                                  NUMBER 13-09-00572-CR

                                     COURT OF APPEALS

                           THIRTEENTH DISTRICT OF TEXAS

                              CORPUS CHRISTI - EDINBURG


MARIO ALBERTO QUINTANILLA,                                                                  Appellant,

                                                     v.

THE STATE OF TEXAS,                                                                           Appellee.


                        On appeal from the 139th District Court
                              of Hidalgo County, Texas.


                                  MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Garza and Vela
                 Memorandum Opinion by Chief Justice Valdez

        Pro se appellant, Mario Alberto Quintanilla, was convicted of capital murder. 1

See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2011); see also id. § 19.02(b)(1)


        1
           The facts regarding how Quintanilla’s decision to proceed pro se on appeal are detailed in the
trial court’s order following abatement and in the reporter’s records of the hearings held on the matter.
We have summarized the facts below.

         After determining that Quintanilla was indigent, the trial court appointed an appellate attorney who
did not timely file a brief with this Court. We abated and remanded the case to the trial court with
instructions to determine whether new counsel should be appointed. Appellate counsel filed a brief with
(West 2011).          By four issues, Quintanilla contends that:               (1) the evidence was

insufficient to corroborate the testimony of Gerardo Garcia and Jesus Cortez; (2) it was

constitutionally inadmissible to “force” the co-defendant, Alfredo Valdez, to testify

“against his will” “over objection in the presence of the jury”; (3) the trial court improperly

required Quintanilla to take off his shirt; and (4) the evidence was insufficient to support

the conviction. We affirm.

                                        I.       THE EVIDENCE2

        Jason Alba Lyons testified that while he was in prison for aggravated assault, he

became a member of the “prison gang” the Hermano Pistoleros Latinos (“HPL”),

meaning in English, the “Brotherhood of the Latin Gunslingers, gangsters.” According

to Lyons, HPL engages in organized crime, which includes, “[a]nything that’s against the

law,        basically . . . from   robbing . . . to       burglaries,     even      murders. . . . Drug

dealings . . . . [smuggling].” Lyons testified regarding the practices of the organization.

Lyons claimed that when he was released from prison in 2004, he was in the leadership

position called an “Encargo” with the HPL. Lyons explained that, as the Encargo, he

was the leader of “all the pistoleros in the [Rio Grande] Valley.” Lyons stated that he

was a member of HPL for approximately seven years.


this Court on February 8, 2012, the day before the hearing. The trial court determined that the option of
appointing new counsel on appeal was not appropriate. Quintanilla indicated that he wished to proceed
pro se.

        The trial court gave Quintanilla a few days to review the brief filed by appellate counsel, to
discuss any issues he thought should be raised in the brief with appellate counsel, and to consider his
decision. The trial court held a second hearing on February 13, 2012. At this hearing, Quintanilla stated
that he had reviewed the brief filed by his appellate counsel and that he wanted to proceed pro se.
Quintanilla’s appointed appellate counsel withdrew from the case. Quintanilla then filed his pro se brief in
this case with our Court.
        2
          On December 21, 2005, Larissa Cavazos was murdered in the apartment that she shared with
her brother Sergio Cavazos. The jury convicted Quintanilla of Larissa’s murder, and he is appealing from
that conviction in this case.

                                                      2
       Lyons testified that he lived at El Bosque Apartments in Edinburg, Texas from

2004 until 2007. In 2005, Lyons was known as “Gotti,” and he knew Quintanilla as a

member of HPL. Lyons testified that Quintanilla visited his apartment on Saturday,

December 17 and Sunday, December 18, 2005 with “Toto,” “Fro,” and two strippers

named Liz and Mercedes.3 According to Lyons, the group was drinking beer and doing

cocaine. Lyons testified that when the cocaine ran out sometime early Sunday morning,

he and Quintanilla decided to go and buy some more from Lyons’s “connection,” Bobby

Foreman.4

       Lyons said that he called Foreman on his cell phone and that Foreman told

Lyons that the cocaine would be in the mailbox outside of an apartment where Foreman

was staying. Foreman was at the Schunior Apartments, which was “the next block”

from the El Bosque Apartments. Lyons stated that Foreman wanted him to leave the

money in the mailbox. Lyons explained that because the plan was for Quintanilla to

drive him to pick up the cocaine, he and Bobby agreed that it was easier to do the

transaction through the mailbox. However, according to Lyons, when he arrived, the

cocaine was not in the mailbox. Lyons called Foreman and then went to the apartment

where Foreman said he was staying.

           Lyons claimed that he told Quintanilla to wait in the car “because [he] did not

want to take [Quintanilla] to [his] contact.” Lyons stated, “I didn’t know [Quintanilla] that

well. I really didn’t trust him.” Lyons was concerned that Quintanilla would not “be able

to give that same respect to my connection that I gave.” Lyons explained:

       3
         Lyons stated that “Toto” and “Fro” were nicknames and he did not recall their full names. He
thought that Fro’s last name may have been Flores. Lyons did not state Liz’s and Mercedes’s last
names.
       4
           Lyons testified that he worked at a club with Foreman and that they had a friendship.

                                                     3
               Well, my connection trusted me that he would always get his
        money. If he had to even give me the product first, I’d always give him his
        money. We had an understanding. We had a trust. We were friends.
        [Quintanilla], I didn’t know on that terms and didn’t have that trust with him.

               ....

             Well, if he wants to disrespect him, or jack him for his product, or
        something like that, that would fall back on me.

               ....

               Because I’d be the one to introduce him. I would have been the
        one that brought him there, and it would never happen had I not
        introduced him, if he was to do something like that.

        Lyons stated that he had never been to the apartment and had never purchased

cocaine from Foreman at that apartment.            Lyons entered the front door of the

apartment, went to the first room on the left, and made the transaction for the cocaine.

According to Lyons, there was then a knock on the front door of the apartment. Lyons

said,

              We happened to be—[Quintanilla] came to the front door, you
        know. I looked at [Foreman], and I’m, like, “Hey, sorry. I’m getting out of
        here anyway.” I told him, “Hey.” I told [Quintanilla], you know, “Hey,
        don’t—I told you to wait outside. Don’t come to the door.”

               He told me, “Well, I want to, you know—why can’t I meet this guy?
        Why are you acting like you’re embarrassed of me or something?” I said,
        “I’m not. It’s just, later on I’ll introduce you to him. But this guy, he moves
        big, sells a lot of cocaine, doesn’t want just anybody coming in, you know.
        Just wait. I’ll introduce you another time, you know.”

               So he says, “Well, maybe we can meet him later on.” I says, “He’s
        leaving out of town so, you know, just later on, when he gets back, I’ll
        introduce you.” I just kept telling him that because he was very persistent
        about wanting to meet the guy. I just didn’t feel well about that.

               ....

              We got in the car, and we took off. He was still proceeding to tell
        me about if he’s—you know, he’s supposed to be my brother. That guy is
        not my brother. Why didn’t I just introduce him. I told him, “Let’s just go
                                              4
           do this cocaine. We’ll go party with the girls and stuff, and just forget
           about him, you know.”

