                           NUMBER 13-14-00636-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

LAWRENCE MIRELES,                                                          Appellant,


                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                  On appeal from the 319th District Court
                        of Nueces County, Texas.


                        MEMORANDUM OPINION
               Before Justices Garza, Perkes and Longoria
               Memorandum Opinion by Justice Longoria

      Appellant Lawrence Mireles challenges his conviction by a jury for murder, a first-

degree felony. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2015 R.S.).

We affirm.
                                         I. BACKGROUND

       On June 28, 2012, law enforcement officers discovered the body of Jenna

Hernandez, a sixteen year-old female from Port Aransas, Texas. Hernandez had been

reported missing by her mother on June 25, 2012. An autopsy established that she had

been shot in the head with a firearm. Hernandez was scheduled to testify against Joshua

Davis at a hearing on the State’s motion to revoke Davis’ probation. Hernandez was to

testify regarding an assault Davis allegedly committed against her a few months before

her disappearance. Appellant is a close friend of Davis and once dated Hernandez.

       The State charged appellant with murdering Hernandez, alleging that he lured her

to a meeting and shot her to prevent her from testifying against Davis. Appellant pled not

guilty, and the case was tried to a jury. The jury returned a verdict of guilty and assessed

punishment at sixty years’ imprisonment in the Texas Department of Criminal Justice, a

$10,000 fine, and court costs. This appeal followed.

                                II. SUFFICIENCY OF THE EVIDENCE

       Appellant argues in his first issue that the evidence is legally insufficient to support

his conviction. We disagree.

       A. Standard of Review and Applicable Law

       When evaluating the legal sufficiency of the evidence, we examine all the evidence

in the light most favorable to the verdict and determine whether a reasonable trier of fact

could have found all of the elements of the offense beyond a reasonable doubt. Whatley

v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)). It is the role of the factfinder to resolve conflicts in the testimony, weigh

the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.



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Circumstantial evidence is as probative as direct evidence for these purposes, and

circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). It is not necessary that every fact introduced into

evidence point “directly and independently” to the guilt of the defendant as long as the

cumulative effect of all of the incriminating facts is sufficient to support the conviction.

Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Hooper, 214 S.W.3d at

13).

       We review the sufficiency of the evidence by measuring it against the

hypothetically correct jury charge for the case. Id. (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). The hypothetically correct charge is authorized by the

indictment, accurately sets out the law, does not unnecessarily increase the State's

burden of proof or unnecessarily restrict its theories of liability, and adequately describes

the particular offense for which the defendant was tried. Sanchez v. State, 376 S.W.3d

767, 772 (Tex. Crim. App. 2012). As authorized by the indictment in this case, the State

was required to prove beyond a reasonable doubt that appellant (1) caused the death of

Hernandez by shooting her with a firearm and (2) intended or knew that her death would

result from that act. TEX. PENAL CODE ANN. §19.02(b)(1); see Temple v. State, 390 S.W.3d

341, 359 (Tex. Crim. App. 2013).

       B. Discussion

       The State presented testimony from Brian Downham and John Johnson, friends

of appellant, that appellant admitted to them on separate occasions that he shot

Hernandez. Detective Kyle Rhodes of the Port Aransas Police Department testified that

Keilani Lasher, appellant’s girlfriend at the time of the murder, told Rhodes that



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“[appellant] came to her and that he broke down and that he told her that he had helped

them kill [Hernandez].” Appellant did not object to the testimony of Downham, Johnson,

or Detective Rhodes.            On appeal, appellant challenges Downham and Johnson’s

credibility and emphasizes their ties to Davis and his father, who were allegedly members

of the Peckerwoods prison gang. We reject appellant’s arguments because it is the sole

province of the jury to decide the credibility of witnesses and the weight, if any, to give to

their testimony.1 See Whatley, 445 S.W.3d at 166.

       The State points out, and we agree, that appellant’s extra-judicial confessions are

not sufficient alone to support his conviction. The corpus delecti rule requires that the

State produce “evidence independent of a defendant's extrajudicial confession show[ing]

that the essential nature of the charged crime was committed by someone.” Miller v.

State, 457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (citing Hacker v. State, 389 S.W.3d

860, 866 (Tex. Crim. App. 2013)). However, we conclude that the State provided ample

evidence that the criminal act of another caused Hernandez’s death and that appellant is

the person responsible. See Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993)

(en banc) (noting that the corpus delecti of murder is established by showing the death of

a human being by the criminal act of another). J.G.,2 a close friend of Hernandez, testified

that Hernandez was staying with her on the night she went missing until Hernandez

received a text message from appellant. According to J.G., Hernandez left at that time to

“go hang out with” appellant.            Luis Ramirez, Lasher’s current boyfriend, testified that



       1 Appellant also argues that we may not consider much of this testimony because it was

inadmissible. We reject this argument because a legal-sufficiency review includes all of the evidence
presented to the jury, even if erroneously admitted. See Soliz v. State, 432 S.W.3d 895, 900 (Tex. Crim.
App. 2014).

