Affirmed and Opinion filed August 12, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-01126-CR

                     NOEL GALVAN CERNA, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 155th District Court
                             Austin County, Texas
                      Trial Court Cause No. 2009R-0088


                                OPINION
      Appellant Noel Galvan Cerna appeals his conviction for capital murder and
his sentence of life imprisonment without the possibility of parole. He asserts that
there is insufficient corroborating evidence tending to connect him with the offense
in question.   Appellant also argues that the Texas capital-murder-sentencing
scheme, under which defendants convicted of capital murder who do not receive
the death penalty must be sentenced to life imprisonment without the possibility of
parole, violates the protections provided under both the United States Constitution
and the Texas Constitution. We affirm.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

      In August 2009, Dr. Jorge Mario Gonzalez was fatally shot at his ranch
home in Austin County.       Gonzalez’s wife—Charleen Gonzalez—testified that
appellant began working for the Gonzalezes six months before the murder. She
and her husband took appellant out to the ranch to perform work approximately
twice a month. They recently had learned a route to the ranch taking the Westpark
Tollway, and they had traveled that route with appellant. Typically, after appellant
finished working, Charleen would pay him by taking between $600 and $800 in
cash from a bank envelope.

      On the date of the murder, Dr. Gonzalez and Charleen picked up appellant at
his apartment and the three drove together to the ranch. Shortly after they arrived,
Charleen noticed a person dressed in black coming around the corner.            She
screamed, ran into the house, and prompted her husband to retrieve his gun. Dr.
Gonzalez went to the closet of the master bedroom located toward the back of the
home, retrieved and loaded his gun, and headed toward the kitchen. Meanwhile,
Charleen locked herself in the master bathroom and dialed 911. While she was on
the phone with emergency services, an individual unsuccessfully tried to enter the
bathroom.    Charleen testified she heard the individual speak in “a Hispanic
dialect.” She also saw from the bathroom window two or three masked men run
away from the property. Shortly thereafter, Charleen discovered her husband was
dead, and appellant was suffering from a gunshot wound.

      A police officer responding to the emergency dispatch observed a white
pickup truck and a red Honda automobile fleeing the area. As the white pickup

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truck approached the officer’s vehicle, an individual seated in the passenger side
fired a shot at the officer. Police officers later determined that appellant’s mother’s
boyfriend owned the white pickup truck and it was used primarily by appellant’s
brother, Cristobal Galvan Cerna. Appellant’s cousin, Misael Santollo, owned the
red Honda.

      Santollo, who also was charged with Gonzalez’s murder, testified pursuant
to a plea-bargain agreement that the day before the murder, Santollo, Cristobal,
appellant, and appellant’s other brother, Moises Galvan Cerna, discussed a plan to
rob Dr. Gonzalez. The plan was to go to Gonzalez’s ranch property, hold him,
duct tape him, and force him to withdraw money from the bank. The parties also
planned to hold his pregnant wife and toddler hostage to ensure his cooperation.
According to Santollo, appellant suspected Gonzalez might be able to withdraw a
few thousand dollars.

      Santollo testified that on the morning of the murder, appellant directed the
parties to the ranch. He and appellant rode together followed by Cristobal and
Moises. They traveled by way of the Westpark Tollway, stopping at a Shell gas
station in Houston and a McDonald’s restaurant in Sealy. Santollo explained that
appellant had informed them that the ranch was equipped with security cameras.
Surveillance from the security cameras showed that one camera was moved the
morning of the murder and another security camera was moved later. Santollo
stated that all four relatives participating in the plan donned sweatshirts, masks,
and gloves to conceal their identities. They also carried two guns: an empty .380
and a loaded nine millimeter.

      After the men arrived at the ranch, they altered their plan. Santollo drove
appellant home so that appellant could arrive at the ranch with the Gonzalezes and
pose as a victim. According to Santollo, the parties thought this plan of action
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would be safer because appellant could inform them if authorities were alerted and
also persuade Dr. Gonzalez to acquiesce to the request for money. Accordingly,
Santollo drove appellant back to his home and continued communicating with him
via phone calls and text messages. Santollo advised that appellant alerted them
later that day when he arrived at the ranch with the Gonzalezes.