           Lyons testified that once he and Quintanilla returned to his apartment, the group

resumed the partying. However, according to Lyons, at some point, members of the

group wanted to smoke the cocaine, and he did not approve, so Quintanilla and the

others left Lyons’s apartment. Lyons believed that perhaps one of the girls stayed with

him, but he could not recall.

           On cross-examination, Lyons stated that he felt responsible for what happened

on December 21, 2005 because he introduced Quintanilla to Foreman.5 Lyons said that

he “felt a moral obligation to give testimony to exactly what [he] knew could have

happened and how it took place.”6 Lyons acknowledged that he did not think that

Foreman was in danger and he did not warn Foreman because he did not “think to that

extent,” but Lyons had “some instinct, you know not to trust [Quintanilla].”                      Lyons

explained that it is “understood” that when a person does not know the connection, that

person should not even attempt to meet the connection. Lyons explained that it is

understood that actions like that could even get a person killed. Lyons stated, “Why you

want to know who this guy is, you know. . . . I mean, it’s something you don’t really ask,

really.”

           On re-direct examination, Lyons agreed that he had a higher ranking in HPL than

Quintanilla, that he told Quintanilla to stay in the car, and that Quintanilla disobeyed

Lyons’s request.


           5
               Larissa was murdered in the apartment where Lyons claimed he bought cocaine from Foreman.
           6
            Although, Quintanilla’s defense counsel objected to Lyons’s answer as nonresponsive and the
trial court instructed Lyons to listen to the question and answer the question asked, the response was not
stricken from the record and the jury was not instructed to disregard Lyons’s response.

                                                      5
      Foreman testified that in 2005, he was working at a club in the Valley as a

promoter and also sold cocaine and marihuana. Foreman lived at the Schunior Village

Apartments in Edinburg. While living at Schunior Village, Foreman met Sergio Cavazos

(“Sergio”) when Foreman was walking back from the University of Texas—Pan

American, which was approximately five hundred feet away from the complex. Sergio

allegedly asked Foreman if he knew where to get some marihuana; Foreman gave

Sergio “a stack.” Sergio also lived in the same apartment complex on the same street

as Foreman.

      According to Foreman, Sergio continued to purchase marihuana from him and

they became friends, then Sergio began buying cocaine from Foreman.           Foreman

testified that he also knew Sergio’s cousin, Edward Cantu, and that “Eddie” would give

him rides and they “had hung out.” Foreman was aware that Sergio’s sister lived with

him; however, he never met her.

      Foreman met Lyons, whom he knew as “Gotti,” at work. Foreman stated that he

and Lyons were “real close friends, and . . . would talk sometimes and hang out after

work and stuff like that.” Foreman also sold cocaine to Lyons.

      Foreman stated that on December 18, 2005 after work, at sometime after 2:00

a.m., he went to “hang out” with Sergio and Cantu at Sergio’s apartment.7 Foreman

testified that while he was at Sergio’s apartment, he received a call from Lyons asking

for some cocaine and that he told Lyons that the cocaine would be in the mailbox.

According to Foreman, he fell asleep, so he did not put the cocaine in the mailbox.

Foreman stated that about 5:30 or 6:00 a.m., he received another phone call from


      7
          Larissa was not at the apartment that night.

                                                     6
Lyons, and he told Lyons to come to Sergio’s apartment to get the cocaine. Foreman

testified that he gave Lyons directions to the apartment. Foreman stated that Lyons did

not know Sergio and Cantu, but that Lyons did know that he “hung out” with them.

       Foreman testified that he was asleep when Lyons knocked on the door, and

Cantu woke him up. Foreman and Lyons made the transaction in the bedroom and

when Lyons was preparing to leave, they heard a knock at the door. Foreman stated,

“Some guy in some glasses and—some black-shade glasses and a coat, with some

tattoos, was at the door. [Lyons] apologized to me about him and asked the dude what

was he doing there.”       Foreman had never seen the person before.               According to

Foreman, Lyons asked the person what he was doing there and said, “I told you to wait

for me.”8 When asked how he felt when the person knocked on the door, Foreman

replied, “I felt uncomfortable . . . because it wasn’t my house for one. And, two, I didn’t

know him.”     Foreman explained that he did not know whether this person was an

undercover agent or if the transaction was possibly a “setup.” According to Foreman,

he had never sold drugs from Sergio’s apartment before this occasion.

       Shortly after making this transaction, Foreman packed his belongings and his

wife drove him to the McAllen bus station. He went to Oklahoma for a week on a trip

that had previously been planned. Foreman found out on December 23, 2005, that

Sergio’s sister was killed and that the police wanted to talk to him. He called Officer Joe

Vega from the Edinburg Police Department to let them know that he was out of town.

When he returned to Edinburg, Foreman went to the police station to make a statement.




       8
          Foreman denied that Quintanilla was the person who knocked on the door that day. Foreman
stated he believed it was a man known as “Fro.”

                                                7
      Edward Javier Cantu testified that on December 18, 2005, he was alone in

Sergio’s apartment with Foreman. Cantu was awakened by the doorbell and observed

Foreman with a man he introduced as “Gotti.”

      Cantu discovered Larissa’s body on December 21, 2005 in her apartment. He

then dialed 911, and the police arrived.

      Fulgencio Salinas, M.D. testified that Larissa “died as a result of a distant-type

gunshot wound to the right upper abdomen, right upper quadrant that resulted in

perforation of the liver, stomach, left kidney, with extensive hemorrhage into the cavity.

And she also received a blunt trauma to the head with extensive edema, with extensive

hemorrhage inside the brain, that led to her death.”        Dr. Salinas could not state

definitively which of the two injuries actually caused her death. Dr. Salinas stated that

Larissa also had lacerations to her eyes, a black eye, a busted lip, and an injury to her

chin all caused by some form of trauma.

      David White, a lieutenant with the Edinburg Police Department, testified that he

conducted a walk-through with Sergio of Larissa’s apartment after her death to

determine if anything was missing. Lieutenant White learned that Larissa’s cell phone

was missing.    Lieutenant White acquired a subpoena for the GPS coordinates of

Larissa’s cell phone on December 28, 2005. Lieutenant White located the coordinates

on Map Quest which “gave . . . [an] area in McAllen at 26th and Elmira. It puts a star on

one location, and the star would be just east of 26th and south of Elmira. And the north

side, if you could imagine the distance on it, you would imagine an alleyway, so it would

just be north of there. We—I looked at it and figured it’s one or two houses in from

26th.” Lieutenant White stated that Elmira is in the Balboa neighborhood.



                                            8
        Lieutenant White joined other police officers in the search for Larissa’s cell phone

on Elmira. Lieutenant White stated that he focused his attention specifically on a green

house at 2513 Elmira.9 When the officers arrived at the location, Lieutenant White

observed a man tending to the yard at the green house. The man left shortly after the

police officers arrived. Lieutenant White noticed that the front door of the green house

had a pad lock and when he knocked, no one responded.

