                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-15-00341-CR


                      PABLO RODRIGUEZ GUZMAN JR., APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 121st District Court
                                       Terry County, Texas
                    Trial Court No. 6831, Honorable Kelly G. Moore, Presiding

                                         August 1, 2016

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


      Appellant, Pablo Rodriguez Guzman Jr., appeals his conviction for the offense of

possession with intent to deliver a controlled substance listed in Penalty Group 1, in the

amount of four grams or more but less than 200 grams,1 enhanced by an allegation of

one previous felony conviction.2 The convicting jury assessed appellant’s punishment

at confinement in the Institutional Division of the Texas Department of Criminal Justice


      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010).
      2
          See TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2015).
(ID-TDCJ) for a period of 15 years. Appellant has perfected his appeal and presents

two issues for our consideration.      First, appellant contends that the evidence was

insufficient to support the jury’s verdict because there was insufficient corroboration of

the accomplice witness testimony.       Second, appellant contends that the trial court

committed charge error by failing to incorporate an application of the accomplice

witness instruction within an application paragraph in the court’s charge. Disagreeing

with appellant’s contentions, we will affirm.


                           Factual and Procedural Background


       On November 16, 2014, appellant and Isabelle Gamez were involved in a one-

car rollover in Terry County, Texas. Department of Public Safety Trooper Pablo Ramos

was dispatched to the scene of the accident. Prior to Ramos’s arrival, first responders

from the Wellman Volunteer Fire Department and the Brownfield Regional Medical

Center (BRMC) arrived on the scene.


       Appellant and Gamez were out of the vehicle when the first responders arrived

on the scene. According to the witnesses, appellant was walking around the scene

searching for his cell phone. The witnesses reported that appellant seemed to have

little interest in Gamez’s condition, but was overly focused on finding his cell phone.

Appellant ultimately found his cell phone within 15 feet of where the methamphetamine

was found in the median near the wreck.


       Upon arrival at the scene, Ramos began working the scene as an automobile

wreck. Appellant and Gamez had already been transported by emergency medical

personnel to the BRMC by the time of Ramos’s arrival on the scene.             During his

                                                2
accident investigation, he was shown two plastic bags of a white crystal substance that

he believed to be methamphetamine. The two plastic bags of methamphetamine had

been previously found by one of the volunteer fireman from Wellman who responded to

the accident call. One of the bags was found near the front passenger tire of the

wrecked vehicle. The second bag was found a few feet in front of the same vehicle.

Ramos secured the bags and ultimately turned them over to the Department of Public

Safety laboratory for testing.


       Bobby Jones was the paramedic who was dispatched to the accident scene.

Jones described appellant as being uncooperative with EMS personnel. Eventually,

appellant and Gamez were transported to BRMC. During the drive to the hospital,

Jones testified that he overheard appellant talking to Gamez in Spanish.          Jones

eventually asked that the two speak English so he could gauge Gamez’s ability to

respond. Jones testified that he overheard appellant telling Gamez not to say anything.


       Upon arrival at BRMC, Saluna Ruiz, an ER tech, overheard appellant tell Gamez

to “get your story straight.” Ruiz further observed that appellant had two cell phones in

his possession. Kristi Bruno, an ER nurse, also heard appellant tell Gamez to keep the

story straight that they didn’t know anything about what was at the scene.


       While being treated at the emergency room, Gamez was found to possess

cocaine and marijuana in her clothing. She was subsequently arrested for possession

of these drugs and transported to the Terry County jail.




                                            3
         Ramos arrived at the hospital and questioned appellant about the accident.

Eventually, appellant was charged with possession of methamphetamine and

transported to the Terry County jail.


         Upon arrival at the Terry County jail, appellant and Gamez were placed in

separate holding cells. In addition to the aforementioned, also housed in the cells were

Rosa Guzman and Roger Phergson. The four began having conversations with each

other across the cells. All of the conversations were recorded on the jail’s audio and

video recording system. From the video and audio recordings, the following is seen and

heard:


         1. Appellant was trying to advise Gamez about what to say to the
         authorities regarding the methamphetamine.

         2. Appellant told Gamez repeatedly to keep her story straight.

         3. Appellant insisted that as long as they keep their story straight the
         authorities will not be able to charge them with the methamphetamine.

         4. Appellant told Gamez that the methamphetamine could have been in
         the median for years.

         5. Again, appellant told Gamez to keep her story straight “to the grave.”

         6. Appellant advised Gamez that if the authorities find the
         methamphetamine at least 25 feet from the vehicle, they can’t prove
         possession.


