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                                     MEMORANDUM OPINION

                                              No. 04-09-00282-CR

                                               Robert Baez CRUZ,
                                                   Appellant

                                                          v.

                                              The STATE of Texas,
                                                    Appellee

                       From the 186th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2008-CR-5916B
                           Honorable George H. Goodwin, Judge Presiding1

Opinion by:        Sandee Bryan Marion, Justice

Sitting:           Sandee Bryan Marion, Justice
                   Phylis J. Speedlin, Justice
                   Marialyn Barnard, Justice

Delivered and Filed: May 12, 2010

AFFIRMED

           A jury found appellant Robert Baez Cruz guilty of the murder of Corey Baxter and assessed

punishment at life imprisonment. On appeal, appellant asserts the trial court erred by (1) not

suppressing his statement, (2) allowing the jury to hear him referencing discussions with his

attorneys, (3) denying his motion for a directed verdict, (4) allowing evidence of extraneous offenses,

and (5) allowing the State to engage in improper bolstering. We affirm.


           1
            … The Honorable George H. Goodwin, sitting by assignment, presided over the trial.
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                       ISSUES NOT PRESERVED FOR OUR REVIEW

        In his second issue on appeal, appellant argues the trial court erred by admitting portions of

his DVD-recorded interrogation that contained references to his attorneys in violation of the federal

and state constitutions. In his fifth issue on appeal, appellant argues the trial court erred by allowing

improper bolstering testimony of another State’s witness from Detective Bradley.

        In order to preserve a complaint for appellate review, the complaining party must make a

timely objection, request, or motion with sufficient specificity in the trial court and obtain a ruling

on that objection, request, or motion. TEX . R. APP . P. 33.1(a). As to appellant’s second issue, the

record does not reflect that appellant objected to the admission of the DVD-recorded statement on

the basis that it contained references to his attorneys in violation of his constitutional rights. As to

appellant’s fifth issue, the record shows appellant lodged several objections during Detective

Bradley’s testimony; however, appellant made no objection to any of Detective Bradley’s testimony

on the basis of bolstering. Therefore, these issues are not preserved for our review. See id.

                             DVD-RECORDED INTERROGATION

        In his first issue on appeal, appellant argues the trial court abused its discretion by refusing

to suppress his DVD-recorded interrogation because (1) he did not receive the proper warnings prior

to questioning and (2) he was under the influence of methamphetamine, and therefore, he could not

voluntarily waive his rights.

        We review a trial court’s ruling on a motion to suppress for an abuse of discretion. State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We view the record in the light most

favorable to the trial court’s conclusion and reverse the judgment only if it is outside the zone of

reasonable disagreement. Id. We sustain the lower court’s ruling if it is reasonably supported by the


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record and is correct on any theory of law applicable to the case. Id. We give almost total deference

to a trial court’s express or implied determination of historical facts and review de novo the court’s

application of the law to those facts. Id.

       In order for an oral statement of the accused to be admissible, Texas Code of Criminal

Procedure article 38.22, section 3 requires, among other things, that (1) the statement be

electronically recorded, including by video tape, (2) the accused be given the warnings prescribed

in section 2(a), and (3) the accused knowingly, intelligently, and voluntarily waive any rights set out

in the warning. TEX . CODE CRIM . PROC. ANN . art. 38.22, § 3 (Vernon 2005). Section 2(a) requires

the accused be given the following warnings: “(1) he has the right to remain silent and not make any

statement at all and that any statement he makes may be used against him at his trial; (2) any

statement he makes may be used as evidence against him in court; (3) he has the right to have a

lawyer present to advise him prior to and during any questioning; (4) if he is unable to employ a

lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning;

and (5) he has the right to terminate the interview at any time . . . .” Id. § 2(a). However, the

accused may waive his section 2(a) rights, and a waiver of those rights may be inferred from his

actions and words. State v. Oliver, 29 S.W.3d 190, 191–92 (Tex. App.—San Antonio 2000, pet.

ref’d). For instance, we may infer a waiver where an oral confession contains a recitation of the

article 38.22 rights and the accused indicates he understands his rights and proceeds without

hesitation to participate in the interview. See id. at 193.