        A second and third trace of the phone placed it in the same neighborhood, but

the accuracy had decreased. Lieutenant White did not recover Larissa’s phone. On

cross-examination, Lieutenant White testified that he believed, based on the GPS

tracking, that Larissa’s phone was located in that area.                On re-direct examination,

Lieutenant White clarified that he was not able to search the green house at 2513

Elmira on that day.10

        Heather Monjares, Quintanilla’s ex-girlfriend, testified that during the week before

Christmas 2005, she, Quintanilla, and Alfredo Valdez “hung out” at a green house

located in “La Balboa [neighborhood] on Elmira.”

        Joe Gabriel Vega, a detective with the Edinburg Police Department, testified that

he joined Lieutenant White on December 28, 2005 on Elmira Street searching for

Larissa’s cell phone.       Detective Vega stated that police officers photographed and

collected evidence from the trash during their search for Larissa’s phone. Detective

Vega testified that one of the items that was found in the trash on December 28, 2005


        9
           Robert Alvarez, a detective with the Edinburg Police Department, testified that he joined the
search for Larissa’s cell phone on Elmira Street. Detective Alvarez testified that 2513 Elmira “had been
identified as a central point that [Larissa’s] phone had been pinged to.”
        10
          On cross-examination, Lieutenant White explained that at a later date, detectives searched the
residence pursuant to a search warrant and did not locate Larissa’s cell phone.

                                                   9
by the police and depicted in the photographs taken was Heather Monjares’s “little

yellow picture ID.” 11

        Detective Vega did not realize how Monjares’s ID was connected to the

investigation of Larissa’s death until April 18, 2006, when he spoke to Alfredo Valdez,

Quintanilla, and Monjares. On April 24, 2006, a search warrant for 2513 Elmira was

issued. According to Detective Vega, the police searched inside the residence and in a

shed outside; however, they did not collect any evidence at that time.

        Detective Vega testified that based on his investigation, he eventually contacted

Lyons and Lyons gave him a statement. Detective Vega stated, “[W]e learned that

Mario Quintanilla was the person of interest or he had already been a person of interest.

With the information he provided kind of, I don’t know, I guess, solidified the

information.”

        Detective Vega testified that he interviewed two strippers to verify the information

that Lyons had provided. One of the strippers was Elizabeth Selena Moreno, also

known as Liz, and the other was Yanera Hernandez, also known as Mercedes.

According to Detective Vega, Mercedes was able to verify the locations where the group

“hung out” on December 18, 2005. Detective Vega stated that although Mercedes did

not recall the addresses of the places where the group went, she was able to show him

that one of the houses was located on Elmira.12                 Detective Vega agreed with the




        11
         Detective Alvarez stated that the trash can where Monjares’s ID was found was located behind
a “wooden gate that leads directly into 2513 Elmira to the backyard.” He further stated that the officers
“had known that that trash [that was found] was taken out of [2513 Elmira] because we saw an elderly
gentleman cleaning the area and taking that trash can out into the—out into the alleyway. . . .”
        12
         Detective Alvarez testified that “[o]ne of the strippers also took [the officers] to 2513 Elmira
Road” because she had been there with Quintanilla and “some other people.”

                                                   10
prosecutor that it was the house at 2513 Elmira. When asked if she was able to identify

the green house, Detective Vega replied, “Yes, sir.”

        Detective Vega testified that after interviewing Jesus Cortez, a member of HPL,

in jail, he acquired an arrest warrant for Alfredo Valdez (Fro), Quintanilla, Jesus Oscar

Arcos, and Gilberto Martinez for capital murder on December 11, 2006. Detective Vega

was able to locate Alfredo Valdez in Dalton, Georgia.                          Valdez was living with

Quintanilla’s brother, Felix Quintanilla. According to Detective Vega, Valdez was using

an alias13; however, a family member assisted them in finding Valdez. Valdez gave

police two statements, and he also provided a “walk-through” of the crime-scene.

        John B. Minor, a communications consultant, testified as the State’s expert

witness regarding Sprint’s tracking of Larissa’s cell phone after her death.                          Minor

testified that a Sprint employee entered Larissa’s cell phone into the network to locate

the phone using the GPS chip. According to Minor, there were four different “locate

techniques” that could have been used to find Larissa’s cell phone and each level of

tracking provided a larger radius where the phone might be located.14 How the tracking

occurred was automatic within the network and depended on a variety of factors; no

person was involved in determining the level of the tracking.

        According to Minor, if the cell phone is placed in a glove box, under a car seat, in

a trunk, in a building, buried in the ground or in a similar location, but is still able to


        13
            The trial court admitted an identification card issued by the State of Georgia to Gabriel
Quintanilla. Detective Vega testified the picture on the ID was of Alfredo Valdez.
        14
           Minor explained that the best locate technique is the first tier or the “A-GPS . . . because it has
the highest level of accuracy capability,” which is approximately five to thirty meters. The next level would
be the “hybrid GPS solution,” which “can range out to 50-meter inaccuracy, as far as getting to a further
distance.” The third level is trilateration, which ranges from fifty to two hundred meters. Minor described
the fourth level as “pie slices” and explained that “its accuracy would be whatever size that sector is. It
can be several square miles. It can be 100 meters.”

                                                     11
communicate with the cell tower, then the “fallback technique called hybrid GPS” would

be utilized to find the cell phone.            Minor explained that although, the hybrid GPS

technique could calculate a rough estimate of the phone’s location, it is less accurate

than the first tier technique. Minor stated that if the phone is turned off or if the battery

dies the locate techniques will fail.

       Minor testified that he reviewed the GPS coordinates of Sprint’s security location

query access reports regarding Larissa’s cell phone. Those reports were generated on

December 28, 2005. Minor, referring to pictures of an aerial view of a neighborhood

which were shown to the jury, explained that Larissa’s cell phone was within fifteen

meters of the latitude and longitude reflected by a red dot in the first photo, and within

twenty-one meters of the area he pointed to in the second photo.15 The prosecutor

asked Minor to describe for the record where the latitude and longitude coordinates

appeared on the screen that they were viewing. Minor replied, “Well, what—what I saw

was that it—it appears to be a residential area on Elmira Avenue near the intersection—

just east of the intersection of South 26 Street. . . . Looks like it’s on the south side,

approximately the second house from the corner there going east, based upon what I

could see from the coordinates.”16

       Minor testified that a third location query of Larissa’s cell phone was conducted a

“couple of hours after the second one.” Minor agreed that “[t]here’s a huge drop-off in

accuracy between the second one . . . and the third one.”                    Minor believed that the

accuracy decreased because the battery of the cell phone was dying.                           On cross-

examination, Minor clarified that the third location query measured an accuracy radius

       15
            The photos of the neighborhood containing the red dots are not included in the record.
       16
            The record reflects that Elmira Avenue is located in the “Balboa Neighborhood.”

