      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00481-CR



                                Antonio Natal Juarez, Appellant

                                                 v.

                                  The State of Texas, Appellee




      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-03-268, HONORABLE DON B. MORGAN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Antonio Juarez challenges his conviction by a jury for arson and sentence

of twenty-five years’ confinement. In four issues, he argues that the trial court erred by failing to

provide an instruction on accomplice testimony, that the accomplice testimony was insufficiently

corroborated, and that improper evidence was admitted in the punishment stage. We will affirm.


                                         BACKGROUND

               Juarez began dating Rachel Galendo in January 1999. The couple lived together from

March 2000 until June 2001. During the relationship, Juarez was jealous when Galendo spoke to

other men and physically abused Galendo. Juarez threatened to kill Galendo several times during

the relationship. In June 2001, Juarez and Galendo “broke up” but continued to date intermittently.
                The night of June 7, 2002, Galendo went to a club with a friend; Juarez was also there

with Trine Pastrano. Juarez threatened to kill Galendo after he saw her dancing with another man.1

Later, Galendo and her friend left the club and went to Galendo’s apartment. When they arrived

around 1:30 a.m., Galendo saw that her car, a white Ford, was on fire. The fire department had

already arrived and was attempting to suppress the fire. Galendo’s first thought was that Juarez was

responsible.

                That night, Ken Bell, fire marshal for the City of San Marcos, began his investigation

of the cause of the fire. First, Bell noted that the car “reeked of gasoline” and that the driver’s seat

suffered the most damage. Attempting to rule out potential causes for the fire, he also observed that

the engine was not heavily damaged and that the fuel pump appeared normal. Galendo and others

who may have had knowledge regarding the source of the fire were subsequently interviewed, and

laboratory tests were conducted. Bell later concluded that someone had poured gasoline into the car

and intentionally lit the fire.2

                Pastrano testified that on the night of the fire, he was riding in Juarez’s car when

Juarez stopped at a gas station and put two gallons of gas in a plastic red gas can. Pastrano thought




        1
          Galendo testified that she believed that Juarez would kill her and that it was the same type
of threat Juarez had made during their relationship.
        2
          Jim Frank Swindell, a criminalist and manager of the State Fire Marshal Arson Lab in
Austin, also testified that laboratory tests revealed that gasoline was used as an accelerant to the fire.

                                                    2
Juarez was going to use the gas to mow the lawn the next day. Juarez then told Pastrano that Juarez

was going to talk to his girlfriend. They arrived at Galendo’s apartment complex, and Juarez went

to an apartment and knocked on the door. No one answered. Juarez then returned to the car and

removed a tire iron from the trunk and the gas can from his back seat. He walked up to a white Ford,

discerned that all of the doors were locked, and smashed the driver’s side window with the tire iron.

After Juarez poured gasoline into the car, he took a box of matches from his pocket, lit a match, and

threw it through the broken window.3 The car burst into flames. Juarez returned to his car and told

Pastrano that he had done it “so she would think I don’t fuck around, you know, show her who I

am.” Pastrano also testified that he was afraid that Juarez would retaliate against him for his

testimony.

               Juarez was found guilty of arson by a jury. See Tex. Pen. Code Ann. § 28.02 (West

2003). After hearing evidence of prior convictions, the court sentenced him to twenty-five years’

confinement. This appeal follows.


                                           DISCUSSION

               In four issues, Juarez argues that the trial court erred by refusing his request for an

accomplice instruction related to Pastrano, that Pastrano’s accomplice testimony was insufficiently




       3
          Although Pastrano gave conflicting testimony regarding which window was broken, the
record reflects a probable language barrier, and it is clear that Pastrano did not initially understand
which side of the car was the driver’s side and which was the passenger’s side.

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corroborated, and that facts surrounding his previous conviction were improperly admitted in the

punishment hearing.


Accomplice instruction

               In his first issue, Juarez argues that he was entitled to a jury instruction that Pastrano

was an accomplice. At the charge conference, Juarez’s attorney requested “an accomplice witness

charge. Trine Pastrano has admitted that he was there.” The trial court denied the request. Although

it is unclear whether Juarez was seeking an instruction that Pastrano was an accomplice as a matter

of law or as a question of fact, for purposes of this opinion, we will consider each contention. See

Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).

               We review the trial court’s submission of jury instructions under an abuse of

discretion standard. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). An

accomplice participates with a defendant before, during, or after the commission of a crime and acts

with the required culpable mental state. Paredes, 129 S.W.3d at 536; Kutzner v. State, 994 S.W.2d

180, 187 (Tex. Crim. App. 1999). The participation must involve an affirmative act that promoted

the commission of the offense with which the accused is charged. Paredes, 129 S.W.3d at 536. A

person who is merely present at the scene of the offense is not an accomplice. Blake v. State, 971

S.W.2d 451, 454 (Tex. Crim. App. 1998) (citing Creel v. State, 754 S.W.2d 205 (Tex. Crim. App.

1988)). Additionally, one is not an accomplice for knowing about a crime and failing to disclose it,

or even concealing it. Blake, 971 S.W.2d at 454. Rather, an accomplice as a matter of law is one




                                                   4
who is susceptible to prosecution for the offense with which the accused is charged or a lesser

included offense. Paredes, 129 S.W.3d at 536; see Blake, 971 S.W.2d at 455. Whether the person

is actually charged and prosecuted for their participation is irrelevant to the determination of

accomplice status—what matters is the evidence in the record. Blake, 971 S.W.2d at 454.

