                                   NUMBER 13-10-00644-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI – EDINBURG

ESTEBAN RUIZ,                                                                                 Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                            Appellee.


                         On appeal from the 28th District Court
                              of Nueces County, Texas.


                                               OPINION

      Before Chief Justice Valdez and Justices Rodriguez and Garza
                         Opinion by Justice Garza

        Appellant, Esteban Ruiz, was indicted for murder; the trial court found him guilty

of the lesser-included offense of manslaughter,1 see TEX. PENAL CODE ANN. § 19.04

(West 2003), and assessed punishment at twenty years‘ imprisonment. See id. § 12.33
        1
          The case was tried before a jury. After the close of the evidence, however, against the advice
of his counsel, appellant elected to waive a jury trial and have the trial court decide his guilt or innocence.
(West Supp. 2010). By a single issue, appellant contends that the evidence is legally

insufficient to support his conviction because the testimony of a jailhouse informant was

insufficiently corroborated by other evidence tending to connect him to the offense. We

affirm.

                                           I. BACKGROUND

A. The State’s Evidence

          1.   Richard South

          Richard South testified that about an hour before sunrise on the morning of

September 30, 2008, he found a female victim‘s body, later identified as Kathleen

Telge, along the Oso Bay area in Nueces County, Texas. South called the police; an

officer arrived about ten minutes later.

          2. Pete Garza

          Officer Pete Garza of the Corpus Christi Police Department testified that he

arrived at the scene about 6:49 a.m. and determined that Telge was deceased. Officer

Garza concluded that she had been there for ―a number of hours.‖

          3. Oscar Valadez

          Oscar Valadez, an inmate, testified that he had a history of convictions and had a

pending forgery charge. He agreed to testify in exchange for lenient treatment from the

prosecutor. Valadez had been incarcerated with appellant in the county jail. While

incarcerated, appellant told Valadez the following: (1) appellant had been with ―Kat‖

(Telge) and ―Devon‖ (Herrero) one night and Kat had been smoking crack cocaine; (2)

Kat and Devon met an ―old man‖ at a motel, where they stole his money in order to

purchase more drugs; (3) after the events at the motel, Kat and Devon were riding in

appellant‘s truck; (4) Devon asked appellant to stop the truck, and when he did, she got
                                               2
out and ran; (5) Kat attempted to get out also, but appellant pulled her back into the

truck by her hair, closed the door, and slammed her head against the window

repeatedly; (6) appellant also hit her and choked her until she stopped breathing; and

(7) after driving around a bit and taking some more drugs, appellant dumped Telge‘s

body.

        On cross-examination, Valadez testified that he had met Telge a few times ―out

in the street.‖ He also testified that Telge had a significant drug habit and engaged in

prostitution to support her drug habit.

        4. Dr. Ray Fernandez

        Ray Fernandez, M.D., medical examiner for Nueces County, performed an

examination of Telge‘s body using a ―postmortem sexual assault kit,‖ by which swabs of

various areas of the body are taken and submitted for laboratory analysis. Drug testing

was conducted on additional samples by a toxicology lab. The toxicology tests showed

the presence of cocaine and benzoylecgonine, a breakdown product of cocaine, in

Telge‘s blood. According to Dr. Fernandez, the cause of Telge‘s death was blunt head

trauma with a contributory condition of cocaine intoxication. Telge sustained two or

three blows to her head and abrasions on the left side of her neck and jaw. These

injuries were consistent with someone grabbing Telge by the neck or throat and

slamming her head against the door of a vehicle.        Dr. Fernandez conducted his

examination of Telge‘s body after 9:30 a.m. Based on the fact that no decomposition

had occurred, Dr. Fernandez believed that Telge‘s death had occurred ―minutes‖ or

―hours‖ before she was found.

        On cross-examination, relevant to the DNA testing discussed below, Dr.

Fernandez testified that traces of semen can remain detectable in a person‘s mouth for
                                           3
up to six hours after ejaculation. On redirect examination, Dr. Fernandez testified that

because semen was detectable in Telge‘s mouth and her body remained at the crime

scene for approximately three and a half hours before the medical examination, the time

frame for when the semen may have been deposited in her mouth was ―possibly‖

narrowed to approximately two and a half hours before her body was discovered.

        5. Lisa Harmon Baylor

        Lisa Harmon Baylor, a forensic scientist for the Texas Department of Public

Safety Crime Laboratory in Corpus Christi, testified that she attempted or conducted

DNA testing on: (1) three condom wrappers found at the site; (2) samples from the

postmortem sexual assault collection kit from Telge‘s body2, and (3) buccal swabs

obtained from appellant.

