                             NUMBER 13-15-00159-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

LEONARDO VILLARREAL MORENO,                                                  Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 139th District Court
                          of Hidalgo County, Texas.


                        MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
       A Hidalgo County jury convicted appellant Leonardo Villarreal Moreno of murder,

a first-degree felony, and the trial court imposed a punishment of fifty years’ imprisonment

in the Texas Department of Criminal Justice’s Institutional Division.     See TEX. PENAL

CODE ANN. § 19.02(b)(1) (West, Westlaw through 2015 R.S.).        By four issues, which we

address as two, Moreno (1) challenges the sufficiency of the evidence supporting his
conviction; and (2) asserts that the trial court reversibly erred by admitting a handgun

found at his home into evidence at trial. We affirm.

                                   I.     BACKGROUND

       On the night of October 5, 2012, seventeen-year-old Miguel Vasquez Jr. and his

childhood friends Ivan Lopez and Steve Aguilar went “for a cruise” in Vasquez’s red

Pontiac Sunfire to visit some other friends at a house party on South Delia Street in

Edinburg.   After arriving at the party, Vasquez parked his car along the street. Vasquez

and his friends stayed seated inside the Sunfire and chatted with one of the partygoers.

A short time later, an unknown silver van performed a U-turn and stopped in the street in

front of the party, nearly parallel, but facing the opposite direction of Vasquez’s car.

Witnesses testified that a male, later identified as Raul Lara, exited the van and became

argumentative with the partygoers by exchanging words and telling them to “stop chilling

with [his] cousins.” After the exchange of words, Lara opened fire on the party with a

handgun. Witnesses—many of whom took cover after hearing the first shot—recalled

that the shots were fired in two separate sequences. Specifically, witnesses heard four

shots, a break, and then an undetermined number of more shots. Several bullets from

the gunfire struck Vasquez’s car, including one bullet that entered Vasquez’s left

shoulder, struck his jugular vein, and exited through his right jaw.   Vasquez died a short

time later at an area hospital.

        Through its investigation, Edinburg police identified Eric Atwood as the driver of

the silver van, accompanied by his wife Yaritza Tijerina in the front passenger seat,

Moreno and Lara in the second passenger row, and Julissa Tijerina, Lucinda Tijerina, and

Martin Tijerina in the van’s third passenger row.

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       Julissa, who was age seventeen at the time of trial and age fifteen at the time of

the incident, testified that she and her cousin Lucinda had been hanging out with friends

at the party on South Delia street on the evening of October 5, 2012 when her sister

Yaritza called her to tell her that their mother had wanted Julissa and Lucinda to go home.

After the call, Julissa and Lucinda walked toward a nearby Burger King where Atwood,

Yaritza and the others picked them up in the van.                 Once in the van, Yaritza demanded

that the girls tell her where the party was located. Julissa testified that Atwood eventually

located the party in the nearby neighborhood and stopped in the street in front of the

house.     Julissa testified that at that point, Moreno told the party’s attendees from the

inside of the van “not to hang out with [Julissa and Lucinda] no more” and then Lara

stepped out of the van and began shooting.                 Julissa further testified that Moreno later

began shooting from inside of the van.             Julissa told jurors that after the shooting, Atwood

drove to Martin’s house, and on the way to Martin’s house, Moreno and Lara were talking

“like normal,” “laughing,” “celebrating” and telling each other that “it was fun.” Julissa

recalled that once at Martin’s house, Moreno and Lara began picking up bullet casings

located inside of the van and placed them in their pant pockets. The group then left

Martin’s house to drop off Moreno, then Lara, and eventually the remainder of the group

ended up at Atwood and Yartiza’s home where they stayed for the night.

       Lucinda, who is Julissa’s cousin and was also fifteen years-old at the time of the

incident, testified that she and Julissa were hanging out at the South Delia house party

“doing bars, 1 ” drinking beer, and smoking weed for two hours, before Yaritza called


       1   The record reveals that “bars” is street slang for prescription Xanax pills.


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Julissa.   Lucinda recalled that several of the people at the party began yelling at them

and asked them to leave because she and Julissa were minors. She and Julissa left to

the nearby Burger King where Atwood, Yaritza, Moreno, Lara, and Martin picked them

up.   Lucinda told jurors that the van drove by the party on South Delia Street when Lara

opened the door to the van and started arguing with partygoers. Lucinda recalled that

Lara and Moreno then began shooting at the party.     After the shooting, Lara and Moreno

were “cheering” and told each other that they had not “done that in a long time.” Lucinda

stated that the group dropped off Martin, then headed to Moreno’s house where they were

looking for bullet casings in the van.    Lucinda admitted to initially lying to police on

Yaritza’s advice, by identifying an uninvolved person named “George” as the shooter.

