and affirm the judgment.



                                              Brian Quinn
                                              Chief Justice

Do not publish.




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