
NO. 07-06-0335-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 13, 2008

______________________________


ADRIAN BIERA, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 140th DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-410,709; HON. JIM BOB DARNELL, PRESIDING

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
          A jury found appellant Adrian Biera guilty of aggravated robbery and the trial court
assessed punishment at sixty years imprisonment in the Texas Department of Criminal
Justice, Institutional Division.  Appellant appeals his conviction by four issues.  Finding the
court erred in its charge to the jury and the error was harmful, we reverse and remand for
a new trial.  
Background
          On September 7, 2005, at about 6:00 a.m., a Lubbock, Texas, Whataburger
restaurant was robbed by two perpetrators armed with handguns.  They wore masks,
gloves, and camouflage clothing and had with them a bag that a restaurant employee
described as a “duffle bag looking thing.”  The restaurant manager and employee were
held at gunpoint while the robbers took money from cash drawers.  The manager estimated
the robbery lasted three to five minutes and after the robbers fled he called 9-1-1.
          The Lubbock police officer who first responded to the call observed loose change
on the floor and found an unspent .380 caliber cartridge, which was secured as evidence. 
One fingerprint was also lifted for comparison. 
          Appellant occupied a four-bedroom apartment in Lubbock.  At the time of the
robbery appellant’s two children also lived there, along with Maria Vargas, Vargas’ cousin
Stephanie Yzaguirre, her ten-year-old daughter, and Yzaguirre’s common-law husband,
Miguel Morado.  Evidence of extraneous criminal conduct by all the adult occupants was
admitted.  Use of illegal drugs, including methamphetamine, was frequent. 
          Vargas worked at a Lubbock motel.  During the time she was staying at appellant’s
apartment, she began stealing customer credit cards.  When questioned by police about
the thefts she ultimately confessed and then told what she knew of appellant, Morado, the
Whataburger robbery, and activity at appellant’s apartment.  Based on this information,
Lubbock police classified appellant and Morado suspects in the robbery. 
          Morado and appellant were subsequently arrested and indicted for the Whataburger
robbery.  Based on a guilty plea, Morado received a twenty-year sentence.  At trial, he
testified at length about the robbery and appellant’s involvement.
          According to Morado, he, and at times appellant, burglarized cars at night.  They
carried weapons including a nine-millimeter handgun and a rifle.  Appellant also carried a
black handgun.  
          On the night of the robbery Morado, appellant, and an unidentified male smoked
methamphetamine.  The trio drove Vargas’ car and brought hunting masks Yzaguirre had
purchased at appellant’s request.  Morado parked behind the Whataburger while appellant
and the other man entered the restaurant.  About five to ten minutes later appellant and
the other man returned to the car.  They drove to appellant’s apartment where they divided
the robbery proceeds.  Morado received just over $40 in bills and change.  
          In its charge to the jury at the guilt/innocence phase of trial, the court instructed that
Morado was an accomplice as a matter of law but refused appellant’s request for an
instruction concerning Yzaguirre as an accomplice as a matter of fact.
Issues
          In four issues appellant contends: (1) the evidence was insufficient to corroborate
the accomplice testimony of Morado; (2) the court failed to instruct the jury on Yzaguirre
as an accomplice as a matter of fact; (3) the court erred in admitting extraneous evidence
not allowed by Tex. R. Evid. 404(b); and (4) the court erred in not excluding extraneous
evidence under Rule 403.
Discussion
Issue Two: Failure to Instruct on Accomplice as a Matter of Fact
          We begin with appellant’s second issue.  Via that issue, appellant argues the trial
court erred by refusing his requested instruction concerning whether Yzaguirre was an
accomplice as a matter of fact.
                     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.  To be considered an
accomplice witness, the witness’s participation with the
defendant must have involved some affirmative act that
promotes the commission of the offense with which the
defendant is charged.  A witness is not an accomplice witness
merely because he or she knew of the offense and did not
disclose it, or even if he or she concealed it.  In addition, the
witness’s mere presence at the scene of the crime does not
render that witness an accomplice witness.  And complicity
with an accused in the commission of another offense apart
from the charged offense does not make that witness’s
testimony that of an accomplice witness. 
 
Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App. 2007) (footnotes and citations
omitted).  A witness is an accomplice if she could be prosecuted for the same offense as
the defendant or a lesser included offense.  Blake v. State, 971 S.W.2d 451, 454-55
(Tex.Crim.App. 1998).  This means a witness is an accomplice if the evidence so connects
her to the crime that she is a “blameworthy participant.”  Id.  “Whether the person is
actually charged and prosecuted for their participation is irrelevant to the determination of
accomplice status - - what matters is the evidence in the record.”  Id. at 455.  The
testimony of an accomplice is considered untrustworthy and should be “received and
viewed and acted on with caution.”  Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.
1981).  Thus, “before a conviction may rest upon an accomplice witness’s testimony, that
testimony must be corroborated by independent evidence tending to connect the accused
with the crime.”  Druery, 225 S.W.3d at 498; see Tex. Code of Crim. Proc. Ann. art. 38.14
(Vernon 2005).

          Once an accomplice testifies, it is for the jury to determine if the testimony was
sufficiently corroborated.  Blake, 971 S.W.2d at 455.  If the evidence establishes as a
matter of law the witness is an accomplice, the court must instruct the jury accordingly. 
Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987).  But if the parties present
conflicting or unclear evidence as to whether a witness is an accomplice, the jury must
initially determine, on instruction, whether the witness is an accomplice as a matter of fact. 
Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App. 2006); Blake, 971 S.W.2d at 455. 
          Appellant requested an instruction that Yzaguirre was an accomplice witness as a
matter of fact and objected at the trial court’s refusal to include the instruction in its charge
to the jury.  “It is well settled that an accused has a 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 or may not think about the
credibility of the evidence.”  Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999). 
When the evidence raises a question of fact concerning whether or not the witness is an
accomplice, the trial court should instruct the jurors to resolve the fact issue.  Kunkle v.
State, 771 S.W.2d 435, 439 (Tex.Crim.App.1986). 
          Appellant was indicted for the offense of aggravated robbery.  A person commits
robbery if, in the course of committing theft and with intent to obtain or maintain control of
the property, the person (1) intentionally, knowingly, or recklessly causes bodily injury to
another or (2) intentionally or knowingly threatens or places another in fear of imminent
bodily injury or death.  See Tex. Penal Code Ann. § 29.02(a) (Vernon 2003).  The offense
becomes aggravated if the person uses or exhibits a deadly weapon.  See id. § 29.03(a)(2)
(Vernon 2003).  “A person is criminally responsible as a party to an offense if the offense
is committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both.”  Tex. Penal Code Ann. § 7.01(a) (Vernon 2003).  A person is
criminally responsible for the offense committed by another if, acting with intent to promote
or assist the commission of the offense, the person solicits, encourages, directs, aids, or
attempts to aid the other person’s commission of the offense.  See Tex. Penal Code Ann.
§ 7.02(a)(2) (Vernon 2003). 
          To resolve the question whether Yzaguirre could have been charged as a party, we
look to the evidence.  No one denies that by purchasing masks for appellant at his request
Yzaguirre aided or attempted to aid the commission of the robbery.  The question is
whether she possessed the requisite intent to be charged as a party, that is, whether she
acted with the intent to promote or assist the commission of the offense.  Intent is a
question of fact that the jury determines from all the circumstances.  See Smith v. State,
965 S.W.2d 509, 518 (Tex.Crim.App. 1998).
          The evidence of intent was conflicting.  Yzaguirre testified appellant told her that he
and his uncle planned to go hunting, and she disclaimed knowledge that appellant
intended to use the masks for any other purpose.  Morado also denied his wife had prior
knowledge of the robbery and the purpose of the masks.  On the other hand, evidence
abounded of criminal activity by the inhabitants of appellant’s apartment.  The prosecutor
informed the court before trial began that she believed the Whataburger robbery was
committed to obtain drug money for the inhabitants of the apartment.  Despite the common
use of illegal drugs by those living at the apartment, only Vargas was gainfully employed. 
Vargas testified she gave stolen credit cards to Yzaguirre and Morado.  The credit cards
were used to purchase gas for cars belonging to Morado, Vargas, and appellant. 
According to Morado, the cards also were used at gas stations to purchase fuel which was
sold to third parties at half-price for cash.  After moving into appellant’s apartment, Morado
began stealing to repay appellant for living accommodations.  The State introduced
numerous photographs taken by police in the apartment, showing drugs, drug
paraphernalia and stolen property.
 
