Opinion issued May 28, 2015




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-14-00232-CR
                          ———————————
                    ARTURO CHAVEZ, JR., Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 338th District Court
                          Harris County, Texas
                      Trial Court Cause No. 1338052




                        MEMORANDUM OPINION

     A jury found Arturo Chavez guilty of the offense of first degree murder. See

TEX. PENAL CODE ANN. § 19.02 (West 2014).          The trial court assessed his

punishment at life imprisonment. Id. § 12.32 (West 2014). On appeal, Chavez
contends that the non-accomplice evidence adduced at trial is legally insufficient to

corroborate the accomplice testimony presented and to connect Chavez to the

crime. He further contends that the evidence is legally insufficient to establish his

guilt. We hold that the evidence is legally sufficient and therefore affirm.

                                    Background

      In November 2004, Daniel Torres, Carlos Barrera, and Santiago Garcia

worked for Chavez. One night, Garcia was shot and killed in a street near a

Baytown park. The Baytown Police Department investigated the murder, but it

never charged anyone with the commission of a crime.

      About seven years later, in 2011, Detective Reyes from the Baytown Police

Department received new information about the murder from an FBI agent. Reyes

contacted Torres. During an interview with Reyes, Torres admitted to playing a

role in the murder; he implicated Chavez and another person, Carlos Barrera.

Torres pleaded guilty to a murder charge and agreed to testify for the State as an

accomplice-witness in exchange for a recommendation of fifteen years in prison.

      At Chavez’s trial, Torres testified as an accomplice-witness. He testified

Barrera shot Garcia but that Chavez had directed and planned the murder. As non-

accomplice witnesses, W. Navarrete testified that he loaned Chavez a car that

matched Torres’s description of the getaway car used in the commission of the

offense; F. Velasquez testified that Torres, Barrera, and Chavez tried to destroy a


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gun on the night of the murder at Velasquez’s house; and C. Benavidez testified

about Chavez’s actions on the night of the murder and his later conversations about

it.

                                    Discussion

      Chavez contends that the non-accomplice witness evidence adduced at the

trial does not sufficiently corroborate Torres’s testimony. He further contends that

there is insufficient evidence to establish his guilt, but he similarly argues the

sufficiency of the non-accomplice evidence to support his argument.

      Standard of Review

      Under article 38.14 of the Texas 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; and the

corroboration is not sufficient if it merely shows the commission of the offense.”

TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2013). “The test for sufficient

corroboration is to eliminate from consideration the accomplice testimony and then

examine the other inculpatory evidence to ascertain whether the remaining

evidence tends to connect the defendant with the offense.” McDuff v. State, 939

S.W.2d 607, 612 (Tex. Crim. App. 1997) (citing Burks v. State, 876 S.W.2d 877,

887 (Tex. Crim. App. 1994)); Rios v. State, 263 S.W.3d 1, 7 (Tex. App.—Houston

[1st Dist.] 2005, pet. dism’d).    We consider the combined force of the non-


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accomplice evidence that tends to connect the defendant to the offense. Smith v.

State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011) (citing Mitchell v. State, 650

S.W.2d 801, 807 (Tex. Crim. App. 1983)). The corroborating evidence need not

be sufficient on its own to establish guilt; there simply must be other evidence that

tends to connect the defendant to the crime. Castillo v. State, 221 S.W.3d 689, 691

(Tex. Crim. App. 2007).        When there are two permissible views of the

corroborating evidence, we defer to the jury’s view of the evidence. Simmons v.

State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009).

      An accomplice is a person who participates in the offense before, during, or

after its commission, with the requisite mental state. Druery v. State, 225 S.W.3d

491, 498 (Tex. Crim. App. 2007). The accomplice witness “may be an accomplice

as a matter of law or as a matter of fact.” Smith, 332 S.W.3d at 439. A witness

who is indicted for the same offense as the accused is an accomplice as a matter of

law. Id. We examine the testimony adduced at the trial in light of these legal

principles.

      Under the standard of review for legal sufficiency challenges, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational factfinder could have found that

each essential element of the charged offense was proven beyond a reasonable




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doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Laster

v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).

      Analysis

      Torres is an accomplice as a matter of law because he was convicted of

murder for his participation in the shooting pursuant to a plea bargain. See id. The

trial court thus properly instructed the jury that Torres’s testimony was

accomplice-witness testimony and it could not convict Chavez without other

evidence tending to connect Chavez to the offense.         We examine the non-

accomplice testimony first.

