                          NUMBER 13-12-00044-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

NELSON DEJESUS HERNANDEZ,                                             Appellant,

                                        v.

THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 253rd District Court
                        of Liberty County, Texas.


                       MEMORANDUM OPINION
              Before Justices Rodriguez, Garza,and Perkes
                Memorandum Opinion by Justice Garza
      By one issue, appellant Nelson DeJesus Hernandez challenges his conviction of

aggravated assault, a second-degree felony for which he was sentenced to seventeen

years’ imprisonment. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). We affirm.
                                          I. BACKGROUND1

       On May 14, 2010, police in Dayton, Liberty County, Texas, were dispatched to

the residence of Wilhelmenia Howard in response to a report of a shooting. Howard

was, at that time, senior warden of the nearby Plane Henley Jail complex. When police

arrived at the scene, they found no one injured.                 However, three vehicles in the

driveway of the residence had shattered windows and bullet holes, and there was

shattered glass and bullet holes in the front of the house. Dozens of spent .40 and .45

caliber shell casings and bullet fragments were recovered, as was a sample of a small

amount of blood found outside the house.

       People standing outside the residence advised officers that the suspects in the

shooting were “two males, possibly Hispanic” driving a “small blue passenger car.”

Police also interviewed Howard’s sons, Kasey Young and Horatio Young, who were in

the residence at the time of the shooting. Kasey advised police that the shooters were

“two Hispanic males,” one of whom is named “Henry” and the other whose face was

covered by a bandana. Kasey also reported that the suspect wearing a bandana had

used a gold-colored rifle.2

       Edward Benoit, an assistant warden at the Plane Henley complex, testified that

he heard shots fired from the direction of Howard’s residence—which was only around

400 yards away from the jail complex—at around 5:00 p.m. When he heard the shots,

he left the complex to see what had happened at Howard’s house. On his way there,


       1
          This appeal was transferred from the Ninth Court of Appeals to this Court pursuant to a docket
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West
2005).
       2
          Howard herself was present when police arrived at the scene but was not at her residence at
the time of the shooting.

                                                   2
he saw a “dark colored, mid-size vehicle,” similar to a Honda Accord, leave the

residence’s driveway and pick up speed. He did not see the occupants of the vehicle,

and he did not pursue the vehicle.

       William Morris, a correctional officer, was stationed at a watchtower on the Plane

Henley complex when he heard the shots fired from the warden’s house.                  Morris

testified that, using binoculars, he observed two “white or Hispanic” individuals get into a

car in the driveway and drive away from the house shortly after the shots were fired. He

described the car as “dark colored, small, like a Cavalier or a Toyota.”

       Benjamin Luce, a Harris County Deputy Sheriff, testified that he received a

dispatch directing law enforcement officers to be on the lookout for a blue four-door car

occupied by two Hispanic males. At around 6:00 p.m., he observed a vehicle matching

that description and he pursued the vehicle at high speed until the suspect vehicle

crashed into “two large rocks in somebody’s yard.” Deputy Luce identified appellant as

the driver of the vehicle. According to Deputy Luce, there was a “gold-plated Thompson

.45 rifle” in appellant’s lap and a Colt revolver on the floor of the vehicle near appellant’s

feet. Appellant was wearing gloves that covered his fingers, despite the fact that it was

not cold outside at the time. The passenger in the vehicle was identified as Henry

Hernandez, appellant’s brother. Another passenger, a white male identified as Larry

Galloway, was sitting in the back seat. An in-car video recording of Deputy Luce’s

pursuit and its aftermath was introduced into evidence and played for the jury.

       Another Harris County Deputy Sheriff, Moses DeArcos, was involved in the high

speed pursuit. He testified that he was the first officer to approach the driver’s side door

of the suspect vehicle, and that when he did so, he observed appellant holding the rifle

under his chin and “trying to rack a round in it.” Believing that appellant was about to
                                              3
commit suicide, Deputy DeArcos grabbed the rifle and pulled it away.

         Kasey Young testified that, at around 5:30 p.m. on the day in question, Henry

Hernandez walked up to the front door of the house and told Kasey to come outside.

