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                                 MEMORANDUM OPINION

                                         No. 04-08-00445-CR

                                     Stephen Andrew AQUINO,
                                             Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-3499
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: September 23, 2009

AFFIRMED

           A jury convicted Stephen Andrew Aquino of murder, and the trial court sentenced him to

sixty years confinement. On appeal, Aquino contends (1) the trial court erred in denying his request

for an accomplice-witness instruction in the jury charge, (2) the trial court erred in denying his

motion for instructed verdict, and (3) his trial counsel was ineffective. We affirm the trial court’s

judgment.
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                              ACCOMPLICE WITNESS INSTRUCTION

                                            Background

       The following facts are undisputed by the eyewitnesses, including Aquino. In January 2007,

Aquino and four others – Joel Perez, Ricardo Barbosa, Kevin Bartlett, and Rosendo Dimas – spent

the evening drinking at a “strip club.” After the men left the club, Aquino became angry over some

missing money that he intended to use to purchase a Beretta handgun. All five men left the club and

went to Barbosa’s house, but soon left in Aquino’s truck; Aquino was driving. Aquino drove to a

deserted area, and after the murder the truck became stuck, the wheels spinning until the truck was

placed into four-wheel drive. Beyond this testimony, Aquino’s version of events differs dramatically

from that given by the other witnesses who testified at trial.

       Barbosa testified that after the five men left his house they drove south on Highway 16,

ending up in an open field. Barbosa got out of the truck to urinate and left his Glock handgun in the

vehicle. Barbosa testified he heard “[a] gun go off.” When he looked toward the back of the truck,

he was surprised to see Aquino shooting at Dimas. Barbosa stated Aquino fired several shots at

Dimas, including shots fired after Dimas was lying on the ground. Barbosa testified that at the time

of the shooting he was able to see all of the men clearly and Aquino was the one who shot Dimas.

Barbosa stated he got back into the truck. The group, less Dimas, left and Aquino dropped Barbosa

at his house. Barbosa testified Aquino picked him up the next day “to go sell the gun.” Barbosa

stated Aquino sold a gun, which Barbosa believed was a “SKS,” and Barbosa sold his Glock because

he thought it was used to kill Dimas. Eventually, Barbosa was contacted by police. When he first

met with police, he denied witnessing the murder, telling police that although he had been with the

other men earlier in the day, he stayed home when everyone else went out. However, during a


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second visit with police, and after being confronted with information in their possession, Barbosa

admitted witnessing the murder and gave police a statement.

       Perez, Aquino’s cousin, offered testimony similar to Barbosa’s. He agreed the men left

Barbosa’s together, and drove to an open field in south Bexar County. According to Perez, Aquino

said they were going to test fire the Beretta Aquino purchased. Perez testified everyone got out of

the car, and as he was getting out he heard gunshots. He saw Aquino shoot at Dimas multiple times,

and heard Dimas “yelling or whatever in pain.” Perez testified Aquino shot Dimas with the Glock.

Perez said Aquino claimed he shot Dimas because he stole the $100. Perez stated Aquino told him

to check Dimas’s pockets, but he refused. Aquino then told Bartlett to do it, and he complied. When

they got back into the truck, Aquino threatened them, stating that if anyone talked about what they

saw they would “end up in the ditch too.” Aquino also told them that if they were questioned by

police they should say Dimas “left walking from Rick’s house.” When Aquino dropped off Barbosa,

he handed the Glock to Perez and told him to “[g]ive this to Rick.” Perez gave the gun to Barbosa

as instructed. Later, when they were at Perez’s house, Aquino told Perez not to say anything about

the murder because they were family. Aquino also said that if Barbosa or Bartlett talked, he would

shoot them. The next day, Aquino called to see if Perez wanted to go to the gun show with him to

sell the Glock and the Beretta; Perez declined. Perez eventually contacted police because he was

receiving threatening phone calls. As Barbosa, Perez lied to police when they first questioned him.

