                                  MEMORANDUM OPINION
                                          No. 04-10-00776-CR

                                          Valentin SUNIGA,
                                              Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                     From the 175th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CR-0755C
                            Honorable Mary D. Roman, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: October 19, 2011

AFFIRMED

           Valentin Suniga appeals his conviction on five counts of aggravated robbery, challenging

the sufficiency of the evidence to corroborate accomplice witness testimony and to support his

conviction as a party to the offense. We affirm the trial court’s judgment.

                                                BACKGROUND

           This case arises out of the same November 1, 2008 robbery at Metro News Service, a

telemarketing business in San Antonio, that formed the basis of a prior appeal decided by this
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court. See Soliz v. State, No. 04-10-00087-CR, 2011 WL 193469 (Tex. App.—San Antonio Jan.

19, 2011, no pet.) (mem. op., not designated for publication). The robbery occurred on a

Saturday afternoon when three masked men entered the business and demanded cash, jewelry,

and cell phones from the employees; one man held a shotgun and another held a knife. All of the

victims recognized the man holding the shotgun as their co-worker, Darrell Johnson, based on

his voice, mannerisms, and shoes. The robbers fled in a green Volvo sedan that was waiting in

the back alley; some of the victims chased the Volvo and reported seeing four people inside the

car as it drove away. Shortly after the robbery, the police arrested Johnson, who confessed and

showed the police where the men left the Volvo and where they pawned the stolen jewelry. The

police subsequently arrested Suniga and two other men, Jonathan Perez and Roger Soliz, in

connection with the robbery. Suniga was indicted on five counts of aggravated robbery with a

deadly weapon (repeater). Following a jury trial, Suniga was convicted as a party on all five

counts of aggravated robbery. He was sentenced to thirty (30) years’ imprisonment and assessed

a fine of $1,000 on each count, concurrently. Suniga now appeals. 1

                                                   ANALYSIS

        On appeal, Suniga raises the following evidentiary challenges to the jury’s verdict: (1) the

testimony of an accomplice was not corroborated by sufficient independent evidence; and (2) the

evidence is legally insufficient to support his conviction of the offense as a party because there is

no evidence that he solicited, encouraged, directed, aided or attempted to aid another in (i) the

commission of the robbery, and (ii) the use or exhibition of a deadly weapon during the robbery.

We will first address the issue concerning corroboration of the accomplice witness testimony in

order to determine whether it may be considered within the legal sufficiency analysis.

1
  A more detailed discussion of the facts surrounding commission of the aggravated robbery is set forth in our prior
opinion. See Soliz, 2011 WL 193469, at *1-2. Rather than restating the same factual summary here, we will discuss
the facts as they relate to each of Suniga’s appellate issues.

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       Accomplice Witness Testimony

       At trial, Jonathan Perez testified to his role in the aggravated robbery as supplying the

shotgun and participating in the robbery inside the business; he incriminated Suniga as the

getaway driver for the robbery and the person who pawned some of the stolen jewelry. Perez

acknowledged that he entered into a plea agreement with the State in exchange for his trial

testimony. The jury was properly instructed that Perez was an accomplice witness, and that it

could not convict Suniga on the basis of Perez’s testimony, even if found to be credible, unless

the testimony was corroborated by other evidence tending to connect Suniga with the

commission of the aggravated robbery. See Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim.

App. 2008) (an accomplice is a person who participated with the defendant before, during, or

after the commission of the crime and acted with the required culpable mental state); see also

Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004) (an accomplice as a matter of law

is a person susceptible to prosecution for the offense with which the defendant is charged or a

lesser included offense). Under article 38.14 of the Code of Criminal Procedure, a conviction

cannot be upheld on the basis of accomplice testimony unless it is corroborated by “other

evidence tending to connect the defendant with the offense committed.” TEX. CODE CRIM. PROC.

ANN. art. 38.14 (West 2005). The corroborating evidence is not sufficient if it merely proves the

commission of the offense; the jury was so instructed. Id.; Cathey v. State, 992 S.W.2d 460, 462

(Tex. Crim. App. 1999).

       In reviewing the sufficiency of the corroborating evidence in the record, we exclude the

accomplice testimony from our consideration and focus on the remainder of the record to

determine whether there is any independent evidence that tends to connect the defendant with the

commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001);



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Cathey, 992 S.W.2d at 462-63 (appellate courts should not apply legal sufficiency standard to

statutorily based review of accomplice-witness testimony). When reviewing the evidence, we

view it in the light most favorable to the jury’s verdict. Brown, 270 S.W.3d at 567. The

corroborating evidence may be direct or circumstantial, and need not be sufficient by itself to

establish the defendant’s guilt; it is sufficient if the combined weight of the non-accomplice

evidence tends to connect the defendant to the offense. Solomon, 49 S.W.3d at 361; Gosch v.

State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). While a defendant’s mere presence at the

scene of the crime is, by itself, insufficient corroboration, the defendant’s presence combined

with other suspicious circumstances may be sufficient to tend to connect the defendant to the

crime. Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992); Dowthitt v. State, 931

S.W.2d 244, 249 (Tex. Crim. App. 1996). Likewise, evidence that the defendant was in the

presence of an accomplice at or near the time or place of the crime is proper corroborating

evidence. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997).