      1. Non-accomplice Witness Testimony

      First, W. Navarrete testified that he owned a green Impala in November

2004 and he knew Chavez, but did not know Barrera or Torres. Navarrete once

loaned the Impala to Chavez but he did not remember the date of the loan. Chavez

asked to borrow the car because someone owed him money, and he did not want to

be seen in his own car. When Chavez picked up the car, Navarrete noticed two

other people waiting in Chavez’s car. Navarrete remembered that the car was

returned to his driveway before 5:00 or 6:00 the following morning.

      Second, F. Velasquez, Chavez’s friend, testified that Chavez called him on

November 14, 2004, the day before the murder. In the conversation, Chavez

reported that Garcia had tried to break into his house. Later that night, early on


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November 15, Chavez called Velasquez again and said, “[T]hey had killed

Garcia.” Chavez told Velasquez that Barrera and Torres were on their way to

Velasquez’s house in Beaumont. Barrera and Torres arrived at Velasquez’s house

about forty-five minutes later. Chavez, his family, and his brother also arrived at

Velasquez’s home. Chavez, his brother, Barrera, Torres, and Velasquez went into

a tent on Velasquez’s property. Inside the tent, Chavez tried to burn the gun with a

plumber’s torch; when it would not melt, Chavez took the gun apart. Chavez,

Torres, and Barrera each took some of the parts, and Chavez threw a part of the

gun in the water behind the house. Shortly afterward, everyone left Velasquez’s

house. Chavez told Velasquez that he planned to go to Mexico so that “everything

would cool down.”

      Finally, Chavez’s ex-wife, C. Benavidez, testified that Chavez woke her up

in the middle of the night of the murder, telling her that they were not safe in the

house and needed to leave. Chavez, Benavidez, and their children went to a hotel

and stayed there for a few hours. Then they drove to Velasquez’s house in

Beaumont. Benavidez remained in the parked car outside the house, but she saw

Barrera and Torres from the car. She saw Chavez, Barrera, Torres, and Velasquez

go inside; she remained in the car for an hour or two. Chavez and Barrera then

returned to the car.   Chavez drove to a pier. On the way, Chavez and Barrera

discussed Garcia’s murder, stating that they did him a favor because he had been


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doing drugs and he could be with his deceased father. When they arrived at the

pier, Barrera exited the car and dropped an object into the water.

       Later that day, Chavez, Benavidez, and their children left for Mexico. They

returned from Mexico two months later. Chavez openly talked about the murder

with other people in front of Benavidez during the years between the murder and

the trial.

       We hold that this non-accomplice evidence sufficiently connects Chavez to

Garcia’s murder. See TEX. CODE CRIM. PROC. ANN. art. 38.14; Smith, 332 S.W.3d

at 442; Simmons, 282 S.W.3d at 508. Navarrete testified that he lent his green

Impala to Chavez overnight.      Although he could not remember the date, the

description of events corroborated Torres’s testimony about the timing and

circumstances of borrowing the green Impala.          Velasquez’s testimony about

Chavez’s attempts to destroy a gun on the night of Garcia’s murder tends to

connect Chavez to the crime. See Castillo, 221 S.W.3d at 691; Miller v. State, 177

S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (attempting to

hide evidence is circumstantial evidence of guilt). Benavidez’s testimony that

Chavez moved their family in the middle of the night to a hotel, then to Beaumont

and Mexico, is evidence of Chavez’s flight and consciousness of guilt. Velasquez

similarly testified that Chavez planned to go to Mexico until everything calmed

down after Garcia’s murder. Evidence of a defendant’s flight may tend to connect


                                          7
him with a crime when combined with other corroborating circumstances. See

Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997) (“Evidence of

flight and guilty demeanor, coupled with other corroborating circumstances, may

tend to connect a defendant with a crime.”) (citing Burks, 876 S.W.2d at 888);

Miller, 177 S.W.3d at 184 (flight immediately after shooting is circumstantial

evidence of guilt). Finally, Benavidez testified that Chavez took partial credit for

the murder when he spoke with Barrera stating that they had done Garcia a favor

by killing him.

