Opinion filed June 13, 2013




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-11-00197-CR
                                  __________

                   BILLY WAYNE HAYNES, Appellant

                                       V.

                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 161st District Court
                              Ector County, Texas
                        Trial Court Cause No. B-35,839


                      MEMORANDUM OPINION
      The jury convicted Billy Wayne Haynes of murder and of engaging in
organized criminal activity. The jury assessed his punishment at life imprisonment
and a $10,000 fine on the murder charge and confinement for fifty years and a
$10,000 fine on the organized criminal activity charge. The trial court sentenced
him in accordance with the jury’s verdict. We affirm.
                                  I. Trial Evidence
       Appellant was the president of Aryan Circle, a white supremacist street
gang. On the night that the offenses made the subject of this appeal occurred,
Appellant, along with eight others—many of whom were Aryan Circle members—
went to Dwain Barina’s house. They intended to retaliate for a fight that occurred
earlier that night between some of their Aryan “brothers” and others who were not
members of their gang. Appellant was accompanied by Aryan Circle members
Summer Wilkins, George Scott, Hannah Fierros, Greta Caldwell, Kevin Jackson
and David Callaway. Kenneth Griffin and Horace Chunn worked on Jackson’s oil
field crew and were with Appellant and the others, but were not Aryan Circle
members.
       Before the group went to Barina’s house, Jackson called Tracy Roupp, the
father of one of Fierros’s children, and told Roupp that he would “suffer the
consequences” if he did not agree to fight. Roupp and Fierros were estranged, but
continued to live together and raise the children. Fierros and gang member Scott
were dating at the time. When Roupp declined the fight, Fierros led Appellant and
the other gang members to Barina’s house in search of Roupp because she had
been there several times. She rode in Wilkins’s GMC Yukon with Appellant,
Scott, and Caldwell. Jackson, Callaway, Griffin, and Chunn followed in a second
car.
       Meanwhile, Roupp, Barina, and Rey Valdez were waiting outside Barina’s
house with a shotgun and a handgun because they expected trouble after Jackson’s
phone call to Roupp. When Appellant and the others arrived, Barina’s wife and
daughter were also outside Barina’s house; both groups yelled at each other. As
Appellant’s group exited their vehicles and approached a fence that enclosed
Barina’s yard, Valdez fired a warning shot into the air. Everyone scattered. Roupp
then fired his shotgun at the ground.
                                         2
      Wilkins, Fierros, and Caldwell drove away; Callaway drove off in the other
car. Appellant, Scott, Jackson, Chunn, and Griffin ran across the street and hid
behind a trailer house. Appellant had a silver .380 pistol with him and was the
only one in his group who had been seen with a gun. Appellant fired several shots
from the .380 toward the silhouettes in front of Barina’s home. Appellant and
those who were still with him ran to their vehicles and fled to Wilkins’s aunt’s
home, where Appellant and Wilkins had been living. Appellant told the group that
he thought he “got one.”
      Roupp, Barina, and Valdez went inside the house and told everyone to get
on the ground. Valdez said that he had been hit, so Barina’s daughter called 9-1-1.
But it was an hour before paramedics arrived as police worked to secure the safety
of the scene, and he died. Witnesses told police that they had recognized Fierros as
being one of the people at the scene. Police questioned her. The next morning,
police arrested Scott.
      Appellant “got word” that police officers were planning to search Wilkins’s
aunt’s house, so he put his silver .380 pistol into a black trash bag and placed it in
the dumpster behind the house. Caldwell and Nathan Truex, another Aryan Circle
“brother,” retrieved the black trash bag from the dumpster. Caldwell then showed
Truex how to take the gun apart and clean it off. Later, Jennifer McWilliams and
Truex took the gun to McWilliams’s home and tried to burn it. Because they were
unsuccessful in their attempt to burn the pistol, they threw it into a pond behind a
local business.
      Appellant, Wilkins, Fierros, Scott, Caldwell, Jackson, and Callaway were
arrested for engaging in organized criminal activity. Griffin and Chunn were never
formally charged, however, because they were not Aryan Circle members. The
grand jury also declined to return an indictment against Callaway, Caldwell, and
Fierros. The State dropped the charges against Wilkins and Jackson in return for
                                          3
their testimony. The State also reduced the charges against Scott for his testimony.