                                                    12
of “4,300 meters.” Minor demonstrated to the jury the area he believed encompassed

the 4,300 meters and was included in a “pie slice.” It appears from the record that the

residential area on Elmira Avenue is included within that “pie slice.”

        Gerardo Garcia testified that he and Quintanilla were members of HPL. Garcia

no longer considers himself a member of HPL. Garcia claimed that HPL is a “criminal

organization” that does “crimes as far as murder, extortion, [and] drug dealing.” Garcia

stated that members of HPL get identifying tattoos such as a “.45 pistol on the

waistband” “bullet tattoos; the HPL symbol, which is the P that has an eagle, the—

instead of a P, there’s the eagle head which stands for the P.”

        Garcia testified that in 2006, he was in charge of all the HPL members inside the

Hidalgo County Jail who were housed in eight-man dorms.                        According to Garcia,

Quintanilla was placed in the county jail with him in 2006 for a misdemeanor charge and

was “in and out of county jail at the time.” Garcia testified that Quintanilla had a .45

tattoo on his waist, a tattoo of an eagle head on his abdominal area, and “teeth marks

on his rib cage.”17

        Garcia became aware of Larissa’s death when he attended a family member’s

graduation party. Garcia did not know at the time who had committed the murder.

However, Quintanilla brought up the subject of Larissa’s murder with Garcia while the

two men were in jail together.             Garcia stated that Quintanilla had told him that

Quintanilla was expecting the Edinburg Police Department to bring murder charges

against him “pretty soon.” Garcia said, “So when [Quintanilla] came back into the tank,

he told me that at least he lasted out there a year before being charged with murder.”

        17
            The prosecutor asked that Quintanilla remove his shirt to show if he had the tattoos described
by Garcia or any scars present on his body. After a hearing outside the jury’s presence, Quintanilla took
off his shirt.

                                                   13
When asked to describe Quintanilla’s demeanor, Garcia stated, “He acted normal, like it

was second nature; it was—it was no big thing, as if he was just getting convicted out of

some other minor charge.”

       According to Garcia, on another occasion, the two men were “trading war stories”

and Quintanilla told Garcia that he and Fro, Alfredo Valdez, had committed a home

invasion to steal some drugs from a drug dealer and that he had shot the girl at the

apartment.      Garcia stated that Fro and Quintanilla were both from the Balboa

neighborhood. Garcia claimed Quintanilla told him

              about a time when [Quintanilla] was partying at one time in an
       Edinburg apartment with other accomplices—I mean other acquaintances:
       HPL by the name of Fro, Alfredo Valdez, and Jason Lyons by the
       nickname of Gotti. They were partying at an Edinburg apartment, as he
       quoted, with some strippers, and it’s, you know, just partying on cocaine
       and alcohol.

               ....

              That a few days later, they—they tried to go—they kept on partying
       afterwards, days afterwards, partying on crack cocaine, binge-smoking
       crack cocaine and doing crack, just snorting cocaine. That’s what the
       term, as far as “partying” means.

               So when they ran out of supply, they tried to go back to a place
       where they had partied before at this certain apartment. So him and his
       accomplice by the nickname of Fro, they went back to this apartment to
       see if they still had some cocaine in there. So he told me that they—they
       went and kicked down this door at this apartment.

               ....

             [Quintanilla] said that he was surprised to have seen a female there
       by herself, and as far as—he didn’t go into the specifics but just said—in
       Spanish, in his exact words, he said (Spanish spoken) “La pencha culera
       no queso dejir nada.”[18]

       18
            The interpreter translated the phrase to mean, “That the—that the girl didn’t want to say
anything.” Garcia responded that “the term ‘culera’ would mean as—would be more a phrase of vulgar
language.” During cross-examination of Garcia by Quintanilla’s defense counsel, the interpreter stated
that “bitch” would be an accurate translation of the word “culera.”

                                                 14
                 ....

           And . . . afterwards, [Quintanilla] said . . . “So se me fue un tiro,”
      meaning a bullet went astray. You can put it in that sense.[19]

      On re-direct examination, the prosecutor asked Garcia whether he had

previously heard that Quintanilla had killed Larissa. Garcia replied that he had.

      Jesus Cortez testified that he had been a member of HPL and was currently

incarcerated at the Hidalgo County Jail.               Cortez stated that he had grown up with

Quintanilla in the Balboa neighborhood in McAllen.                      Cortez claimed that he and

Quintanilla were members of the Balboa neighborhood gang.

      Cortez testified that in the fall of 2006, he arrived at the Hidalgo County Jail, and

approximately one week later, Quintanilla was placed there also. According to Cortez,

the other members of HPL were awaiting Quintanilla’s arrival because Quintanilla had

been in fights and arguments with other members of HPL. Specifically, Cortez claimed

that Quintanilla had accused Jesus Espinosa (“Escalera” or “the Ladder”) of flirting with

his girlfriend and had “barricaded himself outside the . . . yard from ‘Escalera,’ . . . .”

Cortez stated that the HPL members had decided to discipline Quintanilla by placing

him “on the ‘amarilla’, which means on the yellow, for six months.” This meant that

Quintanilla would not be allowed to have any information about HPL and could not vote.

Cortez explained that a person “on the yellow” would feel “left out” and “in the dark.”

Cortez stated that the men surrounded Quintanilla and aggressively told him that he

was being disciplined; Quintanilla accepted the discipline.




      19
           The interpreter translated the phrase as, “A bullet went astray.”

                                                     15
       Cortez testified that shortly after being disciplined, Quintanilla asked to speak

with him, so the two went “into the corner and he starts talking.” Cortez said that

Quintanilla told him he was sad because he had been doing a lot of drugs, his family

had “cut him off,” and the members of HPL were “treating him kind of cold.” Cortez

claimed that Quintanilla began crying and said, “Hey, carnal, . . . but the thing that

bothers me the most is that thing with the ‘Chavalona’, right.” Cortez said, “With the

little girl. . . . ‘Chavalona.’ That’s another term, you know, for a young girl.” 20 Cortez

testified that he asked Quintanilla “What Chavalona,” and that Quintanilla replied, “That

girl we killed in Edinburg. And me and Fro.”21               Cortez said that he replied, “Oh, yeah,

right. I know what you’re talking about. I heard of it, you know. Right.”

       Cortez stated that he asked Quintanilla to tell him what happened and then

testified as follows:

              Well, the thing that I remember asking him is, “Man, carnal, but that
       wasn’t even the apartment, right?”

              And then he was, like, “Yeah, it was carnal. You know, Gotti—Gotti
       put us the ‘tiro,’ right?” You know, the—the “tiro” is like another name for
       home invasion, right? Like, “tiro,” you know, we call it, you know.