        Baylor testified that: (1) no DNA profile was obtained from the condom wrappers;

(2) oral swabs from Telge‘s mouth contained semen, which were consistent with

appellant‘s DNA; and (3) the remaining samples tested contained either only Telge‘s

DNA or a ―mixture‖ of DNA belonging to Telge and another unidentified individual that

was not appellant. Appellant was excluded as a contributor to all the DNA samples

except for the oral swabs.

        6.    Tim Revis

        Tim Revis, a detective in the Homicide/Robbery Division of the Corpus Christi

Police Department, testified that, based upon his investigation and Telge‘s cell phone

records, the last phone call made from Telge‘s phone was around 3:25 a.m. the

morning she was killed. Telge talked by phone to an acquaintance, Bridget Emery, at

        2
           The sexual assault evidence collection kit included: (1) a known blood sample; (2) vaginal
swabs and smears; (3) oral swabs and smears; (4) rectal swabs and smears; (5) left and right neck
swabs; (6) left and right breast swabs; (7) pulled head hairs; (8) pubic hair combing; (9) a single hair from
right bra cup; (10) fingernail clippings from both hands; and (11) a pair of panties.
                                                     4
approximately 3:26 a.m. that morning. The autopsy findings were not made public,

except that Telge had suffered blunt force trauma to her head.

       On cross-examination, Detective Revis testified that during his investigation, he

learned that Telge‘s live-in boyfriend, Timothy Packert, had been with her until around

2:00 or 3:00 a.m. the morning she died. Two other individuals, Lincoln McAfee and

Antonio Alamo, were with Telge and Packert at their apartment until around 2:00, when

Telge left the apartment. The investigation revealed that Packert had previously been

arrested for assaulting Telge.

       On re-direct examination, Detective Revis said that, after obtaining statements

from McAfee and Alamo and speaking to Emery, he eliminated Packert as a suspect

because Packert had not seen Telge after she left the apartment around 2:00 a.m. He

also ruled out McAfee and Alamo as suspects, apparently because their stories were

consistent and they did not see Telge after 2:00 a.m.

       After the State rested,3 the trial court allowed the State to reopen for the limited

purpose of recalling Detective Revis. Detective Revis testified that in February 2009,

approximately six months after Telge‘s death, he became aware that Devon Herrero

was a potential witness. Detective Revis testified that he did not attempt to contact

Herrero because she was deceased and that appellant pleaded guilty to her murder.

Detective Revis also stated, on cross-examination, that Telge had previously filed a

report complaining that Packert had struck her. According to Telge‘s family, Packert left

town after Telge‘s death.


       3
           Outside the presence of the jury, the trial court heard arguments from counsel regarding
whether the State should be permitted to introduce evidence that appellant had pleaded guilty to
murdering Devon Herrero. The State argued that the evidence should be admitted because, among other
reasons, it showed appellant‘s ―consciousness of guilt.‖

                                                5
        Appellant presented no witnesses. After appellant elected to have the trial court

determine the issue of guilt or innocence, the trial court found appellant guilty of the

lesser-included offense of manslaughter and sentenced him to twenty years‘

imprisonment. This appeal followed.

                  II. CORROBORATION OF JAILHOUSE INFORMANT TESTIMONY

A. Standard of Review and Applicable Law

        Article 38.075 of the Texas Code of Criminal Procedure provides:

                (a) A defendant may not be convicted of an offense on the
                    testimony of a person to whom the defendant made a statement
                    against the defendant's interest during a time when the person
                    was imprisoned or confined in the same correctional facility as
                    the defendant unless the testimony is corroborated by other
                    evidence tending to connect the defendant with the offense
                    committed. In this subsection, "correctional facility" has the
                    meaning assigned by Section 1.07, Penal Code.

                (b) Corroboration is not sufficient for the purposes of this article if
                    the corroboration only shows that the offense was committed.

TEX. CODE CRIM. PROC. ANN. art. 38.075 (West Supp. 2010). 4

Thus, Valadez‘s testimony—concerning what appellant told him regarding his

involvement in Telge‘s death while both were incarcerated—requires corroboration.

