                         NUMBER 13-18-00396-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


DOMINGO VILLARREAL,                                                        Appellant,


                                              v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

               Before Justices Hinojosa, Perkes, and Tijerina
                 Memorandum Opinion by Justice Perkes
      Appellant Domingo Villarreal was convicted of manslaughter with a deadly

weapon, a second-degree felony, and sentenced to twenty years’ imprisonment. See TEX.

PENAL CODE ANN. § 19.04. By what we construe as three issues, Villarreal argues (1) the

prosecutor engaged in prosecutorial misconduct, and he was “denied a fair trial when the
prosecutor became a necessary trial witness on a contested issue whom Villarreal was

prevented from cross-examining in violation of his 14th and 6th Amendment rights and

Texas Constitution Art. I, §10”; (2) the trial court erred in failing to sua sponte declare a

mistrial following the prosecutor’s misconduct; and (3) the evidence was legally

insufficient to support a conviction. We affirm.

                                   I.      BACKGROUND

       On March 15, 2017, Villarreal was indicted for “capital murder by terror threat/other

felony.” See id. § 19.03(a)(2). Villarreal, along with Ian Hernandez, Juan Herrera, Andrew

Luis, and Joe DeLuna, were implicated in the murder and attempted robbery of seventy-

year-old Jesus Cruz. Villarreal pleaded not guilty and the case proceeded to trial, where

several witnesses, including Luis, testified.

A.     Officer Allen Miller

       Corpus Christi Police Department (CCPD) Senior Officer Allen Miller testified he

was dispatched to a residence in the 1400 hundred block of El Paso Drive over reports

of a shooting on December 18, 2016, at approximately 11:26 p.m. Miller stated he arrived

within “minutes of the call going out.” According to Miller, as he was pulling into the

driveway, “We had people running at us saying, ‘They shot. They shot him, they shot him.

They shot grandpa.’” Once inside the home, Miller testified he attempted “basic life-

saving, combat life-saving medical aid” on an elderly male later identified as Jesus until

emergency personnel arrived. Jesus succumbed to his injuries at the hospital.

B.     Severo Cruz

       Jesus’s son, Severo Cruz, testified that four masked men broke into his home that

evening, and he believed he knew the identities of two of the men: Villarreal, his

daughter’s ex-boyfriend, and Hernandez, Villarreal’s friend.


                                                2
        Severo said he had just gotten out of the shower when he “heard the [front] door

get kicked open.” He ran out to the hallway to find his mother, wife, and their three children

being ordered to “get the F down on the ground.” Severo testified he and Jesus ran to

Jesus’s room, where he tried to “help [his] dad to get out of the window.” “[I heard] the

gunshots by the hallway, two gunshots, and then I heard my dad just take a deep breath

and just go down,” said Severo. The two bullets penetrated the closed bedroom door and

struck Jesus, who he said was beside him at the time.

        When asked how he knew who was responsible for his father’s death, Severo

maintained he recognized one of the voices as belonging to Villarreal and identified

Villarreal in the courtroom. Severo also insisted he heard Hernandez say “‘[s]hoot the

bitch open.’” On cross-examination, Severo was confronted with his 9-1-1 call, wherein

he was asked by dispatch if he knew who the perpetrators were, and Severo said he did

not.

        Severo also testified to events occurring earlier that same evening. Severo stated

he had come out of his bedroom to find Villarreal in the living room, arguing with his

daughter, Miranda Cruz. Severo testified Villarreal “started just telling [him] stuff,” kicked

the family’s dog, “then from there he got the Christmas tree and threw it against the wall,

and he said, ‘I’ll be back.’” Severo called the police to report the incident. 1

C.      Miranda Cruz

        Miranda, Severo’s 18-year-old daughter and Villarreal’s ex-girlfriend, also testified.

Miranda, like Severo, identified two of the masked men as Hernandez and Villarreal. After




        1  CCPD officer Joel Torres confirmed that he received a dispatch call regarding a disturbance at
the Cruz household at approximately 10:00 p.m. that evening. Torres testified he was told by Severo that
Villarreal had “come by” and “knocked his Christmas tree over and kicked his dog.”