              And he told us that Gotti had put the tiro and that—you know, that
       they had gone in and they went in and said, “You go over there.” (Spanish
       spoken.) You know, like, “You go over there, and you go over there,”
       right? And then he had gone into the room, and then, when the girl sat up,
       right. Well, no. He said, “Miro una savanna,” right; like a sheet. “I saw a
       sheet,” right; like, “I saw a sheet.[”] And he just said—he does with his
       hands, like, you know what I mean? He—and he just, like, does with his
       shoulder, like, “I hit her,” right? Like, “I shot her,” right? And then—and
       then I remember he said that he went up—he went and got her, right, and
       that, you know—you know what I mean? He started, like, hitting her, like,
       “Where’s the money,” right? And that the girl was, like, “No, there’s no
       money. There’s no money,” right? Like, you know? “There’s no money.”

       20
            The interpreter stated that “Chavalona” means “A young girl.”
       21
            Cortez stated that Fro is Alfredo Valdez.

                                                        16
        And that he kept on hitting her and then that’s when she was like, “Okay,
        okay, I’ll get you, you know, some money,” right? And then she was like—
        then she said again, “No, man, for real, there’s no money. I don’t have
        any money.”

                ....

               [S]o when she finally said, “No, there’s no money,” right, he said,
        “Well, fuck the bitch.” You know what I mean? And—and I guess he hit
        her again. Like, he just, like, “fuck the bitch”; you know what I mean?
        That’s what he said.

        Cortez clarified that Quintanilla had explained that the girl had moved to a sitting

position when he saw the sheet “and that’s when he . . . he shot.” Cortez stated that

Quintanilla had indicated with his hand that the bullet had hit the girl “somewhere [in the

chest area].” According to Cortez, Quintanilla told him that after he shot the girl, he “got

her by, you know, by the hair, like . . . in this motion.” Cortez explained that Quintanilla

“made a hand gesture [l]ike if you’re wrapping, like, the hand, you know, around the

hair.” Then according to Cortez, Quintanilla said that the girl said there was no money

and he said, “Fuck the bitch.” Cortez agreed that he was making the gestures as

described by the prosecutor. The prosecutor described Cortez’s gestures as follows:

“[Y]ou have one hand in a fist as if holding somebody’s hair . . . . With the other hand,

you’re swinging— . . . . Towards that fist. . . . . Your hand is in the shape of a gun.”

                II.     CORROBORATION OF JAILHOUSE INFORMANT TESTIMONY

        By his first issue, Quintanilla contends that there was no corroboration of the

testimony of Gerardo Garcia and Jesus Cortez who were jailhouse informants. See

TEX. CODE CRIM. PROC. ANN. art. 38.075 (West Supp 2011). The State agrees with

Quintanilla that the testimony of jailhouse informants must be corroborated. 22 See id.

        22
          The jury charge included an instruction setting out that corroboration was required of Garcia’s
and Cortez’s testimony.

                                                   17
Because the statute requiring corroboration of jailhouse informants is relatively new, the

court of criminal appeals has not yet addressed it; however, Quintanilla and the State

agree that we should apply the law pertaining to accomplice witness corroboration. This

Court has determined that the law applying to cases involving corroboration of

accomplice witness testimony also applies to cases involving corroboration of jailhouse

informants. See Ruiz v. State, 358 S.W.3d 676, 680 (Tex. App.—Corpus Christi 2011,

no pet.) (citing Watkins v. State, 333 S.W.3d 771, 778 (Tex. App.—Waco 2010, pet.

ref’d)).

A.         Applicable Law

           A person cannot be convicted based upon the testimony of a jailhouse informant

unless that testimony is “corroborated by other evidence tending to connect the

defendant with the offense committed.” See TEX. CODE CRIM. PROC. ANN. § 38.075. It is

not necessary for the corroborating evidence to be sufficient in itself to establish guilt

beyond a reasonable doubt. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)

(en banc). The non-jailhouse informant evidence does not have to link the accused

directly to the commission of the offense. Id. However, there must be some non-

jailhouse informant evidence that tends to connect the accused to the commission of

the offense. Id. Both direct and circumstantial evidence may furnish the necessary

corroboration. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988) (en banc).

“Insignificant circumstances sometimes afford most satisfactory evidence of guilt and

corroboration of [jailhouse informant] witness testimony.”        Id.   “To evaluate the

sufficiency of corroboration evidence, we must eliminate all of the accomplice/jailhouse-

informant testimony from consideration and then examine the remaining portions of the

record to see if there is any evidence that tends to connect the accused with the
                                             18
commission of the crime.”      Ruiz, 358 S.W.3d at 681 (citing Castillo v. State, 221

S.W.3d 689, 691 (Tex. Crim. App. 2007)).

      We judge the sufficiency of non-jailhouse informant evidence according to the

particular facts and circumstances of each case. Smith v. State, 332 S.W.3d 425, 442

(Tex. Crim. App. 2011). “The direct or circumstantial non-[jailhouse informant] evidence

is sufficient corroboration if it shows that rational jurors could have found that it

sufficiently tended to connect the accused to the offense. So when there are conflicting

views of the evidence—one that tends to connect the accused to the offense and one

that does not—we will defer to the fact[-]finder’s resolution of the evidence.” Id. As a

reviewing court, we are not to independently construe the non-jailhouse informant

evidence and are to consider the combined force of all of the non-jailhouse informant

evidence that tends to connect the accused with the offense. Id.

B.    Discussion

      Here, the State presented evidence that Quintanilla was partying with Alfredo

Valdez (Fro) around the time that Larissa was killed and that Quintanilla had been at

Larissa’s apartment to buy cocaine. See Reed, 744 S.W.2d at 127 (providing that

evidence that the accused was at or near the scene of the crime at or about the time of

its commission, coupled with other suspicious circumstances, may tend to connect the

accused to the crime so as to furnish sufficient corroboration to support a conviction).

Evidence was presented that Alfredo Valdez had been arrested for Larissa’s murder,

that after the murder, he fled to Georgia, and had stayed with Quintanilla’s brother

under an alias. See Jackson v. State, 745 S.W.2d 4, 13 (Tex. Crim. App. 1988) (en

banc) (“Although the presence of the accused in the company of the accomplice, near

the time of the offense, while alone is not conclusive[,] it nevertheless is an important
                                           19
factor in determining corroboration.”).   Evidence was presented that Quintanilla and

Valdez were members of HPL and that HPL engaged in criminal activities, including

burglaries.

       Lyons testified that when he went with Quintanilla to buy cocaine from Foreman,

Quintanilla disobeyed his request to stay in the car. Lyons testified that Quintanilla

should not have knocked on the door when Lyons was purchasing the cocaine from

Foreman. Foreman testified that Lyons apologized to him because the unknown man

knocked on the door during their transaction. From this evidence, the jury was free to

infer that Quintanilla’s behavior was suspicious.    See Smith, 332 S.W.3d at 445

(providing that the defendant’s behavior or actions prior to or following an offense may

tend to connect the defendant with the commission of the offense).

