                                 MEMORANDUM OPINION
                                        No. 04-09-00312-CR

                                     Gonzalo Artemio LOPEZ,
                                            Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 341st Judicial District Court, Webb County, Texas
                              Trial Court No. 2007-CRO-000452-D-3
                         Honorable Elma T. Salinas Ender, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: October 13, 2010

AFFIRMED

           A jury found appellant, Gonzalo Artemio Lopez, guilty of attempted capital murder and

assessed punishment at confinement for life and a $10,000 fine. At the State’s request, the trial

court ordered appellant’s sentence to be served consecutively with the life sentence for a prior

conviction for kidnapping. We affirm.
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                               CONSECUTIVE SENTENCING

       In his first issue, appellant asserts the trial court abused its discretion when it ordered his

sentence to be served consecutively with the sentence for a prior conviction in Hidalgo County

because the State failed to adequately link appellant to the prior conviction. We will not disturb

the trial court’s order absent an abuse of discretion. Allen v. State, 951 S.W.2d 925, 928 (Tex.

App.—San Antonio 1997, pet. ref’d). A trial court abuses its discretion when it applies an

erroneous legal standard, or when no reasonable view of the record could support the trial court’s

conclusion under the correct law and the facts viewed in the light most favorable to its legal

conclusion. DuBose v. State, 915 S.W.2d 493, 497–98 (Tex. Crim. App. 1996).

       The trial court has discretion to order a defendant’s sentence to run either concurrently or

consecutively with a prior conviction or convictions. TEX. CODE CRIM. PROC. ANN. art. 42.08(a)

(West 2006). At the time of sentencing, the record must contain at least “some evidence” linking

the defendant to the prior conviction. Miller v. State, 33 S.W.3d 257, 261 (Tex. Crim. App.

2000). The burden is on the State to present this evidence, and the defendant has no obligation to

prove he has no prior convictions. Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App.

1987). The State may meet its burden by introducing into evidence a certified copy of the prior

judgment and testimony identifying the defendant as the person named in that judgment. Id.

Absent a certified copy of the prior judgment and accompanying testimony, the State may link

the defendant to a prior conviction by live direct testimony, defendant’s or defense counsel’s

admissions, and/or the State’s uncontested utterances. Derrick v. State, 223 S.W.3d 501, 502

(Tex. App.—Amarillo 2006, no pet.) (citing Mungaray v. State, 188 S.W.3d 178, 183 (Tex.

Crim. App. 2006)).




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       In Derrick v. State, the Amarillo court of appeals found no abuse of discretion where the

trial court cumulated federal and state sentences. Id. at 502–03. The court explained:

       [D]uring a conference in open court prior to formal sentencing, the trial court,
       prosecutor, and defense counsel discussed whether the Texas sentence should run
       consecutively to the Colorado federal sentences. At that time, no one, including
       appellant, questioned whether appellant was the subject of those convictions and
       sentences. Instead, appellant asked that they be ordered to run concurrently with
       his Texas sentence.

Id. The court also noted: “Furthermore, the trial court was handed the case number, style, and

sentence involved in the Colorado federal prosecutions. Then, it read that specific information

into the reporter’s record when pronouncing sentence, again without objection by anyone.” Id. at

503. Similarly, in Mungaray v. State, the Court of Criminal Appeals found adequate evidence

linking the defendant to his prior conviction, explaining, “When the trial court stacked

appellant’s sentence in this case onto the 99 year sentence in the Gaines County case, appellant

made no claim that he was not the one convicted in the Gaines County case.” Mungaray, 188

S.W.3d at 184 n.15. The Mungaray Court also found the defendant’s admission that a prior

conviction was on appeal to be evidence in support of a proper cumulation order. Id.

       Here, the State introduced a certified copy of appellant’s conviction for aggravated

kidnapping in Hidalgo County.      The copy of the Hidalgo judgment was admitted without

objection, but the State’s foundation witness, Webb County Sheriff’s Deputy Doyle Holdridge,

did not testify that appellant is the same defendant previously convicted in Hidalgo. In fact,

neither of the State’s witnesses who testified at the punishment phase offered evidence

conclusively linking appellant to the defendant named in the Hidalgo judgment.