Each and every person who went to Barina’s home that night with Appellant
testified against him.
                                 II. Issues Presented
      Appellant presents five issues on appeal. In his second and third issues,
Appellant complains about the trial court’s decision to allow witnesses to tell the
jury about three out-of-court statements he made while in jail awaiting trial.
Appellant’s first, fourth and fifth issues turn on the sufficiency of the non-
accomplice testimony to corroborate the accomplice witnesses.
                                     III. Analysis
      A. Issues Two and Three: Appellant’s Three Out-of Court Statements
      Appellant argues in his second issue that the trial court erred when it
permitted Micah May to testify about two statements that Appellant made to May
while they were in jail before the trial. Appellant complains in his third issue that
the trial court allowed Marcela McKinney to tell the jury about a different
statement Appellant made in jail. Appellant contends that all three statements
violate Texas Rules of Evidence 404(b) and 403.            We review a trial court’s
decision to admit evidence for an abuse of discretion. Page v. State, 137 S.W.3d
75, 78 (Tex. Crim. App. 2004). A trial court abuses its discretion when it acts
“without reference to any guiding rules and principles.” Montgomery v. State, 810
S.W.2d 372, 380 (Tex. Crim. App. 1990). We will not disturb the trial court’s
decision to admit evidence if the evidence was admissible under any theory of
law. Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. [Panel Op.] 1982). The
trial court has great discretion in its evidentiary decisions, and we defer to the trial
court because it “is in a superior position to evaluate the impact of the evidence.”
Montgomery, 810 S.W.2d at 379.


                                           4
             1. Appellant’s Statement to May that Appellant was the “Shooter”
      Appellant complains that the trial court erred when it permitted May to tell
the jury that Appellant admitted that he killed someone because the statement is
not relevant under Rule 404(b). May testified that Appellant had said that “George
Scott gave him a call that he was having some problems with some Mexicans.
They went over there and they got into an altercation. They went to leave and he
shot the guy.” May told the jury that Appellant also called the victim a “bitch ass
Mexican” and said that the victim got what he deserved. When the prosecutor
asked if Appellant said who shot this person, May said, “Yes. He said that he did.”
The State did not offer May’s testimony as evidence of an extraneous offense
separate and apart from the charged offense.        Instead, the State offered this
evidence as proof that Appellant fired the shots that killed Valdez. This statement
is an admission by a party-opponent, and it supports the allegation that Appellant
killed Valdez. See TEX. R. EVID. 801(e)(2); Trevino v. State, 991 S.W.2d 849, 853
(Tex. Crim. App. 1999). Because the statement was not evidence of an extraneous
offense under Rule 404(b), we need not reach Appellant’s separate contention that
there was a lack of notice under Rule 404(b).
      Appellant further contends that his statements were more prejudicial than
probative and that the trial judge failed to conduct a Rule 403 balancing test on the
record. Appellant asks us “to conduct this analysis.” See TEX. R. EVID. 403;
Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997); Ramirez v. State,
815 S.W.2d 636, 646 (Tex. Crim. App. 1991). During a hearing outside the jury’s
presence, Appellant objected to the admissibility of the statement under Rule 403.
The trial court overruled his objection without further comment. Once a party
lodges a Rule 403 objection, the trial judge lacks the discretion to decide whether
to engage in the balancing test required by the rule. Montgomery, 810 S.W.2d at
389 (Tex. Crim. App. 1991). When it makes an admissibility ruling, “the trial
                                         5
court implicitly makes findings of fact and conclusions of law.” Green v. State,
934 S.W.2d 92, 104 (Tex. Crim. App. 1996). No authority requires the trial court
to include findings or conclusions in the record, and Appellant did not ask the trial
court to do so. See id. Absent an express refusal to conduct the balancing test, we
presume that a trial court conducted the test when it overruled the Rule 403
objection. See Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997)
(“We find nothing in the record to indicate that the trial court did not perform a
balancing test, albeit a cursory one.”).
