                              NUMBER 13-12-00345-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG

JOSE ANTONIO
TORRES FLAMENCO,                                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                       On appeal from the 430th District Court
                             of Hidalgo County, Texas.


                          MEMORANDUM OPINION
             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Benavides

       Appellant, Jose Antonio Torres Flamenco, appeals his conviction for murder, a

first-degree felony.    See TEX. PENAL CODE ANN. § 19.02(b)(1) (West, Westlaw through

2013 3d C.S.). By three issues, Flamenco asserts that:      (1) the trial court erred in
denying his requested jury definition for an accomplice as a matter of law; (2) the trial

court erred by allowing a detective to testify about the body language of the suspects in

this case; and (3) the evidence is insufficient to support his conviction. We affirm.

                                    I.    BACKGROUND

         A Hidalgo County grand jury indicted Flamenco for the murder of Yvette

Cardenas. Flamenco pleaded not guilty and was tried before a Hidalgo County jury.

The record reveals the following:

         On April 18, 2011, McAllen police responded to a call from the Royal Inn Motel on

the 600 block of South 10th Street in reference to an unresponsive female found in one

of the motel’s guest rooms.    Officer Rodolfo Rios arrived at the scene and discovered a

woman, later identified as Cardenas, half-clothed and lying in a “fetal” position on the

floor of Room 217. According to Officer Rios, Cardenas’s body looked “stiff” and had no

pulse.    A short time later, Officer Robert Del Angel arrived and investigated the crime

scene. Officer Del Angel collected evidence from Room 217, including a pack of Pall

Mall cigarettes.    Officer Del Angel testified that Cardenas’s torso was “twisted” and

blood flowed out of her nose and mouth.      Officer Del Angel also retrieved surveillance

footage from the motel’s front office, which depicted two males, later identified by police

as Flamenco and Marlon Velasquez, arriving at the Royal Inn Motel with Cardenas in the

early morning hours of April 18, 2011.   The surveillance footage showed that Velasquez

wore a khaki shirt, shorts, and sandals, while Flamenco wore glasses, a blue shirt, blue

jeans, and black slip-on shoes with a white lining.

         Police eventually tracked down Flamenco at his residence across the street from




                                             2
the Royal Inn Motel. Officers spoke to Flamenco and his wife, and both agreed to go to

the McAllen police station for further questioning.    At the station, Detectives Carlos

Garcia and Francisco Lopez interviewed Flamenco, while other officers spoke to his

wife.     Detectives showed Flamenco the surveillance footage from the motel, but

Flamenco denied being the individual in the video and denied knowing Velasquez.

However, according to Detective Garcia, Flamenco’s wife identified both her husband

and Velasquez when police showed her the same surveillance footage.        Flamenco also

told detectives that he did not go to the Royal Inn Motel on April 17, 2011, but Detective

Garcia testified that Flamenco ultimately changed his story and told police, “You know . .

. what?    I’m going to tell you what happened.”

        According to Detective Lopez, Flamenco admitted during the interrogation to

knowing Velasquez.      Flamenco also told the detectives that he and Velasquez were

together on the night of the murder.    Flamenco told Detective Lopez that on April 17,

2011, the night of the murder, he and Velasquez drank beer at Velasquez’s home,

purchased cocaine, and later traveled in Velasquez’s car to La Casita Motel, an

establishment apparently known for prostitution, in order to find a female for sex.   At La

Casita, Flamenco and Velasquez encountered Cardenas, who entered Velasquez’s car

and directed them to take her to the Royal Inn Motel. Flamenco recounted that at the

Royal Inn Motel, he, Cardenas, and Velasquez lay on the bed drinking beer and using

cocaine.    Flamenco told police that he then became worried that his wife could see him

from their home across the street from the Royal Inn, so he stood at the room’s only

window to keep a look out.     Detective Lopez testified that while Flamenco stood at the




                                            3
window, facing away from the motel’s bed, Flamenco heard a slap, turned around, and

saw Velasquez hitting Cardenas.              Flamenco observed Cardenas roll off the bed and

saw Velasquez stomp on her face.              Flamenco told the detectives that they then picked

up the beer cans, put them in a plastic bag, and left the room.           Detective Garcia testified

that Flamenco smoked Pall Mall-brand cigarettes, and Flamenco told the detectives that

Cardenas stole a pack of Pall Mall cigarettes from Velasquez’s car.

