                                                                       ACCEPTED
                                                                   01-14-00982-CR
                                                        FIRST COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                             10/14/2015 5:36:45 PM
         No. 01-14-00982-CR                                  CHRISTOPHER PRINE
                                                                            CLERK
                  In the
           Court of Appeals
                 For the
         First District of Texas                 FILED IN
                                          1st COURT OF APPEALS
               At Houston                     HOUSTON, TEXAS
                               10/14/2015 5:36:45 PM
                                          CHRISTOPHER A. PRINE
               No. 1338054                         Clerk
        In the 338th District Court
         Of Harris County, Texas
        

      JUAN BARRERA-MAGANA
              Appellant
                 V.
        THE STATE OF TEXAS
              Appellee
        

      STATE’S APPELLATE BRIEF
        

                                DEVON ANDERSON
                                District Attorney
                                Harris County, Texas

                                AARON BURDETTE
                                SHANNON DREHNER
                                Assistant District Attorneys
                                Harris County, Texas

                                PATRICIA MCLEAN
                                Assistant District Attorney
                                Harris County, Texas
                                mclean_patricia@dao.hctx.net

                                1201 Franklin, Suite 600
                                Houston, Texas 77002
                                Tel.: 713-755-5826
                                FAX No.: 713-755-5809

                                Counsel for Appellee

ORAL ARGUMENT CONDITIONALLY WAIVED
              STATEMENT REGARDING ORAL ARGUMENT


      Pursuant to TEX. R. APP. P. 39.1, the State waives oral argument because the

briefs in this case adequately address the issues of fact and law to the Court.

However, should the Court desire oral argument, the State requests oral argument.




                                        i
                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon Anderson—District Attorney of Harris County

      Aaron Burdette—Assistant District Attorney at trial

      Shannon Drehner—Assistant District Attorney at trial

      Patricia McLean—Assistant District Attorney on appeal



Appellant:

      Juan Barrera-Magana



Counsel for Appellant:

      Alexis Bruegger—Defense counsel at trial

      Jill Lansden—Defense counsel at trial

      Vivian King—Defense counsel on appeal



Trial Judge:

      Honorable Brock Thomas




                                       ii
                                        TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ..................................................i

IDENTIFICATION OF THE PARTIES ................................................................... ii

INDEX OF AUTHORITIES ...................................................................................... v

STATEMENT OF THE CASE................................................................................... 1

STATEMENT OF FACTS ......................................................................................... 1

   I. Initial investigation .........................................................................................1
   II. Margarita Gonzales’s testimony ...................................................................3
   III. Minerva Gonzales’s testimony ...................................................................3
   IV. Daniel Torres’s testimony ...........................................................................4
   V. Francisco Velasquez’s testimony ...................................................................9
   VI. William Navarrete’s testimony.................................................................12
   VII. Concepcion Benavides’s testimony ..........................................................12
   VIII. Follow-up investigation .............................................................................15

SUMMARY OF THE ARGUMENT ....................................................................... 17

RESPONSE TO APPELLANT’S THIRD POINT OF ERROR.............................. 18

   I. Corroboration of accomplice witness testimony........................................18
   II. The non-accomplice evidence presented at trial corroborates Torres’s
       accomplice witness testimony. .....................................................................21

RESPONSE TO APPELLANT’S FIRST AND SECOND POINTS OF ERROR .. 24

   I. Standard of review ........................................................................................24
   II. Sufficiency of evidence regarding the law of parties .................................26
   III. The evidence presented is sufficient to uphold appellant’s murder
        conviction as the principal actor or as a party to the offense. ..............27

CONCLUSION ........................................................................................................ 29

CERTIFICATE OF SERVICE ................................................................................. 30



                                                         iii
CERTIFICATE OF COMPLIANCE ....................................................................... 30




                                                iv
                                    INDEX OF AUTHORITIES


CASES

Aston v. State,
  656 S.W.2d 453 (Tex. Crim. App. 1983) ..............................................................20

Bingham v. State,
  913 S.W.2d 208 (Tex. Crim. App. 1995) (op. on reh’g) ............................... 20, 22

Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010)..............................................................24

Cain v. State,
  958 S.W.2d 404 (Tex. Crim. App. 1997) ..............................................................25

Clay v. State,
  240 S.W.3d 895 (Tex. Crim. App. 2007) ....................................................... 23, 28
Clayton v. State,
  235 S.W.3d 772 (Tex. Crim. App. 2007) ....................................................... 22, 25

Connor v. State,
  67 S.W.3d 192 (Tex. Crim. App. 2001)................................................................26
Cordova v. State,
  698 S.W.2d 107 (Tex. Crim. App. 1985) ..............................................................26
Crawford v. State,
  863 S.W.2d 152 (Tex. App.—Houston [1st Dist.] 1993, rev’d, 892 S.W.2d 1
  (Tex. Crim. App. 1994) ........................................................................................20

Dowthitt v. State,
 931 S.W.2d 244 (Tex. Crim. App. 1996) ....................................................... 19, 21
Gill v. State,
  873 S.W.2d 45 (Tex. Crim. App. 1994)................................................................19

Guevara v. State,
 152 S.W.3d 45 (Tex. Crim. App. 2004)................................................................26


                                                        v
Hooper v. State,
 214 S.W.3d 9 (Tex. Crim. App. 2007) ..................................................................25

Jackson v. Virginia,
  443 U.S. 307 (1979) ...................................................................................... 25, 26

Matson v. State,
 819 S.W.2d 839 (Tex. Crim. App. 1991) ..............................................................25

McDuff v. State,
 939 S.W.2d 607 (Tex. Crim. App. 1997) ....................................................... 19, 23

Miller v. State,
 177 S.W.3d 177 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ............. 23, 28

Moreno v. State,
 755 S.W.2d 866 (Tex. Crim. App. 1988) ..............................................................25

