                                   NO. 07-10-00372-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                    MARCH 28, 2012


                     MANUEL PETRONILO ALCALA, JR., APPELLANT

                                            v.

                            THE STATE OF TEXAS, APPELLEE


                 FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

               NO. B18044-0905; HONORABLE EDWARD LEE SELF, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

        Appellant, Manuel Petronilo Alcala, Jr., appeals a judgment of conviction by jury

for the offense of aggravated assault,1 and sentence of ten years incarceration in the

Institutional Division of the Texas Department of Criminal Justice, and $10,000 fine. We

will affirm.




        1
            See TEX. PENAL CODE ANN. § 22.02 (West 2011).
                                       Background


        On April 18, 2009, the Alcala family hosted a birthday party for Esperanza Alcala.

After the party ended at around midnight, appellant, Petronilo Martinez, and other

partygoers went to the home of Rosendo Cantu to continue the festivities. Many of

those at Cantu’s home, including appellant, Martinez, and Cantu, drank alcohol and

began to become intoxicated.


        Eventually, appellant, Martinez, and Cantu were talking together in the garage

when the conversation became heated. In an attempt to defuse the tension, Cantu

suggested that the men cool off by playing some pool. When Cantu turned away from

appellant and Martinez, he was struck on the back of the head.              Subsequently,

appellant struck Cantu in the forehead causing a laceration. Appellant and Martinez left

Cantu lying on the ground and bleeding.2


        Both appellant and Martinez were indicted for the assault. Prior to appellant’s

trial, Martinez pled guilty to the offense. During appellant’s trial, both Martinez and

Cantu testified that appellant assaulted Cantu.      The jury returned a verdict finding

appellant guilty of aggravated assault. After hearing punishment evidence, the jury

returned a verdict sentencing appellant to ten years incarceration, and a $10,000 fine.

Judgment was entered by the trial court in accordance with these verdicts.


        By four issues, appellant appeals. By his first issue, appellant contends that the

trial court erred in denying appellant’s requested jury instruction that a defendant’s mere


        2
             Appellant does not dispute that the assault caused Cantu serious bodily
injuries. 
                                             2
presence is insufficient to corroborate an accomplice witness’s testimony. Appellant’s

second issue contends that the trial court’s instruction that Martinez was an accomplice

as a matter of law was an improper comment on the weight of the evidence. By his

third issue, appellant contends that the evidence was insufficient to support the jury’s

conviction of appellant. Finally, appellant contends, by his fourth issue, that the trial

court erred in denying appellant’s motion to quash the indictment.


                                Mere Presence Instruction


       By his first issue, appellant contends that the trial court erred in denying appellant

a jury instruction that a defendant’s mere presence is insufficient to corroborate an

accomplice witness’s testimony. However, we conclude that the trial court did not err

because the issue of appellant’s mere presence was not raised by the evidence.


       Texas Code of Criminal Procedure article 38.14 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 . . . .” TEX. CODE CRIM.

PROC. ANN. art. 38.14 (West 2005). An accomplice witness’s testimony is sufficiently

corroborated if, after eliminating the testimony of the accomplice from consideration, the

remaining evidence is of such a character that it tends to connect the defendant to the

commission of the offense.          See Edwards v. State, 427 S.W.2d 629, 632

(Tex.Crim.App. 1968). However, a defendant’s mere presence at the scene of a crime

is insufficient to corroborate accomplice testimony. Beathard v. State, 767 S.W.2d 423,

428 (Tex.Crim.App. 1989). A defendant is entitled to an instruction that mere presence

is insufficient if such an instruction is requested by the defendant and the issue is raised

                                             3
by the evidence. Golden v. State, 851 S.W.2d 291, 295 (Tex.Crim.App. 1993). A

defendant’s testimony alone is sufficient to raise a defensive issue requiring an

instruction in the jury charge, such as that of mere presence being insufficient to

corroborate an accomplice witness.        See Hayes v. State, 728 S.W.2d 804, 807

(Tex.Crim.App. 1987).


       Assuming without deciding that appellant’s pre-trial request for a jury instruction

on mere presence was a sufficient request, the trial court did not err in denying the

request because the issue was not raised by the evidence. Appellant’s testimony did

not raise the issue of mere presence because appellant did not testify. In addition, no

other evidence raised the issue that appellant was merely present at the scene of the

assault. In fact, the record includes the testimony of Cantu, the victim, that appellant hit

him in the forehead with a beer bottle. Clearly, Cantu’s testimony is of such a character

that it tends to connect appellant to the commission of the offense. See Edwards, 427

S.W.2d at 632. We conclude that the evidence did not raise the issue of mere presence

and, as such, the trial court did not err in denying appellant’s request for a mere

presence instruction.


       Appellant’s contention is premised on appellant’s characterization of Cantu’s

“memory of the events surrounding the assault [being] clouded.” While Cantu did testify

to some uncertainty regarding the assault immediately after getting up from the assault,

he also testified that he knew, even then, that he had been assaulted by appellant and

Martinez.    We conclude that Cantu’s testimony is sufficient to corroborate the

accomplice witness testimony of Martinez, and that the evidence did not raise the

                                             4
defensive issue of appellant’s mere presence. As such, the trial court did not err in

denying appellant’s requested instruction.         Accordingly, we overrule appellant’s first

issue.