        During their investigation, police recovered several items from Flamenco’s home

and Velasquez’s home, including a pair of black slip-on shoes that resembled the pair

worn by Flamenco and a pair of sandals that resembled the pair worn by Velasquez on

the night of the murder.

        Velasquez testified at trial.         According to Velasquez, he and Flamenco were

acquaintances and had met five months prior to Cardenas’s murder. Velasquez stated

that he and Flamenco were together on April 17, 2011. According to Velasquez, he

purchased cocaine at Flamenco’s request that night, and then they drank beer at his

home.       After drinking beer, Velasquez and Flamenco traveled to La Casita Motel and

saw Cardenas walking outside of the motel. Velasquez testified that Flamenco asked

him to stop the car, and Flamenco spoke to Cardenas, who eventually entered the

vehicle.      The trio then traveled to a “yellow hotel”1 on 10th Street and went upstairs into

a room.

        Velasquez testified that once inside the room, Flamenco and Cardenas lay on the

bed, while he remained standing.               Velasquez recalled that Flamenco and Cardenas


        1   Velasquez could not recall the name of the Royal Inn Motel.




                                                      4
used cocaine on the bed. An argument ensued because Cardenas demanded that

Flamenco pay her first before having sex, while Flamenco wanted to have sex first.

Velasquez recalled that Flamenco hit Cardenas in the face with a closed fist, and

Cardenas fell off the bed.   According to Velasquez, Cardenas never screamed during

the altercation.   After witnessing Flamenco punch Cardenas, Velasquez went inside the

motel room’s bathroom and washed his hands.      Upon exiting the bathroom, Velasquez

witnessed Flamenco continue to hit Cardenas and choke her as she lay on the floor.

Velasquez said that he tried to leave the motel room, but Flamenco threatened to hurt

him if he left. Velasquez testified that before they left the room, Flamenco handed him

a bag of trash to carry out of the room.       They both left the motel parking lot in

Velasquez’s car. Velasquez stated that Flamenco told him that he had left a cigarette

box in the motel room and wanted to retrieve it, but Velasquez declined to return to the

motel. Flamenco did not testify.

       Detective Lopez testified that Velasquez’s story appeared to “flow[] better” than

Flamenco’s because Velasquez answered the detective’s questions “without hesitation,”

and also mentioned the fact that Flamenco choked Cardenas.     During his interview with

police, Flamenco never mentioned Velasquez choking Cardenas. When asked about

whether Cardenas was strangled, Flamenco did not answer the question.             When

Detective Lopez asked Flamenco whether he recalled Cardenas defending herself from

the attack, Flamenco remarked to the detectives how easy it was to control a female, if

you hit them hard enough.          Detective Lopez also identified inconsistencies in

Flamenco’s story to police, including denying his identity in the surveillance video and




                                           5
telling police that he wore a red shirt on the night of the murder, while the video showed

him wearing a blue long-sleeved shirt.

        Norma Jean Farley, M.D. testified that she autopsied Cardenas’s body.             Dr.

Farley found “quite a few injuries” around Cardenas’s neck and under her chin and also

discovered multiple contusions to Cardenas’s head including on the eyes, as well as

abrasions to the right upper and lower eyelid. Dr. Farley also noted a small abrasion on

the right side of Cardenas’s face and contusions to Cardenas’s left cheek, left ear, and

on the inferior chin and right jaw line.   Dr. Farley stated that several injuries supported a

finding that Cardenas was strangled.        Among the injuries noted were: (1) three blue

areas on the back posterolateral left neck; (2) “pinpoint hemorrhages” in Cardenas’s

conjunctivae, which is a sign of asphyxia; (3) hemorrhaging on the neck muscles; and (4)

a right-side fracture to Cardenas’s hyoid bone with hemorrhaging to the surrounding

muscle and tissue. According to Dr. Farley, the hyoid bone is a u-shaped bone located

near the base of the tongue, and the fracture along with the hemorrhaging around the

bone was “enough” evidence for her to make a diagnosis of strangulation as Cardenas’s

cause of death.      Dr. Farley opined that Cardenas was still alive at the time she

sustained the injuries to her neck.