       However, during the punishment phase of the trial, the prosecutor referred repeatedly to

the Hidalgo conviction. Defense counsel objected to each mention of the Hidalgo conviction on

grounds that any reference to the prior felony conviction was impermissible character evidence,

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and he was overruled each time. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1) (West

2006) (“[A]fter a finding of guilty . . . evidence may be offered by the [S]tate and the defendant

as to any matter the court deems relevant to sentencing, including but not limited to the prior

criminal record of the defendant . . . .”). Defense counsel did not object, however, on the ground

that the Hidalgo conviction did not exist or that appellant was not the defendant actually

convicted in Hidalgo County. Instead, in response to the prosecutor’s mention of the Hidalgo

kidnapping, defense counsel stated: “Your Honor, . . . [the prosecutor is] talking about a case that

is currently on appeal.”

       During sentencing, the following exchange occurred when the State urged its motion to

cumulate:

       THE COURT:                     We will grant the motion to stack the sentence and
                                      this will run after the sentence in the other matter.
                                      Is that . . . out of the Valley? There is not . . . an
                                      actual cause number?
       [DEFENSE COUNSEL]:             That’s the one.
       THE COURT:                     Is it CR237705A.
       [PROSECUTOR]:                  That’s the one I believe out of Hidalgo County.
       THE COURT:                     We will grant the motion and it will be stacked.

Defense counsel did not object to the trial court’s entering of the correct cause number for the

Hidalgo conviction; in fact, he confirmed it was correct.

       We conclude the trial court did not abuse its discretion because there was sufficient

evidence before it to properly order the sentences to run consecutively.

                               ACCOMPLICE INSTRUCTION

       In his second issue, appellant alleges the trial court erred by refusing to give the jury an

accomplice instruction regarding Lucia Ramirez. An accomplice participates before, during, or

after the commission of the offense and acts with the culpable mental state required for the

offense. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). An accomplice must

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commit an affirmative act that promotes commission of the offense. Id. As a matter of law, an

accomplice is one who is susceptible to prosecution for the same offense as the defendant or for

a lesser-included offense. Id. Mere presence during commission of the offense does not make

one an accomplice. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). Failure to

disclose or even active concealment of a known offense also does not make one an accomplice.

Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999); Blake v. State, 971 S.W.2d 451, 454

(Tex. Crim. App. 1998). The critical question for the court of appeals is not whether the alleged

accomplice has been charged, but whether there is sufficient evidence in the record to support a

charge. Blake, 971 S.W.2d at 455.

       Where the evidence clearly shows that a witness is an accomplice as a matter of law, the

trial court has a duty to instruct the jury to consider the witness an accomplice. Paredes, 129

S.W.3d at 536; Blake, 971 S.W.2d at 455. If the evidence is unclear, the trial court must provide

a definition of “accomplice” and instruct the jury to consider the witness an accomplice if it finds

the witness meets the definition provided. Paredes, 129 S.W.3d at 536. Where the evidence

clearly shows that a witness is not an accomplice as a matter of law, no instruction must be

given. Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987). Thus, we must examine

the record for evidence showing whether Ramirez was an accomplice.

       On the evening of May 11, 2004, appellant, Luis Carlos Mares, and Ramirez, who was

holding her three-month-old daughter in her lap, were traveling through Zapata County in a red

Ford Mustang. Mares was driving the vehicle, appellant rode in the front passenger seat, and

Ramirez and her daughter sat in the back seat behind the driver. Two Zapata County sheriff’s

deputies observed the Mustang speeding and attempted to pull the vehicle over. The Mustang

sped away from the deputies and headed north toward Webb County with the Zapata County



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deputies in pursuit. Two Webb County sheriff’s deputies, Esteban Paez, Jr. and Francisco

Fuentes, took up the pursuit when the Mustang entered Webb County.

       A high-speed chase ensued, during which the deputies from both Zapata and Webb

Counties claimed shots were fired at them from the driver’s side of the Mustang. When Deputy

Fuentes attempted to pass the Mustang on the left, shots were fired directly at him, causing his

vehicle to veer off the road. The Mustang eventually slowed down and stopped, and Mares and

appellant abandoned the vehicle on foot. Mares was apprehended the next day. He pleaded

guilty to attempted capital murder of a police officer, Deputy Fuentes, and was sentenced to sixty

years’ confinement.