                                                   3
Villarreal was arrested, Miranda said he called her from jail to apologize. “I remember he

told me he was sorry,” testified Miranda. Jail call recordings were admitted into evidence, 2

and Villarreal can be heard telling Miranda: “Dude, I’m sorry, dude. I love you so much.

I’m sorry, Miranda. It was never supposed to be like this. I’m sorry. I just—I hope you take

care of yourself. Stay out of trouble. Be good for me, please. I wanted to hear your voice.

I’m sorry for everything, Miranda.”

         Miranda acknowledged on cross-examination that Villarreal could have been

referring to what had transpired earlier in the evening. On direct-examination, however,

Miranda provided conflicting testimony as to why Villarreal had been at her home previous

to the incident and what prompted him to leave. Miranda first stated, “What happened

was he said that my dad burned his—[Villarreal’s] aunt.” Miranda then testified that

Villarreal was upset with her because he wanted her to go over to his home, but she did

not want to go. Miranda stated Villarreal then kicked the family’s Christmas tree and dog

before leaving. She testified, “He said he was coming back, he told my dad, he said,

‘SOS. You have a green light.’” Miranda explained that “SOS” meant “shoot on sight.”

Miranda then stated they parted ways soon after but not because she wanted him to

leave. “I was mad because he wasn’t staying.”

D.       Andrew Cruz

         Andrew Cruz 3, Miranda’s nineteen-year-old brother, testified that after the four

armed men entered the home, they demanded everyone drop to the floor. Andrew said




         2   In a separate call, Villarreal told another individual, “I f-cked up, bro. I just needed to hear a friend,
bro. . . . I f-cking f-cked up bad, bro.” Villarreal did not elaborate.
         3In exchange for testifying, Andrew was offered ten years’ deferred adjudication on two robbery
cases and “maybe a robbery . . . and maybe a burglary of a habitation,” for which he had not yet been
indicted on.


                                                          4
he was “pistol whipped” 4 and threatened. “They were threatening us[,] saying, ‘Are you

ready to die,’” said Andrew. Although he named Hernandez and Villarreal as two of the

individuals who had broken into the home based on voice recognition, Andrew admitted

on cross-examination that he had never met Hernandez before and did not know what

his voice sounded like. Andrew said it was Miranda who told him she knew it was

Hernandez. 5

E.      Andrew Luis

        Luis, twenty-three years old at the time of trial and an accomplice in the shooting,

denied he used drugs or was involved in any criminal activity prior to the December 18,

2016 incident. In exchange for testifying, Luis accepted a plea bargain deal for ten years’

deferred adjudication.

        Luis testified that on the evening of December 18th, he received a phone call from

Herrera asking him if he wanted to help Herrera “hit a lick.” Luis explained that term was

slang for getting marihuana by use of force. Luis then drove his 2011 Nissan Juke to

Herrera’s mother’s house. Luis said Herrera got in the car and described the “plan.” While

they were still parked outside Herrera’s residence, Luis said Herrera called Villarreal and

Hernandez. Herrera then went back into his house and returned several minutes later

with his infant child 6 and cousin, Joe DeLuna. Once “the cousin got involved,” Luis said




        Photographs of Andrew taken by law enforcement at the home and admitted at trial depict a fresh
        4

head wound, substantiating his claim that he was hit in the head with a gun.
        5While Andrew also testified to Villarreal being at his family’s home hours before the shooting,
Andrew’s recollection of the details surrounding the confrontation included facts not stated by any other
witnesses. Andrew testified that Villarreal, in addition to kicking their dog, also “shot the dog”—a detail
unmentioned by Andrew before trial.
        6 Luis did not know the child’s age but surmised that the child was still an infant because the child
could not walk yet. Luis testified he initially verbalized taking issue with the child being brought along, but
Herrera dismissed his concerns.


                                                      5
he became concerned “because [DeLuna] had just got out of prison.” Luis testified he

“wanted” to say he was “done,” but he was “scared of both of them.”