      There is a presumption that relevant evidence is more probative than
prejudicial. Montgomery, 810 S.W.2d at 389. However, there is a potential danger
that the extraneous bad act may “impress the jury in some irrational but
nevertheless indelible way.” Id. at 390. When conducting the balancing test, the
question is whether its probative value is substantially outweighed by such a
danger. TEX. R. EVID. 403. Appellant bragged about the shooting while he was in
jail prior to trial. Appellant’s admission and his characterization of the victim as a
“bitch ass Mexican” who “got what he deserved” shows his state of mind and
clarifies the circumstances surrounding the shooting.        This evidence directly
contradicts Appellant’s defensive theory that the accomplices only named him as
the shooter to get a reduced sentence and was not likely to “impress the jury in
some irrational but nevertheless indelible way.” See Montgomery, 810 S.W.2d at
389–90. We conclude that the trial court did not abuse its discretion.
             2. Appellant’s Statement Threatening May
      Appellant complains that the trial court erred when it permitted May to also
testify that Appellant threatened to kill May. Appellant challenges the relevance of
the statement under Rule 404(b), the prejudicial effect under Rule 403, and the lack
of notice of the testimony until “immediately before the witness was called during
the trial.” A defendant may not be tried for a collateral crime or for being a
                                           6
criminal generally, and Rule 404(b) prohibits the admission of evidence of an
extraneous offense to prove a defendant’s character or to show that the defendant
acted in conformity with that character. TEX. R. EVID. 404(b); Abdnor v. State, 871
S.W.2d 726, 738 (Tex. Crim. App. 1994). Evidence of an extraneous offense “is
inherently prejudicial, tends to confuse the issues in the case, and forces the
accused to defend himself against charges which he had not been notified would be
brought against him.” Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App.
1988). Evidence of extraneous offenses may be admissible, however, “as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” TEX. R. EVID. 404(b).
      Although Appellant argued that his alleged threat is not relevant, his
statement to May is relevant if it is evidence of an extraneous offense offered for
one of the alternative purposes. May told the jury that Appellant said, “You ho ass
bitch, you better hope that I don’t get -- I get off on this charge, because if they
give me 99 years, it won’t take nothing for me to get this door roll along, get mop
buckets and radio your cell number. . . . and come in and kill your ass.” A person
commits the offense of making a terroristic threat if he “threatens to commit any
offense involving violence to any person . . . with intent to . . . place any person in
fear of imminent serious bodily injury.” TEX. PENAL CODE ANN. § 22.07(a)(2)
(West 2011). May’s testimony is some evidence that Appellant threatened to kill
him. That constitutes a threat to commit an offense involving violence, and May’s
testimony is evidence that Appellant made the threat to instill fear in May and to
prevent him from testifying. Appellant’s threat is an extraneous offense and is
relevant if it was offered for one of the permissible purposes.
      The Court of Criminal Appeals has long held that “criminal acts that are
designed to reduce the likelihood of prosecution, conviction, or incarceration for
the offense on trial are admissible under Rule 404(b) as showing ‘consciousness of
                                          7
guilt.’” Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996).               In
Rodriguez v. State, the defendant, who had been charged with murder, admitted
that he was present during the killing but claimed that he did not participate in it
and that he did not inform authorities because he had a criminal record. 577
S.W.2d 491, 492 (Tex. Crim. App. 1979). Before trial, the defendant approached
the victim’s brother and ordered him to drop the charges. Id. The Court of
Criminal Appeals concluded that the threat was admissible and reasoned that
“[t]hese are hardly the actions of an innocent accused. This evidence is every bit
as probative of guilt, as would be flight by the accused.”           Id. at 493.    In
Baimbridge v. State, a defendant’s threat to kill the arresting officer who had
locked him in a cell was admissible. 350 S.W.2d 923 (Tex. Crim. App. 1961).
The court reasoned:
             If we regard the statement of the appellant to Officer Mahoney
      as an effort on the part of Appellant to prevent the officer from
      testifying against him or an effort to prevent the officer from
      testifying the truth against appellant, the statement would be
      admissible in evidence as proof that one charged with crime
      threatened or attempted to intimidate a witness against him.

Id. at 923–24.