Nguyen v. State,
  177 S.W.3d 659 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ............. 21, 22
Noland v. State,
  264 S.W.3d 144 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) ....................25

Reynolds v. State,
  489 S.W.2d 866 (Tex. Crim. App. 1972) ..............................................................20
Robles v. State,
  104 S.W.3d 649 (Tex. App.—Houston [1st Dist.] 2003, no pet.) ........................25
Smith v. State,
  332 S.W.3d 425 (Tex. Crim. App. 2011) ................................................. 19, 20, 24
Sorto v. State,
  173 S.W.3d 469 (Tex. Crim. App. 2005)..............................................................26

Thompson v. State,
  697 S.W.2d 413 (Tex. Crim. App. 1985) ..............................................................26

Torres v. State,
  794 S.W.2d 596 (Tex. App.—Austin 1990, no pet.) ..................................... 23, 28




                                                        vi
STATUTES

TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2015) ..........................................18

RULES

TEX. R. APP. P. 39.1 ................................................................................................... i

OTHER

Black’s Law Dictionary, (6th ed. 1990) ...................................................................20

Ray, Texas Practice Vol. 2, Law of Evidence, §1538 (1980) ...................................23




                                                           vii
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      Appellant was charged by indictment with murder. (C.R. at 10) Appellant

was found guilty of murder and sentenced by a jury to life in the Texas Department

of Criminal Justice, Institutional Division, and a $10,000 fine. (C.R. at 127-28)

The court also made an affirmative deadly-weapon special finding. (C.R. at 127-

28) Appellant timely filed notice of his intent to appeal and the trial court certified

his right of appeal. (C.R. at 126, 130-31)


                              STATEMENT OF FACTS


 I.   Initial investigation

      In the morning hours of November 15, 2004, the complainant was found

dead near a park and his home in Old Baytown. (3 R.R. at 20-21, 25-28, 36-37,

39-41; State’s Exhibit 1) The complainant was shot three times and cause of death

was due to multiple gunshot wounds. (3 R.R. at 84; 4 R.R. at 6, 9-10, 16-20;

State’s Exhibit 31) Three spent 9-mm shell casings were found at the scene near

the complainant’s body but no bullets or projectiles were found. (3 R.R. at 60-67;

see 3 R.R. at 41) No weapon was found on the complainant and, per former

Baytown Police Department (BPD) Officer Craft, no one reported seeing the

complainant fire a weapon or become involved in a disturbance. (3 R.R. at 106)
      BPD Officer White did not search for casings or bullets in areas other than

where the complainant’s body was found and did not try to locate surveillance

video that might have been present at a school near the scene. (3 R.R. at 77-78)

However, Officer Craft testified no cameras were found in the area and there was

no indication there were cameras at the school that could have captured the

incident. (3 R.R. at 104-105)

       Former BPD Officer Widner found no eyewitnesses. (3 R.R. at 79, 82-83)

Officer Widner testified most everyone at the scene knew the complainant and

were not “really helpful” to him in that he felt some of them were not being honest

or knew more than they were telling. (3 R.R. at 86-89) Officer Widner was unable

to develop any leads in the case and no eyewitnesses had come forward, so the

case went cold. (3 R.R. at 84-85) Officer Widner was given some names of

people who might have information about the case, had a “beef” with the

complainant, or might have wanted the complainant dead, but he did not personally

interview them. (3 R.R. at 89-96) Appellant was not one of the names included,

but the name “Arturo” was given. (3 R.R. at 93-94)

      Officer Craft testified that, during his investigation, he found “a couple of

rumors or whispers that we had followed up on,” but received no “concrete leads to

go on at that time.” (3 R.R. at 96, 102, 104) Officer Craft testified that Arturo

Chavez (Chavez) became a person of interest after speaking with some individuals



                                        2
and also testified that appellant was a known associate of Chavez. (3 R.R. at 107-

109) Officer Craft spoke to appellant at some point, but was not able to further his

investigation with credible leads or information after speaking with appellant. (3

R.R. at 110) Several names came up during the investigation, but no other credible

information arose that was helpful in investigating those individuals while Officer

Craft was assigned the case and, by 2005, the case was “essentially cold.” (3 R.R.

at 110-12)

 II.   Margarita Gonzales’s testimony

       Margarita Gonzales (Margarita), the complainant’s mother, testified that the

complainant knew and worked for Chavez, was a cousin to Daniel Torres (Torres),

and worked with appellant, whom the complainant had known “for a long time.”

(3 R.R. at 19-22) The complainant worked for Chavez as a human trafficker, or

coyote, but he wanted to get out of that line of work. (3 R.R. at 22-23, see 3 R.R.

at 117-18) Margarita had a conversation with the complainant a week before his

death where she described him as scared and crying. (3 R.R. at 23-24)

III.   Minerva Gonzales’s testimony

       Minerva Gonzales (Minerva), who lived near the crime scene, testified that,

on November 15, 2004, she was awakened sometime between midnight and 3:00

a.m. by “something like firecrackers,” describing “several, like, shots.” (3 R.R. at

27-30) She did not hear anything after the shots and did not hear any cars fleeing


                                         3
the scene. (3 R.R. at 28) Minerva did not look out her windows to investigate the

noises and she did not know if the noise was firecrackers because she “was asleep,

but after [she] heard the rest of them, that’s when [she] realize[d] that they were

shots.” (3 R.R. at 30-31)

IV.   Daniel Torres’s testimony

      Torres, a distant cousin of the complainant, also knew appellant and Chavez.