Finally, despite being intoxicated that night, Lucinda testified that she remembered “some

parts”

         Juan Pablo Sosa attended the South Delia Street party on the night of October 5,

2012 and engaged in the argument with Lara.       According to Sosa, he recalled that an

unidentified person seated behind the driver of the van handed a gun to Lara prior to him

opening fire on the party and that “two guys” were involved in the shooting.   Sosa further

recalled that the gun was wrapped “in a towel or a shirt or something.” Another party

attendee, Martin Zapata Jr., testified that “somebody handed” Lara a gun before Lara

opened fire on the party.

         Shortly after the shooting, police attempted to locate Moreno by visiting his

mother’s home in Pharr. Although Moreno was not home, police obtained consent from

Moreno’s mother to search the home.        During the search, police recovered a nine-

millimeter handgun. The trial court admitted a photo of the nine-millimeter pistol that

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was recovered.        Two days after the shooting, Moreno appeared at the Edinburg Police

Department and gave a voluntary statement in which he implicated Lara as the sole

shooter. Moreno’s statement also stated that Lara gave Moreno “another gun that [Lara]

had in the side pocket of his pants . . . . [and] . . . told [Moreno] to hold it.” Moreno stated

that he “knew it was wrong to hold the gun but I was drunk and stupid.” Moreno then

placed the gun in a drawer in his bedroom. Richard Hitchcox, an expert on firearms from

the Texas Department of Public Safety, told jurors that he tested and examined the

recovered nine-millimeter pistol. The shell casings recovered from the scene of the party

could not have been fired from the nine-millimeter pistol.                      However, according to

Hitchcox, the pistol had been recently fired—although he could not say exactly when—

and that if the nine-millimeter pistol had been fired that night from inside of the van, the

shell casings would have fallen inside of the van.

        After a two-day trial, jurors found Moreno guilty of murder as charged, and the trial

court sentenced him to fifty years’ imprisonment with the Texas Department of Criminal

Justice’s Institutional Division.        This appeal followed.

                                   II.      SUFFICIENCY CHALLENGE

        Moreno’s first issue generally challenges the sufficiency of the evidence to support

his murder conviction.2




        2   Moreno’s three issues are as follows: (1) the evidence is legally insufficient and [Moreno’s]
conviction must be reversed and an acquittal entered after eliminating accomplice Julissa Tijerina and
Lucinda Tijerina’s testimony there is insufficient evidence to convict [Moreno] of murder; (2) the evidence
is legally insufficient to support appellant’s conviction for murder; and (3) the trial court erred by denying
[Moreno’s] motion for directed verdict.

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A.     Standard of Review

       In reviewing sufficiency of evidence to support a conviction, we consider all of the

evidence in the light most favorable to the verdict and determine whether, based on that

evidence and reasonable inferences therefrom, a rational fact finder could have found the

essential elements of the crime beyond a reasonable doubt.           Winfrey v. State, 393

S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.

App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in

the light most favorable to the verdict, we defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the

weight to be given to their testimony.   Brooks, 323 S.W.3d at 899. It is unnecessary for

every fact to point directly and independently to the guilt of the accused; it is enough if

the finding of guilt is warranted by the cumulative force of all incriminating evidence.

Winfrey, 393 S.W.3d at 768.

       The elements of the offense are measured as defined by a hypothetically correct

jury charge.   Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).          Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State’s burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was tried.

Id.