       2   We refer to J.G. by her initials because she was a minor at the time of the trial.

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appellant asked him in June of 2012, the same month that Hernandez went missing, about

how to remove gunshot residue. Jennifer Emmitt, Downham’s girlfriend, testified that

appellant and Davis discussed their dislike of Hernandez in Downham’s presence “and

that they had a hit on [Hernandez].” Allison Heard, a DNA technician at the Texas

Department of Public Safety, testified that appellant could not be excluded as the source

of a DNA sample taken from underneath one of Hernandez’s fingernails. Heard further

testified that the sample probably had not been under her fingernails for a substantial

length of time because routine handwashing would most likely have damaged the DNA

of the sample.

       Furthermore, Detective Rhodes testified that appellant evaded police by running

out the back door of his house the first time they came to his residence to discuss

Hernandez’s whereabouts. See Gonzalez v. State, No. 13-13-00427-CR, ___ S.W.3d

___, ___, 2014 WL 4049800, at *14 (Tex. App.—Corpus Christi Aug. 14, 2014, pet. ref’d)

(noting that evidence of flight is admissible as circumstantial evidence of guilt). When

police successfully made contact with appellant, appellant told them that he had not

communicated with Hernandez for several months. However, appellant later admitted to

Detective Rhodes that he had recently exchanged text messages with Hernandez.

Appellant also told police that his phone had automatically deleted the messages after

two hours, but Kenneth Patterson, a computer forensic specialist, testified at trial that he

examined appellant’s phone and that there were no applications on it that would delete

text messages after a certain period of time. Patterson further testified that the phone

contained text messages from longer than two hours ago and that the only deleted

messages from the time period of the murder were sent directly between Hernandez and



                                             5
appellant’s phone.3 Patterson testified that he recovered seventy-seven text messages

sent directly between the two phones, the last of which was sent at 12:18 a.m. on the day

of the murder. Appellant’s false statements regarding when he was in contact with

Hernandez and his attempts to delete the evidence of their communications constitute

circumstantial evidence of guilt. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.

App. 2004) (holding that attempts to conceal incriminating evidence and making

improbable statements to police are probative of wrongful conduct and circumstantial

evidence of guilt); King v. State, 29 S.W.3d 556, 564–65 (Tex. Crim. App. 2000) (holding

that the act of making false statements to police is circumstantial evidence because it

shows a consciousness of guilt).

         In sum, we hold that the foregoing circumstantial evidence is sufficient to show that

Hernandez was killed by the criminal act of another. See Miller, 457 S.W.3d at 924. This

evidence, combined with the evidence of appellant’s multiple extra-judicial confessions,

form a legally sufficient basis for a reasonable jury to conclude that appellant is guilty of

murdering Hernandez. See Whatley, 445 S.W.3d at 166. We overrule appellant’s first

issue.

                                  III. CRUEL AND UNUSUAL PUNISHMENT

         Appellant argues in his second issue that his sentence of sixty years’ imprisonment

and a $10,000 fine is so grossly disproportionate that it violates the Eighth Amendment’s

guarantee against cruel and unusual punishment. See U.S. CONST. amend. VIII.

         This Court has never formally decided whether the type of proportionality review

appellant requests survived the United States Supreme Court’s decision in Hamelin v.



         3   Hernandez’s cell phone was never recovered by police.

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Michigan, 501 U.S. 957 (1991). See Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.—

Corpus Christi 1998, no pet.) (assuming without deciding that the defendant could assert

a proportionality claim but finding that the sentence was not grossly disproportionate).

However, Texas courts have consistently held that a defendant waives a proportionality

claim by failing to object in the trial court. See Kim v. State, 283 S.W.3d 473, 475 (Tex.

App.—Fort Worth 2009, pet. ref'd) (citing Rhoades v. State, 934 S.W.3d 113, 120 (Tex.

Crim. App. 1996)); Noland v. State, 264 S.W.3d 144, 151–52 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref'd); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi

2005, pet. ref'd). Appellant does not dispute that he did not object in the trial court on this

ground.4 Accordingly, we hold that appellant did not preserve this issue. See Kim, 283

S.W.3d at 475; Noland, 264 S.W.3d at 151–52; Trevino, 174 S.W.3d at 928; see also

TEX. R. APP. P. 33.1. We overrule appellant’s second issue.

                                                IV. CONCLUSION

        We affirm the judgment of the trial court.




                                                            Nora L. Longoria
                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
29th day of December, 2015.



         4 Appellant states in his brief that he raised this issue to preserve it for review in federal court.

Appellant argues in this section of his brief that “[c]learly it was within a court’s power to review a sentence
imposed by judge or jury to determine whether such sentence passed constitutional muster, even if no
objections were made during trial.” To the extent that appellant intended to argue that our holding in Trevino
v. State was incorrect and that this issue may be raised for the first time on appeal, we reject his argument.
See 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet. ref'd).

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