                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION

                                         No. 04-17-00341-CR

                                       Daniel Jeremy TORRES,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2016CR4390A
                         The Honorable Laura Lee Parker, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 1, 2018

AFFIRMED

           Appellant Daniel Jeremy Torres was found guilty by a Bexar County jury of the murder of

Jesse Richards. The jury assessed punishment at sixty-five years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice and a $10,000.00 fine. Torres raises several

issues on appeal concerning three main areas: (1) because the State’s key witnesses, David Zuniga

and Juan Torres, were both accomplices, the trial court erred in failing to provide an instruction on

the accomplice-witness rule requiring the State to provide non-accomplice testimony connecting
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Torres 1 to the offense; (2) the trial court’s jury charge erroneously included an unindicted felony-

murder charge; and (3) the cumulative impact of the errors was so great that reversal is required.

We affirm the trial court’s judgment.

                              FACTUAL AND PROCEDURAL BACKGROUND

        On December 20, 2015, Torres, Juan, and David, all brothers, were living at 514 Porter,

San Antonio, Texas. By all accounts, Juan was subleasing and was responsible for the rent. At

some point during the evening, David and Torres decided they needed to make some “fast money”

to help Juan with the rent. When Juan and Torres refused to allow David to sell his laptop, David

decided to rob someone. Torres insisted that he would not allow David to “go by himself.” David

testified the conversation was between himself and Torres; Juan was not present or a part of the

conversation.

        Around 9:30 p.m., Torres and David left through the back of the house with Juan’s .32

caliber firearm. Juan testified he saw his brothers leave out the back of the house. Juan went to

the front of the house, through the screen door, to smoke a cigarette. He was talking on his

cellphone and looking at Facebook when he saw his brothers across the parking lot. Juan testified

he saw David standing at the bus stop when Torres came from behind and shot the person standing

next to David. Both brothers ran. Although officers were called to the scene and evidence was

collected, the case remained unsolved until Juan called the officers approximately two months later

to report what happened.

        On May 17, 2016, a Bexar County jury returned an indictment against Torres for the

murder of Jesse Richards. David was convicted of Richards’s murder in January of 2017. Torres’s

case was called for trial on May 8, 2017. After two days of testimony, the jury returned a guilty


1
 For purposes of the opinion, we will refer to Appellant Daniel Jeremy Torres as “Torres,” Juan Torres as “Juan,”
and David Zuniga as “David.”

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verdict and subsequently assessed punishment at sixty-five years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice and a $10,000.00 fine.

       We turn first to Torres’s issues related to the accomplice-witness testimony.

                               ACCOMPLICE-WITNESS TESTIMONY

       Because Torres’s complaints about the lack of instruction and the insufficiency issue both

revolve on whether David and Juan were accomplices, we begin with a determination of whether

either witness is an accomplice as a matter of law or fact.

A.     Accomplice-Witness

       “A witness is an accomplice as a matter of law when the witness has been charged with the

same offense as the defendant or a lesser-included offense, or ‘when the evidence clearly shows

that the witness could have been so charged.’” Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim.

App. 2013) (quoting Cocke v. State, 201 S.W.3d 744, 747–48 (Tex. Crim. App. 2006)); accord

Ash v. State, 533 S.W.3d 878, 884 (Tex. Crim. App. 2017); see also Druery v. State, 225 S.W.3d

491, 499 (Tex. Crim. App. 2007) (noting evidence leaves “no doubt that the witness is an

accomplice”). In Cocke v. State, the Court of Criminal Appeals described an accomplice as one

who “participates with a defendant before, during, or after the commission of the crime,” “acts

with the requisite culpable mental state,” and performs an “affirmative act that promotes the

commission of the offense with which the defendant is charged.” 201 S.W.3d at 748.

       When a trial court determines a witness is an accomplice as a matter of law, it must instruct

the jury (1) the witness is an accomplice and (2) the witness’s testimony must be corroborated. Id.

