                                   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.



                                            2
      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




                                              3
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

                                             4
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).1


       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

       1
           The full text of the accomplice witness rule provides:

       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.

Tex. Code Crim. Proc. art. 38.14 (Vernon 2005).


                                               5
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).




                                              6
       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




                                             7
numerous photographs taken by police in the apartment, showing drugs, drug

paraphernalia and stolen property.2


       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


       2
         Although the State argues in response to appellant’s third and fourth issues that
the evidence of drug use by the apartment’s inhabitants and extraneous car burglaries
committed by Morado and appellant was properly admitted at trial to prove appellant’s
identity as the robber, it contends there was no evidence to show Yzaguirre acted with a
culpable intent when she bought the camouflage masks.

                                              8
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



                                             9
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



                                            10
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


                                            11
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.




                                            12
       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.


                                             13
         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.




                                             14