Perez told police, as instructed by Aquino, that Dimas just walked away from Barbosa’s house.

However, he also eventually told police Aquino murdered Dimas.

       Bartlett, who was friends with Dimas, admitted Dimas took the missing $100 off the truck

console. Bartlett said he believed Dimas “was too intoxicated to realize what he was doing.”


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According to Bartlett, once the money went missing Aquino began threatening them, took the

Beretta, and refused to return it. Bartlett, the owner of the Beretta, did not attempt to get the gun

from Aquino. Bartlett said he was afraid for himself and Dimas. After leaving Barbosa’s, the men

“headed out into the county” in Aquino’s truck. Bartlett claimed he was told they were going to a

party. When they pulled over, Bartlett was told they were going to stop and shoot the Beretta.

Everyone got out of the truck. Bartlett was the last man out, and as he was exiting he “started

hearing gunshots.” At first, he thought it was the gun being test fired, but as he got out he saw

Dimas fall and heard him say, “You shot me.” He testified he saw Dimas fall, and saw Aquino with

a gun in his hand. After Dimas fell, Bartlett saw Aquino empty the clip into Dimas, saying “It’s all

about respect. This would have never happened if you hadn’t stole my $100.” Bartlett testified he

was stunned and backed up between the truck’s door and frame because he thought he was about to

die. Bartlett said Aquino then approached him and told him to follow directions or he would “get

one in the head.” Aquino then instructed Bartlett to check Dimas’s pulse and get “his money” out

of Dimas’s pocket. When Aquino was talking to Bartlett he still had the gun in his hand. Bartlett

did as he was told and found a $100 bill and a $50 bill in Dimas’s pockets. He gave the money to

Aquino. After the men got back into the truck, Aquino told him not to say anything, which Bartlett

perceived as a threat. Bartlett said he tried to remain calm, but was “scared for [his] life.” Bartlett

testified that when Aquino dropped him off at his house, Aquino took his driver’s license. Aquino

told Bartlett he took the license so that if Bartlett talked about the murder Aquino could come back

to the house and kill Bartlett and his family. Just as with Barbosa and Perez, when police eventually

talked to Bartlett, he initially lied, saying he went home when everyone left the club. Bartlett later




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admitted he lied, but said he did so because he was scared Aquino would kill him. He eventually

admitted to seeing Aquino shoot Dimas.

       Aquino testified on his own behalf. He stated that when the group left Barbosa’s house,

Barbosa and Perez gave him directions, allegedly to the home of some women. He claimed to need

directions because he was unfamiliar with the south side of San Antonio. Barbosa and Perez told

him to drive south on Highway 16, but then told him he missed the turn and needed to turn around.

After he made a u-turn, Barbosa and Perez told him to pull over because they needed to urinate.

When he pulled off the road, everyone except Dimas got out of the truck. According to Aquino,

Dimas did not immediately get out of the truck because he was “passed out.” Dimas soon woke up

and got out of the truck. Aquino stated that while he was using the bathroom, Bartlett and Dimas

were standing together talking on one side of the truck, Barbosa and Perez were standing together

and talking on the other side. Aquino testified that when he turned around to tell everyone to get

back into the truck so they could leave, he saw Barbosa pull out the Glock, cock it, and hand to it

Perez. He then saw Perez turn around and fire two or three rounds in the direction of Dimas and

Bartlett. Aquino said Dimas’s back was to Perez. After the shots were fired, Aquino saw Dimas’s

body turn and fall. Perez walked toward him and “fired the rest of the rounds” into Dimas.

According to Aquino, he heard Barbosa tell Perez, “You know you f---- up.” Aquino claimed it was

Perez who told Bartlett to get the money from Dimas’s pockets. Then, everyone got into the truck.