(3 R.R. at 146-48) Torres had known appellant for approximately nineteen years

and stated the two were close friends.      (3 R.R. at 148-49, 192)      Appellant

introduced Torres to Chavez after Torres was released from prison, about a month

before the murder. (3 R.R. at 149, 191) Torres was trying to get money for a

vehicle, so he “hooked back up with [appellant who] introduced [Torres] to

[Chavez].” (3 R.R. at 151) Torres testified that appellant was already involved

with Chavez in human trafficking and Torres was invited to participate to make

some money, which he accepted. (3 R.R. at 151-52) Money collected for the

operation was given to Chavez and Torres testified both he and appellant reported

to Chavez. (3 R.R. at 153) Torres described Chavez as ‘like a boss . . . he was

affiliated with some big people and he was a dangerous person,” and stated that

appellant was Chavez’s right-hand man. (3 R.R. at 192)

      Earlier in the day before the murder, Torres stated he, Chavez, and appellant

went to pick up a “green Impala with rims,” from someone’s home located in “the


                                        4
Lake Houston area.” (3 R.R. at 153-54) Torres did not know the person from

whom they borrowed the car and stated Chavez was in charge of talking to the

person about the car. (3 R.R. at 154-55, 177) After picking up the car, Torres,

appellant, and Chavez drove back to a hotel room they used for their trafficking

business “sometime in the afternoon,” “anywhere from 12:00 to 3:00 . . . .” (3

R.R. at 155-57)    Appellant and Torres stayed at the hotel for a while and,

eventually, Chavez joined them later. (3 R.R. at 157-58)

      When Chavez joined them, Torres testified that Chavez stated he had picked

up the complainant and, from what Torres could remember, Chavez said the

complainant was “going to snitch about something.” (3 R.R. at 158) Torres

testified Chavez and the complainant were having “some kind of problems as far as

money problems [and he did not] . . . know if [Chavez] didn’t pay him all the

money that was owed to him or what.” (3 R.R. at 158-59) Torres testified there

was some sort of falling out between Chavez and the complainant and Chavez did

not like the complainant, but he did not know what the problem was or what the

complainant was going to snitch about even though they all had trafficking in

common. (3 R.R. at 159, 182-83) Torres testified he heard Chavez explain he

wanted the complainant “take[n] out,” though he did not know what exactly

Chavez said to appellant once he pulled appellant aside when he said the

complainant “had to be done in—or did in.” (3 R.R. at 159, 183)



                                        5
      Torres testified that Chavez then went to pick up the complainant and “go

drop him off at the park by his grandma’s house where he was staying at the time,”

“because that was the plan.” (3 R.R. at 160) Torres testified he was supposed to

drive and appellant was “supposed to get off at the park and shoot and kill [the

complainant].” (3 R.R. at 160) Torres and appellant left the hotel in the Impala

“late, really late” and drove to the park near the complainant’s house. (3 R.R. at

161) Torres testified he asked appellant “why he would do some [sic] like that for

[Chavez]. . . [a]nd [appellant] told [Torres] that he was just going to talk to him

and scare him, that’s it.” (3 R.R. at 162)

      Upon arrival, Torres parked the Impala where he could not see the park and

appellant received a phone call after about five to ten minutes, then told Torres,

“[h]e’s almost here, I’ll be right back,” and got out of the car. (3 R.R. at 160-61,

163-64) Torres did not see the number of or hear the voice of the person who

called appellant, but assumed it was Chavez. (3 R.R. at 184) Torres did not see a

weapon in the hotel or during the drive to the park, he did not see appellant with a

gun, and appellant did not tell Torres he had a gun before they arrived at the park.

(3 R.R. at 164, 183) About five minutes after appellant left the car, Torres heard

several gunshots, “about three of them to start off, and then a little pause and then

there was another three or four after that.” (3 R.R. at 164) About two minutes

after the shots, appellant came back to the car, appearing “anxious and nervous at



                                             6
the same time,” stating “I got him, I got him, I shot him.” (3 R.R. at 165, 192)

Appellant told Torres to drive and the two drove to an airport in Baytown, as

directed by Chavez, to “meet him there, but he never showed up” so they then

drove to Chavez’s house. (3 R.R. 165-66) Chavez was home and told them to “go

ahead and go to Paco’s house” in Beaumont. (3 R.R. at 167)

       Once they arrived at Paco’s house, Torres and appellant waited for Chavez,

who arrived two to three hours later while they waited on the porch. (3 R.R. at

168) Torres testified appellant told Paco what had happened. (3 R.R. at 168)

Chavez arrived with his brother, Chuy, with a “little mini welding thing, like a

torch.” (3 R.R. at 169) Torres testified this was the point where he first saw

appellant with a gun “wrapped inside of a sweater in a black trash bag.” (3 R.R. at

169)    They tried to melt the gun with the torch in a toolshed, but were

unsuccessful. (3 R.R. at 169-70) Torres testified that, at that point, “he had told

Paco to get rid of the gun. What he did with it, I don’t know. I never seen who got

the gun after that or who stayed with it” and they left Paco’s house. (3 R.R. at 170)

       Appellant dropped Torres off in Baytown and Torres testified he saw Chavez

either “later on that day or the next day.” (3 R.R. at 170) Torres testified he “still

continued to stay in contact because [Chavez] kept me around him pretty much

[and they] ended up going to Mexico later on,” “sometime past November 28th.”