(citing Druery, 225 S.W.3d at 498–99). If the evidence is in conflict, the trial court must call upon

the jury to decide whether the witness is an accomplice as a matter of fact. Id. Only if the jury

makes an affirmative finding that the witness is an accomplice, does it apply the corroboration

requirement portion of the instruction. Id.
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B.     Application to David and Juan

       1.      David

       David Zuniga, eighteen-years-old at the time of trial and the younger brother of both Torres

and Juan, testified at Torres’s trial. David was found guilty of Richards’s murder in January of

2017, but he had not yet been sentenced at the time of Torres’s trial. David averred his testimony

was being given voluntarily and the State had not made any promises or provided any benefit or

plea bargain in exchange for his testimony.

       David testified that he was at the house with Juan and Torres on December 20, 2015. He

and Torres decided they needed to “get money real quick,” and David brought up the idea of a

robbery because neither Juan nor Torres would agree to let him sell his laptop. Torres told David

he would not allow David to go by himself. They left “out the back of the house;” David gave

Torres the gun as they crossed the street outside the house. David waited for someone to walk up

to the bus stop and David started talking to him. David explained, “I was supposed to talk to the

dude and [Torres] was just going to scare him.” David started talking to the man, when he saw

“an individual come around the corner messed up and stand right behind me and shoot.” David

testified that at first he did not know who the shooter was, but then realized it was Torres. At one

point, David thought Torres was going to kill him.

       David’s testimony supports that he participated before, during, and after the offense—he

planned an armed robbery, he provided the weapon, he hid the weapon immediately after the

shooting, and helped keep the weapon hidden after the fact. See Cocke, 201 S.W.3d at 747–48.

Additionally, based on Torres’s severance motion, dated September 22, 2016, David was charged

with Jesse Rodriguez’s murder as a co-defendant. We thus conclude David was an accomplice as

a matter of law. Ash, 533 S.W.3d at 884; Zamora, 411 S.W.3d at 510; Druery, 225 S.W.3d at 499;

Cocke, 201 S.W.3d at 747–48.
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         2.     Juan

         Juan Torres, twenty-years-old at the time of trial, was the middle brother between David

and Torres. He was at the house on Porter with his brothers on the night of December 20, 2015.

Juan testified that he was getting ready for bed when his brothers left through the back of the house.

They had been playing around with Juan’s gun; and, after they left, Juan could not find the gun.

Juan testified that, shortly after his brothers left, he stepped outside the front screen door to smoke

a cigarette. Juan was talking on his cellphone when he saw David and Torres at the restaurant

across the street and “then they went to the bus stop.”

         Juan testified that he watched David walk around the corner to the bus stop. Juan could

see David just standing at the bus stop. The prosecutor asked Juan at what point he saw Torres

again.

         [Torres] ran into the bus stop toward where David was. . . . When [Torres] came
         up, I just saw him go in his pocket, pull something out and just shoot.

Juan described being in shock. He saw his brothers run back to the house. Juan asked Torres why

he did that, and Torres told Juan “You didn’t see nothing. There wasn’t nothing there. Just leave

it alone, don’t say nothing.” Juan testified that he took Torres’s statement as a threat because after

watching Torres shoot the man at the bus stop, he did not know what else Torres was capable of

doing.

         The only testimony connecting Juan to the offense was David’s statement that he and

Torres decided to commit the robbery because Juan needed money for rent and Juan’s testimony

that he was the owner of the firearm that killed Richards. Unlike David, we cannot conclude that

Juan participated before, during, or after the offense. Cf. Cocke, 201 S.W.3d at 748. There is also

no evidence Juan acted with the “requisite culpable mental state” or made an overt act to promote

or assist his brothers in the commission of the offense. Id. The weapon was at the residence well


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before David and Torres decided to commit the robbery and there is nothing to suggest that Juan

affirmatively provided the firearm for the purpose of committing the robbery. Id. The record also

does not support that Juan was or could be charged with Richards’s murder or a lesser-included

offense. See Zamora, 411 S.W.3d at 510; cf. TEX. PENAL CODE ANN. §§7.02(a)(2); 7.02(b);

15.02(a). We thus conclude Juan was neither an accomplice as a matter of law or an accomplice

as a matter of fact. See id.