       On appeal, Suniga asserts the independent evidence corroborating Perez’s testimony is

not sufficient because it merely proves that the aggravated robbery was committed, and does not

tend to connect Suniga to commission of the crime. See Cathey, 992 S.W.2d at 462. We

disagree. Our review of the record shows the following non-accomplice evidence connecting

Suniga to commission of the aggravated robbery: (1) Suniga admitted he is the owner of the

green Volvo sedan used as the getaway car, and Suniga’s fingerprints were found on the

rearview mirror when the car was found that evening, which could support an inference that

Suniga was in the driver’s seat during the afternoon robbery; (2) two of the victims, Albert

Martinez and Kim Ryle, testified there were three robbers but they saw four people inside the

green Volvo as it fled after the robbery; (3) within twenty minutes after the robbery, a video



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camera at the El Buffalo Pawn Shop showed Suniga driving the green Volvo as it pulled up at

the pawn shop and showed Suniga in the company of Johnson, Perez, and Soliz inside the pawn

shop; (4) the pawn shop clerk, Hollyann Moncado, testified that Suniga removed three rings

from his fingers to pawn, stating the rings had sentimental value and belonged to his uncle—they

were later discovered to have been stolen during the Metro News robbery; (5) Detective David

Lozano testified that he drove the route between Metro News and the El Buffalo Pawn Shop and

it took him 18 minutes and 29 seconds, which falls within the twenty-minute period between the

1:21 p.m. dispatch call for the robbery and the video of Suniga entering the pawn shop; and (6)

police discovered the green Volvo later that same evening parked behind a gate in the backyard

of Soliz’s mother’s house (who is Suniga’s aunt), and recovered stolen items from inside the car.

       We conclude the combined weight of this non-accomplice evidence sufficiently tends to

connect Suniga to commission of the aggravated robbery. See Gosch, 829 S.W.2d at 777; see

also Barrera v. State, 321 S.W.3d 137, 148 (Tex. App.—San Antonio 2010, pet. ref’d). The use

of Suniga’s Volvo as the getaway vehicle and the testimony that a fourth person was driving as it

fled, combined with Suniga’s presence with the three robbers and his possession of stolen

jewelry at the pawn shop exactly twenty minutes after the robbery tends to connect Suniga to the

commission of the robbery. See Cox, 830 S.W.2d at 611; McDuff, 939 S.W.2d at 612. We hold

that Perez’s accomplice testimony was sufficiently corroborated by this independent evidence

which tends to connect Suniga to commission of the offense.

       Legal Sufficiency – Liability as a Party

       Having concluded that there is sufficient independent evidence corroborating Perez’s

accomplice witness testimony, we next proceed to evaluate the legal sufficiency of all the

evidence, including Perez’s testimony, to support Suniga’s conviction as a party. In challenging



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the legal sufficiency of the evidence to support his conviction of aggravated robbery as a party,

Suniga asserts (i) there is no evidence that he acted with intent to promote or assist the

commission of the robbery, and (ii) there is no evidence that he knew a deadly weapon would be

used or exhibited during the robbery.      In reviewing legal sufficiency, we consider all the

evidence, both direct and circumstantial, in the light most favorable to the verdict to determine

whether any rational trier of fact could have found all the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010). It is the jury’s role to resolve conflicts in the

testimony, assess credibility and weigh the evidence, and draw reasonable inferences from the

basic facts to the ultimate facts. Brooks, 323 S.W.3d at 899. In conducting a legal sufficiency

review, we defer to the jury’s assessment of the credibility of the witnesses and the weight to be

given to their testimony. Id. The appellate court may not substitute its own judgment for that of

the jury. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Further, we must

resolve any inconsistencies in the evidence in favor of the jury’s verdict. Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000).

       As applied to this case, the elements of aggravated robbery are: (1) a person (2) in the

course of committing theft (3) with intent to obtain or maintain control of property (4)

intentionally or knowingly (5) threatens or places another in fear of imminent bodily injury or

death, and (6) uses or exhibits a deadly weapon, to-wit: a firearm. TEX. PENAL CODE ANN.

§§ 29.02(a)(2), 29.03(a)(2) (West 2011) (person commits aggravated robbery if he commits

robbery and uses or exhibits a deadly weapon). The jury was instructed that it could convict

Suniga of aggravated robbery under the law of parties. A person may be convicted as a party if

the offense is committed by the conduct of another for which he is criminally responsible. TEX.



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PENAL CODE ANN. § 7.01(a) (West 2011). A person is criminally responsible for the conduct of

another if “acting with intent to promote or assist the commission of the offense, he solicits,

encourages, directs, aids, or attempts to aid the other person to commit the offense. . . .” Id.

§ 7.02(a)(2) (West 2011). Mere presence of a person at the scene of a crime either before, during

or after the offense, or even flight from the scene, without more, is insufficient to sustain a

conviction as a party to the offense; however, combined with other incriminating evidence it may

be sufficient to sustain a conviction. Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App.