                                          7
(3 R.R. at 171-72) Torres went to Mexico with [Chavez] and his family and stated

appellant was already in Mexico. (3 R.R. at 173, 187)

      Torres was contacted by authorities in 2011, and testified he was not

immediately truthful, initially blaming other parties for the murder, but he “started

talking” once police told him they had already spoken to appellant, stating he

“didn’t want to say anything at all because [he] . . . was scared. . . .” (3 R.R. at

173-75, 189-90) Torres stated he told authorities what really happened to the

complainant in the same conversation in which he told them other parties were

responsible for the murder. (3 R.R. at 196)

      Torres testified that, based on rumors, the complainant had more enemies

than just Chavez. (3 R.R. at 176, 189-90) Torres was charged with murder in 2012

and agreed to plead guilty to murder and receive a fifteen-year sentence, the

minimum sentence considering his felony enhancements, in exchange for his full,

truthful testimony. (3 R.R. at 175-76, 188-89) Torres did not know of any “beef or

any sort of bad blood between” certain other people in the neighborhood and the

complainant, stating those individuals had nothing to do with the complainant’s

murder. (3 R.R. at 176-77) Torres testified he was involved with the murder, “not

by choice,” he continued to associate with Chavez after the murder until he “was

able to get a ride,” and he was scared of Chavez. (3 R.R. at 180, 190-91; see 3




                                         8
R.R. at 194) Torres separated from Chavez “no more than six months after” the

murder. (3 R.R. at 194-95)

      Torres stated it was not unusual to borrow vehicles or for him to be given a

car to run errands in the trafficking business and, after the murder, he made trips to

get people. (3 R.R. at 178-79, 181) Torres did not know or see what happened in

the park or who was at the park. (3 R.R. at 184-85) He did not see the gun during

the drive from the park to Beaumont or during any intermediate stops, stating the

first time he saw the gun was at Paco’s house. (3 R.R. at 185-86) Torres stated he

and appellant drove back alone to Torres’s house in Baytown. (3 R.R. at 186)

      Torres was only charged with murder and the trial court instructed the jury

that Torres was an accomplice. (3 R.R. at 196; C.R. at 109-10)

V.    Francisco Velasquez’s testimony

      Francisco Velasquez (Paco) knew Chavez, his wife, and appellant. (4 R.R.

at 22-23) Paco testified that appellant and Chavez were friends and he did not

know if they brought illegal aliens over from the border together, but he was aware

that Chavez was involved in human trafficking. (4 R.R. at 24-25) Paco also knew

Torres and the complainant. (4 R.R. at 25-26) Paco testified that, on November

13, 2004, he had a birthday party for his daughter at his house, which Chavez

attended, and had a closed tent put up. (4 R.R. at 27-28) Paco testified that, the




                                          9
next day, Chavez called him.1 (4 R.R. at 28-32) Paco later received a phone call

from Chavez in the early hours of November 15, 2004, where Chavez said “they

had killed [the complainant], and [appellant] and [Torres] were on their way to

[Paco’s] house.”2 (4 R.R. at 34-35, 53)

       Appellant and Torres showed up at Paco’s house in a white truck and, “when

they arrived and [Paco] opened the door, they were saying that they had killed [the

complainant].” (4 R.R. at 53-54) Chavez showed up within hours with his “whole

family” and his brother “right behind him.” (4 R.R. at 54-55) At that point, Paco

stated “they went into the tent and Chavez started trying to burn the gun” with

something “like a welding torch,” but was not successful, while his wife and

children stayed in the vehicle. (4 R.R. at 55-56) While the gun was being burned,

“[t]hey were talking about what had happened with [the complainant], that they

had killed him; but [Paco did not] remember very well what they were saying.” (4

R.R. at 56)

       Paco testified that a drainage ditch ran behind his house and, after the

unsuccessful attempt to burn the gun, “[t]hey took it apart” and “broke it into

pieces.”    (4 R.R. at 57-58)        Chavez then “threw something in the back and



1
  Paco testified in front of the jury that Chavez was with appellant, the complainant, and Torres,
to which appellant made an objection sustained by the trial court and the jury was instructed to
disregard the statement. (4 R.R. at 29-34)
2
  Outside the jury’s presence, the court heard a proffer from Paco and addressed appellant’s
objections to statements Paco heard regarding the murder. (4 R.R. at 39-52) The trial court

                                               10
[appellant] and [Torres] took the rest.” (4 R.R. at 58) Paco did not go with them

when they left and, after the visit to his house, Chavez immediately left for

Mexico. (4 R.R. at 58) Paco stated he did not think he saw Torres again or maybe

saw him once, and it had been “a long time” since he saw appellant afterwards. (4

R.R. at 59-60) Paco spoke with authorities after Chavez was arrested and was not

promised anything or threatened to tell what he knew. (4 R.R. at 61)

       Paco testified he “did some favors” for and accompanied Chavez to do

things, but that he did not work for Chavez.3 (4 R.R. at 62-63) He did not recall

telling authorities that he worked for Chavez in trafficking. (4 R.R. at 69) Paco

was never charged with trafficking but he was concerned about his immigration

status. (4 R.R. at 70) Paco stated he had been drinking during his daughter’s party

and the following day.4 (4 R.R. at 70-71) He did not recall whether or not he,

appellant, and Torres went outside before or after Chavez arrived at his house.

(See 4 R.R. at 72-73) Paco testified that, although he did not forget what was

being discussed, he did not specifically recall who said what. (4 R.R. at 73) Paco

testified Chavez took the gun apart and threw a piece behind his house but Paco


again sustained appellant’s objection to the initial statement that Chavez was with Torres, the
complainant, and appellant, but overruled appellant’s remaining objections. (4 R.R. at 47-53)
3
  Outside the presence of the jury, regarding his previous statement to authorities that he was
involved in trafficking with Chavez, Paco stated he “didn’t work for him [but] just helped him do
it once or twice.” (4 R.R. at 65-67)
4
  While Paco’s drinking was discussed in front of the jury, his specific mention of drinking a
twelve-pack of beer, addressed in appellant’s brief, was made outside the jury’s presence and,
therefore, is irrelevant in this case. (See Appellant’s Brief at 20; 4 R.R. at 39, 44, 70-71)

                                               11
 did not think he touched the weapon and denied that part of the weapon was left

 with him to dispose of. (4 R.R. at 74) Paco testified he was told to contact

 authorities if he was stopped by immigration. (4 R.R. at 76; see 4 R.R. at 78)

VI.     William Navarrete’s testimony

        William Navarrete testified he loaned a green Impala to Chavez once, which

 was the only time he had loaned Chavez a vehicle. (3 R.R.at 198-99) Navarrete

 knew Chavez, but did not know appellant or Torres. (3 R.R. at 197-98) Navarrete

 testified that, when Chavez came to his house to pick up the vehicle in the evening,

 he could see two other individuals in the vehicle in which Chavez arrived. (3 R.R.