       Lyons further stated that Quintanilla seemed overly eager about meeting

Foreman. According to Lyons, Quintanilla continued to complain that Lyons failed to

introduce him to Foreman. Lyons testified that it is understood that when a person has

not been introduced to one’s drug connection, the person should not attempt to meet

the connection and that this behavior could actually get someone killed.         Lyons

wondered why Quintanilla would want to know Foreman because it was not proper to

ask to meet him. Lyons also testified that he told Quintanilla that Foreman “moves big,

sells a lot of cocaine.” Again, from this evidence, the jury could have inferred that

Quintanilla’s behavior was suspicious and that he had a motive to burglarize Larissa’s

apartment. See Bush v. State, 628 S.W.2d 441, 444 (Tex. Crim. App. 1982) (en banc)

(establishing that motive is relevant as a circumstance tending to prove the commission

of an offense); see Reed, 744 S.W.2d at 127 (stating that although alone, evidence of



                                           20
motive is insufficient as corroboration, it may “be considered in connection with other

evidence tending to connect the accused with the crime”).

       The State presented evidence that Larissa’s cell phone had been taken from her

apartment. On December 28, 2005, the GPS tracking system located the phone on

Elmira in the Balboa neighborhood. Detective Alvarez stated that the central point of

the signal’s “ping” was at a house at 2513 Elmira. A stripper who was with Quintanilla

on December 18, 2005, told police officers that she had “hung out” with him at a green

house on Elmira. She identified the house at 2513 Elmira as the house where the

group “hung out.” Police officers found Monjares’s photo ID in the trash at the house at

2513 Elmira. Don Beto was cleaning the property at 2513 Elmira on December 28,

2005, because someone had recently been there without the owner’s consent and had

left a mess.

       While the foregoing circumstances individually may not each be sufficient to

corroborate the jailhouse informants’ testimony in this case, we find that rational jurors

could have concluded that the above evidence, taken together, sufficiently tended to

connect Quintanilla to Larissa’s murder. See Cox v. State, 830 S.W.2d 609, 612 (Tex.

Crim. App. 1992) (en banc) (concluding that evidence of other suspicious circumstances

filled the sufficiency gap left by evidence of appellant’s mere presence at scene of

offense); Paulus v. State, 633 S.W.2d 827, 846 (Tex. Crim. App. 1981) (en banc)

(noting that evidence showing motive or opportunity can be considered in connection

with other evidence tending to connect the accused with the crime). Accordingly, we

overrule Quintanilla’s first issue.

                       III.   ALFREDO VALDEZ’S REFUSAL TO TESTIFY



                                           21
       By his second issue, Quintanilla contends that his constitutional rights were

violated when the State called Alfredo Valdez to testify over his objection. Specifically,

Quintanilla claims that the trial court incorrectly determined that Valdez did not have a

Fifth Amendment right against self-incrimination and that the State asked an improper

question after Valdez invoked his right against self-incrimination.

A.     Pertinent Facts

       Prior to the State calling Valdez to testify, the trial court held a hearing outside

the presence of the jury. At this hearing, Valdez indicated that he would not take the

oath and that he would not testify in this trial. The following exchange occurred:

       The Court:     Swear him in.

       The Bailiff:   Raise your right hand. You swear the testimony you are
                      about to give will be the truth, the whole truth and nothing
                      but the truth, so help you God?

       [Valdez]:      No.

       The Court:     You don’t swear?

       [Valdez]:      Huh?

       The Court:     You’re not going to swear?

                      Don’t give that face to me.

       [Valdez]:      I don’t care.

       The Court:     Are you going to swear or not?

       [Valdez]:      No, I’m not.

       The Court:     Do you affirm—

       [Valdez]:      I don’t care.

       The Court:     —to tell the truth?

       [Valdez]:      I don’t care. Yes. I don’t care.
                                             22
The State proceeded to question Valdez. The following exchange occurred:

      [The State]: Mr. Valdez, you remember, back at the sentencing phase of
                   trial, you gave your word to the family, to the Court—

      [Valdez]:     I don’t care. I don’t care.

      Q:            —to the D.A.—

      A:            Whatever. Whatever. Blah, blah, blah.

      Q:            Are you going to testify?

      A:            No.

      Q:            Who spoke to you at the county jail on Sunday night? Do
                    you remember speaking to me on Thursday, Mr. Valdez?

      The Court:    You’ve got to answer, Mr. Valdez.

      [The State]: Do you remember speaking with us, Mr. Valdez?

                    You told us you were going to testify. Remember that? And
                    then you spoke with [defense counsel] . . . . What did they
                    tell you?

                    Are you afraid to say it in front of them?

      Quintanilla’s trial counsel objected to the State’s questions regarding whether

Valdez had spoken to anyone on Quintanilla’s defense team because it was an “insult.”

The trial court explained that there was no insult and that Valdez did not have a Fifth

Amendment privilege against self-incrimination.          The trial court clarified that

Quintanilla’s defense counsel was objecting to the form of the State’s question and

sustained his objection on that basis.

      The trial court determined that Valdez was not going to answer the State’s

questions and stated that it would hold Valdez in contempt for failing to answer the

questions. The trial court then held Valdez in contempt of court and again stated that

                                            23
Valdez did not have a Fifth Amendment right against self-incrimination because he had

been convicted. The trial court stated, “You have been convicted. You have no right to

appeal. You gave up your right to appeal at sentencing. You said you were going to

testify. You’re failing to live up to that bargain. The problem is that the State has no

way of enforcing that agreement.” Neither Valdez nor Quintanilla’s defense counsel

stated that Valdez was invoking his right against self-incrimination.          The trial court

informed the parties that it would not allow Valdez to invoke “any type of privilege in

front of the jury” because that would be improper. The prosecutor told the trial court that

Valdez did not have “the privilege.” Quintanilla’s defense counsel did not disagree with

or object to the State’s assertion that Valdez did not have “the privilege.”

       Quintanilla’s defense counsel then stated, “I’m going to object to any inference

being made that, for whatever reason, this individual . . . . that they are going to try to

lay to the jury is that, somehow or the other, he’s decided that he doesn’t want to say

something because of something that we did.” The trial court assured Quintanilla’s

defense counsel that it would not allow the prosecutor to do such a thing. The trial court

then instructed the State not to ask “any questions insinuating that the attorneys had

anything to do with his failure to testify.”

       Quintanilla’s defense counsel then objected to the State calling Valdez as a

witness on the basis that there was “no purpose” and it would not “add a single shred of

evidence to the case either way.” Defense counsel claimed the only purpose of calling

Valdez to the stand would be “to prejudice the jury because he’s going to come in here

and not answer a single question.” The State argued that if Valdez chose not to answer

the questions, there would be no prejudice. The jury entered the courtroom, and the

State called Valdez to testify.
                                               24
         The State requested for Valdez to show his hands to the jury, and he complied.

The State then asked the following question, without objection: “Mr. Valdez are you the

same Alfredo Valdez that was convicted for Capital Murder of Larissa Cavazos?”

Valdez did not respond. The trial court asked Valdez if he was going to answer the

question, and he nodded his head, apparently indicating that he would not answer the

question. The trial court asked the jury to take a break, and they left the courtroom.