       Having determined that David was the only accomplice-witness, we turn to Torres’s

complaint the trial court failed to sua sponte include an instruction on the accomplice-witness rule

in the court’s jury charge.

C.     Jury Charge Error

       1.      Standard of Review

       In resolving a challenge to the jury charge, we first determine whether error exists. Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we analyze that error for

harm under the applicable standard set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.

1984) (op. on reh’g). See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If, as

here, the defendant did not object to the alleged error at trial, we will reverse only if the error is

“so egregious and created such harm that the defendant ‘has not had a fair and impartial trial.’”

Id. (quoting Almanza, 686 S.W.2d at 171).

       2.      Texas Code of Criminal Procedure article 38.14

       Texas Code of Criminal Procedure article 38.14 provides “[a] conviction cannot be had

upon the testimony of an accomplice unless corroborated by other evidence tending to connect the

defendant with the offense committed; and the corroboration is not sufficient if it merely shows

the commission of the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). In other

words, the State may not rely solely upon the testimony of one accomplice witness to corroborate
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that of another accomplice witness. Zamora, 411 S.W. at 513. We note that the accomplice-

witness rule is the law applicable to the case, and not a defensive issue. Id. (noting that defensive

issues may be forfeited if not preserved at trial); see also Oursbourn v. State, 259 S.W.3d 159, 180

(Tex. Crim. App. 2008) (explaining the statutes’ “implicit ‘If-then’ proposition: If the evidence

raises an issue of [the witness’s status as an accomplice], then the trial court shall instruct the jury

[regarding the corroboration requirement]”).

          Because David was an accomplice as a matter of law, Torres was entitled to an instruction

in accordance with the accomplice-witness statute. See Oursbourn, 259 S.W.3d at 180.

          3.     Harm Analysis

          Under Almanza, because Torres did not object to the error in the jury charge, he must prove

egregious harm. Almanza, 686 S.W.2d at 171. We assess whether Torres suffered egregious harm

“in light of the entire jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel, and any other relevant information revealed

by the record of the trial as a whole.” Id. “Egregious harm is a difficult standard to prove and

such a determination must be done on a case-by-case basis.” Taylor v. State, 332 S.W.3d 483, 489

(Tex. Crim. App. 2011) (internal quotations omitted). “Errors which result in egregious harm are

those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect

the defensive theory, or make a case for conviction clearly and significantly more persuasive.” Id.

at 490.

          In assessing “egregious harm under Almanza in the context of the failure to submit an

accomplice-witness instruction . . ., ‘appellate review must inquire whether the jurors would have

found the corroborating evidence so unconvincing in fact as to render the State’s overall case for

conviction clearly and significantly less persuasive.’” Casanova v. State, 383 S.W.3d 530, 533

(Tex. Crim. App. 2012) (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).
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“That non-accomplice evidence may be, at a bare minimum, sufficient to support a finding that

the accomplice witness’s testimony was corroborated, when viewed in the light most favorable to

the jury’s verdict, does not dispose of the question of egregious harm.” Id. at 534. Instead, we

review the whole record “to assess whether the jury, had it been properly instructed on the law

requiring corroboration of accomplice-witness testimony, ‘would have found the corroborating

evidence so unconvincing in fact as to render the State’s overall case for conviction clearly and

significantly less persuasive.’” Id. (quoting Saunders, 817 S.W.2d at 692).

       An appellate court looks to the strength of the corroborating evidence, considering both (1)

its reliability or believability and (2) how convincingly it connects the accused to the crime. Id. at

539. The stronger the corroborating evidence, the less likely egregious harm resulted from the

trial court’s failure to include the accomplice-witness instruction. Id.