       Here, Detective Bradley interrogated appellant and electronically recorded the interrogation

on DVD. The video shows Detective Bradley, prior to asking appellant questions, reading appellant

the following:


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        You have the right to remain silent. You do not have to make any statement oral or
        written to anyone. Any statement that you make will be used in evidence against you
        in a court of law or at your trial. You have the right to have a lawyer present to
        advise you before and during any questioning by police officers or attorneys
        representing the State. You may have your own lawyer present, or, if you are unable
        to employ a lawyer, the court will appoint a lawyer for you free of charge now or at
        any other time. If you decide to talk with anyone, you can, or you can stop talking
        at anytime you want. The above rights are continuing rights which can be urged by
        you at any stage of these proceedings.

After reading appellant his rights, Detective Bradley asked appellant if he understood his rights.

Appellant responded by affirmatively nodding his head up and down. Detective Bradley then asked

appellant questions, and appellant responded without hesitation. Because Detective Bradley’s

warnings tracked the warnings required under article 38.22, we conclude appellant received the

proper warnings.

        Although there was some evidence that appellant was under the influence of

methamphetamine during the interrogation, Detective Bradley testified that appellant “knew what

he was doing . . . .” Additionally, appellant invoked his right to counsel once Detective Bradley

began questioning him about another murder—an indication he was no longer comfortable

answering questions without an attorney. Based on the totality of the circumstances, we conclude

appellant knowingly, intelligently, and voluntarily waived his rights by affirming that he understood

his rights and subsequently participating in the interrogation. Therefore, the trial court did not abuse

its discretion in refusing to suppress the statement.

                             MOTION FOR DIRECTED VERDICT

        In his third issue on appeal, appellant argues the trial court erred in denying his motion for

a directed verdict because the evidence was legally insufficient for two reasons. First, he argues the

accomplice witness testimony was not sufficiently corroborated because there was no evidence that


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the assault in which he participated was sufficient to cause Baxter’s death; at most, it corroborated

only that he was guilty of aggravated assault. Therefore, he could not be convicted of murder merely

upon the testimony of his accomplices. Second, appellant asserts the evidence is insufficient because

he could not have anticipated a murder would take place after he left the house. Therefore, according

to appellant, he could not be convicted under the law of parties.

         We treat a complaint on appeal about a trial court’s failure to grant a motion for directed

verdict as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479,

482 (Tex. Crim. App. 1996). In a legal sufficiency challenge, we review the evidence in the light

most favorable to the jury’s verdict and determine whether any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724,

729–30 (Tex. Crim. App. 2005); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). We consider

all the evidence the jury was permitted to consider, Johnson v. State, 871 S.W.2d 183, 186 (Tex.

Crim. App. 1993), but we do not re-evaluate the weight and credibility of the evidence or substitute

our judgment for that of the fact-finder, Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App.

1999).

A. Sufficiency of Corroborating Evidence

         Appellant asserts, and the State does not dispute, that several witnesses who testified against

him were accomplice witnesses.2 In order to convict upon the testimony of an accomplice witness,

the accomplice’s testimony must be corroborated by other evidence tending to connect the defendant

with the offense. TEX . CODE CRIM . PROC. art 38.14. The corroborative evidence need not be



         2
           … An accomplice is one who participates with a defendant before, during, or after the commission of a crime
and acts with the required culpable mental state. Paredes v. State, 129 S.W .3d 530, 536 (Tex. Crim. App. 2004).

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sufficient in itself to establish guilt, however, nor must it directly link the accused to the commission

of the offense. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008).

        Appellant’s argument that the evidence only corroborated the assault is without merit.

Detective Bradley testified appellant was arrested while in possession of a Bauer .25 caliber

semiautomatic pistol. Edwin Wallace, a forensic scientist, testified the pistol was the same pistol

used to shoot Baxter in the head. Thus, appellant is directly connected to a weapon used in the

offense. See Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1988) (evidence that

connects accused to weapon used in offense is proper corroborative evidence). Therefore, we

conclude the accomplices’ testimony was sufficiently corroborated by other evidence tending to

connect appellant to the murder, and appellant could properly be convicted upon their testimony.

B. Law of Parties

        Appellant asserts the evidence is insufficient because he could not have anticipated a murder

would take place after he left the Clemsford house—the house where Baxter was assaulted and

murdered—and therefore, he could not be convicted under the law of parties. We disagree.