         The following events occurred outside the presence of the jury. The trial court

again instructed Valdez that he did not have a “Fifth Amendment right to remain silent”

and asked him if he understood that. Valdez nodded his head and the trial court stated

that he understood that Valdez had indicated that he understood the trial court’s

instruction. Valdez continued to refuse to answer questions and indicated by nodding

that he was not going to testify. The State did not call Valdez to the stand to testify

again.

B.       Discussion

         First, we must determine whether it was error for the trial court to allow the State

to call Valdez as a witness. In this case, the record reflects that pursuant to a plea

bargain with the State, Valdez pleaded guilty to Larissa’s murder and agreed to testify at

Quintanilla’s trial. In Washburn v. State, the court of criminal appeals stated, “Unless

the witness has agreed to turn state’s evidence, the prosecution ought not to place him

on the stand; to do so and wring from him a refusal to testify, affording to the jury an

opportunity to consider the refusal as a circumstance of guilt, has been said to be

‘certainly prejudicial.’” 299 S.W.2d 706, 708 (Tex. Crim. App. 1956). Here, Valdez had

agreed to testify for the State; therefore, the State’s action in placing Valdez on the

stand was not prejudicial. See id. Furthermore, the record shows that Valdez did not
                                              25
invoke his right against self-incrimination in front of the jury. Instead, Valdez, without

stating the reasons, refused to answer the only question asked by the State. We will

not speculate on Valdez’s reasons for refusing to testify in this case.

        Quintanilla also points out that, although Valdez had agreed to testify for the

State, there is nothing in the record indicating that he had been granted immunity from

prosecution. See Perez v. State, 41 S.W.3d 712, 718-19 (Tex. App.—Corpus Christi

2001, no pet.) (“A witness who has been granted use immunity for his testimony, does

not have a valid basis for refusing to testify.”). However, we are not persuaded by this

argument because when the trial court was making its determination whether to allow

the State to call Valdez as a witness, the State informed the trial court that Valdez had

agreed to testify against Quintanilla in a plea agreement and Quintanilla did not inform

the trial court that the State was required to show that Valdez had been granted

immunity.23

        Moreover, the court of criminal appeals has held that it was harmful for the State

to call a witness to testify knowing that the witness would invoke his or her right against

self-incrimination when the State also asked a series of damaging questions in a way

that invited the jury to assume the answers to the questions would be in the affirmative.

See Perez, 41 S.W.3d at 719 (citing Coffey v. State, 796 S.W.2d 175, 177 n.4 (Tex.

Crim. App. 1990)). Here, the State did not ask a series of damaging questions, such as

those asked in cases finding harm, which the court of criminal appeals stated invited the

jury to assume that the answers would be in the affirmative. In those cases, where it

was determined that the appellant had been harmed, the prosecutors asked a series of

        23
             Quintanilla cites to a post-trial hearing wherein he claims the State admitted that Valdez did not
have immunity to testify. However, at trial, when the trial court was making its decision, no one informed
it of that fact.

                                                     26
questions regarding the appellant’s acts that contributed to the crime.                 See id. (“In

Washburn, the State asked fact-laden questions to suggest how the crime was

committed. In Vargas, although the court did not set out the State’s line of questioning,

it relied on Washburn concluding the proceeding was prejudicial. This suggests that it

was not the calling of the witness who claimed his fifth amendment privilege but the

questioning that influenced the courts’ conclusions.”). Here, the State’s question did not

implicate Quintanilla or relate to Quintanilla’s alleged criminal acts.24 Therefore, we find

this case distinguishable from those cases finding error. See id.

       Next, we must determine whether the State’s question, “Mr. Valdez are you the

same Alfredo Valdez that was convicted for Capital Murder of Larissa Cavazos,”

prejudiced Quintanilla. No objection was made to the State’s question. See Taylor v.

State, 653 S.W.2d 295 (Tex. Crim. App. 1983) (determining that the appellant had

preserved his complaint that the State continued to question a witness who had invoked

the Fifth Amendment because he objected “to this line of questioning” and the trial court

ruled on the objection before determining whether the appellant was harmed).

Therefore, this complaint has not been properly preserved. See id.

       Finally, Quintanilla complains that after Detective Alvarez identified Valdez, the

prosecutor stated, “Your Honor, may the record reflect he’s identified the witness that

came and refused to answer questions the other day,” and that the prosecutor asked

Detective Vega if Valdez had given a statement and done a walk-through of the crime

scene. However, no objections were made to these questions. See TEX. R. APP. P.

33.1. We overrule Quintanilla’s second issue.

       24
           To find that Quintanilla was harmed by the State’s question, we would have to infer that the
State’s question led the jury to believe that Quintanilla assisted Valdez with the murder. We have no
authority supporting such a conclusion.

                                                  27
                                IV.    DISPLAY OF TATTOOS

       By his third issue, Quintanilla contends that “[t]he numerous tattoos possessed

by [him] were inflammatory and highly prejudicial in that they caused the jury to render a

judgment based on their opinion of [his] character traits as opposed to the evidence

before them.” Specifically, Quintanilla complains that the trial court compelled him to

remove his shirt in front of the jury so that they could see the tattoos on his body.

A.     Pertinent Facts

       During Garcia’s testimony, the State asked Garcia some questions concerning

Quintanilla’s tattoos.    Garcia stated that he had “tattooed an eagle head on

[Quintanilla’s] abdominal area, and [that Garcia] noticed [Quintanilla] had teeth marks

on his rib cage.” The State asked if Quintanilla could remove his shirt to show whether

these marks were on his body.          The trial court instructed Quintanilla to comply.

Quintanilla’s defense counsel asked the trial court to clarify what items of clothing would

be removed. The trial court stated, “Just his shirt. Just open his shirt.” The record

reflects that Quintanilla complied with the request. The prosecutor, however, stated that

he was requesting that Quintanilla remove his shirt. The trial court asked the jury to

take a break.

       A hearing was held outside the presence of the jury.           During this hearing,

defense counsel objected on the basis that the tattoos were not relevant and allowing

the jury to view the tattoos would be prejudicial. The State argued that allowing Garcia

to identify the tattoos would show that he had been in jail with Quintanilla and that they

had a relationship. The defense argued that Garcia had already identified Quintanilla

and that it had not challenged his identification. The defense argued further that it had

not disputed the testimony that Quintanilla was a member of HPL.
                                             28
       Defense counsel told the trial court that the only purpose of asking Quintanilla to

show his tattoos was to inflame the jury and create prejudice. The trial court asked “In

what sense,” and defense counsel responded, “To show that he’s got other artwork on

his arms and, somehow or the other, lead them to believe, because that he’s got these

tattoos, he must, per se, be a bad individual.” The State argued, “We think all of that

goes to his intimate relationship—not that they were lovers—his relationship and how

closely he was with this individual so that he can testify to the things that he says he

knows and that he heard.” The trial court ruled that Quintanilla would remove his shirt

when the jury returned to the courtroom and that the jury would be allowed to view

those tattoos.