 at 200) Navarrete did not know what the car would be used for, testified the car

 was returned to his driveway when he awoke the next morning for work, and stated

 he had to go to work at about 5:00 a.m.5 (3 R.R. at 201, 203)

VII.    Concepcion Benavides’s testimony

        Concepcion Chavez Benavides (Benavides), Chavez’s ex-wife, testified that

 appellant worked with Chavez bringing people from Mexico and that, though she

 “didn’t ever see it, [ ] they used to sell drugs or something.” (4 R.R. at 79-81)

 Benavides described appellant and Chavez as “really close friends,” stating that

 appellant was Chavez’s right-hand man, and that they were constantly together. (4


 5
  Although Torres stated the rims shown on photographs of the Impala were different than those
 on the car at the time of the murder, Navarrete testified the rims were the same. (4 R.R. at 156,
 203; State’s Exhibits 29, 30)

                                                12
R.R. at 81-82) Benavides also knew Torres and Paco and stated Paco had some

involvement in trafficking with Chavez. (4 R.R. at 82) Benavides testified that

appellant, Torres, and the complainant “all worked with [Chavez], doing the same

thing.” (4 R.R. at 83) Benavides testified that Chavez owned some beat-up trucks,

some of which were white, that appellant and Torres, and “everyone that worked in

the business with him” drove. (4 R.R. at 89-90)

      Benavides testified that, on November 15, 2004, she was woken up in the

middle of the night by Chavez. (4 R.R. at 84-85) She, Chavez, and her children

left and eventually arrived at Paco’s house. (4 R.R. at 85-86) Once they arrived,

Benavides “sat in the car for a long time . . . and they went somewheres [sic]”

where she “couldn’t see them anymore.”            (4 R.R. at 87-88)    Benavides

remembered appellant was at the house but was not sure if Torres was there. (4

R.R. at 88)

      Benavides did not know what was spoken of while she waited in the car. (4

R.R. at 100) No one told her what was going on while she was in the car and no

one told her at that time what had happened to the complainant. (4 R.R. at 90)

After leaving Paco’s house, Chavez told her the complainant was killed and

Benavides stated Chavez and appellant “were saying that they did [the

complainant] a favor” by killing him. (4 R.R. at 91-92) After leaving Paco’s

house, they went to a park with “water and a couple of piers and a loading dock.”



                                       13
(4 R.R. at 93; State’s Exhibit 28) Benavides then saw appellant walk “out to the

pier that’s near the loading dock and he threw something in there.” (4 R.R. at 94)

Benavides testified that, when they left Paco’s house with appellant, Chavez, and

her children, she did not see a gun, they did not speak about why they were going

to the park, and she did not recall if Torres was in the car. (4 R.R. at 102-103)

      Benavides, Chavez, appellant, and Torres ended up in Mexico shortly after

the murder and Benavides stated the complainant’s murder was brought up many

times when appellant was present. (4 R.R. at 94-97) Benavides testified she was

in the car with appellant, Chavez, and Torres many times, and heard them discuss

the murder in front of her “a lot,” though the conversations were not directed at her

most of the time. (4 R.R. at 102-103) Benavides testified there was “absolutely

not” any doubt in her mind that Chavez, appellant, and Torres were responsible for

the complainant’s murder. (4 R.R. at 97)

      Benavides stated it was not normal for Chavez to borrow cars from

Navarrete. (4 R.R. at 97) Benavides specifically remembered Chavez “saying that

they did [the complainant] a favor by killing him, because nobody cared about him.

And the only person that he had was his dad, and his dad was dead and now he

could be with his dad.” (4 R.R. at 101) Benavides also “specifically remember[ed

appellant] agreeing with what [Chavez] was saying” when they were discussing the

murder. (4 R.R. at 103-104)



                                          14
VIII.   Follow-up investigation

         BPD Detective Reyes conducted the follow-up investigation and was

  contacted by Federal Bureau of Investigation (FBI) Agent Coker in 2011. (4 R.R.

  at 104-110) Detective Reyes spoke to Benavides, Navarrete, and Paco, and filed

  charges on Torres, appellant, and Chavez.       (4 R.R. at 114-15) Detective Reyes

  testified that certain other individuals mentioned, discussed earlier at trial, were not

  “closely associated” with appellant, Torres, or Chavez. (4 R.R. at 116) Detective

  Reyes did not make any promises to or threats against Paco, Navarrete, or

  Benavides to testify. (4 R.R. at 116-17)

        Detective Reyes testified that if Paco were deported, that could be a possible

  problem and he would want to know if Paco was detained by immigration because

  he would want him to be a witness in this case. (4 R.R. at 117-18) Detective

  Reyes testified that Paco was concerned about his immigration status and feared

  deportation, but he stated that he did not “have the power to make any guarantees

  or offers to anybody, especially on immigration status,” though he discussed

  immigration consequences with Paco and told him “his cooperation would benefit

  him.” (4 R.R. at 126-28) Detective Reyes testified that Paco’s wife and children

  are American citizens. (4 R.R. at 128-29)

        Detective Reyes testified a confidential informant named certain individuals

  who had a “beef” with the complainant, but he did not speak with any of the named


                                             15
individuals. (4 R.R. at 119-20) Detective Reyes testified that, initially, Torres said

someone else was involved in the murder at which time Detective Reyes told him

he had spoken with appellant and thought there was more to the story. (4 R.R. at

122-24) The individuals Torres initially blamed were people already listed in the

report as “folks that should be spoken to,” but Detective Reyes spoke with one of

them, as “part of a gang investigation, gang-related” and ruled him out as a suspect

in this case. (4 R.R. at 124-25, 128-29)

      FBI Agent Coker opened his investigation in May 2011 and began working

with Detective Reyes around December 2011, participating in several of the

witness interviews. (4 R.R. at 129-34, 137-38) Agent Coker made Torres and

Paco no deals or promises and confirmed that the decision to file charges was not

based on Paco’s statements. (4 R.R. at 134-36) Agent Coker told Paco, “and his

wife that if he were detained by Immigration to give me a call or Detective Reyes. .