        The Texas Court of Criminal Appeals has not determined what standard is

required for corroboration of jailhouse informant testimony beyond the language of the

statute itself. See id. However, one of our sister courts has held that the standard

required for corroboration of jailhouse informant testimony under article 38.075 is the

same as that required for corroboration of accomplice witness testimony under



        4
           Article 38.075 ―applies to any case in which a judgment has not been entered before the
effective date [Sept. 1, 2009] of this Act.‖ See Act of May 20, 2009, 81st Leg., R.S., ch. 1422 § 2, 2009
Tex. Sess. Law Serv. 4478 (West). The judgment in this case was entered November 4, 2010. Thus,
article 38.075 applies in this case.
                                                   6
article 38.14 of the Texas Code of Criminal Procedure.5                    Watkins v. State, 333

S.W.3d 771, 778 (Tex. App.—Waco 2010, pet. ref'd). The Watkins court noted that

―[a]rticle 38.075 was enacted in recognition that incarcerated individuals have an

incentive to provide information against other incarcerated individuals and that this

testimony should be corroborated.‖ Id. (citing Senate Comm. on Criminal Justice,

Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. (2009)). We find the reasoning of the

Waco Court persuasive and conclude that the standard for corroboration of jailhouse

informant testimony under article 38.075 is the same as the standard for

corroboration of accomplice-witness testimony under article 38.14.

       In Smith v. State, the court of criminal appeals recently restated the standard for

reviewing the sufficiency of non-accomplice evidence under article 38.14. 332 S.W.3d

425, 442 (Tex. Crim. App. 2011). By substituting ―jailhouse informant‖ for ―accomplice,‖

we conclude that the standard for reviewing sufficiency of non-jailhouse informant

evidence under article 38.075 is as follows:

               When reviewing the sufficiency of non-[jailhouse informant]
       evidence under Article 38.14, we decide whether the inculpatory evidence
       tends to connect the accused to the commission of the offense. The
       sufficiency of non-[jailhouse informant] evidence is judged according to the
       particular facts and circumstances of each case.              The direct or
       circumstantial     non-[jailhouse   informant]   evidence      is  sufficient
       corroboration if it shows that rational jurors could have found that it
       sufficiently tended to connect the accused to the offense. So when there
       are conflicting views of the evidence—one that tends to connect the
       accused to the offense and one that does not—we will defer to the
       factfinder's resolution of the evidence. Therefore, it is not appropriate for
       appellate courts to independently construe the non-[jailhouse informant]
       evidence. . . . [R]eviewing courts [are required] to consider the combined


       5
         Article 38.14 provides that ―[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. ANN. art. 38.14 (West 2005).
                                                  7
      force of all of the non-[jailhouse informant] evidence that tends to connect
      the accused to the offense.

Id. (footnotes omitted). ―‗[P]roof that the accused was at or near the scene of the crime

at or about the time of its commission, when coupled with other suspicious

circumstances, may tend to connect the accused to the crime so as to furnish sufficient

corroboration to support a conviction.‘‖ Id. at 443 (quoting Richardson v. State, 879

S.W.2d 874, 880 (Tex. Crim. App. (1993)). Moreover, a defendant‘s behavior or actions

prior to or following an offense may tend to connect the defendant with the commission

of the offense. Id. at 445. To evaluate the sufficiency of corroboration evidence, we

must eliminate all of the accomplice/jailhouse-informant testimony from consideration

and then examine the remaining portions of the record to see if there is any evidence

that tends to connect the accused with the commission of the crime. Castillo v. State,

221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (applying article 38.14).

B. Discussion

      Here, the State relied on the following non-jailhouse informant evidence: (1) the

presence of appellant‘s semen in Telge‘s mouth, which suggested that appellant was

alone with Telge close to the time of her death, see Smith, 332 S.W.3d at 443; (2) the

details of Telge‘s injuries—which were not released to the media—were consistent with

Valadez‘s testimony describing how appellant said he killed Telge, see Prible v. State,

175 S.W.3d 724, 731 (Tex. Crim. App. 2005) (holding extraneous offense evidence

corroborated defendant‘s confession to jailhouse informant by detailing the manner in

which crimes were committed where jailhouse informant could only have obtained

information from the defendant); and (3) Revis testified that Herrero was a potential

witness and appellant pleaded guilty to murdering Herrero. See Ransom v. State, 920

                                           8
S.W.2d 288, 299. (Tex. Crim. App. 1996) (en banc) (op. on reh'g) (holding attempts to

tamper with a witness, and any criminal act designed to reduce the likelihood of

prosecution, constitutes evidence of ―consciousness of guilt‖ on the part of the

defendant).    After eliminating Valadez‘s testimony from our consideration and

conducting an examination of all of the non-jailhouse informant evidence that tends to

connect appellant to the offense, we conclude that the evidence is sufficient to tend to

connect appellant to the offense for which he was convicted. See Smith, 332 S.W.3d at

442. Therefore, having concluded that the testimony of Valadez, a jailhouse informant,

was sufficiently corroborated by other evidence tending to connect appellant to the

offense, we overrule appellant‘s sole issue.

                                      III.    CONCLUSION

      We affirm the trial court‘s judgment.


                                                       DORI CONTRERAS GARZA
                                                       Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
4th day of August, 2011.




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