Kasey knew Henry because they had gone to high school together.             When Kasey

refused to go outside, Henry “punched . . . out” the glass of the front door.      Kasey

testified that he then saw another man—who was “kind of heavy,” possibly Hispanic,

and had his face covered with a bandana—behind Henry holding a rifle. Kasey closed

the door and ran back into the house, pushing his brother, Horatio, back into the house

as well. As Kasey hid in the kitchen, he heard gunfire coming from outside the house.

Later, Kasey could see through blinds in the kitchen that the assailants had left in their

car.

         Horatio Young testified that he heard the doorbell ring and that Kasey was

arguing with someone at the door. When the argument stopped, “[o]ne guy ran up with

a gun and started shooting.” Horatio described the weapon as a “gold-plated” assault

rifle.

         Larry Galloway testified that he, appellant, and Henry were hanging out in a

trailer park on May 14, 2010, when appellant said he wanted to “collect on a debt from a

friend or something, [an] acquaintance they had.” He, appellant, and Henry got into a

blue Chevrolet Cavalier and travelled to Dayton. When they arrived at their destination,

Henry got out of the car, walked up to the front door of the house, and asked for

someone to come outside. He then heard a window shatter and saw Henry return to

the car bleeding from his hand. Galloway then began shooting at the top of the house

with a pistol. He could not see what appellant was doing, but he heard other gunshots

and knew that appellant was the only other person in the group that was armed. The
                                            4
three men got back into the Cavalier and fled.        They were pursued by police and

eventually arrested.

      Forensic examination confirmed that the blood found at the crime scene matched

the DNA profile of Henry Hernandez and that the spent shell casings found at the scene

were fired from the gold-plated rifle found in appellant’s hands when he was arrested.

      Appellant was convicted of aggravated assault and sentenced to seventeen

years’ imprisonment. This appeal followed.

                                     II. DISCUSSION

      By a single issue, appellant contends that the evidence was insufficient to

support his conviction. In the argument section of his brief, appellant sets forth the law

applicable to evidentiary sufficiency as well as the law applicable to corroboration of

accomplice evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). He

then argues that the evidence was insufficient to support his conviction because,

“eliminating from consideration the testimony of the accomplice witness, it cannot be

concluded that the jury could have reasonably determined beyond a reasonable doubt”

that Hernandez committed the charged offense.

      This is an incorrect application of the law. A challenge of insufficient evidence to

support a verdict is not the same as a challenge of insufficient corroboration of

accomplice testimony, but is instead governed by a different test. See Yost v. State,

222 S.W.3d 865, 871–72 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (citing

Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999) (en banc); Torres v.

State, 137 S.W.3d 191, 196 (Tex. App.—Houston [1st Dist.] 2004, no pet.)). In a legal

sufficiency review, we consider all the evidence, even uncorroborated accomplice

testimony. See id. at 875. On the other hand, the evidence required to corroborate
                                             5
accomplice testimony does not need to be in itself sufficient to establish guilt beyond a

reasonable doubt, nor must it directly link the accused to the commission of the offense.

Patterson v. State, 204 S.W.3d 852, 859 (Tex. App.—Corpus Christi 2006, pet. ref’d)

(citing Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Gill v. State, 873

S.W.2d 45, 48 (Tex. Crim. App. 1994); Munoz v. State, 853 S.W.2d 558, 559 (Tex.

Crim. App. 1993); Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992)). Instead,

accomplice testimony must merely be “corroborated by other evidence tending to

connect the defendant with the offense committed . . . .” TEX. CODE CRIM. PROC. ANN.

art. 38.14.

       Although appellant’s brief incorrectly applies the law, it does correctly set forth

the law applicable to both evidentiary sufficiency and corroboration of accomplice

testimony. Accordingly, we will address both issues.

A.     Corroboration of Accomplice Testimony

       Under article 38.14 of the code of criminal procedure, “[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. . . .” Id.; Smith v. State,

332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (quoting Blake v. State, 971 S.W.2d 451,

454 (Tex. Crim. App. 1998)) (“The Legislature has determined that the factfinder should

exercise caution when considering the testimony of an accomplice” because

“‘accomplices often have incentives to lie, such as to avoid punishment or shift blame to

another person.’”).3 “[C]orroboration is not sufficient if it merely shows the commission


       3
          An accomplice is a person who participates with a defendant before, during, or after the
commission of a crime and acts with the required culpable mental state. Patterson v. State, 204 S.W.3d
852, 858 (Tex. App.—Corpus Christi 2006, pet. ref’d) (citing Kutzner v. State, 994 S.W.2d 180, 187 (Tex.
Crim. App. 1999)). It is undisputed that Galloway was an accomplice of appellant.