        As applicable here, a person commits aggravated assault—a felony offense—if the person

intentionally, knowingly, or recklessly causes serious bodily injury to another. TEX . PENAL CODE

ANN . §§ 22.01(a)(1), 22.02(a)(1) (Vernon Supp. 2009). A person commits murder—also a felony

offense—if he intentionally or knowingly causes the death of an individual. Id. § 19.02(b)(1)

(Vernon 2003). Under the law of parties, if, in the attempt to carry out a conspiracy to commit one

felony, another felony is committed by one of the conspirators, all conspirators are guilty of the

felony committed if the felony was committed in furtherance of the unlawful purpose and was one

that should have been anticipated as a result of the carrying out of the conspiracy. Id. § 7.02(b). It


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does not matter that the offense originally intended by a defendant—in this case, aggravated

assault—subsequently escalated into murder. See Gordon v. State, 640 S.W.2d 743, 758 (Tex.

App.—San Antonio 1982, no writ), abrogated on other grounds by Reed v. State, 744 S.W.2d 112,

125 n.10 (Tex. Crim. App. 1988).

       Here, the evidence supports the State’s theory that appellant and several others conspired to

intentionally, knowingly, or recklessly cause serious bodily injury to Baxter. Clifford Vansyckle

testified that prior to the evening of the assault and murder, Baxter bragged to Terry Adams that

another man, Rudy Hettler, had hired him to “take out” appellant. Appellant heard about what

Baxter told Adams. He knew it was not true because he and Hettler were like brothers, but he

became extremely upset with Baxter for making it up. This led to talk of “disciplining” Baxter,

which Vansyckle explained meant beating him up. On the night of the assault and murder, several

people—including Baxter, Hettler, appellant, and Vansyckle—gathered in the garage at the

Clemsford house, a place where people commonly gathered to use methamphetamine. Baxter was

sitting on a bucket in the middle of the garage. Vansyckle, the self-proclaimed “enforcer” of the

group, removed his shirt and began circling Baxter in preparation of “disciplining” him. Before the

fight began, however, a man named Bryan Cyr and ten to fifteen other people entered the garage.

Cyr had a gun, and it became apparent that several others had guns, including appellant.

       Vansyckle then testified as to what happened next, including a narration of several videos

of the assault recorded on a cell phone. A man named Lupe Villarreal punched Baxter in his cheek.

Appellant began pacing back and forth in front of Baxter, staring him down. Vansyckle then saw

appellant hit Baxter in the back of the head with a tire thumper.3 Appellant later hit Baxter in the


       3
        … Vansyckle explained that a tire thumper is used to knock tires off or on when changing a flat.

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temple with a baseball bat. Vansyckle heard the hit, turned, and saw Baxter on the ground dazed and

twitching. Vansyckle testified he left the garage at that point, and later left the house; however, he

narrated the mobile phone video clips showing the events that occurred after he left. The clips

showed a man named Michael Yaws tying up Baxter who was on the ground. Cyr had his foot on

Baxter’s head. Vansyckle also testified he had seen another recorded video of the incident, which

showed Yaws throwing a brick full force at Baxter’s head. That video, however, was not admitted

into evidence.

       Vansyckle returned to the house after several hours. Several people were still in the garage

with Baxter, including appellant, Villareal, Cyr, and Hettler. Vansyckle testified Baxter looked

much worse but was still alive, was hog-tied, had been moved onto a tarp or a carpet, and appellant

and Yaws were kicking him in the head and face. Around 4 a.m., Vansyckle left the Clemsford

house with appellant and Hettler and dropped appellant off at his brother’s house. Appellant had

injured his foot while kicking Baxter, and Vansyckle noticed that he was limping. Later that

morning, Vansyckle saw on the news that Baxter’s body had been found behind a café.

       Jonathon Boyer testified that the night of the assault and murder, he saw Villareal and Yaws

“beating up on [Baxter].” Yaws had a baseball bat and acted as if he was going to hit Baxter, but

appellant grabbed the bat, told Baxter “it’s between me and you,” swung the bat and hit Baxter in

the head. Baxter fell to the floor and began to twitch. Boyer then left the garage because the

disciplining “wasn’t supposed to be . . . like that.” When Boyer returned to the garage a few hours

later, appellant, Cyr, Hettler, Villareal, Yaws, and several others were in the garage with Baxter.