       Appellant was not immediately apprehended. On February 17, 2006, he was convicted in

Hidalgo County for aggravated kidnapping, which took place after he fled the car chase, and was

assessed fifteen years’ confinement. He was subsequently charged and convicted in this case

after beginning to serve his term for the Hidalgo offense. At appellant’s trial, Mares testified he

did not shoot at the deputies and it was appellant who was the shooter.

       Ramirez did not flee when the chase ended, and the deputies found her in the back seat of

the Mustang, still holding her daughter. Ramirez was arrested for evading arrest and spent only a

few days in county jail. At appellant’s trial, she testified that during the chase, she moved so that

appellant could collapse the back seat of the Mustang and reach into the trunk, from which he

retrieved a duffel bag containing a large firearm. According to Ramirez, appellant handed the

firearm to Mares, who then used it to shoot at the deputies while driving the Mustang.

       Appellant argues Ramirez is an accomplice to the attempted capital murder because

Ramirez knew of Mares’s membership in the Mexican Mafia, a Mexican-American prison gang,

when she chose to accompany him in the Mustang. Mere knowledge of a person’s criminal past



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or affiliations is insufficient to make one an accomplice to an offense committed in his or her

presence. See Gamez, 737 S.W.2d at 322 (“If a State’s witness has no complicity in the offense

for which an accused is on trial, his or her testimony is not that of an accomplice witness

whatever may have been his complicity with the accused in the commission of other offenses.”

(citations omitted)). Ramirez testified without contradiction that she believed she and her infant

daughter were accompanying Mares and appellant to Roma, Texas in order to retrieve a vehicle

Mares owned.

       Appellant also contends Ramirez is an accomplice because she was in a better position

than appellant to grab the firearm from the trunk of the Mustang and hand it to Mares, and

because it is not inconceivable that Ramirez herself fired the weapon at the police. There is no

evidence in the record indicating Ramirez was anything other than a mere passenger in the

Mustang. Ramirez testified without contradiction that she did not help appellant collapse the

back seat of the car or remove the firearm from the trunk, nor did she handle the firearm in any

way at any time. Ramirez remained inside the vehicle after Mares and appellant fled, and she

peacefully surrendered to the police while still holding her infant daughter in her arms. There is

simply no evidence in the record before this court to support a charge of attempted capital

murder against Ramirez.

       Because we find no evidence in the record indicating Ramirez was an accomplice, the

trial court had no duty to grant appellant’s request for an accomplice instruction and did not err

in refusing to do so.

                        FACTUAL INSUFFICIENCY OF THE EVIDENCE

       In his third issue, appellant argues the evidence is factually insufficient to support the

verdict. When considering a factual sufficiency challenge to the jury’s verdict, we will order a



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new trial only where the verdict represents a manifest injustice because the State’s evidence,

although legally sufficient, is nevertheless too weak to withstand scrutiny. Watson v. State, 204

S.W.3d 404, 414 (Tex. Crim. App. 2006) (citing Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim.

App. 1997)). We review the evidence in the light most favorable to the verdict. Brooks v. State,

No. PD-0210-09 (Tex. Crim. App. Oct. 6, 2010) (citing Jackson v. Virginia, 44 U.S. 307, 319

(1979)).

         Ramirez testified that appellant retrieved the firearm from the trunk of the car and handed

it to Mares, who then shot at the deputies. Therefore, her testimony supports a finding that

appellant was at least a party to the attempted crime. 1 By retrieving the firearm and handing it to

Mares, appellant actively participated in commission of the attempted capital murder.

Accordingly, the jury properly relied on Ramirez’s non-accomplice testimony to support its

verdict.

                                                 CONCLUSION

         We overrule appellant’s issues on appeal and affirm the trial court’s judgment.


                                                           Sandee Bryan Marion, Justice

DO NOT PUBLISH




1
 The jury was charged that it could find appellant guilty by either acting alone or as a party to the attempted capital
murder.

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