      Chavez relies on cases from the Texas Court of Criminal Appeals and our

sister courts to argue that the non-accomplice witness testimony presented against

him at most connects him with disposal of the gun after the murder, but does not

tend to connect him with planning or participating in the commission of the

offense. See Druery, 225 S.W.3d at 500; Cruz v. State, 690 S.W.2d 246, 250–51

(Tex. Crim. App. 1985); Wincott v. State, 59 S.W.3d 691, 698 (Tex. App.—Austin

2001, pet. ref’d). These cases are distinguishable from the facts presented in this

appeal in that the evidence of participation was more limited in scope. In Druery,

for example, the Court of Criminal Appeals held that a witness was not an

accomplice to the charged offense of murder where the evidence was that he

assisted in the disposal of the body and the murder weapon, but no evidence

connected him with the commission of the crime. 225 S.W.3d at 500. In Cruz, the


                                         8
court concluded that the defendant’s flight alone was not enough to connect the

defendant to the offense. 690 S.W.2d at 250–51. In Wincott, the court held that

the non-accomplice testimony in that case connected the defendant to the

accomplice and other suspects but did not connect him to the offense itself. 59

S.W.3d at 703. In contrast, the evidence non-accomplice witness evidence in this

trial tended to connect Chavez both with planning the commission of the offense

(by borrowing a vehicle that would not be recognized), his participation in it (his

conversation with Barrera, within earshot of Benavidez, and statements to

Velasquez that “they” had killed Garcia), as well as his efforts to destroy the gun

and his flight to Mexico.

      Having concluded that the non-accomplice evidence sufficiently connects

Chavez with the murder, we review Torres’s accomplice testimony together with

the other evidence adduced at trial to evaluate the legal sufficiency of the

conviction.

      2. Torres’s Testimony

      A person commits the offense of murder if he “intentionally or knowingly

causes the death of an individual” or “intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an

individual.” TEX. PENAL CODE ANN. § 19.02. “A person is criminally responsible

for an offense committed by the conduct of another if . . . acting with intent to


                                         9
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 2014); Nava v. State, 415 S.W.3d 289, 293 (Tex. Crim. App. 2013).

      Torres testified that Chavez engaged in smuggling immigrants from Mexico

to Baytown, Texas. On November 14, 2004, Chavez joined Barrera and Torres at

a hotel that they used in their illegal smuggling operation. Chavez believed that

Garcia was going to “talk or snitch” and that Barrera and Torres “needed to take

care of him.” Chavez formulated a plan to kill Garcia and gave Barrera and Torres

instructions. He told them that he would drop off Garcia at a park near the house

where Garcia lived. Chavez instructed Barrera and Torres to drive to the park in a

borrowed car. On the same day, Chavez, Barrera, and Torres went together to a

house in the Houston area to borrow a green Impala. Torres did not know the

owner of the car, but remembered picking up the car from someone’s house.

      Later that night, Torres drove Barrera to the park in the borrowed Impala.

Torres parked the car nearby. Torres and Barrera waited in the car for about five

minutes when Barrera received a phone call. After hanging up the phone, Barrera

got out of the car and told Torres he would be right back. Around ten minutes

later, Torres heard about seven gunshots. Barrera returned to the car and told

Torres, “I shot him.”




                                        10
      After the shooting, Torres drove to a small airport in Baytown as Chavez

had instructed. However, they saw a Harris County sheriff patrolling and decided

to meet Chavez at his father’s house. Once there, Chavez instructed Torres and

Barrera to drive to a house in Beaumont, where his friend Francisco Velasquez

lived. Chavez told them he would meet them later.

      Once Barrera and Torres reached Velasquez’s house, they waited a few

hours for Chavez. Chavez arrived at Velasquez’s house with his brother. After

Chavez arrived, he and his brother joined Barrera and Torres in a tent. Barrera

gave Chavez the gun, and Chavez attempted to destroy the gun with a torch. The

gun did not melt, and Torres did not see the gun after the attempt to melt it. Later,

Torres drove home in the Impala. Barrera took the car from him. On the morning

after the murder, Chavez met with Torres and instructed him not to tell anyone

about the murder.

      Viewing the evidence in the light most favorable to the verdict, we hold that

legally sufficient evidence supports the jury’s determination that Chavez was

guilty as a party to Garcia’s murder. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Laster, 275 S.W.3d at 517.




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                                   Conclusion

      We conclude that the non-accomplice witness testimony sufficiently

connects Chavez to Garcia’s murder and that the evidence overall is legally

sufficient to support Chavez’s conviction for murder. We therefore affirm the

judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Keyes, Bland, and Massengale.

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




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