The State called Darrell Walker, a DEA agent, who testified about his work history and

experience as an investigator in drug related cases. He testified that the normal amount

of methamphetamine trafficked to an individual user is in the 1/4 to one gram range.

Walker further opined that the amount of methamphetamine found in this incident, 54

grams, was substantially more than would be typically found on a user for personal

                                              4
consumption. Further, Walker opined that the amount involved in this incident would

have a street value of approximately $5,400.         Walker also explained that in his

experience individuals dealing in drugs often carry more than one cell phone.          He

explained that one would generally be referred to as a “burner” phone, meaning that it

was meant to be a disposable phone with prepaid minutes that could be discarded.


      At the conclusion of the State’s case, the appellant rested without calling any

witnesses. Both sides closed and the case was submitted to the jury. After the close of

the evidence, the trial court prepared its charge to the jury. In this case, the court’s

charge contained a paragraph concerning accomplice witness testimony.           See TEX.

CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Appellant made no objections to the

charge nor did appellant request any instructions.


      After the jury heard the court’s charge read to them and the final arguments of

trial counsel, it began its deliberations. Thereafter, the jury returned a verdict finding

appellant guilty of possession of methamphetamine with intent to deliver in an amount

of four grams or more but less than 200 grams. After hearing the punishment evidence,

the jury returned a verdict of 15 years’ confinement in the ID-TDCJ.


      Appellant has perfected his appeal and has brought forth two issues.          First,

appellant contends that the evidence was insufficient to support the jury’s verdict

because there was insufficient corroboration of the accomplice witness testimony.

Second, appellant contends that the trial court committed charge error by failing to

incorporate an application of the accomplice witness instruction within the application

paragraph of the court’s charge. We will affirm.


                                            5
                             Accomplice Witness Testimony


       Appellant’s first issue contends that the accomplice witness testimony of Gamez

was insufficiently corroborated under the accomplice witness rule.          The trial court

recognized that Gamez was an accomplice witness as a matter of law and so charged

the jury.   Accordingly, the question before the Court is whether there is sufficient

corroboration of her testimony so as to sustain the verdict of guilty as found by the jury.


Standard of Review and Applicable Law


       The Texas Code of Criminal Procedure sets forth the statutory requirement for

corroboration of accomplice witness testimony. Article 38.14 provides as follows:


       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.


See TEX. CODE CRIM. PROC. ANN. art. 38.14.

       In determining whether accomplice witness testimony is properly corroborated,

we refer to the guidelines provided by the Texas Court of Criminal Appeals in Smith v.

State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). First, we must decide whether the

non-accomplice evidence tends to connect the appellant to commission of the crime.

Id. The sufficiency of such non-accomplice evidence is determined on a case-by-case

basis according to the facts of the particular case under review. See 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. If there are conflicting views of the evidence—one that tends to connect

                                             6
the appellant to the offense and one that does not—we will defer to the factfinder’s

resolution of the evidence. Id.


      Next, there needs to be only some non-accomplice evidence that tends to

connect appellant to the crime, not to every element of the crime. See Joubert v. State,

235 S.W.3d 729, 731 (Tex. Crim. App. 2007) (per curiam). Another way the Texas

Court of Criminal Appeals has described the “tends to connect” requirement is that “the

evidence must simply link the accused in some way to the commission of the crime and

show that rational jurors could conclude that this evidence sufficiently tended to connect

[the accused] to the offense.” Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App.

2009) (quoting Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008)).

Additionally, all of the non-accomplice evidence is viewed together, rather than as

isolated, unrelated activities, to determine whether it tends to connect appellant to the

offense. See id. at 511. Finally, if the combined weight of the non-accomplice evidence

tends to connect the defendant to the offense, then the requirement of Article 38.14 is

met. See Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999) (en banc).


Analysis


      In   analyzing   the   evidence    that   tends   to   connect   appellant   to   the

methamphetamine found at the scene of the accident, we begin with appellant’s actions

on the night in question. When the members of the Wellman Volunteer Fire Department

arrived on the scene, they found appellant walking around the scene of the accident

seemingly more concerned with finding his cell phone than with any injuries that he or

his passenger, Gamez, might have suffered. By itself, this seems to be a bit unusual


                                            7
but not necessarily something that would connect appellant to the methamphetamine

that was later found. However, when viewed from the totality of the circumstances, as

described in the trial testimony, it takes on a different significance.    Remembering

Walker’s testimony that individuals dealing in drugs often carry two cell phones, one of

which is a “burner” phone over which he conducts his drug trade, appellant’s

preoccupation with finding the lost cell phone takes on a different complexion.