        Luis said he was first instructed to drive to Villarreal’s mother’s home to pick up

Villarreal and Hernandez. Luis testified he was then given directions to Cruz’s home.

Once there, Villarreal, Hernandez, Herrera, and DeLuna “got out and [Herrera] told me to

drive around the block,” detailed Luis, who, after following Herrera’s orders, remained

inside the car with the baby. Though Luis could not recall ever hearing gun shots, he

testified he remembered seeing DeLuna and Hernandez running back to the vehicle

carrying guns. “All I hear—I don’t know who says what, but all I heard is ‘Who shot? Who

shot?’”, and someone in the backseat responded, “‘I did.’” Luis said Villarreal, Hernandez,

and DeLuna were in the backseat, and he believed it was DeLuna who had accepted

responsibility. Luis testified that Herrera and DeLuna threatened everyone to keep quiet

“or else.”

        When he dropped off DeLuna, Luis said he noticed DeLuna had taken the guns

with him. Luis, Villarreal, Hernandez, and Herrera then went to Whataburger, and a

receipt with a timestamp of 12:25 a.m., about an hour after the shooting, was admitted

into evidence. Luis testified he was on his way to Herrera’s home, having just dropped off

Villarreal and Hernandez, when he was pulled over by police. 7

        Luis denied ever going into the Cruz’s home or touching a weapon. On cross-

examination, Luis was unable to answer why he had more gunshot primer residue

particles on his hands than the other men involved.




        7 CCPD retrieved surveillance footage from a neighboring house showing a vehicle leaving the area
at the time of the shooting that matched the vehicle driven by Luis and the description provided by Cruz’s
family.


                                                    6
F.      Roger Bernal

        Roger Bernal testified that Villarreal confided in him while the two were in custody

at the Nueces County Jail. 8 Bernal said Villarreal told him “he had got into it” with his

girlfriend’s parents. “That he had somebody to go over there to rough up, what was it, her

father,” testified Bernal. On cross-examination, Bernal clarified that he was never told by

Villarreal that he, himself, had gone to “rough up” Miranda’s father. “I don’t know the

person’s name, just that he had sent somebody to go rough up her father,” testified

Bernal.

        Bernal’s relationship with the prosecution was also briefly at issue at trial.

According to Bernal, at some undisclosed point after Bernal was no longer in custody and

had provided his statement to the police to report what Villarreal purportedly disclosed to

him, the prosecutor had paid Bernal $20 to help him “move some furniture” out of a

garage.

G.      Physical Evidence

        Within hours of the shooting four of the five men were arrested, and their hands

and arms were swabbed for gunshot residue (GSR). Christopher Chany, a GSR analyst

with Texas Department of Public Safety Crime Laboratory in Austin, testified he found

“characteristic gunshot primer residue particles” 9 on all four men.




        8 Bernal was being held for a warrant on an outstanding motion for revocation on a possession of
controlled substance case. Bernal testified that he had previously served prison sentences for both federal
and state-controlled substance-related offenses.
        9   Chany explained that
        when a gun is fired, there’s the cartridge case[, which] has two components in it. Towards
        the back in the primer cup is the primer, and then there’s the gun powder that fills up most
        of the cartridge. When that hammer hits the primer cup, it causes a small explosion to occur
        in that primer cup. . . . What I am looking for in this test are components of the primer that
        are in that primer cup. . . .


                                                      7
       For Mr. Villarreal[,] [there] was one characteristic gunshot primer residue
       particle was found on his kit. For Mr. Hernandez[,] one characteristic particle
       was found on his kit. For Mr. Luis[,] four characteristic gunshot residue
       particles were confirmed on his kit. And for Mr. Herrera[,] two characteristic
       gunshot residue particles were confirmed on his kit.

       According to Chany, DPS generally will not analyze “hand stubs” that were

retrieved more than “four hours from an incident” because of how easy GSR “wears off.”