        Edna Zavala, a forensic scientist with the Texas Department of Public Safety, also

testified.   Zavala tested several pieces of evidence recovered by police and compared

the evidence with DNA samples from Flamenco, Velasquez, and Cardenas.                 Zavala

testified that Flamenco’s black slip-on shoe had a blood stain located on the side of the

shoe. According to Zavala, the blood stain contained a mixture of DNA from Cardenas,




                                               6
Flamenco, and an unknown individual. Velasquez was excluded as a contributor to the

DNA on Flamenco’s shoe.      No other relevant DNA results were discovered.

      Flamenco’s mother testified on his behalf.    During her testimony, she denied an

earlier accusation lodged by Velasquez that she had visited Velasquez in jail in an

attempt to persuade him to take the blame for the murder in exchange for Flamenco’s

mother sending Velasquez’s mother money.

      The jury found Flamenco guilty as charged and assessed punishment at fifty-five

years’ imprisonment with the Texas Department of Criminal Justice’s Institutional

Division. This appeal followed.

                 II.    ACCOMPLICE AS A MATTER OF LAW INSTRUCTION

      By his first issue, Flamenco asserts that the trial court erred by denying his

requested instruction that Velasquez was an accomplice as a matter of law.

      A. Standard of Review

      Our first duty in analyzing a jury-charge issue is to determine whether error exists.

See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we find

error, we analyze it for harm. Id. The degree of harm necessary for reversal depends

on whether the error was preserved by requesting the proposed jury instruction. See

Oursbourn v. State, 259 S.W.3d 159, 168–69 (Tex. Crim. App. 2008) (“[T]he defense

must request a jury instruction before any error can result.”). If the error was preserved

by objection, we will reverse if we find “some harm” to the defendant's rights. “Some

harm” means any harm, regardless of degree. Arline v. State, 721 S.W.2d 348, 351

(Tex. Crim. App. 1986) (en banc); see Atkinson v. State, 934 S.W.2d 896, 897 (Tex.




                                            7
App.—Fort Worth 1996, no pet.). Under a “some-harm” analysis, we are obligated to

determine whether the error was “calculated to injure the rights of the defendant.” See

Arline, 721 S.W.2d at 352. We consider the harmfulness in context of the entire record.

Id. If no objection was made, we will reverse only if the record shows “egregious harm”

to the defendant. Ngo, 175 S.W.3d at 743.

       B. Applicable Law

       An accomplice is a person who participates in the offense before, during, or after

its commission with the requisite mental state. Smith v. State, 332 S.W.3d 425, 439 (Tex.

Crim. App. 2011) (citation omitted). Presence at the crime scene does not make a

person an accomplice; an accomplice must have engaged in an affirmative act that

promotes the commission of the offense that the accused committed.                 Id. (internal

citations omitted). The evidence in each case will dictate whether an accomplice as a

matter of law or fact instruction is required.       Id. When the evidence clearly shows (i.e.,

there is no doubt) that a witness is an accomplice as a matter of law, the trial judge must

instruct the jury accordingly. Id. (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim.

App. 1987)); see Cocke v. State, 201 S.W.3d 744, 748 (“If a witness is an accomplice as

a matter of law, the trial court is required to provide an accomplice-witness instruction to

the jury.”). When there is doubt as to whether a witness is an accomplice (i.e., the

evidence is conflicting), then the trial judge may instruct the jury to determine a witness's

status as a fact issue.    Smith, 332 S.W.3d at 439–40.            Finally, when the evidence

clearly shows that a witness is not an accomplice, the trial judge is not obliged to instruct

the jury on the accomplice witness rule—as a matter of law or fact.           Id. at 440. The




                                                 8
charge of the court must distinctly set forth the law applicable to the case, not express

any opinion as to the weight of the evidence, not summarize the testimony, or discuss

the facts or use any argument calculated to arouse the sympathy or excite the passions

of the jury.   TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2013 3d

C.S.).

         C. Discussion

         During the charge conference, the trial court found that Velasquez’s status as an

accomplice was “undisputed” in this case.2 As a result, the trial court instructed the jury

as follows:

                                               9.
         An accomplice witness is someone who has participated with another
         before, during, or after the commission of the crime. 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; the
         corroboration is not sufficient if it merely shows the commission of the
         offense.