       Under a hypothetically correct jury charge in this case, Moreno is guilty of murder

if he intentionally or knowingly caused Vasquez’s death.      See TEX. PENAL CODE ANN. §

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19.02(b)(1).   The trial court’s charge in this case allowed the jury to convict Moreno

under what is known as “the law of parties.”       See id. § 7.02 (West, Westlaw through 2015

R.S.). Under the law of parties theory of liability, a person is criminally responsible for

an offense committed by the conduct of another if, acting with intent to promote or assist

the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense.            Id.   In determining whether the accused

participated as a party, the court may look to events occurring before, during and after

the commission of the offense, and may rely on actions of the defendant which show an

understanding and common design to do the prohibited act.             Ransom v. State, 920

S.W.2d 288, 302 (Tex. Crim. App. 1994).

B.     Discussion

       Moreno first asserts that his conviction is based on the testimony of Julissa and

Lucinda, who were Moreno’s accomplices, thus triggering a sufficiency review through

the lens of the accomplice witness rule. We disagree.

       The accomplice witness rule is a statutorily created rule which states 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. art. 38.14 (West, Westlaw through 2015 R.S.).             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.        Druery v. State, 225 S.W.3d

491, 498 (Tex. 2007).       To be considered an accomplice witness, the witness’s

participation with the defendant must have involved some affirmative act that promotes

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the commission of the offense with which the defendant is charged.        Id. 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.      Id.   In addition, the witness’s mere

presence at the scene of the crime does not render that witness an accomplice witness.

Id.   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.

Id.   A State’s witness may be an accomplice as a matter of law or a matter of fact.   Smith

v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). A witness who is indicted for the

same offense or a lesser-included offense as the accused is an accomplice as a matter

of law.     Id. But if the State dismisses the indictment before the witness testifies, the

witness is no longer deemed an accomplice as a matter of law.      Id. A witness continues

to be regarded as an accomplice, however, if the witness agrees to testify against the

accused in exchange for the dismissal of the charge.       Id. When there is doubt as to

whether a witness is an accomplice (e.g., the evidence is conflicting), then the trial judge

may instruct the jury to determine a witness’s status as a fact issue.       Id. at 439–40.

Accordingly, the viability of Moreno’s first issue rests upon the threshold issue of whether

Julissa and Lucinda were accomplices—either as a matter of law or of fact—to Vasquez’s

murder. We hold that Julissa and Lucinda were neither type of accomplice.

          The record shows that neither witness participated with the defendant before,

during, or after the commission of a crime and acts with the required culpable mental

state. See Druery, 225 S.W.3d at 498.        Furthermore, the evidence shows that Julissa

and Lucinda were merely present during the offense, knew about the offense, and initially

provided false information to police about it, all of which do not render them accomplices.

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See id. The record shows a brief exchange between Moreno’s counsel and Julissa in

which he asks her whether she was granted immunity by “cut[ting] a deal” with the State.

The prosecutor objected and stated that no witness in this case was granted immunity

and that Julissa was not formally charged in any way related this case. Therefore, we

hold that Julissa and Lucinda were neither accomplices as a matter of law or of fact, and

we will not review the sufficiency of the evidence through the lens of the accomplice

witness rule as Moreno invites us to do.   See Druery, 225 S.W.3d at 500.      Instead, we

will proceed with the standard sufficiency review as articulated earlier in this opinion.

See Winfrey, 393 S.W.3d at 768.

       The evidence in this case shows that Julissa and Lucinda each testified that

Moreno shot a firearm at the South Delia Street party on October 5, 2013 from inside of

the van, after Lara exchanged words with party goers. Although numerous witnesses

from the party later identified only Lara as a shooter, many admitted that they ducked and

took cover after the first round of shots.       Several witnesses recalled two separate

sequences of shootings with a break in between the two rounds.       Furthermore, Julissa

and Lucinda both testified that after the shooting, Moreno and Lara celebrated, showed

little remorse, and later concealed bullet shell casings from the interior of Atwood’s van.

Additionally, Sosa, who attended the party and engaged in the argument with Lara,

testified that a passenger in the van, who was seated behind the driver’s seat handed a

firearm to Lara shortly before Lara opened fire.     The evidence revealed that Lara and

Moreno were seated in the row of seats directly behind the driver of the van.      Zapata,

who was also an attendee at the party, testified to witnessing an unknown person hand

Lara a gun prior to Lara firing at the party. Finally, Moreno admitted to police that he

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helped Lara conceal an allegedly unused firearm that Lara gave him immediately after

the shooting.   Police found a nine-millimeter pistol inside of Moreno’s home.      Firearms

expert Hitchcox testified at trial that although the casings found at the scene of the

shooting could not have been fired from the nine-millimeter pistol, his testing showed that

the firearm had been recently fired, and if that particular firearm was fired from inside of

the van, the shell casings would have fallen to the floor of the van.