      After the Gonzalezes arrived at the ranch house, Santollo observed Charleen
scream and run into the house. He said he attempted to follow her but was
confused by the layout of the house. Appellant pointed him in the right direction.
After realizing Charleen had called police, Santollo claimed he urged everyone to
leave. He said he was running away from the scene when he heard gunshots.
According to Santollo, Cristobal later informed him that he had shot the doctor and
accidentally killed appellant. Santollo later learned that Cristobal was mistaken
about killing appellant and that appellant had survived.

      Santollo, Cristobal, Moises, and appellant were arrested and charged by
indictment with capital murder. Appellant pleaded “not guilty.” Following a trial,
the jury found appellant guilty as charged.        Appellant received a mandatory
sentence of life imprisonment without the possibility of parole.           He now
challenges his conviction on appeal.

                               II. ISSUES AND ANALYSIS

      Appellant asserts that there is insufficient corroborating evidence tending to
connect appellant with the capital murder of Dr. Gonzalez. Appellant also argues
that the Texas statutory capital-murder sentencing scheme violates the cruel-and-
unusual-punishment prohibition of the Eighth Amendment to the United States
Constitution as well as article I, section 13 of the Texas Constitution.


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   A. Sufficiency of Corroborating Evidence under the Accomplice-Witness
      Rule

        Texas Code of Criminal Procedure article 38.14, entitled “Testimony of
Accomplice” and commonly known as the accomplice-witness rule 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.
See Tex. Code Crim. Proc. Ann. art. 38.14 (West 2014). The accomplice-witness
rule expressly provides that “the corroboration is not sufficient if it merely shows
the commission of the offense.”       Id.       Appellant argues the record contains
insufficient corroborating evidence tending to connect him with the capital murder
of Dr. Gonzalez.

        In the indictment, it was alleged that, in the course of committing or
attempting to commit kidnapping, burglary, or robbery, appellant intentionally
caused the death of Dr. Gonzalez by shooting him with a firearm. A person
commits capital murder if the person intentionally causes the death of an individual
in the course of committing or attempting to commit kidnapping, burglary, or
robbery. See Tex. Penal Code §§ 19.02(b), 19.03(a) (West 2014). A person may
be convicted 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 both.
See id. § 7.01(a).

      The trial court’s instructions to the jury included an instruction on the law of
parties under Penal Code section 7.02(a)(2) and the law of conspiracy under Penal
Code section 7.02(b). See id. § 7.02. 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

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attempts to aid the other person to commit the offense. See id. § 7.02(a) (West
2014). If, in the attempt to carry out a conspiracy to commit kidnapping, burglary,
or robbery, capital murder is committed by one of the conspirators, all conspirators
are guilty of the capital murder actually committed, though having no intent to
commit it, if the capital murder was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a result of the carrying
out of the conspiracy. See id. § 7.02(b).

      The accomplice-witness rule is a statutorily imposed review and is not
derived from federal or state constitutional principles that define the legal and
factual sufficiency standards. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim.
App. 2008). When evaluating the sufficiency of corroboration evidence under the
accomplice-witness    rule,   we   eliminate    the   accomplice   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
offense. Id. To meet the requirements of this rule, the corroborating evidence
need not prove the defendant’s guilt beyond a reasonable doubt by itself. Id.
Rather, the evidence simply must link the defendant in some way to the
commission of the offense and show that rational jurors could conclude that this
evidence sufficiently tends to connect the defendant to the offense. Id. Thus,
when there are two permissible views of the evidence, one tending to connect the
defendant to the offense and the other not tending to connect the defendant to the
offense, appellate courts should defer to that view of the evidence chosen by the
fact-finder. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009). The
issue is not how an appellate court independently would assess the non-accomplice
evidence but whether a rational fact-finder could conclude that the non-accomplice
evidence tends to connect the accused to the offense. See id. at 509.
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      Each case must be judged on its own facts, and there is no set amount of
non-accomplice corroboration evidence that is required. Malone, 253 S.W.3d at
257. The Court of Criminal Appeals has observed that circumstances that are
seemingly insignificant may constitute sufficient evidence of corroboration. Id.
Proof 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. But the presence of a defendant at the scene of a crime, by itself,
is insufficient to corroborate accomplice testimony. Id.