      During Appellant’s opening statement, his counsel told the jury that the only
evidence the State had against Appellant was accomplice-witness testimony and
that the accomplices, with hopes for reduced sentences, had motives to lie and to
say that Appellant pulled the trigger. The State notified Appellant prior to trial that
it intended to call May as a witness, and the day before trial, Appellant threatened
to kill May if Appellant did not “get off on this charge.” Appellant’s actions were
“hardly the actions of an innocent accused” and were probative of guilt. The trial
court properly admitted evidence of the threat that Appellant had made to May; it
was relevant and probative testimony under Rule 404(b).

                                          8
      Appellant complains that, even if May’s testimony was admissible, “it didn’t
meet the prejudicial balancing test under Rule 403.” Most evidence is prejudicial
to an opponent. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007).
“Evidence is unfairly prejudicial only when it tends to have some adverse effect
upon a defendant beyond tending to prove the fact or issue that justifies its
admission into evidence.” Id. The relevance of an extraneous offense that shows
“consciousness of guilt” may be substantially outweighed by undue prejudice if the
accused can affirmatively show that the evidence “is directly connected to some
other transaction and further show that it is not connected with the offense on
trial.” Havard v. State, 800 S.W.2d 195, 203 (Tex. Crim. App. 1989) (quoting
Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982)).                 Here,
Appellant does not try to connect his threat to a different offense, and the record is
devoid of any evidence that the threat is related to anything else. For all of the
foregoing reasons, the trial court did not abuse its discretion when it admitted the
evidence of Appellant’s threat to May. Appellant’s second issue is overruled.
             3. Appellant’s Statement to McKinney
      Appellant contends in his third issue that a statement he made to a jailer,
McKinney, was inadmissible under Rule 404(b). The State contends that the
statement was an admission by Appellant that he had committed the charged crime.
McKinney, a jailer from the Ector County Sheriff’s Office, testified that Appellant
was boasting about his pending release from jail on bond. When jailer McKinney
said, “You will be back,” Appellant informed her that he did not plan on coming
back because he did not do drugs, did not drink, was not a thief, and “would just
have to limit himself to one murder every two years.”
      Appellant argues that the State offered his statement as evidence that
Appellant committed a murder in 2007, which was inadmissible as proof of the
2007 murder in the absence of evidence of the time, date, and place it occurred.
                                          9
Although the State gave pretrial notice it intended to introduce evidence of a
murder in Howard County on February 20, 2007, no proof of the 2007 murder was
admitted. The trial court did not allow May to testify that Appellant told him that
he had “beat one murder case and [would] beat this one too.” The State argued
that evidence of Appellant’s statement was not offered to prove the extraneous
murder; it was offered to prove that Appellant admitted guilt in this case—
Appellant was being held for murder and said he would have to limit himself to
one murder every two years. The prosecutor argued that Appellant’s statement
“directly references the charge he is being incarcerated for.”
      Unlike the excluded declaration to May that apparently referenced the 2007
murder, Appellant’s statement to jailer McKinney concerned future conduct.
When jailer McKinney said, “You will be back,” Appellant responded that he did
not plan to return to jail because he does not participate in illegal activities like
drugs and theft. Except for Appellant’s threat to have May killed for testifying
against him, there is no evidence of any murder other than the charged offense.
With no evidence in the record of a prior murder, no facts would permit the
inference that Appellant’s statement was an admission to two murders, one of
which occurred in Howard County in February 2007. Therefore, Appellant’s
statement could be reasonably interpreted to refer to future conduct after his
acquittal on the current murder charge.
      The State offered Appellant’s statement to jailer McKinney as proof that
Appellant shot and killed Valdez as alleged in the indictment.           Appellant’s
statement was admissible as an admission by a party-opponent. See TEX. R. EVID.
801(e)(2); Trevino, 991 S.W.2d at 853. Because we do not disturb the trial court’s
ruling if it was correct under any theory, we conclude that the trial court did not
abuse its discretion when it admitted jailer McKinney’s testimony. See Sewell, 629
S.W.2d at 45.