          Yzaguirre bought the masks four days before the robbery.  She testified appellant
gave her money, asking her to purchase two hunting masks.  Appellant allowed Yzaguirre
use of his car for the errand.  To fulfill appellant’s request, Yzaguirre went to several retail
stores before locating and purchasing the ski-style camouflage masks at a Wal-Mart. 
Yzaguirre placed such a priority on fulfilling appellant’s request that she forsook attending
a relative’s birthday party. 
          Yzaguirre testified appellant and Morado usually carried guns when they left the
apartment.  One night after Yzaguirre purchased the masks, appellant and Morado left the
apartment armed with black guns.  They took with them a folding chair bag but it did not
contain a chair.  Yzaguirre “figured” appellant put the masks she purchased for him in the
folding chair bag. 
          The jury might have believed Yzaguirre innocently accomplished no more than an
errand for a friend who allowed her, her daughter, and Morado to live rent-free at his
residence.  But it might, conversely, have doubted her story that the ski-style camouflage
masks she bought in September were intended for hunting, and believed Yzaguirre
intentionally assisted Morado and appellant obtain money by robbery to support the
occupants of appellant’s apartment.  In its charge, the court instructed the jury on the law
of parties but declined over objection to instruct on the issue of Yzaguirre as an accomplice
as a matter of fact.  By omitting accomplice as a matter of fact instructions as to Yzaguirre,
the trial court erred.
            We must now consider whether the error was harmless.  A court’s failure to submit
an accomplice as a matter of fact instruction may amount to harmless error if some non-accomplice evidence exists tending to connect the accused to the offense.  Herron v.
State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002).  Under such circumstances the omission
of the instruction is harmless because its purpose has been fulfilled.  Id.  “[A] harmless
error analysis for the omission of an accomplice witness instruction should be flexible,
taking into account the existence and strength of any non-accomplice evidence and the
applicable standard of review.”  Id.  Because appellant properly preserved his claim of error
by timely calling to the trial court’s attention the omission of an accomplice in fact
instruction pertaining to Yzaguirre, we review the error to determine if “some” harm resulted
from the omission.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on
reh’g).  Cases involving preserved charge error are to be affirmed only if no harm has
occurred.  Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986) (emphasis in
original). 
          The sufficiency of corroborating evidence is tested by eliminating the accomplice
witness testimony and then examining the remaining evidence to determine the existence
or not of evidence connecting the defendant with the commission of the offense.  Munoz
v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993).  It is not necessary that the
remaining evidence directly link the defendant to the crime or prove all the elements of the
charged offense.  Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994).  There is no
precise rule as to the amount of evidence that is required, and each case is to be
considered on its own facts and circumstances.  Id.; Munoz, 853 S.W.2d at 559.  In
reviewing the strength of the corroborating evidence, we “examine (1) its reliability or
believability and (2) the strength of its tendency to connect the defendant to the crime.” 
Herron, 86 S.W.3d at 632.  The testimony of one accomplice may not corroborate the
testimony of another accomplice.  See Chapman v. State, 470 S.W.2d 656, 660
(Tex.Crim.App. 1971). 
          Among the corroborating evidence was the testimony of the Whataburger employee
on duty at the time of the robbery, who described the masks worn by the robbers as “like
a mask from Wal-Mart,” with large eye openings.  He observed one robber attempted to
empty the contents of a cash register drawer into the “duffle bag looking thing.”  The taller
robber dropped his handgun.  The employee assumed the weapon ejected a shell which
was the unspent .380 caliber shell later found on the restaurant floor.  
          According to the Whataburger manager, the eye openings of the masks resembled
“an eight lying down.”  He was within three feet of a robber and observed his eyes,
eyebrows and upper cheekbones.  The manager described this suspect as Hispanic, about
5’ 7’’ weighing 150-160 pounds, with dark eyes, dark eyebrows and light skin.  He was
armed with what the manager believed was a black nine-millimeter.  The manager agreed
the robber and appellant had “similar” features.  But the manager could not identify
appellant as the robber.  
          According to Vargas, at times appellant and Morado borrowed her car after midnight
and remained away from the apartment for hours.  After these outings, Vargas found the
interior decorations of her car stowed in the glove compartment.  On one occasion, Vargas
found a box of latex gloves in her car.  
          Vargas lived in appellant’s apartment about two months, from the end of July into
September.  During this time she observed appellant carrying two different handguns.  One
was silver and the other black.  On “some” occasions when appellant left at night in her car
he was armed with one of the handguns.  