      Next, the record contains evidence of appellant’s efforts, during appellant’s

transportation to BRMC in the same ambulance with Gamez, to make sure that Gamez

says nothing to the authorities.     The subject matter about which appellant was

instructing Gamez to say nothing becomes clearer later in the trial; from the evidence

obtained from the jail audio and video recordings, the subject matter of the

methamphetamine becomes clear.


      Upon arrival at the BRMC, ER tech Ruiz, overheard appellant telling Gamez to

get her story straight. Additionally, Ruiz noted that appellant had two cell phones in his

possession. While appellant and Gamez were being treated in adjoining beds at the

emergency room, Nurse Bruno overheard appellant tell Gamez to keep the story

straight that they didn’t know anything about what was at the scene. The item that

appellant was urging Gamez to continue saying they did not know anything about is the

methamphetamine located at the scene of the wreck.              The record makes this

abundantly clear, for the cocaine and marijuana was found on Gamez at the hospital.

The only contraband found at the scene was the methamphetamine.




                                            8
      Then there are the various statements made by appellant directed toward Gamez

while they were being held in the holding area of the Terry County jail. These were

recorded by the jail audio and video recording equipment and were played for the jury.

In these statements, appellant is heard coaching Gamez about what to say to the

authorities and advising her that they will be fine, if she will keep her story straight.

Later, he is heard referring to the methamphetamine in three different statements. First,

appellant advises Gamez that the authorities will not be able to charge them with the

methamphetamine if they keep their story straight.       Then, appellant says that the

methamphetamine could have been in the median for years. Finally, appellant tells

Gamez that the authorities will not be able to charge them with the methamphetamine

because it was 25 feet from the wreck.              Interestingly enough, one of the

methamphetamine bags was found approximately 20 feet or so from the wreck.


      The testimony of DEA agent Walker also sheds some light on the case before

the Court. From Walker’s testimony, we learn that drug dealers normally have multiple

cell phones. On the night in question, appellant was in possession of two cell phones.


      All of this evidence leads to the conclusion that appellant knew about the

methamphetamine located at the scene of the accident.         Further, according to the

testimony, Gamez passed out at the scene.            She testified that she gave the

methamphetamine to appellant. The logical conclusion is that appellant’s continued

reference at the jail to the methamphetamine could only make sense if he is the one

that threw it away at the accident scene.       Such a conclusion would be a rational

conclusion on the part of the jury, and one to which we must defer. See Smith, 332

S.W.3d at 442.    Remembering that we are instructed to view the non-accomplice

                                            9
witness evidence collectively and not in isolation, we are left with the conclusion that

this evidence tends to connect appellant to the methamphetamine in question. See

Simmons, 282 S.W.3d at 508. It is the combined weight of this evidence that meets the

requirement for evidence that tends to connect appellant to the offense for which he has

been convicted. See Cathey, 992 S.W.2d 462. Accordingly, appellant’s first issue is

overruled.


        Appellant’s brief entered into a discussion of the law of parties. That is, under

the posture of this case, a bit unusual. The State requested a charge on the law of

parties and the trial court denied the request. Appellant’s trial counsel neither joined the

State’s request nor did it object to the trial court’s denial. Without any specific citation to

cases or authority, appellant simply states that the law of parties affects the calculus on

the sufficiency of the evidence.      Whatever appellant’s contention is regarding this

procedural fact, he is in error. Appellant’s liability as a principal or under a parties

theory is of no relevance under an Article 38.14 analysis. See Campos v. State, 473

S.W.3d 907, 914 n.7 (Tex. App.—Amarillo 2015, no pet.) (citing Joubert, 235 S.W.3d at

731).


        Appellant then entered into a discussion regarding the law of evidentiary

sufficiency in drug cases.     A review of this argument leads to the conclusion that

appellant’s argument is premised on the fact that there was insufficient corroboration of

Gamez’s accomplice witness testimony and, therefore, insufficient evidence to sustain

the jury’s verdict.    However, we have held that her testimony was sufficiently

corroborated. We need not further delve into this subject.



                                              10
                             Accomplice Witness Charge


      Appellant’s second issue contends that the trial court committed reversible error

because the trial court failed to apply the law of accomplice witness testimony to the

facts of the case. This failure, according to appellant, resulted in egregious harm to

appellant. The record reveals that the trial court gave a jury instruction regarding the

use of accomplice witness testimony. At the charge conference, before submission of

the charge to the jury, appellant did not object to the court’s instruction regarding

accomplice witness testimony.