                                          10
       Appellant argues that his statement to jailer McKinney was more prejudicial
than probative. It is “universally” recognized that trial courts have “considerable
freedom” in evaluating the probative value of evidence offered in relation to its
prejudicial effect. See Montgomery, 810 S.W.2d at 378. Just like the admissions
to May, Appellant’s statement to jailer McKinney clarifies the circumstances
surrounding the shooting. This evidence directly contradicts Appellant’s theory of
the case that the accomplices were wrongly accusing him of firing the gun so that
they would receive a favorable deal in their own cases. The testimony about the
statements made to jailer McKinney was not likely to “impress the jury in some
irrational but nevertheless indelible way.” See Montgomery, 810 S.W.2d at 389–
90. We conclude that the trial court did not abuse its discretion when it admitted
the statements that Appellant made to jailer McKinney. We overrule Appellant’s
third issue.
       B. Issue One: Sufficiency of Non-Accomplice Testimony
       In his first issue on appeal, Appellant argues that the evidence is insufficient
to prove that he “caused the death of the victim in this case.” He argues that,
because the accomplice testimony lacks corroboration by non-accomplice
evidence, the jury could not consider the accomplice testimony in determining
guilt. Appellant asserts that the non-accomplice evidence alone is insufficient to
prove that he committed murder and that he engaged in organized criminal activity.
       Six accomplice witnesses testified that the group went to the Barina
residence to avenge an affront to their Aryan Circle “brother,” that Appellant was
the only person with a gun, and that he fired the shots toward that residence. All of
that evidence supports a conclusion that Appellant committed the charged offenses.
All three of Appellant’s sufficiency issues turn on whether that accomplice
testimony is sufficiently corroborated.


                                          11
             1. Accomplice Witnesses
      The trial court instructed the jury that Wilkins, Scott, Caldwell, Jackson,
Fierros, and Callaway were accomplice witnesses as a matter of law. The trial
court did not hold that Griffin and Chunn were accomplice witnesses as a matter of
law but, instead, submitted the issue to the jury. The trial court correctly instructed
the jury that it could not use accomplice testimony to convict Appellant unless it
found that there was other evidence “tending to connect” Appellant with the
offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Appellant
argues that, in our review of the sufficiency of the non-accomplice testimony, we
must eliminate the testimony of any “discredited witness,” which includes any
witness who received a benefit from the State in exchange for their testimony. We
disagree.
      A person is an accomplice if he participates in the commission of the offense
with the requisite culpable mental state. Cocke v. State, 201 S.W.3d 744, 748
(Tex. Crim. App. 2006). “Participation” requires an affirmative act that promotes
the commission of the charged offense before, during, or after it has been
committed. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). A
witness is culpable as a party to the offense in which the defendant was charged if
he acted “with intent to promote or assist the commission of the offense.” TEX.
PENAL CODE ANN. § 7.02(a)(2) (West 2011). The evidence must show that the
witness “harbored the specific intent to promote or assist the commission of the
offense.” Pesina v. State, 949 S.W.2d 374, 382 (Tex. App.—San Antonio 1997,
no pet.); see TEX. PENAL CODE ANN. § 6.03(a) (West 2011) (“A person acts
intentionally . . . when it is his conscious objective or desire to engage in the
conduct or cause the result.”).
      “Mere presence at a crime scene does not make an individual an accomplice,
nor is an individual an accomplice merely because he has knowledge about a crime
                                          12
and fails to disclose that knowledge.”          Cocke, 201 S.W.3d at 748; see also
Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). “A witness is not
an accomplice witness merely because he or she knew of the offense and did not
disclose it, or even if he or she concealed it.” Druery, 225 S.W.3d at 498. “In
short, if the witness cannot be prosecuted for the offense with which the defendant
is charged, or a lesser-included offense of that charge, the witness is not an
accomplice witness.” Id.
      If the facts are unclear about whether a particular witness is an accomplice,
the trial court should define “accomplice” and instruct the jury to decide whether
the “witness is an accomplice witness as a matter of fact.” Id. at 498–99. If there
is some evidence of an affirmative act by the witness to assist in the commission of
the charged offense, a jury instruction must be in the court’s charge. Id. at 499.