         You are also instructed that in this case, Marlon Velasquez is an
         accomplice witness, if an offense was committed as alleged in the
         indictment. . . .

         Flamenco sought to add additional language under Paragraph 9 of the trial court’s

charge to include a definition that an accomplice witness may be one as a matter of law

or as a matter of fact. Furthermore, Flamenco wanted the following language inserted

into Paragraph 9 of the charge, after the first sentence:     “If a witness has been indicted

for the crime the defendant is accused of, he or she is an accomplice as a matter of law.”

This request was denied.

         2  Velasquez was indicted along with Flamenco for Cardenas’s murder. However, Velasquez
testified that in exchange for his testimony, the murder charge would be dismissed.




                                               9
       After reviewing Flamenco’s requested additional definition, we conclude that it

was superfluous and unnecessary.         The trial court’s charge clearly states the definition

of an accomplice, identifies Velasquez as an accomplice, and provides the requisite

accomplice-witness instruction as provided by article 38.14 of the code of criminal

procedure and the corresponding case law.          See TEX. CODE CRIM. PROC. ANN. art. 38.14

(West, Westlaw through 2013 3d C.S.); Cocke, 201 S.W.3d at 747–48 (interpreting

article 38.14 and explaining the purpose of the accomplice-witness instruction).

Accordingly, we conclude that no charge error exists, and our analysis ends here.         See

Ngo, 175 S.W.3d at 743. Flamenco’s first issue is overruled.

                           III.    ADMISSIBILITY OF TESTIMONY

       By his second issue, Flamenco contends that the trial court erred by overruling his

objection to Detective Garcia’s testimony about Flamenco’s body language in the

surveillance footage collected from the Royal Inn Motel.

       A. Standard of Review and Applicable Law

       We use an abuse of discretion standard in reviewing a trial court’s determination

of a witness’s qualifications as an expert and judgment regarding the admission of any

expert testimony.    Ellison v. State, 201 S.W.3d 714, 722 (Tex. Crim. App. 2006).

Absent a clear abuse of that discretion, the trial court’s decision to admit or exclude

testimony will not be disturbed.   Id.

       Both lay and expert witnesses can offer opinion testimony.        Osbourn v. State, 92

S.W.3d 531, 535 (Tex. Crim. App. 2002).               Rule 701 deals with witnesses who

“witnessed” or participated in the events to which he or she is testifying, while Rule 702




                                              10
allows for a witness who was brought in as an expert to testify.         Id.; see TEX. R. EVID.

701, 702.   Rule 701 requires the proponent of lay-opinion testimony to establish that the

witness has personal knowledge of the events upon which his opinion is based.              Fairow

v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Personal knowledge may come

directly from the witness’s senses, or it may also come from experience.             Id.    If the

proponent of the opinion cannot establish personal knowledge, the lay testimony should

be excluded.    Id.

       It is impossible for a witness to possess personal knowledge of what someone

else is thinking because the individual is the only one who knows for certain the mental

state with which he or she is acting.    Id. at 899 (citing Arnold v. State, 853 S.W.2d 543,

547 (Tex. Crim. App. 1993)).       Therefore, if the trial court determines that a proffered

lay-witness opinion is an attempt to communicate the actual subjective mental state of

the actor, the court should exclude the opinion because it could never be based on

personal knowledge.      Id.   Likewise, if the witness's lack of personal knowledge yields

testimony that amounts to “choosing up sides” or an opinion of guilt or innocence, his

opinion should be excluded.      Id.

       However, not all Rule 701 opinions regarding culpable mental states need to be

automatically excluded for want of personal knowledge.           Id.   An opinion may satisfy

the personal knowledge requirement if such opinion is an interpretation of the witness’s

objective perception of events, of if it illuminates the distinction between personal

knowledge of another’s mental state and personal knowledge of perceived events.                Id.

In this situation, the jury is free to give as much or as little weight to the opinion as it sees




                                               11
fit. Id.