Aquino claimed he had the Beretta with him at all times, and refused to give it to Barbosa when he

asked for it. Aquino denied threatening anyone on the drive home. He stated Barbosa took the

Glock with him when he got out of the truck. Aquino admitted taking Bartlett’s driver’s license, but

claimed it was Perez’s idea and he did it only to help Perez. Aquino said Perez instructed him on


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the story he was to tell about the murder, and then he went home. Aquino admitted he lied when he

told police that the last time he saw Dimas was the morning before the murder. Aquino testified

Perez instructed him to tell this lie. Aquino testified he did not shoot Dimas, and his only

involvement in the entire incident was taking Bartlett’s license at Perez’s request.

                                                        Analysis

         Aquino contends he was entitled to an accomplice-witness jury instruction because the

evidence was sufficient to establish Bartlett, Barbosa, and Perez were accomplice witnesses.1 He

claims that by failing to give the requested instructions, the trial court committed error.

         A defendant has the right to an instruction on any defensive issue raised by the evidence,

“whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the

trial court may think about the credibility of the evidence.” Cocke v. State, 201 S.W.3d 744, 747

(Tex. Crim. App. 2006), cert. denied, 549 U.S. 1287 (2007). This includes an instruction on whether

a witness was an accomplice. See id. “An accomplice is someone who participates with the

defendant before, during, or after the commission of a crime and acts with the required culpable

mental state.” Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007), cert. denied, 128 S.Ct.

627 (2007). A witness is not an accomplice unless his participation with the defendant involved an

affirmative act that promoted the offense for which the defendant was charged. Id. It is not

sufficient that the witness knew of the offense and failed to disclose it or even concealed it, nor is

the witness’s mere presence at the scene of the crime sufficient. Id. “In short, if the witness cannot

         1
           … A witness may be an accomplice as a matter of law or as a matter of fact. Cocke v. Texas, 201 S.W .3d 744,
747 (Tex. Crim. App. 2006), cert denied, 549 U.S. 1287 (2007). Unless the evidence clearly establishes the witness is
an accomplice as a matter of law, i.e., the witness could have been prosecuted for the same offense as the principal, the
question of whether the witness is an accomplice is within the province of a properly instructed jury. Id. at 747-48. Here,
Aquino does not contend any of the witnesses were accomplices as a matter of law; rather, he contends the facts were
sufficient to entitle him to have the jury decide the issue. We will address the issue as presented by Aquino.

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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 as a matter of law. Id.

       A defendant may not be convicted upon the testimony of an accomplice witness unless the

testimony is corroborated by independent evidence tending to connect the defendant to the crime.

Druery, 225 S.W.3d at 498 (citing TEX . CODE CRIM . PROC. ANN . art. 38.14 (Vernon 2005)). If the

evidence is conflicting on whether the witness is an accomplice, the trial court should allow the jury

to decide whether the witness is an accomplice witness as a matter of fact under instructions defining

the term “accomplice.” Id. at 498-99. However, the trial court is under no obligation to give an

accomplice witness instruction when the evidence establishes the witness is not an accomplice.

Cocke, 201 S.W.2d at 748.

       Aquino argues Bartlett was an accomplice, pointing to the undisputed fact that Bartlett

removed $150 from Dimas’s pocket after the murder, and that Perez intimated Bartlett moved the

body into a ditch. He also points out that Bartlett admittedly lied to police when he was first

questioned. We hold this evidence is insufficient to even raise an issue as to whether Bartlett was

an accomplice as it does not indicate Bartlett performed any affirmative act to assist Aquino in the

commission of the murder. Rather, the evidence even established Bartlett was not an accomplice.

Bartlett testified Aquino, who was still armed, told him to do as he was told or he would be shot.

Bartlett said Aquino then instructed him to check Dimas’s pockets. When he removed the money

from Dimas’s pockets, he gave it to Aquino. Bartlett testified he lied to police because Aquino

threatened him and he was scared. Perez’s testimony as to Bartlett’s involvement mirrored Bartlett’s

testimony. Aquino’s testimony was similar – he merely stated it was Perez who ordered Bartlett to

check Dimas’s pockets. The evidence shows Bartlett was present at the murder, was instructed by


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the armed shooter to remove money from Dimas’s pocket, and initially concealed evidence of the

murder. This evidence cannot render him an accomplice. See Druery, 225 S.W.3d at 498. We hold

the evidence established Bartlett was not an accomplice and the trial court was therefore not required

to give the requested accomplice witness as a matter of fact instruction as to Bartlett.