When a 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,” the trial court has a “duty to instruct the jury that a witness
is an accomplice witness as a matter of law.” Id. at 498. If the witness is an
accomplice witness as a matter of law or if the jury finds that the witness is an
accomplice, then the jury must find other evidence that tends to connect the
accused to the crime. CRIM. PROC. art. 38.14.
      Appellant first argues that May is an accomplice because he “received a
sentence reduction for testifying against the Appellant.” We agree with the State’s
contention, however, that May is not an accomplice because he did not participate
in “the commission of the crime.” After Appellant admitted to the murder, May
sent a letter to the district attorney offering to testify, and the State agreed to a two-
year plea agreement instead of the previous three-year offer. Appellant is correct
that May could have had a reason to be biased because of his reduction in sentence,
but because he could not be charged with the same or a lesser included offense of
                                           13
the charged offenses, May is not an accomplice witness. See Druery, 225 S.W.3d
at 498. Therefore, the jury could have considered his testimony as non-accomplice
corroborating evidence.
      Appellant also contends that all the State’s witnesses who were involved
with the offense were accomplices. The State argues that Chunn was not an
accomplice witness because he was merely present during the commission of the
offense. Appellant neither asked the trial court to instruct the jury that Chunn was
an accomplice as a matter of law nor objected to the submission of the issue to the
jury. Moreover, Appellant does not argue on appeal that such an instruction should
have been given. Instead, Appellant argues that, when we assess the sufficiency of
the corroborating non-accomplice testimony, we should not consider the testimony
of any witness that was “involved with the offense on the night in question”
because each “received dismissals or a significant reduction in the sentences or
their charges.”
      Chunn worked with Jackson and Callaway, but Chunn was not a member of
the Aryan Circle. Chunn testified that his crew was heading home from the oil
field when Jackson received a phone call. After Jackson received the call, they
stopped at a convenience store. Chunn testified that they met a group of people at
the store but that he did not know them. Chunn said that some of the group got
into his car and some got into a Yukon and that they all went to a residence. But
when they heard gunfire, everyone ran and hid behind a “trailer” across the street.
According to Chunn, Appellant fired a gun in the direction of Barina’s home
before the group got back into the vehicles and left.
      Later, investigators called Chunn’s cell phone to ask some questions, but
Chunn never gave a formal statement and was never charged. Chunn was in jail
for other charges in another county and did not know he would testify against


                                         14
Appellant until he heard that a bench warrant had been issued. The State made no
promises to Chunn for his testimony.
      Chunn’s presence at the murder scene did not render him an accomplice.
See Druery, 225 S.W.3d at 498. Because Chunn was not charged and because the
evidence did not show that he could have been indicted for the same offense, he
was not an accomplice as a matter of law. Id.; Cocke, 201 S.W.3d at 747–48.
There was some evidence, however, that Chunn may have committed an act to
promote the commission of the offenses. It was proper for the trial court to submit
to the jury the issue of whether Chunn was an accomplice witness.           And a
reasonable jury could have found that Chunn neither participated in the
commission of the offenses nor had the required intent. See Solomon v. State, 49
S.W.3d 356, 362 (Tex. Crim. App. 2001) (holding that, when a jury is instructed to
determine whether a witness is an accomplice, the jury may believe that the
witness was not an accomplice); In re A.N.V., No. 11-05-00200-CV, 2007 WL
118926, at *4 (Tex. App.—Eastland Jan. 18, 2007, no pet.) (mem. op.) (jury is free
to believe witness is not an accomplice). Therefore, the jury could have considered
Chunn’s testimony as non-accomplice corroborating evidence.
            2. Accomplice-Witness Corroboration
      “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.” CRIM. PROC. art. 38.14. To review the sufficiency of corroborating
evidence, we eliminate the accomplice witness testimony and consider the
remaining evidence in the record to determine whether any evidence tends to
connect the defendant to the commission of the offense. Solomon, 49 S.W.3d at
361; Keith v. State, 384 S.W.3d 452, 457 (Tex. App.—Eastland 2012, pet. ref’d).