. . just to make sure he didn’t get deported until we were able to get his testimony.”

(4 R.R. at 136) Paco told Agent Coker he “had been involved in human trafficking

to some degree” but Agent Coker did not “have any information that he was

involved more heavily than that” or have any corroborating information. (4 R.R. at

136-37) Agent Coker was investigating Chavez for crimes other than human

trafficking, and he did not file trafficking charges on Chavez, appellant, Paco, or

Torres. (4 R.R. at 137-39)



                                           16
      No DNA was recovered from the spent shell casings to compare to the

complainant’s DNA profile. (3 R.R. at 139-45; State’s Exhibit 40) A gunshot

residue (GSR) test of the complainant’s hands showed one GSR particle on his

right hand and no GSR particles on his left hand. (3 R.R. at 119, 124-25, 127-33;

State’s Exhibit 39) The GSR test was deemed inconclusive due to the low number

of particles found and the complainant’s clothing was not tested. (3 R.R. at 134-

35, 137) Officer White testified that, in April 2012, he helped coordinate an

underwater search in the Neches River and the drainage ditch behind Paco’s house,

yet no gun or evidence connected to the case was recovered. (3 R.R. at 69, 71, 73-

76; State’s Exhibit 27; see 4 R.R. at 57)

      The jury was instructed that it could find appellant guilty of murder either as

a principal actor or under the law of parties. (C.R. at 107-108)


                       SUMMARY OF THE ARGUMENT

      The non-accomplice evidence presented—including evidence of appellant’s

connection with Chavez, his arrival with Torres at Paco’s home, statements he

made or participated in regarding the murder, his presence during the gun’s

destruction along with his actions shortly after leaving Paco’s home, and his

subsequent flight to Mexico—tended to connect appellant with the complainant’s

murder.    Therefore, this non-accomplice evidence sufficiently corroborated

Torres’s accomplice witness testimony presented at trial.

                                            17
      Additionally, the totality of the evidence presented—including evidence of

Chavez’s falling out with the complainant, appellant’s relationship with Chavez,

Torres’s testimony regarding appellant’s actions and statements during the time the

murder occurred, appellant being seen with a gun at Paco’s house, appellant’s

presence during the gun’s destruction, and his conversations and actions after the

murder—is sufficient to uphold his murder conviction, either as a party to the

offense or as the principal actor.


        RESPONSE TO APPELLANT’S THIRD POINT OF ERROR8

      In his third point of error, appellant argues that the non-accomplice evidence

presented at trial was insufficient to tend to connect appellant to the offense.

(Appellant’s Brief at 19, 21)


 I.   Corroboration of accomplice witness testimony

      The Texas Code of Criminal Procedure dictates 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. T EX. CODE

CRIM. PROC. ANN. art. 38.14 (West 2015).     To determine if accomplice testimony

is sufficiently corroborated, appellate courts “eliminate from consideration the




                                        18
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).

       “[N]on-accomplice evidence does not have to directly link [a defendant] to

the crime, nor does it alone have to establish his guilt beyond a reasonable doubt;

but rather, the non-accomplice evidence merely has to tend to connect [the

defendant] to the offense.” Id. at 613; see also Dowthitt v. State, 931 S.W.2d 244,

249 (Tex. Crim. App. 1996) (“[n]o precise rule can be formulated as to the amount

of evidence required to corroborate”); Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim.

App. 1994). “The direct or circumstantial non-accomplice evidence is sufficient

corroboration if it shows that rational jurors could have found that it sufficiently

tended to connect the accused to the offense [and] when there are conflicting views

of the evidence—one that tends to connect the accused to the offense and one that

does not—[appellate courts] will defer to the factfinder’s resolution of the

evidence.” Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).

       In light of this standard, the Court of Criminal Appeals has stated “it is not

appropriate for appellate courts to independently construe the non-accomplice




8
 Because the State’s reply to appellant’s first and second points of error is predicated upon the
response to appellant’s third point of error, the State will initially address appellant’s third point
of error.

                                                 19
evidence.” Id. Appellate courts must “consider the combined force of all the non-

accomplice evidence that tends to connect the accused to the offense.” Id.

      “[A]n accomplice’s testimony cannot be corroborated by prior statements

made by the accomplice witness to a third person.” Id. at 439. Additionally,

appellate courts “may not consider the testimony of one accomplice witness as

corroboration of the testimony of another accomplice, nor may [they] view the

testimony of a third party about an accomplice’s prior consistent statements as

corroboration of the accomplice’s testimony.” Crawford v. State, 863 S.W.2d 152,

157 (Tex. App.—Houston [1st Dist.] 1993, rev’d on other grounds, 892 S.W.2d 1

(Tex. Crim. App. 1994) (citing Aston v. State, 656 S.W.2d 453, 454 (Tex. Crim.

App. 1983); Reynolds v. State, 489 S.W.2d 866, 872 (Tex. Crim. App. 1972)).

      However, the Court of Criminal Appeals has declared that “testimony”

requiring corroboration under Article 38.14, “is that which is adduced ‘through live

witnesses speaking under oath or affirmation in presence of tribunal [.]’” Bingham

v. State, 913 S.W.2d 208, 210 (Tex. Crim. App. 1995) (op. on reh’g) (quoting

Black’s Law Dictionary, (6th ed. 1990), at 1476). Therefore, a non-testifying

accomplice’s out-of-court statements do not require corroboration under Article

38.14 in order to be considered by a jury. See Bingham, 913 S.W.2d at 213;

Nguyen v. State, 177 S.W.3d 659, 669 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d) (finding no basis for defendant’s request for an accomplice jury instruction



                                        20
regarding individuals who did not testify at trial, stating “the accomplice rule

applies only to testimony adduced in open court by live witnesses”).