Chany opined that the transference of GSR between persons and objects is just as easy;

therefore, having less GSR particles does not mean that an individual did not handle a

weapon anymore that having more GSR particles means an individual did handle a

weapon. Both are just indicators of possible proximity to a recently fired weapon.

       CCPD also recovered two bullet casings from the home. Carolyn Martinez, a

firearm and tool mark examiner with CCPD, testified that she was unable to identify the

specific firearm used because the bullet casings recovered lacked sufficient detail

markings, and the weapon used for this offense was never located.

       On December 20, 2016, Dr. Ray Fernandez, Medical Examiner for Nueces County,

performed an autopsy on Jesus. Dr. Fernandez confirmed that Jesus sustained two

gunshot wounds: one to the “right upper back” that did not exit the body and “a perforating

gunshot wound at the right lower back.” According to Dr. Fernandez, the bullet that

entered the right lower back “went through the lung on one side, then went through the

spinal column, went through the lung on the other side, and then came out on the other

side.” Dr. Fernandez opined that no other notable medical conditions could have

contributed to Jesus’s death. 10




       10Jesus was also negative for drugs, but there was “a small amount of alcohol” in his system of
“maybe half, less than half” of a beer, said Dr. Fernandez.


                                                  8
       A video recording of Villarreal being transported to the jail was also admitted into

evidence, wherein Villarreal claimed he acted in “self-defense” that evening and made

several incriminating statements.

       The jury returned a guilty verdict. This appeal followed.

                            II.     PROSECUTORIAL MISCONDUCT

       By his first issue, Villarreal argues that the prosecutor in this case deprived him of

a fair trial by engaging in prosecutorial misconduct when he improperly questioned a

witness with whom he had an existing relationship. The State counters that because

Villarreal raised no objection at trial and “never even attempted to call the prosecutor as

a witness, ask that he be disqualified from continuing as the prosecutor so that he could

be called, or for any other relief short of a mistrial, including possibly striking Bernal’s

testimony,” he has waived error. See TEX. R. APP. P. 33.1.

       “Prosecutorial misconduct rises to a due-process violation when it is so significant

that it deprives a defendant of a fair trial.” Clark v. State, 365 S.W.3d 333, 338 (Tex. Crim.

App. 2012) (citing Greer v. Miller, 483 U.S. 756, 765 (1987)); see also TEX. CODE CRIM.

PROC. ANN. art. 2.03 (“It is the duty of . . . the attorney representing the state . . . to so

conduct themselves as to insure a fair trial for both the state and the defendant, not impair

the presumption of innocence.”). However, the allegation of prosecutorial misconduct

must be urged at trial to preserve error on appeal. Clark, 365 S.W.3d at 339; see Castruita

v. State, 584 S.W.3d 88, 112 (Tex. App.—El Paso 2018, pet. ref’d); see also TEX. R. APP.

P. 33.1(a)(1)(A). The proper method of preserving error in cases of prosecutorial

misconduct is to (1) object on specific grounds, (2) request an instruction that the

factfinder disregard the comment, and (3) move for a mistrial. Penry v. State, 903 S.W.2d

715, 764 (Tex. Crim. App. 1995); Joyner v. State, 548 S.W.3d 731, 735 (Tex. App.—


                                              9
Houston [1st Dist.] 2018, pet. ref’d); see also Tate v. State, No. 13-09-00247-CR, 2011

WL 1938501, at *6–7 (Tex. App.—Corpus Christi–Edinburg May 12, 2011, no pet.) (mem.

op., not designated for publication).