       The jury heard from an eyewitness to the offense—Juan Torres. He watched both brothers

leave the house. He saw David standing at the bus stop, and he saw Torres come up from behind

and shoot the individual next to David. This evidence tends to connect Torres with the commission

of the offense. Juan’s testimony is corroborated by the video recordings taken from the street

cameras and from the buses. Given the strength of Juan’s evidence, we conclude Torres failed to

show that he suffered egregious harm. See Casanova, 383 S.W.3d at 539–40; Almanza, 686

S.W.2d at 171.

       We therefore overrule Torres’s issue as to the trial court’s failure to provide an accomplice-

witness instruction. Torres also complains the accomplice-witness rule precludes the State from

proving their case beyond a reasonable doubt.




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D.     Sufficiency of the Evidence

       1.      Standard of Review

       In reviewing the sufficiency of the evidence, “we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Adames v. State, 353 S.W.3d 854,

860 (Tex. Crim. App. 2011); accord Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).

“This standard recognizes the trier of fact’s role as the sole judge of the weight and credibility of

the evidence. . . .” Adames, 353 S.W.3d at 860; accord Gear, 340 S.W.3d at 746. The reviewing

court must also give deference to the jury’s ability “to draw reasonable inferences from basic facts

to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). “Each fact need not point directly and independently to the

guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.” Id. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993)).

       We may not substitute our judgment for that of the jury by reevaluating the weight and

credibility of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We defer

to the jury’s responsibility to fairly resolve any conflicts in the evidence, weigh the evidence, and

draw reasonable inferences. See Hooper, 214 S.W.3d at 13. The jury alone decides whether to

believe eyewitness testimony, and it resolves any conflicts in the evidence. See Hooper, 214

S.W.3d at 13; Young v. State, 358 S.W.3d 790, 801 (Tex. App.—Houston [14th Dist.] 2012, pet.

ref’d). In conducting a sufficiency review, “[w]e do not engage in a second evaluation of the

weight and credibility of the evidence, but only ensure that the jury reached a rational decision.”

Young, 358 S.W.3d at 801.



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       2.      Arguments of the Parties

       Torres contends that because Juan and David are both accomplices as a matter of law, and

the State failed to corroborate their testimony with non-accomplice evidence “that tends to

‘connect [Torres] to the offense,’” State v. Ambrose, 487 S.W.3d 587, 593 (Tex. Crim. App. 2016),

the State failed to present sufficient evidence to support the essential elements of murder.

       The State counters that Juan was not an accomplice, and his testimony corroborates

David’s testimony. The jury could therefore consider both Juan’s and David’s testimony and the

evidence is sufficient to prove the offense charged.

       3.      Analysis

       Having already determined that Juan was not an accomplice, his testimony was proper

evidence upon which the State could rely to corroborate David’s testimony. David testified he

was standing at the bus stop when Torres pulled the firearm out of his pocket and shot the

individual with whom David was talking. Juan testified he saw David standing at the bus stop

when Torres walked up and shot the man. Both men described what Torres was wearing and the

jury was able to see video recordings from the street of an individual wearing the clothes described

by both Juan and David.

       The jury is the sole judge of the witnesses’ credibility, resolves any conflicts, and decides

whether to believe a given witness, including an eyewitness. See Hooper, 214 S.W.3d at 13;

Young, 358 S.W.3d at 801. Texas courts have long held “the testimony of a single eyewitness can

be enough to support a conviction.” Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston

[14th Dist.] 2016, no pet.); accord Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971).

Considering all of the evidence in the light most favorable to the verdict, we conclude a reasonable

jury could have found the essential elements of murder beyond a reasonable doubt. See Adames,



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353 S.W.3d at 860. Accordingly, we overrule Torres’s complaint as to the insufficiency of the

evidence.

        We turn to Torres’s complaint regarding the jury charge including an unindicted offense

of felony murder.