       As for the other two witnesses – Barbosa and Perez – even if we assume Aquino’s testimony

raised the issue that they were accomplices, and the trial court therefore erred in refusing to so

instruct the jury, we hold Aquino was not harmed by the trial court’s error. When the trial court errs

in refusing to give an accomplice-witness instruction, the appropriate harm analysis depends upon

whether the error was preserved. Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).

When, as here, the error is properly preserved, reversal is required if “some harm” is shown. See id.

When error is not preserved, the defendant must show egregious harm. Id. “The difference in harm

standards impact how strong the non-accomplice evidence must be for the error in omitting an

accomplice witness instruction to be considered harmless.” Id. In the “some harm” context, error

is harmless if there is some non-accomplice evidence, and there is no rational and articulable basis

for disregarding the non-accomplice evidence or finding it fails to connect the defendant to the

offense. Id. at 633.

       We have determined Bartlett was not an accomplice. Accordingly, his testimony is “non-

accomplice evidence.” Bartlett’s testimony about the murder was clear and direct: he saw Aquino

shoot and kill Dimas. He also testified Aquino threatened others if they talked about the murder.

We can find no “rational and articulable” basis to disregard his testimony, which clearly connects

Aquino to the murder. Accordingly, we hold Aquino was not harmed by the trial court’s failure to

give an accomplice witness instruction as to Barbosa and Perez, and we overrule Aquino’s first issue.


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                                      INSTRUCTED VERDICT

       Aquino contends the trial court erred in refusing to grant his request for an instructed verdict.

Aquino argues that without the testimony of the accomplice witnesses – Bartlett, Barbosa, and Perez

– there was no evidence to connect him to the murder. He argues the trial court therefore was

required to grant his motion for instructed verdict. However, we have already held Bartlett was not

an accomplice; accordingly, his testimony did not require corroboration to support the conviction.

See Druery, 225 S.W.3d at 498 (citing TEX . CODE CRIM . PROC. ANN . art. 38.14). Bartlett’s

testimony that he saw Aquino kill Dimas is sufficient to support the murder conviction under a legal

sufficiency standard. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996) (holding

issue complaining about trial court’s failure to grant motion for directed verdict is treated as

challenge to legal sufficiency of evidence); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App.

2003) (holding relevant inquiry for assessing legal sufficiency is whether, after viewing evidence in

light most favorable to verdict, any rational trier of fact could have found defendant guilty of crime

beyond reasonable doubt). We overrule Aquino’s second issue.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       Aquino contends his trial counsel was ineffective because he failed to “investigate and follow

up on all the possible defenses available” to Aquino. Specifically, Aquino claimed trial counsel did

not call witnesses who would have supported his contention that Perez killed Dimas.

       To succeed on an ineffective assistance of counsel, a defendant must show: (1) counsel’s

performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984); Garza v. State, 213 S.W.3d 338, 347 (Tex. Crim. App.

2007). To show deficient performance, the defendant must prove by a preponderance of the


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evidence that his counsel’s representation fell below the standard of professional norms. Strickland,

466 U.S. at 688; Garza, 213 S.W.3d at 347-48. To demonstrate prejudice, the defendant “must show

a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding

would have been different.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A

“reasonable probability” is one sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694.

         Trial counsel is presumed to have rendered effective assistance. Mallett v. State, 65 S.W.3d

59, 63 (Tex. Crim. App. 2001). To overcome this presumption, “[a]ny allegation of ineffectiveness

must be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). There is a

strong presumption that counsel’s actions and decisions were motivated by sound trial strategy.

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). When the record is silent as to

counsel’s strategy, a reviewing court must not simply speculate that counsel’s performance was

deficient. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet ref’d).