                                                   6
of the offense,” id., but even apparently insignificant incriminating circumstances may

sometimes afford satisfactory evidence of corroboration. McAfee v. State, 204 S.W.3d

868, 871 (Tex. App.—Corpus Christi 2006, pet. ref’d) (citing Dowthitt, 931 S.W.2d at

249; Munoz, 853 S.W.2d at 559). The absence of “smoking gun” evidence does not

invalidate evidence that does connect the defendant to the offense. Id. (citing Treviño v.

State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999)).

       The only accomplice of appellant to testify at trial was Galloway.         Excluding

Galloway’s testimony, the corroborating evidence included the following: the testimony

of Kasey and Horatio Young that a man meeting appellant’s description opened fire with

a rifle at their house; the testimony of Benoit and Morris that a small dark-colored

vehicle departed the scene shortly after they heard shots fired; Deputy Luce’s testimony

that he pursued a small blue four-door car, that appellant was driving the vehicle, that

appellant had a gold-plated .45 caliber rifle in his lap and a revolver at his feet, and that

appellant was wearing gloves even though it was not cold outside; and the forensic

evidence which established that the spent shell casings found at the scene were fired

from the same gold-plated rifle recovered from appellant. All of this evidence tended to

connect appellant to the offense.      Therefore, Galloway’s testimony was sufficiently

corroborated. See TEX. CODE CRIM. PROC. ANN. art. 38.14.

B.     Evidentiary Sufficiency

       In reviewing evidence for legal sufficiency, we consider 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. Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia,

443 U.S. 307, 319 (1979)). We give deference to “the responsibility of the trier of fact to
                                             7
fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). When faced with conflicting

evidence, we presume that the trier of fact resolved any such conflict in favor of the

prosecution, and we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex.

Crim. App. 1993).

       Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried. Id. Here, a hypothetically

correct jury charge would state that appellant is guilty of aggravated assault as alleged

in the indictment if he (1) intentionally or knowingly threatened Kasey Young with

imminent bodily injury and (2) used or exhibited a deadly weapon. See TEX. PENAL

CODE ANN. § 22.01(a)(2) (West 2011); id. § 22.02(a)(2).

       The jury was instructed on the law of parties, which states that a person is

criminally responsible for an offense committed by 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). When we review the sufficiency of the evidence supporting a defendant’s

participation as a party to the crime, “we may consider ‘events occurring before, during

and after the commission of the offense, and may rely on actions of the defendant which

show an understanding and common design to do the prohibited act.’” King v. State, 29
                                            8
S.W.3d 556, 564 (Tex. Crim. App. 2000) (quoting Ransom v. State, 920 S.W.2d 288,

302 (Tex. Crim. App. 1994)).

       As noted above, the evidence supporting appellant’s conviction included

testimony that a man meeting appellant’s description opened fire with a gold-plated rifle

at Howard’s house, that appellant had a gold-plated rifle in his lap at the time he was

apprehended by police, and that spent shell casings found at the scene were from that

rifle. The evidence before the jury also included Galloway’s testimony that he traveled

with appellant to Dayton in order to “collect on a debt” and that, though he did not see

appellant fire his rifle at the house, he heard gunshots and knew that appellant was the

only other person in his group that had a firearm. This evidence allowed a reasonable

trier of fact to find that appellant, as a principal or as a party, intentionally or knowingly

threatened Kasey Young with imminent bodily injury while using or exhibiting a deadly

weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2). The evidence was

therefore sufficient to support appellant’s conviction. See Brooks, 323 S.W.3d at 895.

       Having found sufficient evidence to corroborate the accomplice testimony and to

support appellant’s conviction, we overrule appellant’s sole issue.

                                      III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                  _______________________
                                                  DORI CONTRERAS GARZA
                                                  Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of May, 2013.



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