      Aside from Santollo’s accomplice testimony, evidence at trial included the
following:

   • Charleen Gonzalez testified that appellant knew how to get to the ranch.
     Appellant’s mother, the only other member of appellant’s family known to
     have been to the ranch before the date of the offense, testified that she did
     not tell Cristobal or Moises how to get to the ranch.
   • Texas Ranger Brian Taylor reviewed surveillance video footage from a
     Houston Shell station and the McDonald’s in Sealy, Texas. The surveillance
     video showed appellant in those locations with the other accused parties the
     morning of the offense.
   • According to Ranger Taylor, the surveillance video showed appellant and
     Santollo leading Cristobal and Moises. Toll road records from that date also
     show Santollo’s red Honda entering the toll plaza immediately before the
     white pickup truck.
   • Police officer Brad Murray investigated the scene shortly after the crime and
     found hats, gloves, sweaters, a sweatshirt and a roll of duct tape.
     Appellant’s DNA could not be excluded as a contributor to the DNA profile
     on a hat recovered at the crime scene nor could it be excluded as the single
     contributor to the DNA profile on the inside of a glove.
   • Police officer Tony Fourroux viewed the placement of the surveillance
     cameras at the Gonzalez’s ranch house and observed that two of the
     surveillance cameras had been moved to face another direction.

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   • State trooper Jesse Deleon interviewed appellant in the hospital shortly after
     the crime. Appellant could not recall anything about the intruders except
     that they spoke English. Appellant also informed Jesus Gomez Ramos that
     the intruders spoke in English, with no accents.
   • Appellant denied interacting with his brothers on the day of the offense.
   • Santollo and appellant exchanged text messages while appellant was
     traveling to the ranch with the Gonzalezes and just before they arrived at the
     ranch.
   • Texas Ranger Adolphus Pressley testified that he obtained records from the
     toll plaza on the Westpark Toll Road and determined that a red Honda Civic
     automobile passed through the toll plaza without paying twice on the
     morning of the crime, traveling westbound both times. The white pickup
     truck had a single violation at the same plaza.
      The non-accomplice evidence shows that appellant was with his brothers on
the morning of the crime and that he went with them to Gonzalez’s ranch the
morning of the murder. Appellant’s DNA could not be excluded from items worn
by the perpetrators to conceal their identity while they moved about the ranch that
morning.   The evidence shows that after going to the ranch in the morning,
appellant traveled a substantial distance back to his home and then traveled back to
the ranch again with the Gonzalezes. Appellant did so without mentioning to the
Gonzalezes that he had been to the ranch that morning and while continuing to
communicate via text messages with his cousin.

      The evidence showed that appellant was familiar with the location of Dr.
Gonzalez’s ranch and the evidence suggested that none of the other perpetrators
were familiar with the area. See Saenz v. State, 976 S.W.2d 314, 318 (Tex. App.—
Corpus Christi 1998, no pet.) (noting that the defendant was the only party present
who appeared to be familiar with the neighborhood and streets). Appellant’s
familiarity with the ranch also suggests familiarity with the security cameras,
which were disabled and displaced before the murder.

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       In addition to failing to mention to the Gonzalezes that he had been present
at the ranch earlier the morning of the murder, appellant lied to police officers
about his activity that morning. See Padilla v. State, 326 S.W.3d 195 (Tex. Crim.
App. 2010) (noting that jury could have found defendant “less than truthful” in
videotaped statement to police); King v. State, 29 S.W.3d 556, 565 (Tex. Crim.
App. 2000) (stating that false statements may considered as circumstantial
evidence of guilt). Not only did appellant lie about his activity the morning of the
murder, he made statements to investigating police officers designed to thwart or
frustrate the police investigation that followed. Specifically, he reported that the
attackers spoke unaccented English. See King, 29 S.W.3d at 565.

       The non-accomplice evidence showed appellant acted with his brothers and
cousin as they prepared for the crime and then he lied about those activities to
police officers. After eliminating the accomplice testimony from consideration and
then examining the remaining portions of the record, we conclude that the record
contains ample evidence linking appellant in some way to the commission of the
capital murder of Dr. Gonzalez and showing that rational jurors could conclude
that this evidence sufficiently tends to connect appellant to this offense. See
Simmons v. State, 282 S.W.3d 504, 509 (holding that there was sufficient non-
accomplice evidence to allow rational jurors to find that this evidence tends to
connect the appellant to the offense). Under the applicable standard of review, we
conclude non-accomplice evidence tends to connect appellant with the commission
of the crime for which appellant was convicted. See id. Accordingly, we overrule
appellant’s first issue.