                Instruction that Martinez was Accomplice as a Matter of Law


         By his second issue, appellant contends that the trial court’s accomplice witness

instruction in the jury charge constituted an improper comment on the weight of the

evidence. Appellant’s issue focuses on that portion of the instruction that reads, “If an

offense was committed, the witness, Petronilo Martinez, is an accomplice . . . .”

Appellant argues that this instruction told the jury that appellant was an accomplice of a

person who had already pleaded guilty to the assault and, thus, presupposes

appellant’s criminal responsibility for the assault.


         However, as the State correctly indicates, the instruction did not tell the jury that

appellant was an accomplice of Martinez. Rather, it provided that, if the jury found that

appellant committed the assault, then Martinez was an accomplice whose testimony

must be corroborated by other evidence to support a conviction. When the evidence is

clear that a witness is an accomplice witness as a matter of law, the trial court must so

instruct the jury.    See Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998).

When a witness is indicted for the same offense and testifies for the State against an

accused, the witness is an accomplice witness as a matter of law. East v. State, 702

S.W.2d 606, 616 (Tex.Crim.App. 1985).


         Here, Martinez was indicted for, and pled guilty to, committing the assault on

Cantu. Further, he testified for the State against appellant. As such, the trial court was
                                               5
obligated to instruct the jury that, if it found that appellant committed the assault,

Martinez was an accomplice witness whose testimony had to be corroborated by other

evidence. As such, we conclude that the trial court did not comment on the weight of

the evidence by its instruction, and we overrule appellant’s second issue.


                               Sufficiency of the Evidence


       By his third issue, appellant contends that the evidence of appellant’s guilt is

insufficient to support his conviction.     Appellant premises this contention on his

argument that Cantu’s testimony was “inconclusive” regarding appellant’s involvement

in the assault, and that Martinez’s testimony was not sufficiently corroborated.


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

                                            6
404, 448–50 (Tex.Crim.App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to 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 their testimony.” Id. at 899.


         As addressed above, while Cantu’s recollection of the specific details of the

assault was uncertain, the one fact upon which Cantu was certain was that both

appellant and Martinez had assaulted him. Further, we have previously determined that

Martinez’s testimony, which directly inculpated appellant, was sufficiently corroborated

by Cantu’s testimony.3 Reviewing all of the evidence in the light most favorable to the

verdict, we conclude that a rational jury could have found that appellant was guilty of

aggravated assault beyond a reasonable doubt. As such, we overrule appellant’s third

issue.


                              Motion to Quash the Indictment


         By his fourth issue, appellant contends that the trial court erred in denying

appellant’s pre-trial motion to quash the indictment for its failure to allege the manner

and means of the assault. The State concedes that the trial court erred in denying the

motion. However, the parties disagree regarding the effect of this error. Appellant

conclusorily contends that this error requires reversal. The State, however, contends

that the error is not reversible because it did not affect appellant’s substantial rights.


         3
        However, even if we had determined that Martinez’s testimony was improperly
admitted, for purposes of review of the sufficiency of the evidence, we are required to
review all of the evidence presented at trial, including any improperly admitted evidence.
See Green v. State, 893 S.W.2d 536, 538 (Tex.Crim.App. 1995).
                                              7
       We agree with the parties that the trial court erred in denying appellant’s motion

to quash because the indictment should have specified the manner or means used by

appellant to commit the offense of aggravated assault. See State v. Barbernell, 257

S.W.3d 248, 251 (Tex.Crim.App. 2008) (“if the prohibited conduct is statutorily defined

to include more than one manner or means of commission, the State must, upon timely

request, allege the particular manner or means it seeks to establish.”). However, if the

indictment is found to be deficient in providing sufficient notice, the reviewing court must

then determine whether, in the context of the case, the error had an impact on the

defendant’s ability to prepare a defense. See Adams v. State, 707 S.W.2d 900, 903

(Tex.Crim.App. 1986). Even defects of substance contained within an indictment are

reversible only if the error is shown to have affected appellant’s substantial rights. See

Mercier v. State, 322 S.W.3d 258, 264 (Tex.Crim.App. 2010) (applying nonconstitutional

harm standard of Texas Rule of Appellate Procedure 44.2(b) to review of substantively

defective indictments).


       In the present case, the indictment alleges that on or about April 19, 2009,

appellant did “intentionally, knowingly, or recklessly cause serious bodily injury to

Rosendo Cantu, by striking him . . . .” The indictment does not allege the manner or

means by which appellant struck Cantu. However, appellant’s defensive theory was

that he did not strike Cantu in any manner and that the assault was committed by

Martinez alone. Appellant does not explain how the defect in the indictment hindered

his ability to present a defense. Having reviewed the record, we conclude that the

defect in the indictment did not prejudice appellant’s substantial rights to prepare his

defense. See De La Cruz v. State, 716 S.W.2d 743, 745 (Tex.App.—Corpus Christi
                                             8
1986, no pet.).     Finding no reversible harm in the trial court’s erroneous denial of

appellant’s motion to quash, we overrule appellant’s fourth issue.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.



                                                       Mackey K. Hancock
                                                            Justice



Do not publish.




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