       Once the perception requirement is met, the trial court must determine whether

the opinion is rationally based on that perception, i.e., that it is an opinion that a

reasonable person could draw under the circumstances.       Id. at 899–900. If the opinion

is not capable of reasonably being formed from the events underlying the opinion, it must

be excluded. Id. at 900.      Finally, the trial court must determine whether the opinion

would be helpful to the trier of fact to either understand the witness’s testimony or to

determine a fact in issue.   Id.

       When a witness who is capable of being qualified as an expert testifies regarding

events which he or she personally perceived, the evidence may be admissible as both

Rule 701 opinion testimony and Rule 702 expert testimony.          Osbourn, 92 S.W.3d at

536.       A person with specialized knowledge may testify about his or her own

observations under Rule 701 and may also testify about the theories, facts and data

used in his or her area of expertise under Rule 702.         Id.   Stated another way, a

witness may qualify to give testimony both under Rule 702—because of his or her

superior experiential capacity—and under Rule 701, if the witness's testimony and

opinion are based upon firsthand knowledge.      Id. (internal quotations omitted); see TEX.

R. EVID. 701, 702.

       B. Discussion

       In the present case, the State elicited testimony from Detective Garcia regarding

Flamenco’s and Velasquez’s respective body language in the surveillance footage

retrieved from the motel. The following exchange relates to Flamenco’s complaint at




                                            12
trial, after the trial court sustained Flamenco’s initial objection to the State’s line of

questioning:

      [Prosecutor]:        Detective Garcia, in your ten years as a detective, how
                           many times have you had to look at surveillance
                           footage in order to sort of help you understand a
                           crime?

      [Det. Garcia]:       Many times.

      [Prosecutor]:        Okay. More than 20?

      [Det. Garcia]:       Yes.

      [Prosecutor]:        More than 50?

      [Det. Garcia]:       Ah—over ten years, I would say, yes.

      [Prosecutor]:        As you watch those—have you ever seen a lookout on
                           a case, on a piece of surveillance, or someone going
                           into a store, or a restaurant, or anything like that?

      [Det. Garcia]:       Yes.

                           ....

      [Prosecutor]:        Can you observe things about a person’s physical
                           demeanor, or their emotional state by watching these
                           videos?

      [Det. Garcia]:       Emotional? Maybe not.            But just maybe the
                           demeanor—

      [Prosecutor]:        Okay.

      [Det. Garcia]:       —just by looking at the video.

      [Prosecutor]:        So there are observations that you can make by the
                           way someone’s moving?

      [Det. Garcia]:       Yes.

      [Prosecutor]:        Have you conducted interviews with witnesses and



                                           13
                  suspects in your ten years as an investigator with the
                  McAllen Police Department?

[Det. Garcia]:    Yes, I have.

[Prosecutor]:     Is reading someone’s body language during an
                  interview, or when they’re giving statements,
                  important?

[Det. Garcia]:    Yes, it is.

[Prosecutor]:     The more you get to interview people over your time,
                  have you gotten better at reading people’s body
                  language?

[Det. Garcia]:    Yes, I have.

[Prosecutor]:     Does [sic] your observations in interviewing, translate
                  to understanding how people move on a videotape?

[Det. Garcia]:    Yes.

[Prosecutor]:     Have you ever conducted surveillance on cases?

[Det. Garcia]:    Yes, I have.

[Prosecutor]:     When you’re watching people, covertly, to decide if
                  there’s criminal activity going on, do you learn things
                  from their body language?

[Det. Garcia]:    Yes, you do.

[Prosecutor]:     Back to the video in this case, did you notice things
                  about the body language, about these three
                  individuals?

[Defense]:        Objection, Your Honor. I don’t think he’s laid the
                  proper predicate to establish him as an expert in body
                  language.

The Court:        The objection is overruled.

Detective Garcia then described the demeanor of both Flamenco and Velasquez




                                 14
as “calm” and approximated the distances between Cardenas, Flamenco, and

Velasquez as the three walked up to the motel room.        Next, Detective Garcia observed

that Velasquez walked out of the room first in a “quicker” fashion than Flamenco, while

Flamenco was in a “[relaxed] mode.” Later, when asked by the State who he thought

was the “dominant personality” as between Flamenco and Garcia, Detective Garcia

opined that Flamenco was “the one who was in charge,” based upon his review of the

surveillance video and the fact that Flamenco sat with Cardenas in Velasquez’s

backseat, after picking her up at La Casita Hotel.