        Our review of the record shows that Villarreal failed to object to either the

prosecutor’s questioning of Bernal or Bernal’s testimony. 11 Therefore, Villarreal’s

complaints have not been preserved for review, and we decline to address them. See

TEX. R. APP. P. 33.1; Clark, 365 S.W.3d at 339; Penry, 903 S.W.2d at 764; Castruita, 584

S.W.3d 88, 112. We overrule issue one. 12




        11   The prosecutor briefly questioned Bernal at trial regarding their relationship:
        Q.         Okay. Did I once hire you after the fact to help move some furniture or give you
                   some furniture or gave you $20 to move some furniture out of the garage I was
                   moving out of?
        A.         Yes, sir.
        Q.         And that was along with your girlfriend or your wife?
        A.         My sister and my wife.
        Q.         And all this was after you had told all this to the police, and you had been taken
                   out of jail?
        A.         Yes, sir.
        Q.         Okay. Have we promised you anything else to come here to court?
        A.         No, sir.
        Q.         Okay. And why did you come here to court to say these things?
        A.         Just because that’s what he told me, to tell the truth.
On appeal, Villarreal also objects to the leading nature of this direct examination, arguing he should have
been given an opportunity to cross-examine the prosecutor. Villarreal made no such objections or requests
before the trial court, and following the State’s direct examination, Villarreal was permitted to cross-examine
Bernal on the nature of his relationship with the prosecutor.
         12 In one sentence of Villarreal’s prosecutorial misconduct argument on appeal, he makes reference

to an ineffective assistance claim, stating: “Defense counsel committed ineffective assistance of counsel
by failing to request a mistrial.” Villarreal provides no caselaw or analysis in support of an ineffective
assistance claim. As such, to the extent Villarreal attempts to raise this issue, we conclude it has been
inadequately briefed. See TEX. R. APP. P. 38.1(i).


                                                        10
                               II.     SUA SPONTE MISTRIAL

       Though Villarreal did not object to Bernal’s testimony or the prosecutor’s line of

questioning, he asserts the trial court should have sua sponte declared a mistrial because

the “conflicts of attorneys” created “some fundamental error or irregularity that prevent[ed]

a proper judgment being rendered.”

       The traditional and preferred procedure for seeking a mistrial involves three steps:

(1) objecting to a prejudicial event, if possible; (2) requesting an instruction that the jury

disregard the prejudicial event; and (3) requesting a mistrial if the moving party believes

that the instruction to disregard is insufficient. See Young v. State, 137 S.W.3d 65, 69

(Tex. Crim. App. 2004). A trial judge has the power to declare a mistrial sua sponte when

“in [his or her] opinion, taking all the circumstances into consideration, there is a manifest

necessity for the act, or the ends of public justice would otherwise be defeated.” Torres

v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. [Panel Op.] 1981) (citation omitted); Hill

v. State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002) (“Manifest necessity exists when the

circumstances render it impossible to arrive at a fair verdict, when it is impossible to

continue with trial, or when the verdict would be automatically reversed on appeal

because of trial error.”). The trial court should use this power with “the greatest caution

under urgent circumstances, and for very plain and obvious causes.” Renico v. Lett, 559

U.S. 766, 774 (2010) (quoting United States v. Perez, 22 U.S. 579, 580 (1824)); Torres,

614 S.W.2d at 442; see also Salinas v. State, No. 13-18-00536-CR, 2019 WL 2847450,

at *2 (Tex. App.—Corpus Christi–Edinburg July 3, 2019, no pet.) (mem. op., not

designated for publication).

       Here, a trial court could reasonably conclude that Bernal’s “relationship” with the

prosecutor, which was limited to completing a single menial task in exchange for $20.00,


                                             11
had no substantive bearing on his testimony. Bernal reported Villarreal’s supposed

confession and was released from custody before any aforementioned “relationship” with

the prosecutor began. Moreover, the substance of Bernal’s testimony was largely

inconsequential. Bernal did not place Villarreal at the scene of the crime, and Villarreal’s

tangential connection to Jesus’s murder was established absent Bernal’s testimony.

Thus, these facts do not support a finding of manifest necessity by the trial court as to

mandate a mistrial. See Renico, 559 U.S. at 774; Torres, 614 S.W.2d at 442. We overrule

issue two.