      While a defendant’s mere presence with an accomplice “before, during, and

after the commission of the offense is insufficient by itself to corroborate

accomplice testimony, evidence of such presence, coupled with other suspicious

circumstances, may tend to connect the accused to the offense.” Dowthitt, 931

S.W.2d at 249. “Even apparently insignificant incriminating circumstances may

sometimes afford satisfactory evidence of corroboration.” Id.


II.   The non-accomplice evidence presented at trial corroborates Torres’s
      accomplice witness testimony.

      The jury was instructed that Torres was an accomplice. (C.R. at 109-10)

However, upon exclusion of Torres’s testimony from consideration, the non-

accomplice evidence presented amply connected appellant to the complainant’s

murder. A rational jury could have found from the non-testimonial evidence

presented that: 1) the complainant worked for Chavez in an illegal business and

wanted to get out of that line of work, 2) appellant was Chavez’s friend and right-

hand man, 3) Chavez was developed as a person of interest during the case

investigation, 4) other individuals were present with Chavez when he borrowed the

Impala from Navarrete, 4) appellant arrived together with Torres at Paco’s house,

5) a gun was used to kill the complainant, 6) appellant was present when Chavez



                                        21
tried to destroy a gun after the murder occurred, 7) the same gun was broken into

pieces—some of which were given to appellant and Torres—and appellant was

later seen throwing something into the Neches River after leaving Paco’s house, 8)

appellant left for Mexico soon after the murder, 9) appellant, while with Torres,

made statements about killing the complainant, and 10) appellant was present for

and participated in discussions with Chavez regarding the complainant’s murder.

(See 3 R.R. at 22-24, 71, 84, 107-109, 198-200; 4 R.R. at 6, 9-10, 16-20, 24, 35,

53-58, 73, 81-83, 87-88, 91-97, 101-104; State’s Exhibits 28, 31) Notably, Chavez

did not testify during trial and his out-of-court statements do not qualify as

“testimony” requiring corroboration under Article 38.14 to be considered by the

jury. See Bingham, 913 S.W.2d at 213; Nguyen, 177 S.W.3d at 669.

       The totality of the non-accomplice evidence presented at trial more than

amply tends to connect appellant with the complainant’s murder.                     Although

appellant refers only to a few conversations overheard by Paco and Benavides

regarding this point of error, the non-accomplice evidence presented in this case is

much more expansive and inculpatory of appellant.9 (See Appellant’s Brief at 20-

21) In fact, the non-accomplice evidence regarding appellant’s actions after the


9
 While appellant seems to characterize the conversations discussed as inadmissible hearsay,
appellant ignores the fact that evidence of several of the conversations was admitted at trial,
either without objection or over appellant’s objections. (See 4 R.R. at 39-56, 101-104;
Appellant’s Brief at 20-21) Furthermore, even if this evidence was improperly admitted,
appellate review of evidence for a sufficiency analysis includes evidence both properly and
improperly admitted. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

                                              22
murder is just as telling as the evidence regarding his close relationship with

Chavez, his statements, and the conversations in which he was a party. See Clay v.

State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (“Evidence of flight

evinces a consciousness of guilt”); Miller v. State, 177 S.W.3d 177, 184 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d) (noting defendant’s “flight

immediately after the shooting and his attempts to hide evidence constitute

circumstantial evidence of his guilt”); Torres v. State, 794 S.W.2d 596, 598 (Tex.

App.—Austin 1990, no pet.) (“‘[a] ‘consciousness of guilt’ is perhaps one of the

strongest kinds of evidence of guilt [and i]t is consequently a well accepted

principle that any conduct on the part of a person accused of a crime subsequent to

its commission, which indicates a ‘consciousness of guilt’ may be received as a

circumstance tending to prove that he committed the act with which he is

charged.’”) (quoting Ray, Texas Practice Vol. 2, Law of Evidence, §1538, at 242

(1980)).

      This evidence does not have to be sufficient in itself to find appellant guilty

of murder beyond a reasonable doubt, nor must it directly connect him to the

murder. McDuff, 939 S.W.2d at 613. However, upon review of the evidence with

“proper deference to the jury’s fact resolution,” a rational factfinder could have

easily, and reasonably, found that the evidence of appellant’s presence with Torres

and Chavez immediately following the murder, appellant’s relationship with



                                         23
Chavez, and the additional suspicious circumstances regarding appellant’s actions

and conversations surrounding the murder tended to connect him with the crime.

Smith, 332 S.W.3d at 442.

       Therefore, because a rational factfinder could have found that the non-

accomplice evidence presented at trial sufficiently tended to connect appellant to

the complainant’s murder, this Court should overrule appellant’s third point of

error and find Torres’s accomplice witness testimony was sufficiently corroborated.


      RESPONSE TO APPELLANT’S FIRST AND SECOND POINTS OF

                                      ERROR10

       In his first and second points of error, appellant contends the evidence is

insufficient to support his conviction for murder as a principal actor or under the

law of parties, respectfully. (Appellant’s Brief at 8, 9, 14, 18)


 I.    Standard of review

       The Jackson v. Virginia legal-sufficiency standard is the only standard

applied to appellate evaluation as to whether evidence is sufficient to support an

offense’s elements. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).

Evidence is legally sufficient if, upon review of all of the evidence in a light most

favorable to the verdict, “any rational trier of fact could have found the essential




                                          24
elements of the crime beyond a reasonable doubt.” Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. 307, 319 (1979)).

          The factfinder’s verdict “must stand unless it is found to be irrational or

unsupported by . . . the evidence . . . .” Matson v. State, 819 S.W.2d 839, 843 (Tex.