       The jury returned to the courtroom. The record reflects that Quintanilla removed

his shirt while facing the jury. The trial court then instructed Quintanilla to put his shirt

back on. Garcia then testified that he observed that Quintanilla had on his waistband a

tattoo of a “.45” as he had previously testified, and had an eagle head on his abdominal

area. Garcia stated that he was unable to see whether Quintanilla had the teeth marks.

B.     Discussion

       Quintanilla argues that the tattoos were not probative because “[i]dentity was

established thoroughly beforehand, and the only tattoo going to establish gang

membership had already been offered into evidence.” Quintanilla claims that “[a]ny

probative value was far outweighed by the potential that [his] multiple tattoos would

impress the jury in an emotional indelible way” and the tattoos were “mainly” evidence

that he had a bad character.

       Relevant evidence means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or
                                             29
less probable than it would be without the evidence. TEX. R. EVID. 401. Here, the trial

court found that the tattoos were relevant, stating that although the defense did not

dispute Garcia’s identification of Quintanilla, Foreman had disputed Lyons’s claim that

Quintanilla was the man who accompanied him to Larissa’s apartment to buy cocaine. 25

The trial court explained that there was conflicting evidence regarding whether Foreman

saw tattoos on the man’s arms, and that allowing the jury to view the tattoos would

assist them in that determination. Furthermore, the State offered the evidence to show

Garcia’s knowledge of Quintanilla’s body due to their close relationship. We conclude

that evidence that Quintanilla had the tattoos as described by Garcia was relevant. See

id.

        We next consider Quintanilla’s objection that the unfairly prejudicial nature of the

evidence outweighed its probative value. Although relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice. TEX.

R. EVID. 403. Quintanilla claims that the tattoos he was compelled to show were not

gang related and that he “had already displayed the gang tattoo across his abdomen.”

Quintanilla cites no authority, and we find none, providing that non-gang related tattoos

“would impress the jury in an emotional indelible way.”                   Instead, Quintanilla cites

Montgomery v. State, which is a case that explains that extraneous misconduct is not

admissible under rule 404(b). 810 S.W.2d at 390–91. However, at trial Quintanilla did

not object on the basis of 404(b).26 See TEX. R. EVID. 404(b). Therefore, we conclude

that Quintanilla’s claim regarding the non-gang related tattoos as being prejudicial is

        25
          Quintanilla has consistently disputed that he was the man who went with Lyons to Larissa’s
apartment on December 18, 2005 to buy cocaine.
        26
           We note that evidence of Quintanilla’s affiliation with HPL was admitted throughout the trial,
without objection.

                                                   30
without merit. See Montgomery, 810 S.W.2d at 390-91 (explaining that a trial court has

broad discretion in admitting or excluding evidence, and only when the court abuses its

discretion should an appellate court conclude that the ruling was erroneous); see also

Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App. 2007) (concluding that the trial

court did not abuse its discretion by requiring the defendant to display his gang related

tattoos because the tattoos were admissible and their probative value was not

outweighed by the danger of unfair prejudice). Regarding the “gang tattoo,” because

Quintanilla acknowledges that he showed that tattoo to the jury, without objection,

before he objected to removing his shirt, he has no complaint on appeal.              See

Chamberlain v. State, 998 S.W.2d 230, 235 (Tex. Crim. App. 1999); Ethington v. State,

819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Mitten v. State, 228 S.W.3d 693, 696–97

(Tex. App.—Corpus Christi 2002, pet. dism’d) (recognizing that “the well-established

rule [is] that any error in admitting evidence over a proper objection is harmless if the

same evidence is subsequently admitted without objection”). We overrule Quintanilla’s

third issue.

                          V.     SUFFICIENCY OF THE EVIDENCE

       By his fourth issue, Quintanilla contends that the evidence is legally and factually

insufficient to support his conviction. Specifically, Quintanilla argues that there were no

eyewitnesses to the crime, no forensic evidence that tied him to the scene, no clear

motive for the crime, and no evidence tying him to the scene of the crime. Quintanilla

also points to evidence he believes was contradictory and that discredited the

witnesses.

A.     Standard of Review and Applicable Law



                                            31
       The court of criminal appeals has held that there is “no meaningful distinction

between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-

sufficiency standard” and that the Jackson 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, 902–03, 912 (Tex. Crim. App.

2010) (plurality op.).   Accordingly, we review Quintanilla’s claims of evidentiary

sufficiency under “a rigorous and proper application” of the Jackson standard of review.

Id. at 906-07, 912. Moreover, we do not refer separately to legal or factual sufficiency

and will only analyze Quintanilla’s issues under the Jackson standard. See id. at 985

(concluding that there is no meaningful distinction between a legal and factual

sufficiency analysis).

       Under the Jackson standard, “the relevant question 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 (1979); see Brooks, 323 S.W.3d at 898–99 (explaining that

in the Jackson standard we consider “all of the evidence in the light most favorable to

the verdict,” and determine whether the jury was rationally justified in finding guilt

beyond a reasonable doubt). “[T]he fact[-]finder's role as weigher of the evidence is

preserved through a legal conclusion that upon judicial review all of the evidence is to

be considered in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319

(emphasis in original); see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979)

(“The jury, in all cases is the exclusive judge of facts proved and the weight to be given

to the testimony . . . .”); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000)
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(“The jury is the exclusive judge of the credibility of witnesses and of the weight to be

given testimony, and it is also the exclusive province of the jury to reconcile conflicts in

the evidence.”).

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). In this case, Quintanilla committed capital murder if he

committed murder as defined under section 19.02(b)(1) of the penal code and he

intentionally committed the murder in the course of committing or attempting to commit

burglary or robbery.     See TEX. PENAL CODE ANN. § 19.03(a)(2); see also id. §

19.02(b)(1).

B.     Discussion

       Quintanilla does not challenge the specific elements of capital murder and

instead complains that the evidence against him was contradictory and the witnesses’

testimony was discredited. However, it is well established that the fact-finder is entitled

to judge the credibility of witnesses and can choose to believe all, some, or none of the

testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991).     Therefore, the jury in this case was free to believe the State’s

witnesses and disbelieve Quintanilla’s witnesses. See id.

       Quintanilla complains of the lack of direct and forensic evidence linking him to the

offense. However, the jury heard from Garcia and Cortez who testified that Quintanilla

admitted to them that he shot Larissa while he was engaging in a home invasion.

Cortez testified that Quintanilla told him that he had committed the home invasion with



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the intent of stealing money and that he killed the girl when she told him that she did not

have any money.

       Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

that a rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. See Jackson, 443 U.S. at 319; see also Brooks, 323 S.W.3d at

902–03. We overrule Quintanilla’s fourth issue.

                                   VI.    CONCLUSION

       We affirm the trial court’s judgment.

                                                        __________________
                                                        ROGELIO VALDEZ
                                                        Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
27th day of August, 2012.




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