       Therefore, after viewing all of the evidence in the light most favorable to the verdict

and deferring to the jury’s credibility and weight determinations, we hold that a rational

jury could have found Moreno guilty of murder beyond a reasonable doubt. We overrule

Moreno’s first issue.

       III.     ADMISSIBILITY OF A PHOTOGRAPH OF THE NINE-MILLIMETER HANDGUN

       By his second issue, Moreno asserts that the trial court reversibly erred by

admitting State’s Exhibit 87, a photo of the nine-millimeter handgun police recovered from

Moreno’s home, into evidence.

A.     Standard of Review

       A trial court’s decision on whether to admit evidence is reviewed under an abuse

of discretion standard and will not be reversed if it is within the zone of reasonable

disagreement.     Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011).            An

abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without

reference to guiding rules or principles.    Montgomery v. State, 810 S.W.2d 372, 380

(Tex. Crim. App. 1990) (en banc).       The inquiry on appeal is whether the result was

reached in an arbitrary or capricious manner.          Id.   We afford trial courts “great

discretion” in its evidentiary decisions because “the trial court judge is in a superior

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position to evaluate the impact of the evidence.”          Id. at 378–79.

B.      Discussion

        At trial, Moreno’s counsel objected to the admissibility of State’s Exhibit 87 by

invoking the best evidence rule and arguing that the best evidence would have been the

actual weapon itself rather than a photograph of the weapon.3 The “best evidence rule”

is found in Texas Rule of Evidence 1002, which states:               “An original writing, recording,

or photograph is required in order to prove its content unless these rules or other law

provides otherwise.”      See TEX. R. EVID. 1002.

        We find Moreno’s argument unpersuasive.               Rule 1002 does not prohibit a party

from offering a photograph of the original evidence.                        Furthermore, Moreno’s

interpretation of the rule is inconsistent with the underlying purposes of the rule.                The

Texas Court of Criminal Appeals outlined four common-law justifications behind Rule

1002:

        (1) The nature of documents is often such that the exact words are of more
            than average importance, particularly in the case of operative or
            dispositive instruments . . . where a slight variation of words may mean
            a great difference in rights.

        (2) Secondary evidence—whether parol testimony or copies—is
            susceptible to both human and mechanical error. The rule, therefore,
            enhances the probability of accuracy.

        (3) The rule promotes the prevention of fraud because it allows the parties
            to examine documents for any defects or alterations, and it dampens
            any desire to color testimony as to the contents of documents, since any
            testimony is subject to immediate corroboration.


        3  In his briefing on appeal, Moreno advances other theories challenging the admissibility of the
photograph under relevancy rules 401 and 403. See TEX. R. EVID. 401, 403. Because these objections
do not comport with the objection made to the trial court, we find these relevancy arguments waived and
will not address them. See TEX. R. APP. P. 33.1. However, we will nevertheless examine admissibility of
State’s Exhibit 87 against the “best evidence” objection made at trial.

                                                   11
       (4) The appearance of the original may furnish information as to its
           authenticity and significance that may be lacking in a copy, such as
           handwriting, paper and the like.

Englund v. State, 946 S.W.2d 64, 67–68 (Tex. Crim. App. 1997) (en banc) (citations and

quotations omitted).

       In this case the exhibit in question was not a photograph of an original writing,

recording, or photograph that would require proof of its contents to trigger the applicability

of the rule.   Instead, the photograph depicted a nine millimeter firearm that was

recovered by police following a search of Moreno’s home related to their investigation.

Accordingly, we hold that the trial court did not abuse its discretion by admitting State’s

Exhibit 87. We overrule Moreno’s fourth issue.

                                    IV.     CONCLUSION

       We affirm the trial court’s judgment.



                                                                 GINA M. BENAVIDES,
                                                                 Justice


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

Delivered and filed the
20th day of October, 2016.




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