                The trial court is under no duty to instruct the jury unless there exists no doubt or the

evidence clearly shows that a witness is an accomplice as a matter of law. Paredes, 129 S.W.3d at

536. If the evidence presented by the parties is conflicting and it is not clear whether the witness is

an accomplice, then the trial court must leave to the jury the question of whether the inculpatory

witness is an accomplice witness as a matter of fact under instructions defining the term

“accomplice.” Id. (citing Blake, 971 S.W.2d at 455).

                Bell testified that after speaking to Pastrano, he believed that Juarez was a suspect.

Pastrano was ruled out as a suspect; no arrest warrant was ever requested, and Bell unequivocally

stated that he concluded that Pastrano did not actively participate in the setting of the fire. In Bell’s

opinion, Pastrano was merely a witness, not a suspect. Juarez argues that “Bell states that Pastrano

admitted to being a co-defendant to the crime.” Although Bell listed Pastrano as being “involved”

in the arson in the arrest warrant for Juarez, at trial Bell explained that he listed Pastrano “as being

involved in the proceedings as they were going on, similar to the way I am right now.” Bell also

testified that when he interviewed Juarez, Juarez did not implicate Pastrano as a suspect and was

“very emphatic about the fact that Mr. Pastrano was not involved in the loss of that vehicle.” Finally,

Bell testified that during his investigation, no one ever implicated Pastrano.




                                                   5
               Although Pastrano was present at the time of the arson, there is no evidence to

support an assertion that he participated in the arson.4 Thus, he is not an accomplice as a matter of

law because he is not susceptible to prosecution for arson. See Paredes, 129 S.W.3d at 537.

Additionally, the trial court was under no duty to leave the question of Pastrano’s participation as

an accomplice as a matter of fact to the jury because there is no conflicting evidence or doubt on the

question of his complicity in the arson. See id. We overrule Juarez’s first issue.

               Because we find no evidence that Pastrano was an accomplice, we need not consider

Juarez’s second issue, which challenges whether Pastrano’s alleged accomplice testimony was

sufficiently corroborated.


Improper punishment evidence

               In his third and fourth issues, Juarez argues that the trial court violated the hearsay

rule and the confrontation clause by admitting factual evidence surrounding his previous convictions

for attempted murder and driving while intoxicated. See Tex. R. Evid. 802; see also U.S. Const. art.

VI. He cites Johnson v. State, 650 S.W.2d 784 (Tex. Crim. App. 1983), and Crawford v.

Washington, 541 U.S. 36 (2004), as support for his arguments. However, the Johnson decision

construed a previous version of article 37.07 of the code of criminal procedure. See Johnson, 650

S.W.2d at 792; see also Tex. Code Crim. Proc. Ann. art. 37.07 (West 1981). After the Johnson

decision, article 37.07 was amended to specify that


       4
          Juarez also argues that Pastrano was an accomplice because evidence showed he was
involved in communicating the threat to Galendo at the club. However, evidence that Pastrano was
involved in threatening Galendo would not require an accomplice instruction related to arson.

                                                  6
       evidence may be offered by the state and the defendant as to any matter the court
       deems relevant to sentencing, including but not limited to the prior criminal record
       of the defendant, his general reputation, his character, an opinion regarding his
       character, the circumstances of the offense for which he is being tried, and,
       notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of
       an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence
       to have been committed by the defendant or for which he could be held criminally
       responsible, regardless of whether he has previously been charged with or finally
       convicted of the crime or act.


Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2004-05). Thus, the version of article

37.07 applicable at the time of Juarez’s trial demonstrated the legislature’s “manifest intent that

evidence of details of offenses be admissible.” Davis v. State, 968 S.W.2d 368, 372 (Tex. Crim.

App. 1998). The trial court did not violate article 37.07 or abuse its discretion by permitting the

details of Juarez’s bad acts to be admitted during the punishment phase. See id. at 373.

               Furthermore, Juarez waived any complaint regarding article 37.07 or his sixth

amendment right to confrontation by volunteering the facts of his prior convictions in his own

testimony. In the punishment phase, Juarez testified on direct examination that he had been

convicted of driving while intoxicated and attempted murder in two separate incidents.5 In fact,

Juarez was on parole from the attempted murder conviction when he committed the arson in this

case. On cross-examination Juarez freely admitted, without objection, that he had been convicted

of attempted murder after he shot another man in the head with a small caliber pistol. He also


       5
          Juarez does not argue that his testimony was impelled by the State’s introduction of
evidence that was obtained in violation of the law or that the harmful effect of allegedly improperly
admitted evidence was not cured by the fact that he sought to explain it by introducing rebutting
evidence. See Leday v. State, 983 S.W.2d 713, 719 (Tex. Crim. App. 1998).


                                                 7
admitted that the man was the driver of a car that bumped into Juarez’s brother’s car in a parking lot;

Juarez did not know him before the incident. We overrule Juarez’s third and fourth issues.


                                          CONCLUSION

               Having overruled Juarez’s issues, we affirm the conviction.




                                               __________________________________________

                                               W. Kenneth Law, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: October 14, 2005

Do Not Publish




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