   B. Arguments that Automatic Punishment of Life in Prison without Parole
      Violates Eighth Amendment of the United States Constitution and
      article I, section 13 of the Texas Constitution

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       Under Texas’s statutory capital-murder-punishment scheme, defendants
convicted of capital murder who do not receive the death penalty must be
sentenced to life imprisonment without the possibility of parole. See Tex. Penal
Code Ann. § 12.31(a)(2) (West 2014). In his second and third issues, appellant
asserts this statutory scheme violates the cruel-and-unusual-punishment prohibition
of the Eighth Amendment to the United States Constitution as well as article I,
section 13 of the Texas Constitution. More specifically, appellant argues that his
mandatory life sentence is unconstitutional because the sentencing scheme
provided no vehicle for the consideration of mitigating evidence. Appellant asks
this court to extend the United States Supreme Court’s holding in Miller v.
Alabama to adult offenders. See —U.S.—, —, 132 S.Ct. 2455, 2464, 183 L.Ed.2d
407 (2012) (holding that imposing a mandatory sentence of life without the
possibility of parole on individuals who commit capital murder before the age of
eighteen violates the Eighth Amendment).
       Appellant did not preserve error by voicing this complaint in the trial court,
and appellant concedes that he did not do so. Nonetheless, appellant argues that
the errors he asserts amount to fundamental error and therefore preservation of
error in the trial court is not necessary. 1 Before a party may present a complaint
for appellate review, generally the record must show that the complaint was made
to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1;
Karena v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that a
defendant may not raise for the first time on appeal a facial challenge to the

       1
         Appellant actually argues that these errors amount to “plain error,” and he cites federal
cases applying the federal plain-error rule. In Texas criminal procedure, there is no plain-error
rule, so we construe appellant’s argument to refer to “fundamental error,” which is the term in
Texas criminal procedure that corresponds to the term “plain error” in federal procedure. See
Jimenez v. State, 32 S.W.3d 233, 238 (Tex. Crim. App. 2000); Zill v. State, 355 S.W.3d 778, 788
(Tex. App.—Houston [1st Dist.] 2011, no pet.).
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constitutionality of a statute); Sloan v. State, 418 S.W.3d 884, 891 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d); Wilkerson v. State, 347 S.W.3d 720, 722–23
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). This court already has rejected
a substantially similar complaint based on failure to preserve error in the trial court
and held that this complaint did not constitute a complaint of fundamental error.
See Sloan, 418 S.W.3d at 891.         See also Wilkerson, 347 S.W.3d at 722–23
(rejecting similar pre-Miller complaint based on failure to preserve error in the trial
court).

      In Garza v. State, the Court of Criminal Appeals of Texas determined that a
juvenile does not waive a complaint that mandatory punishment of life in prison
without the possibility of parole violated the Eighth Amendment by failing to voice
that complaint in the trial court. See —S.W.3d—,—, 2014 WL 2589770, at *3
(Tex. Crim. App. 2014). The Court of Criminal Appeals noted that Eighth
Amendment issues generally are forfeited if not raised in the trial court. See id. at
*1.   But, the high court created an exception to the preservation-of-error
requirement for “substantive status-based or individualized-sentencing claims
under the Eighth Amendment . . . embraced by Miller.” See id. at *3. Appellant
does not assert a substantive status-based or individual-sentencing claim embraced
by Miller. Rather, appellant urges this court to extend Miller. Accordingly, the
Court of Criminal Appeals in Garza did not overrule or abrogate this court’s
binding precedent requiring that one who was an adult at the time of the offense
preserve an Eighth Amendment challenge to a sentencing scheme for mandatory
life imprisonment without the possibility of parole in the trial court. See id.; Sloan,
418 S.W.3d at 891.

      Under this court’s precedent, appellant was required to preserve error in the
trial court as to the complaints raised in his second and third issues. See Sloan, 418
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S.W.3d at 891; Wilkerson, 347 S.W.3d at 722–23. Because he failed to do so, he is
not entitled to appellate review of these complaints and we overrule them.

                                 III. CONCLUSION

      Non-accomplice evidence tends to connect appellant with the commission of
the capital murder of Dr. Gonzalez and thus the record contains sufficient evidence
to satisfy the requirements of the accomplice-witness rule. We do not address
appellant’s complaints under the United States Constitution and the Texas
Constitution because he was required to preserve error in the trial court but failed
to do so.

      The judgment of the trial court is affirmed.



                                              /s/    Kem Thompson Frost
                                                     Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise.

Publish — TEX. R. APP. P. 47.2(b).




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