1985). In determining whether a defendant participated as a party in the commission of an

offense, the jury may consider events that occurred before, during, or after the offense, and may

rely on acts that show an understanding and common design. Ransom v. State, 920 S.W.2d 288,

302 (Tex. Crim. App. 1996) (opin. on reh’g); Barnes v. State, 56 S.W.3d 221, 238 (Tex. App.—

Fort Worth 2001, pet. ref’d) (agreement to act together in a common design is seldom proven by

direct evidence, but by circumstantial evidence).

       Suniga’s argument that there is no evidence he intended to assist in commission of the

aggravated robbery depends in large part on the exclusion of Perez’s accomplice witness

testimony. We have already found that Perez’s testimony was sufficiently corroborated by other

independent evidence, and thus we may consider his testimony in our sufficiency review. Perez

testified that Suniga, Johnson, and Soliz came over to his friend’s house on the morning of the

robbery and borrowed a shotgun because they were going to “collect money;” Suniga was

driving the green Volvo. Perez joined the group in the Volvo to make sure the shotgun was

returned to his friend. At one point while they were driving around, Perez overheard Soliz tell

Suniga, “Let’s hit this store,” and Suniga responded, “You are acting crazy. We aren’t going to

hit that store; that dude has a gun . . . there’s too many people there all the time, let’s not hit that



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store.” A while later, while still driving around in the car, Perez heard Johnson say, “Let’s hit

the Metro . . . I’ve got it laced up. . . They’re getting their check stubs today and it’s pay day . . .

they should have already gone to lunch already and cashed their checks at the bank right across

the way and they will already have the money.” Perez then noticed the Volvo turning into a back

alley behind a store building and stopping in front of a back door. Suniga stated that he could

not go into the store because he was not properly dressed; he had on a bright colored Polo shirt

with jeans and Polo boots. Soliz asked Suniga to swap shoes with him because Soliz’s shoes

were brightly colored, and Suniga gave Soliz his boots to wear. They asked Perez if he would go

in with them because they needed an extra person to “show that we got people;” Perez was

reluctant because he had thought they were only going to collect some money, but he went into

the store with Johnson and Soliz. Before they got out of the car, Johnson explained the floor

plan of the store and instructed Soliz to go straight to the front door and lock it, and Perez to

stand at the back door; Johnson picked up the gun before getting out of the car. Suniga waited in

the Volvo which was parked within feet of the back door. During the robbery, Johnson “had

everybody at gunpoint.” When they exited the store, the car was right there with the door open.

Suniga drove them away from the store in the Volvo. As discussed, supra, there is evidence that

Suniga drove directly to the El Buffalo Pawn Shop and himself pawned some jewelry obtained in

the robbery.

        In addition, as noted supra, there is other circumstantial evidence supporting a finding

that Suniga was the getaway driver for the robbery—he admitted ownership of the Volvo, his

fingerprints were found that day on the rearview mirror, two victims saw a fourth person in the

Volvo as it drove away from the back alley, the pawn shop video showed Suniga driving the

Volvo and in the presence of the three robbers twenty minutes after the robbery, and the Volvo



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was found with stolen items inside and concealed in the backyard of Suniga’s aunt’s house later

that same day. We conclude the evidence is legally sufficient to prove Suniga was aware of the

plan to rob the Metro News store and intended to promote and assist in the robbery.

       Finally, Suniga argues the evidence is insufficient to hold him criminally responsible for

the aggravating element of use of the gun. Specifically, Suniga contends there is no evidence he

knew that a firearm would be used or exhibited during the robbery. We disagree. Perez testified

that while the four men were driving around in the Volvo, Johnson pulled out the shotgun from

his pants leg and Perez showed him how to use it. Perez stated that at one point, Suniga, who

was driving, said, “Hey, don’t point that like that.” Perez said the gun was not loaded, and

Suniga replied there could be a bullet in the chamber and to put it down. When the three men

exited the Volvo, Johnson took the shotgun with him inside the store. There is legally sufficient

evidence that Suniga knew that Johnson had a shotgun and intended to use or exhibit it during

the robbery—Perez stated Suniga was driving the Volvo when they went to borrow the shotgun,

the gun was in plain view inside the car while Suniga was driving and Suniga told Perez not to

point the gun inside the car, “hitting” a store was discussed inside the car with Suniga

participating in the conversation, and Johnson took the shotgun when he got out at the Metro

News office. We conclude the evidence is legally sufficient to support the jury’s finding on the

aggravating element of use of a deadly weapon.

       Conclusion

       Based on the foregoing analysis, we hold there is sufficient independent evidence to

corroborate Perez’s accomplice testimony and the evidence is legally sufficient to support the

jury’s finding that Suniga intended to promote or assist in the commission of the aggravated




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robbery with the use or exhibition of a deadly weapon. We therefore overrule Suniga’s issues on

appeal, and affirm the trial court’s judgment.


                                                   Phylis J. Speedlin, Justice

DO NOT PUBLISH




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