Although the mere presence of the accused at the scene of the crime is by itself
insufficient corroboration, presence combined with other suspicious circumstances
                                        15
may sufficiently connect the defendant to the offense. Dowthitt v. State, 931
S.W.2d 244, 249 (Tex. Crim. App. 1996); Cox v. State, 830 S.W.2d 609, 611 (Tex.
Crim. App. 1992). A defendant’s conduct prior to or after the offense may connect
the defendant with the commission of the offense. Smith v. State, 332 S.W.3d 425,
445 (Tex. Crim. App. 2011). “Thus there must simply be some non-accomplice
evidence which tends to connect appellant to the commission of the offense alleged
in the indictment.” McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997).
      Appellant argues that, once the accomplice-witness testimony is eliminated,
no physical evidence connects him to the offenses and no witnesses remain who
identify “Appellant as the shooter.” We disagree for two reasons. First, the
requirement is not that the corroborating evidence independently prove that
Appellant committed the offenses but that it tends to connect him to the offenses.
See Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999) (“It is not
necessary that the corroborating evidence . . . be sufficient by itself to establish
guilt.”). Second, Appellant ignores Chunn’s testimony because he assumes it is
accomplice testimony, but because a rational jury could have found that Chunn
was not an accomplice, Chunn’s testimony cannot be ignored.
      Chunn testified that Appellant had a chrome-plated pistol and “put his hand
back to push everybody behind him” as they hid behind the trailer. Chunn said
that Appellant “leaned up against the trailer and took aim and fired” his gun in the
direction of the residence. Chunn told the jury that his group ran and jumped in the
two vehicles and left. According to Chunn, Appellant told the group later that
night that he had shot someone.
      The State’s other non-accomplice evidence showed that Appellant admitted
to May that he had shot and killed someone and also that he admitted to jailer
McKinney that he would stay out of jail if he did not commit a murder for a while.
Appellant also threatened to kill May. The investigators found four spent shell
                                        16
casings near the trailer. A neighbor testified that he was familiar with gunfire and
that he heard five shots from a handgun and one from a shotgun that night. That
evidence is consistent with other testimony that a warning shot had been fired from
the handgun, that four shots had been fired from across the street near the trailer,
and that a shotgun had been fired at the ground. This evidence tends to connect
Appellant to Valdez’s murder and the associated organized criminal activity
offense, and it sufficiently corroborates the testimony of the accomplice witnesses.
Appellant’s first issue is overruled.
       C. Issues Four and Five: Sufficiency of the Evidence
       Appellant asserts in his fourth and fifth issues that the evidence is legally
and factually insufficient to support both of his convictions. The Court of Criminal
Appeals has concluded that “there is no meaningful distinction between” reviewing
the evidence for factual and legal sufficiency and has instructed that “the
Jackson v. Virginia legal-sufficiency 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, 895 (Tex. Crim. App. 2010)
(referring to Jackson v. Virginia, 443 U.S. 307 (1979)). Under the Jackson v.
Virginia standard, we must defer to the jury’s credibility and weight
determinations. Id. at 894. We consider all of the evidence in the light most
favorable to the verdict to determine whether a jury could rationally find the
defendant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at
319.
       A person commits the offense of murder if he knowingly or intentionally
causes the death of an individual. See TEX. PENAL CODE ANN. § 19.02 (West 2011).
To prove that Appellant committed the offense of engaging in organized criminal
activity, the State must have shown that he (1) intended to participate in a criminal
                                         17
street gang and (2) committed murder. See TEX. PENAL CODE ANN. § 71.02(a)(1)
(West Supp. 2012). Appellant concedes he was a member of the Aryan Circle, a
criminal street gang, but argues that the evidence did not prove he was “the
shooter” and that, therefore, he is not guilty of murder or organized criminal
activity. Appellant again incorrectly assumes Chunn was an accomplice.
      The State sought to prove that Appellant, six Aryan Circle members, and
two others, went to Barina’s home to retaliate against Roupp, Valdez, and Barina
for a fight earlier that night with Scott. The jury was instructed that “[a] person
commits the offense of MURDER if a person intentionally or knowingly causes
the death of an individual, or if a person intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an
individual.” The jury was instructed that a person acts intentionally “when it is his
conscious objective or desire to cause the result” and that a person acts knowingly
“when he is aware that his conduct is reasonably certain to cause the result.” See
PENAL § 6.03(a), (b).