Crim. App. 1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.

1988)). Under this deferential standard of review, circumstantial evidence “is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007). A jury “as the sole judge of the credibility of witnesses

and the weight to be given to their testimony,” is permitted to believe or disbelieve

testimony. Noland v. State, 264 S.W.3d 144, 149 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d) (citing Cain v. State, 958 S.W.2d 404, 408-409 (Tex. Crim. App.

1997); Robles v. State, 104 S.W.3d 649, 652 (Tex. App.—Houston [1st Dist.] 2003,

no pet.)).

          “[I]n analyzing legal sufficiency, [appellate courts] ‘determine whether the

necessary inferences are reasonable based upon the combined and cumulative force

of all the evidence when viewed in the light most favorable to the verdict.’”

Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 16-17). Furthermore,

appellate “review of ‘all of the evidence’ includes evidence that was properly and


10
     Because much of the supporting facts and authorities apply to the State’s response to

                                             25
improperly admitted [and w]hen the record supports conflicting inferences,

[appellate courts] presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination.” Id. (citing Connor v. State,

67 S.W.3d 192, 197 (Tex. Crim. App. 2001); Jackson, 443 U.S. 326).

       Where the trial court’s charge authorizes a jury to find a defendant guilty of

an offense under alternative theories, “the verdict of guilt will be upheld if the

evidence was sufficient on any one of the theories.” Sorto v. State, 173 S.W.3d

469, 472 (Tex. Crim. App. 2005).


II.    Sufficiency of evidence regarding the law of parties

       “In reviewing the sufficiency of the evidence, [appellate courts] should look

at ‘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.’” Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.

App. 2004) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App.

1985); Thompson v. State, 697 S.W.2d 413, 416 (Tex. Crim. App. 1985)). “Each

fact need not point directly and independently to the guilt of the [defendant], as

long as the cumulative effect of all the incriminating facts are sufficient to support

the conviction.” Id.




appellant’s first and second points of error, the State will address these points together.

                                                 26
III.   The evidence presented is sufficient to uphold appellant’s murder
       conviction as the principal actor or as a party to the offense.

       Considering the totality of the evidence in a light most favorable to the

verdict, a rational factfinder could have found appellant guilty of murder as a party

to the offense or as the shooter himself beyond a reasonable doubt.

       In addition to the non-accomplice testimony presented at trial, (discussed

above in State’s Reply to Appellant’s Third Point of Error), the jury also heard

from Torres regarding the murder. Torres specifically testified that: 1) Chavez and

the complainant had a falling out, 2) Chavez wanted the complainant “taken out,”

3) appellant was supposed to shoot and kill the complainant, 4) he and appellant

went with Chavez to borrow the Impala, 5) Torres drove appellant to the park near

the complainant’s home, 6) appellant received a phone call, stated “he’s almost

here” and left the vehicle, 7) shortly after appellant left the vehicle Torres heard

multiple gunshots, after which appellant got back in the vehicle and stated “I got

him, I got him, I shot him,” 8) Torres saw appellant with a gun once they arrived at

Paco’s house, 9) appellant told Paco what happened upon their arrival, and 10)

appellant went to Mexico soon after the murder. (3 R.R. at 153-54, 158-61, 163-

65, 168-69, 173, 182-83, 187, 192) Torres also told the jury about his plea bargain

agreement with the State for his role in the murder. (3 R.R. at 175-76, 188-89)

       As the jury was free to believe or disbelieve Torres’s testimony, a rational

factfinder could have found appellant guilty of murder under the law of parties

                                         27
after viewing the evidence in a light most favorable to the verdict. At the very

least, the jury could have reasonably found appellant: 1) was present for the

murder, 2) assisted in disposing of the murder weapon immediately afterwards, 3)

was aware of what had happened to the complainant, continually discussing it with

multiple parties, and 4) subsequently fled the country. Such evidence is sufficient

to uphold appellant’s murder conviction under the law of parties, as it demonstrates

his intent, as well as his assistance in the commission of the offense.

      While the evidence is sufficient to support appellant’s conviction under the

law of parties, the evidence is even stronger in support of appellant’s conviction for

murder as the principal actor himself. Based on the totality of evidence viewed in

a light most favorable to the verdict, a rational factfinder could have found that

appellant was the actual shooter, given evidence of: 1) Chavez’s orders, 2)

appellant’s location and actions at the time of the murder, 3) his possession of the

gun at Paco’s house, 4) his inculpatory statements, including his statement of “I got

him, I got him, I shot him” to Torres, 5) his participation in destroying the gun, and

6) his subsequent flight to Mexico. While the evidence of appellant’s actions prior

to and during the murder supports a reasonable inference of his guilt, so too, does

the evidence regarding his statements and behavior after the murder. See Clay, 240

S.W.3d at 905 n.11; Miller, 177 S.W.3d at 184.




                                          28
      Therefore, because the totality of the evidence presented is sufficient to

support appellant’s murder conviction, either as a principal actor or under the law

of parties, this Court should overrule appellant’s first and second points of error.

                                  CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas

                                                 /s/ Patricia McLean
                                                 PATRICIA MCLEAN
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin, Suite 600
                                                 Houston, Texas 77002
                                                 (713) 755-5826
                                                 TBC No. 24081687
                                                 mclean_patricia@dao.hctx.net




                                          29
                         CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent to the

following email address via e-filing:

      Vivian King
      Attorney for Appellant
      VivianRKing@msn.com

                                                /s/ Patricia McLean
                                                PATRICIA MCLEAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 24081687



                      CERTIFICATE OF COMPLIANCE

       The undersigned attorney certifies that this computer-generated document
has a word count of 7,098 words, based upon the representation provided by the
word processing program that was used to create the document.


                                                /s/ Patricia McLean
                                                PATRICIA MCLEAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 24081687
Date: 10/14/2015




                                         30