If the record is silent as to the reasoning behind counsel’s actions, the presumption of effectiveness

is sufficient to deny relief. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).

Counsel’s performance will be sufficient if any strategic motive can be envisioned and will be

considered deficient only if “the conduct was so outrageous that no competent attorney would have

engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). The standard for

reviewing trial counsel’s performance “has never been interpreted to mean that the accused is

entitled to errorless or perfect counsel.” Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App.

1990).


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        At the hearing on Aquino’s motion for new trial, he called five witnesses: Aquino’s

grandmother, his mother and father, his older brother, and his uncle. By their testimony, he

attempted to show that if his trial attorney had called them to testify at the trial and located witnesses

with similar stories, it would have supported his claim that Perez was the shooter, resulting in a not

guilty verdict.

        Most of the testimony elicited from these witnesses concerned Perez’s alleged propensity for

violence, specific instances of violence committed by Perez, and his access to and use of weapons.

Aquino’s mother said she provided counsel with the names of other persons who would have

provided similar testimony, but trial counsel did not investigate. In addition to testifying about

Perez’s propensity for violence, the grandmother also testified her son, Perez’s father, told her Perez

had “killed his best friend.” But she admitted he recanted this statement the next day, saying Perez

did not kill anyone. The uncle stated Perez’s father had asked him after the murder to help Perez get

to Mexico.

        First, the testimony relied upon by Aquino at the hearing on his motion for new trial would

not have been admissible. Accordingly, we cannot say counsel was ineffective for failing to attempt

to introduce inadmissible evidence. See Strickland, 466 U.S. at 688; Garza, 213 S.W.3d at 347-48.

Aquino clearly wanted this testimony to show Perez had a propensity for violence and therefore

he must have killed Dimas. Rule 404 of the Texas Rules of Evidence limits evidence of the

character of a witness to those instances permitted by rules 608 and 609. TEX . R. EVID . 404(a)(3).

Rule 608 permits an attack on the credibility of a witness (1) in the form of opinion or reputation

evidence, but such evidence must refer to the witness’s character for truthfulness or untruthfulness,

and (2) by use of specific instances of conduct, but only when the witness has been convicted


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of a crime as provided in rule 609. Id. R. 608(a)(1), (b); R. 609. Neither the witnesses nor

the proffered testimony attacked Perez’s character for truthfulness or untruthfulness. Nor did

their testimony establish he had been convicted of a crime within the parameters of rule 609. See id.

As for the testimony by the grandmother and uncle about what Perez’s father told them, this evidence

was clearly hearsay, and Aquino did not demonstrate on the record any exception that would have

permitted the admission of these statements. See TEX . R. EVID . 801-804.

       Moreover, there is nothing in the record to establish why trial counsel failed to call the five

witnesses and chose not to investigate the other named by Aquino’s mother. Trial counsel did not

testify at the hearing in person or by affidavit, but we know from the testimony at the hearing that

he was aware of the witnesses and chose not to call them at trial. We are left to speculate as to the

reasoning behind counsel’s actions. Given the record’s silence as to the reason for counsel’s

inaction, we must indulge in a presumption of effectiveness and deny relief. See Rylander, 101

S.W.3d at 110-11.

       Finally, Aquino did not establish that but for his counsel’s failure to call these witnesses there

was a reasonable probability the result of the proceeding would have been different. See Mitchell,

68 S.W.3d at 642. There were three eyewitnesses to the murder, one of whom had no relationship

to anyone other than the victim, and therefore no motive to lie. His testimony was corroborated by

the other two eyewitnesses.

       Aquino did not prove by a preponderance of the evidence that his counsel’s representation

was deficient, nor did he establish that but for counsel’s actions he would not have been convicted.




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See Strickland, 466 U.S. at 688; Garza, 213 S.W.3d at 347-48. Accordingly, we overrule this issue

and affirm the trial court’s judgment.



                                                     Steven C. Hilbig, Justice

Do Not Publish




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