      The State argued that Appellant was the only one with a gun who fired in the
direction of the three men, killing Valdez. The jury heard testimony of eight other
people who went with Appellant to Barina’s home that night. Scott called Jackson
and told him about the fight at Fierros’s house. Both Scott and Jackson called
Appellant, Wilkins, and Caldwell, and Callaway, Griffin, and Chunn were in the
car with Jackson. The group of nine converged at the 7-Eleven across from
Fierros’s house and planned to retaliate. Jackson testified he called Roupp and
explained that “something had to be done” for “jumping” Scott and Fierros.
Jackson offered to meet and fight it out one-on-one, but when Roupp said “he
wasn’t trying to do that,” Jackson told him that Roupp would “suffer the
consequences.” Fierros, Scott, Wilkins, and Caldwell testified that Fierros had
been to Barina’s home a few times and that she took them there. Fierros testified
                                         18
that everyone was aware that they were going to Barina’s home to retaliate for
what happened to Fierros and Scott.
      All of the accomplices testified that, when the group arrived and exited their
vehicles, they heard gunfire and scattered.      Wilkins, Fierros, Caldwell, and
Callaway testified that they drove off after hearing gunshots and met up with the
rest of the group later. Scott, Jackson, Chunn, and Griffin testified that they ran
across the street and hid behind a trailer. Scott testified that he saw Appellant
down on one knee and saw “muzzle flashes coming out of his hand.” Jackson
testified that he was kneeling about a foot away when he watched Appellant fire
his weapon “[t]owards the crowd of silhouettes.” Callaway testified that Appellant
was shooting at Barina’s trailer. Chunn also saw Appellant aim and fire at the
Barina residence. Everyone testified that they ran to their vehicles and went to the
home of Wilkins’s aunt.
      Appellant also admitted to others in his gang that he fired his weapon and
killed someone that night. Wilkins testified that Appellant said he “thought he got
him.” Scott testified that Appellant told them that he saw “one fall.” Fierros
testified that Appellant said “he got one of them.”        According to Jackson,
Appellant said, “I think I got one.” Caldwell testified that she heard someone say
“one fell.” Later, Appellant told Jackson that the plan was to tell the police that
Scott pulled the trigger. Jackson testified that he even received a letter from
Appellant in which Appellant stated that someone would be charged and that, if he
went to prison, everyone was “going to suffer over it.”
      Wilkins testified that Appellant brought his silver-plated .380 handgun on
the night that the offenses were committed. Wilkins testified that she also saw
Appellant take the gun with him when he got out of the vehicle at Barina’s
residence. Wilkins and Jackson both testified that Appellant was the only person
who had a gun. Jackson saw Appellant with “a little .380” handgun. Wilkins also
                                        19
told the jury that, when Appellant heard that the police might search their
residence, she saw him put the .380 handgun into a black trash bag and place it in
the dumpster and heard him ask Caldwell and Truex to “come pick it up.”
Caldwell testified that she and Truex went to the alley behind Appellant’s house,
picked up the gun, and took the gun to Truex’s house. A few days later, Caldwell
showed Truex how to take apart the gun and “clean it off.” Jennifer McWilliams
told the jury that she and Truex burned the gun at her house and dumped it in a
pond. Finally, investigators recovered four spent casings near the corner of the
trailer; they had been fired from a .380.
      There is sufficient evidence to show that Appellant fired his gun in the
direction of the three men. When a person fires a gun into a group of people
without a specific or intended victim, the probability of serious bodily injury is so
great that any resulting death constitutes murder. See Womble v. State, 618 S.W.2d
59, 64 (Tex. Crim. App. [Panel Op.] 1981); Salisbury v. State, 235 S.W. 901, 902
(Tex. Crim. App. 1921).        A rational jury could have concluded beyond a
reasonable doubt that Appellant committed the offenses of murder and engaging in
organized criminal activity. We, therefore, overrule Appellant’s fourth and fifth
issues.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                          MIKE WILLSON
June 13, 2013                                             JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.

                                            20