                                III.    SUFFICIENCY OF THE EVIDENCE

        Villarreal next asserts that there was insufficient evidence to convict him of

manslaughter. 13

A.      Standard of Review and Applicable Law

        When reviewing claims of legal insufficiency, the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Alfaro-Jimenez v. State, 577 S.W.3d

240, 244 (Tex. Crim. App. 2019) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007)); Martinez v. State, 527 S.W.3d 310, 320 (Tex. App.—Corpus Christi–

Edinburg 2017, pet. ref’d). This standard requires the appellate court to defer “to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Zuniga




        13  Villarreal does not appear to challenge the jury’s deadly weapon finding; therefore, our analysis
is limited to a manslaughter sufficiency of the evidence challenge, wherein Villarreal argues his identity as
the shooter or party to the offense has not been proven.


                                                    12
v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018) (quoting Jackson, 443 U.S. at 319).

Each fact need not point directly and independently to guilt if the cumulative force of all

incriminating circumstances is sufficient to support the conviction. Nisbett v. State, 552

S.W.3d 244, 262 (Tex. Crim. App. 2018) (citing Hooper, 214 S.W.3d at 13). It is not

necessary that the evidence directly prove the defendant’s guilt; circumstantial evidence

is as probative as direct evidence in establishing a defendant’s guilt, and circumstantial

evidence can alone be sufficient to establish guilt. Id.

       Sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Braughton v. State, 569 S.W.3d 592, 608 (Tex.

Crim. App. 2018) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In

this case, a hypothetically correct charge would instruct the jury to find Villarreal guilty of

the aforementioned offense if the State proved beyond a reasonable doubt that he

“recklessly cause[d] the death of an individual.” TEX. PENAL CODE ANN. § 19.04. A person

“acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is

aware of but consciously disregards a substantial and unjustifiable risk that . . . the result

will occur.” Id. § 6.03(c). “The risk must be of such a nature and degree that its disregard

constitutes a gross deviation from the standard of care that an ordinary person would

exercise under all the circumstances as viewed from the actor’s standpoint.” Id.

       A hypothetically correct jury charge would additionally instruct the jury that, under

the law of parties, Villarreal is criminally responsible for an offense committed by another’s

conduct if, acting with intent to promote or assist the commission of the offense, he

solicited, encouraged, directed, aided, or attempted to aid the other person to commit the

offense. Id. § 7.02(a)(2). Party participation may be shown by events occurring before,

during, and after the commission of the offense, and may be demonstrated by actions


                                              13
showing an understanding and common design to do the prohibited act. Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005).

B.     Analysis

       Villarreal principally argues that he “should not be convicted based upon testimony

that infers his guilt by stacking the testimony” of witnesses who were unable to definitively

identify him as the shooter or participant in the shooting.

       Several members of the Cruz family testified that Villarreal was at their home

several hours prior to the shooting and engaged in a confrontational exchange with

Miranda and her father Severo. See Nisbett, 552 S.W.3d at 265–66 (“While motive is not

by itself enough to establish guilt of a crime, it is a significant circumstance indicating

guilt”); see e.g., Ingerson v. State, 559 S.W.3d 501, 510 (Tex. Crim. App. 2018) (finding

motive, a circumstance of guilt, where there defendant killed the complainant because he

was angry with her for flirting with other men). Both Miranda and Severo claimed that

Villarreal made threatening comments as he left, prompting Severo to report the incident

to law enforcement, who also testified at trial.

       While Miranda, Severo, and Andrew uniformly conceded that the four men who

entered the home were masked, they each also unequivocally identified Villarreal’s

presence in the home, citing voice recognition. See Gross v. State, 380 S.W.3d 181, 186

(Tex. Crim. App. 2012) (“[C]ombined with other incriminating evidence, a defendant’s

presence [during a crime] may be sufficient to sustain a conviction.”); Aviles-Barroso v.

State, 477 S.W.3d 363, 396 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (“Voice

identification of a defendant may constitute a sufficient basis for a conviction.”); see also

Martin v. State, 246 S.W.3d 246, 261 (Tex. App.—Houston [14th Dist.] 2007, no pet.)




                                             14
(upholding murder conviction despite fact that defendant was “one of several other people

who had the opportunity to injure” complainant).