      Flamenco argues that allowing Detective Garcia’s testimony interpreting

Flamenco’s body language amounted to an abuse of discretion. We disagree.            First,

Detective Garcia’s testimony was opinion testimony admissible under Rule 701.         See

Osbourn, 92 S.W.3d at 536.          Detective Garcia’s testimony related to personal

observations that he made from watching the surveillance footage related to Flamenco’s

and Velasquez’s demeanor, the distance between Flamenco, Velasquez, and Cardenas,

and the pace at which each of them walked.            This testimony relates to Detective

Garcia’s interpretation of his objective perception of events, which is admissible, see

Fairow, 943 S.W.2d at 899, rather than a “choosing of sides” or an attempt to

communicate about Flamenco’s actual subjective mental state or a decision of guilt or

innocence, which is inadmissible.      See id.       Furthermore, the jurors watched the

surveillance footage for themselves and were free to give as much or as little weight to

Detective Garcia’s testimony as they saw fit.    See id.

      Next, the trial court could have found that Detective Garcia’s perceptions were




                                           15
rationally based on his perception and a reasonable person could have drawn the same

conclusion from viewing the surveillance footage by estimating distance and speed and

evaluating demeanor.        See id. 899–900.   Finally, the trial court was within its discretion

to conclude that such testimony would help the jury in determining the ultimate issue of

guilt, because such testimony is relevant in outlining the appropriate facts of this case.

See id. at 900 (discussing how opinion testimony is helpful if it is a shorthand rendition of

the facts). Therefore, we conclude that the trial court did not abuse its discretion.

       Moreover, even if we were to find that the trial court abused its discretion in

allowing Detective Garcia to testify about Flamenco’s body language, we nevertheless

conclude that such abuse of discretion was harmless.            See TEX. R. APP. P. 44.2(b).

Non-constitutional error “that does not affect substantial rights must be disregarded.” Id.

Substantial rights are not affected by the erroneous admission of evidence if, after we

examine the record as a whole, we have fair assurance that the error did not influence the

jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002). In assessing the likelihood that the jury's decision was adversely affected by the

error, the appellate court should consider everything in the record, including any

testimony or physical evidence admitted for the jury's consideration, the nature of the

evidence supporting the verdict, the character of the alleged error and how it might be

considered in connection with other evidence in the case.         Id. We may also consider

jury instructions, the State’s theory, and any defensive theories, closing arguments, and

voir dire, if applicable.   Id.   Finally, we may consider the State’s emphasis on the error

as a factor. See id.




                                               16
      In this case, any harm caused by the purported error of admitting Detective

Garcia’s opinion testimony was minimal in light of the record and the nature of other

evidence supporting the verdict, as outlined in this opinion.     Furthermore, as noted

above, the jurors viewed the same surveillance footage described by Detective Garcia

and were free to draw their own conclusions about the matters testified to by Detective

Garcia.    We acknowledge that the State described Flamenco as the “dominant

personality” during closing arguments, but the State also encouraged the jurors to

evaluate Flamenco’s body language for themselves and determine whether they could

draw the same opinions put forth by Detective Garcia.      Accordingly, we conclude that

the admission of Detective Garcia’s “body language” testimony, if in error, was harmless

and did not affect Flamenco’s substantial rights.        See TEX. R. APP. P. 44.2(b).

Flamenco’s second issue is overruled.

                            IV.    SUFFICIENCY CHALLENGE

      By his final issue, Flamenco asserts that the evidence is insufficient to support his

conviction.

      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




                                           17
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 guilty 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, Flamenco is guilty of murder if he

intentionally or knowingly caused Cardenas’s death.          See TEX. PENAL CODE ANN. §

19.02.

         B.     Discussion

         The State elicited direct testimony from Velasquez, Flamenco’s accomplice, who

testified that he witnessed Flamenco repeatedly punch and choke Cardenas inside

Room 211 of the Royal Inn Motel in McAllen.           According to Flamenco’s testimony,

Cardenas appeared unconscious during the entire ordeal, as well as when the pair left

the motel room.       Under the appropriate standard of review, we defer to the jury’s




                                              18
credibility determinations of witness testimony.          See Brooks, 323 S.W. 3d at 899.            After

viewing all of the evidence in the light most favorable to the verdict, we also conclude

that the evidence is legally sufficient to support Flamenco’s conviction because after

reviewing the record, a rational fact finder could have found that Flamenco murdered

Cardenas beyond a reasonable doubt.              See Winfrey, 393 S.W.3d at 768.