          After the robbery, Vargas overheard an undisclosed conversation involving
Yzaguirre.  Responding to a question from Vargas, Yzaguirre threw a newspaper at her
containing a report of the robbery.  Morado was able to loan Vargas change for buying
beer.  According to Vargas, she then “put two and two together.”  
          Some three weeks after the robbery, a Lubbock police detective went to appellant’s
apartment.  She was told appellant had been evicted, but heard loud music coming from
within and gained admission from the manager.  Inside were appellant and others whom
she arrested for criminal trespass. 
          When the detective conducted a sweep search of appellant’s apartment she
encountered Christina Ortiz, also an occupant of appellant’s apartment, lying on the bed
in appellant’s bedroom.  Under a blanket on the bed, the detective found a .40 caliber
Beretta handgun.  Initially the weapon was erroneously identified as a nine-millimeter. 
Other weapons were found in the apartment but the collection did not include a nine-millimeter or a .380 caliber handgun.  In the livingroom of the apartment, located in a
goblet, the detective found a .380 caliber shell.  It and the .380 caliber shell found at the
robbery scene were submitted to the Department of Public Safety crime laboratory for
analysis.  
          About a week after the initial search, the detective received word that the
management of the apartment complex where appellant lived was removing the contents
of his apartment.  On arrival at the apartment, the detective observed appellant placing
items in his car.  She arrested appellant on an outstanding misdemeanor warrant.  In a bag
placed in appellant’s vehicle by Christina Ortiz, the detective found a .45 caliber handgun. 
To empty the contents of appellant’s apartment, maintenance workers for the landlord
entered and placed items of personal property in plastic trash bags.  The bags were then
set on the lawn of the apartment complex.  Following an inquiry of the detective, the
assistant apartment manager found camouflage masks in one of the trash bags.  The
masks were admitted into evidence at trial and on recall the Whataburger manager agreed
that they appeared to be the same masks worn by the robbers.  The detective testified that
she was informed the masks were stored in a “camp chair bag.”  At the time of appellant’s
eviction, she found a bag fitting this description, but was unable to say whether it was
located in appellant’s bedroom or on the apartment complex lawn.    
          The State’s crime laboratory analyst testified that a Beretta nine-millimeter pistol and
.40 caliber pistol appear virtually identical.  He compared the .380 caliber shell found at the
robbery scene with the .380 caliber shell the detective found in appellant’s apartment.  The
bullets shared a common manufacturer, Remington, but the DPS analyst agreed on cross-examination that probably “tens of thousands” of .380 caliber shells were available for
resale in Lubbock.  
          A Lubbock police officer made comparisons of the fingerprint found at the robbery
scene with exemplars of appellant and Morado.  The print matched neither.  The officer
was unable to obtain a print from two handguns found at appellant’s apartment.  
          The State’s final piece of evidence was an excerpt from a recorded jail telephone
conversation between appellant and Christina Ortiz.  In closing argument, the State
highlighted an excerpt that it and appellant interpret, “I’m not going to do 99 years because
some f------ m—---------- can’t hold onto his s---.”  According to the State, this was an
inculpatory statement in response to Morado’s confession.  And the vernacular paralleled
that used by one of the robbers.  
          Evaluating this body of non-accomplice evidence under the standard prescribed in
Herron, 865 S.W.3d at 632, we find it does not tend to connect appellant to the robbery.
Apart from the testimony of Yzaguirre and Morado, the pillars of the State’s proof are the
masks and the identification testimony of the Whataburger manager.  He observed a
similarity of facial features between appellant and the shorter robber.  But he was unable
to identify appellant as a robber.  This leaves the masks.  
          In Munoz, 853 S.W.2d 558, the only non-accomplice testimony connecting the
accused to the murder of a convenience store clerk was the wrapper of a “Bic” lighter found
in the accused’s vehicle.  The store where the clerk was killed stocked Bic lighters but the
manager could not identify the wrapper in evidence as coming from the store.  Id. at 561-52.  This was held insufficient corroborative evidence.  Id. at 564.  Here, without
Yzaguirre’s testimony, the masks are tied to appellant only by their location at the
apartment Morado, the confessed robber, also occupied.  But nothing shows the trash bag
containing the masks held only appellant’s property.  Like in Munoz, we find that insufficient
corroboration.  
          Finding the evidence did not fulfill the purpose of the missing accomplice in fact
instruction as to Yzaguirre, we cannot say its absence was harmless.  Appellant suffered
some harm from its omission.  Herron, 86 S.W.3d at 632.  We sustain appellant’s second
issue. 
          Finding appellant’s second issue dispositive of the appeal, we do not address his
remaining issues.  Tex. R. App. P. 47.1.  We reverse the trial court’s judgment and remand
the case for a new trial.
James T. Campbell
Justice


Publish.