                       FELONY-MURDER AND NON-UNANIMOUS VERDICT

A.      Arguments of the Parties

        Torres contends the court’s jury charge included an unindicted offense of felony-murder

which violated his Constitutional rights and allowed the jury to convict Torres with a non-

unanimous jury verdict.

        The State counters the court’s jury charge did not charge Torres under the felony-murder

statute, but instead charged Torres as a primary actor and also as a party under Texas Penal Code

section 7.02(a)(2) and as a conspirator under section 7.02(b). See TEX. PENAL CODE ANN.

§ 7.02(a)(2), (b).

B.      Trial Court’s Jury Charge

        The trial court’s jury charge did not charge Torres with felony murder pursuant to Texas

Penal Code section 19.02(b)(3). See TEX. PENAL CODE ANN. § 19.02(b)(3) (“A person commits

an offense if he commits or attempts to commit a felony, other than manslaughter, and in the course

of and in furtherance of the commission or attempt, or in immediate flight from the commission

or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes

the death of an individual.”). As the State points out, the trial court properly charged Torres as a

principal actor, as a party to the offense, and as a conspirator.

        Additionally, when the State intends to prove the accused is criminally responsible for

another person as a party to the offense or as part of a conspiracy, the State need not allege any

such criminal responsibility in the indictment. See TEX. PENAL CODE ANN. § 7.02(a)(2), (b); see
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Marable v. State, 85 S.W.3d 287, 287–88 (Tex. Crim. App. 2002) (explaining State is not required

to plead the law of parties in the indictment); Castoreno v. State, No. 04-11-00692-CR, 2012 WL

1648435, at *4 (Tex. App.—San Antonio May 9, 2012, pet. ref’d) (mem. op., not designated for

publication) (“[I]t was not necessary for the State to include a conspiracy allegation in the

indictment because it is not required under the law of parties.”).

       “Jury unanimity is required on the essential elements of the offense but is generally not

required on the alternate modes or means of commission.” Leza v. State, 351 S.W.3d 344, 356

(Tex. Crim. App. 2011); Ngo, 175 S.W.3d at 745 (“Under our state constitution, jury unanimity is

required in felony cases, and under our state statutes, unanimity is required in all criminal cases.”).

Criminal liability under section 7.02 is not an element of the charged offense; the law of parties

and conspiracy are “alternative manners by which an accused may be held accountable for the

conduct of another who has committed the constituent elements of a criminal offense.” Leza, 351

S.W.3d at 357. Therefore, the jury was not required to unanimously determine Torres’s “precise

role” in Richards’s murder; instead, each juror was required to find Torres guilty of each

constituent element of Richards’s murder—as a principal actor, a party, or as a conspirator. Id.

       Accordingly, we overrule Torres’s complaint alleging the trial court’s charge included an

unindicted felony-murder charge and allegedly allowed the jury to convict Torres with a non-

unanimous jury verdict.

                                            CONCLUSION

       Having determined that (1) Juan was not an accomplice-witness; (2) Torres failed to prove

egregious harm following the trial court’s failure to include an instruction on the accomplice-

witness rule; (3) the evidence is sufficient to support the jury’s verdict beyond a reasonable doubt;

(4) the trial court did not charge Torres with felony murder in the court’s jury charge; and (5) jury

unanimity was not required as to which alternative modes or means was used by Torres during the
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commission of the murder, we decline to conclude the record contained evidence of cumulative

error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). Although the trial

court failed to include the proper instruction, we concluded the lack of instruction did not amount

to egregious error. See Almanza, 686 S.W.2d at 171. We further conclude that one single error

cannot create cumulative error. Cf. Chamberlain, 998 S.W.2d at 238. Accordingly, we overrule

Torres’s last issue on appeal.

       Having overruled each of Torres’s issues on appeal, we affirm the trial court’s judgment.


                                                  Patricia O. Alvarez, Justice

PUBLISH




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