       Moreover, Luis, a co-accomplice, identified Villarreal as one of the four individuals

who went into the home that evening and then fled; Luis, however, denied seeing

Villarreal armed and identified another co-conspirator as the shooter. See Gross, 380

S.W.3d at 186; but see Barrientos v. State, 539 S.W.3d 482, 490 (Tex. App.—Houston

[1st Dist.] 2017, no pet.) (“Evidence is sufficient to convict under the law of parties “when

the defendant is physically present at the commission of the offense and encourages its

commission by acts, words, or other agreement.”); see, e.g., Miller v. State, 83 S.W.3d

308, 318 (Tex. App.—Austin 2002, pet. ref’d) (holding evidence sufficient to sustain

murder conviction as party to offense when circumstances showed that appellant drove

the shooter, assisted the shooter in obtaining the murder weapon, and attempted to flee

with the shooter); see also Booker v. State, No. 13-16-00693-CR, 2017 WL 5184503, at

*3 (Tex. App.—Corpus Christi–Edinburg Nov. 9, 2017, no pet.) (mem. op., not designated

for publication) (concluding the appellant was a “party to the offense of manslaughter by

promoting and assisting the commission of the offense”).

       Meanwhile, Bernal testified that Villarreal implicated himself in an altercation

involving his ex-girlfriend’s family, presumably speaking of Miranda and her family;

although, that same individual denied that Villarreal admitted he was present at the time

of the alleged altercation. See Zuniga, 551 S.W.3d at 732 (providing that it is within the

providence of a jury to resolve conflicting testimony).

       The State also presented evidence of GSR found on Villarreal four hours after the

shooting indicating, at minimum, he was near a recently discharged weapon or person

who had recently discharged a weapon. See Ingerson, 559 S.W.3d at 511 (finding GSR


                                             15
may, along with other evidence, indicate culpability); see also Delacerda v. State, 425

S.W.3d 367, 382 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (“Sufficient evidence

can support a murder conviction even in the absence of physical evidence such as DNA

evidence, fingerprinting evidence, and the murder weapon; thus, such evidence is not

required to obtain a conviction.”).

       Finally, jail call recordings and a video recording of the evening Villarreal was

arrested were admitted into evidence. In the former, Villarreal can be heard apologizing

to Miranda and telling another individual that he had “f-cked up bad.” See Miller v. State,

457 S.W.3d 919, 924 (Tex. Crim. App. 2015) (“When the burden of proof is ‘beyond a

reasonable doubt,’ a defendant’s extrajudicial confession does not constitute legally

sufficient evidence of guilt absent independent evidence of the corpus delicti.” (quoting

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013))); see also Pena v. State,

No. 13-17-00596-CR, 2019 WL 4200295, at *4 (Tex. App.—Corpus Christi–Edinburg

Sept. 5, 2019, no pet.) (mem. op., not designated for publication) (finding the defendant’s

admissions that he had “f-cked up” and “put his hands on [the complainant]” were

evidence to indicate guilt). In the latter recording, Villarreal admitted to the officer that he

had been at the Cruz’s residence; Villarreal said he had gone over to Miranda’s house to

take her back to his place because she had been fighting with her parents. See Miller,

457 S.W.3d at 924; Gross, 380 S.W.3d at 186. Villarreal claimed her family and her “took

[sic] it out of proportion,” and Villarreal stated he acted in “self-defense” after Jesus

“c[ame] at [him] with a knife.”

       Based on the foregoing, and the applicable standard of review which allows a jury

to draw any reasonable inference supported by the record, the jury could have found

Villarreal recklessly caused Jesus’s death. See Alfaro-Jimenez, 577 S.W.3d at 244;


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Zuniga, 551 S.W.3d at 732; Martinez, 527 S.W.3d at 320. Accordingly, we find the

evidence was sufficient to support Villarreal’s conviction for manslaughter, and we resolve

Villarreal’s third issue against him.

                                        IV.   CONCLUSION

       We affirm the trial court’s judgment.

                                                              GREGORY T. PERKES
                                                              Justice

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

Delivered and filed the
20th day of August, 2020.




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