         However, despite this eyewitness testimony, a conviction cannot be had upon the

testimony of an accomplice, such as Velasquez, unless corroborated by other evidence

tending to connect Flamenco with the offense committed; and the corroboration is not

sufficient if it merely shows the commission of the offense.                 TEX. CODE CRIM. PROC.

38.14.    A challenge of insufficient corroboration is not the same as a challenge of

insufficient evidence to support the verdict, but is instead governed by a different test.

Yost v. State, 222 S.W.3d 865, 871 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).3

When reviewing the sufficiency of non-accomplice evidence under Article 38.14, we

decide whether the inculpatory evidence tends to connect the accused to the

commission of the offense.               Smith, 332 S.W.3d at 442.                The sufficiency of

non-accomplice evidence is judged according to the particular facts and circumstances

of each case.      Id. The direct or circumstantial non-accomplice evidence is sufficient

corroboration if it shows that rational jurors could have found that it sufficiently tended to

connect the accused to the offense.            Id. So when there are conflicting views of the

evidence—one that tends to connect the accused to the offense and one that does


         3 While Flamenco generally frames his final issue in terms of a legal sufficiency challenge to the

verdict, Flamenco also appears to challenge the sufficiency of the evidence to corroborate accomplice
testimony within that issue. Accordingly, we will examine both arguments separately under each
challenge’s respective tests.




                                                   19
not—we will defer to the factfinder's resolution of the evidence.   Id. Therefore, it is not

appropriate for appellate courts to independently construe the non-accomplice evidence.

Id.

       The evidence shows that Flamenco and Velasquez were the last two individuals

with Cardenas prior to her death. We first note that testimony revealed that when the

police officers initially interrogated Flamenco about the murder, he denied that he was

one of the individuals in the surveillance footage, and he also denied knowing

Velasquez.    Flamenco also told police that he wore a red-colored shirt that night,

despite the surveillance footage revealing that he wore a blue shirt.          Additionally,

Flamenco told police a different story about his whereabouts on the night of April 17,

2011, but later in the interrogation, Flamenco changed his story and told the police “what

happened,” which included blaming Velasquez for the murder. Courts have held that a

defendant’s statements and conduct after the crime can be used to show a

consciousness of guilt.   See King v. State, 29 S.W.3d 556, 564–65 (Tex. Crim. App.

2000); Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. App.—Fort Worth 1999, pet.

ref’d); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.). Here,

evidence of Flamenco’s post-crime conduct and his changing stories to police tended to

connect him to the offense.

       Second, Flamenco told police that Velasquez stomped on Cardenas during the

murder, but that he never told police that Velasquez choked Cardenas. Velasquez

testified that he witnessed Flamenco choke Cardenas.       Dr. Farley testified that based

on a right-side fracture to Cardenas’s hyoid bone, as well as surrounding trauma to the




                                            20
muscle and tissue, she opined that Cardenas died by strangulation.        This evidence also

tended to connect Flamenco to the murder.           See Smith, 332 S.W.3d at 442.

       Finally, the evidence established that Flamenco told police that he never

approached Cardenas once she fell to the floor and that he stayed close to the motel

room’s window, which was located on the opposite wall from where Cardenas’s body

was found.    Despite this assertion to police, a blood stain was found on Flamenco’s

shoes, and DNA testing revealed that the stain contained Flamenco’s as well as

Cardenas’s DNA.      Detective Garcia testified that this particular crime scene was not

“bloody” and that Cardenas’s blood was found in an area no more than two feet from

where her body was found.          When taken together, this evidence would allow

reasonable jurors to conclude that Flamenco lied to police and was within a close

proximity to Cardenas’s body.

       After giving proper deference to the jury’s resolution of the facts as discussed

above, see id. at 447, we conclude that the evidence tends to connect Flamenco to

Cardenas’s murder. Flamenco’s final issue is overruled.

                                   V.     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
29th day of August, 2014.



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