Baxter had been moved onto a black tarp and tied up. Blood was on the floor, tarp, walls, and garage

door. Boyer saw appellant kicking Baxter. Appellant, Hettler, and Vansyckle were getting ready


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to leave, and Boyer noticed appellant had a limp.            Boyer went back upstairs to smoke

methamphetamine, and after a few hours, he heard what sounded like firecrackers. Later that

morning, Cyr told Boyer that Dane Batterton had “pulled the trigger.”

       Dane Batterton testified he had been severely beaten at the Clemsford house the night before

the murder. The night of the murder, he spent most of his time sleeping on the couch and recovering

from his beating. In the early morning after appellant had already left the house, Villareal woke

Batterton and told him to come into the garage. There, Batterton saw Yaws and Villareal rolling up

Baxter into a piece of carpet. Baxter was badly beaten, bloody, and appeared to be dead. Cyr told

Batterton that he (Batterton) was going to be a part of this and he (Batterton) was going to shoot

Baxter. Yaws gave Batterton a gun, put a bullet in the chamber for Batterton, pointed the gun inside

the roll of carpet for Batterton, and Batterton pulled the trigger. Batterton, who had just received a

severe beating the night before, testified he complied with Cyr’s request because he “was in fear for

[his] life . . . and didn’t want to end up in the same position as [Baxter].” Later, Batterton met up

with several others including appellant. Appellant told Batteron, “I owe you one; it would have been

premeditated.”

       We conclude the evidence overwhelmingly supports the State’s theory that appellant and

several others conspired to assault Baxter and one or more of them intentionally or knowingly caused

his death in furtherance of causing him serious bodily injury. Additionally, based on the severity of

the beating, the weapons used, and Baxter’s condition before or at the time appellant left, we

conclude appellant should have anticipated that Baxter would die. For these reasons, we conclude

appellant could properly be convicted under the law of parties. Furthermore, we conclude a rational




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trier of fact could have found the essential elements of the offense beyond a reasonable doubt, and

therefore, the trial court did not err in denying appellant’s motion for a directed verdict.

                                        EXTRANEOUS OFFENSE

         In his fourth issue on appeal, appellant argues the trial court erred by allowing into evidence

(1) testimony regarding a prior attempt by appellant to shoot Baxter and (2) evidence of weapons and

narcotics obtained during the arrest of Cyr and Villareal because the evidence was highly prejudicial.

See TEX . R. EVID . 403 (relevant evidence may be excluded if its probative value is substantially

outweighed by danger of unfair prejudice).

         We review the admission of evidence over a Rule 403 objection for an abuse of discretion.

State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A court abuses its discretion when

its ruling falls outside the zone of reasonable disagreement. Id. at 440. However, any trial court

error other than a constitutional error that does not affect substantial rights must be disregarded.

TEX . R. APP . P. 44.2(b).4 A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. See King v. State, 953 S.W.2d 266,

271 (Tex. Crim. App. 1997).

         Here, assuming without deciding that the trial court erred by admitting evidence of both the

shooting attempt and the weapon and drug evidence obtained during the arrest of Cyr and Villareal,

there is still overwhelming evidence appellant conspired to commit aggravated assault, one or more

of the conspirators murdered Baxter, the murder was in furtherance of the assault, and appellant

should have anticipated that Baxter would die as a result of the assault. See Motilla v. State, 78



         4
          … Appellant concedes any error in admitting the complained-of evidence amounts only to non-constitutional
error.

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S.W.3d 352, 357 (Tex. Crim. App. 2002) (we consider overwhelming evidence of guilt as factor in

determining if harm exists). Given all the evidence before the jury, it is unlikely that the admission

of the shooting attempt or the weapons and drugs had a substantial effect on the jury’s verdict. Cf.

Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). Accordingly, we conclude that any error

was harmless. See TEX . R. APP . P. 44.2(b).

                                          CONCLUSION

       We overrule appellant’s issues on appeal and affirm the trial court’s judgment.




                                                        Sandee Bryan Marion, Justice



DO NOT PUBLISH




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