Standard of Review


      Appellate review of alleged jury charge error is a two-step process. Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Initially, the reviewing court must

determine if the charge was erroneous. Id. If we find that error occurred, we must then

analyze the error for harm. Id. After we analyze the error for harm, we must review the

record to determine whether appellant objected to the charge at issue. See Middleton

v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc). The degree of harm

necessary for reversal depends upon whether error was preserved. Id. (quoting Hutch

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc)). If appellant properly

objected to the charge, “the standard of harm is whether ‘the error appearing from the

record was calculated to injure the rights of [appellant]’ which we have construed as

‘some harm.’” Celis v. State, 416 S.W.3d 419, 423 n.3 (Tex. Crim. App. 2013) (quoting

Article 36.19 and Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003) (per

curiam)). “Conversely, unpreserved charge error warrants reversal only when the error


                                          11
resulted in egregious harm.” Id. (citing Pickens v. State, 165 S.W.3d 675, 680 (Tex.

Crim. App. 2005) (en banc)).


Analysis


      Our first task is to ascertain whether the jury charge given by the trial court was

in error. See Kirsch, 357 S.W.3d at 649. Appellant contends that the trial court erred by

“failing to apply the law to the facts.” To properly analyze this issue, we set forth the

applicable paragraph of the court’s charge below.


      Upon the law of accomplice witness testimony, you are instructed that
      Isabelle Gamez was an accomplice, if any offense was committed, as
      alleged in the indictment. With this in mind, you are further instructed that
      you cannot convict the [appellant] upon Isabelle Gamez’s testimony,
      unless you first believe that her testimony is true and shows the guilt of the
      [appellant] as charged in the indictment, and then you cannot convict the
      [appellant] unless Isabelle Gamez’s testimony is corroborated by other
      evidence tending to connect the [appellant] with the offense charged. The
      corroboration is not sufficient if it merely shows the commission of an
      offense, you must believe beyond a reasonable doubt that the [appellant]
      is guilty of the offense charged against him.


The record reflects that the traditional application paragraph was the next paragraph in

the court’s charge.


      Appellant relies on two cases that stand for the proposition that, if the trial court

charges the jury on an accomplice witness issue, it should apply the law to the facts in

the jury charge. See Holladay v. State, 709 S.W.2d 194, 198 (Tex. Crim. App. 1986);

Doyle v. State, 133 S.W.2d 972, 972–73 (Tex. Crim. App. 1939). The first case cited by

appellant, Holladay, makes a passing reference to applying the law to the facts when it

stated, “In the past, when the provisions of Art. 38.14, supra, and it precursors, were


                                           12
implicated in a case, the charge to the jury was held sufficient if it: (1) defined the term

accomplice; (2) gave the statutory inhibition against conviction on uncorroborated

accomplice testimony; (3) stated that the corroboration must be as to some material

matter tending to connect the accused with the commission of the offense; and (4)

applied the law to the facts.” 3 Hollady, 709 S.W.2d at 198. In Doyle, the question was

the failure of the trial court to instruct the jury that it must first believe the testimony of

the accomplice to be true. See Doyle, 133 S.W.2d at 973. This, according to the

appellant in Doyle, was the failure to apply the law to the facts of the case. See id. The

Doyle court agreed, concluding that this failure—the failure to require the jury to find the

testimony of the accomplice to be true—was the operative failure to apply the law to the

facts of the case and, thus, error. See id.


       In the case before the Court, the instruction given by the trial court is not simply

the abstract rule from Article 38.14. See TEX. CODE CRIM. PROC. ANN. art. 38.14. It is an

application of the law to the facts tailored to meet the evidence. Specifically, the jury

was first instructed that Gamez was an accomplice witness as a matter of law as to the

offense alleged in the indictment. Second, the jury was required to believe that her

testimony was true. See Doyle, 133 S.W.2d at 973. Next, the jury was instructed that it

had to believe that her testimony demonstrated guilt on the part of appellant. It was

next instructed that it could not convict appellant unless Gamez’s testimony was

corroborated by other evidence tending to connect appellant to the offense charged.

Additionally, the jury was told that corroboration is not sufficient if it merely shows that

an offense had been committed; rather, that evidence must tend to connect appellant to


       3
           The Holladay court advised that the materiality element was probably no longer required.

                                                    13
the commission of that offense. Finally, the jury was instructed that it had to believe

beyond a reasonable doubt that appellant was guilty of the offense charged against him.


      When broken down into its respective clauses, it is apparent to this Court that the

charge given applied the law of accomplice witness to the facts of this case. See

Holladay, 709 S.W.2d at 198; Doyle, 133 S.W.2d at 973. Accordingly, we find no error

in the trial court’s charge. Because we find no error in the trial court’s charge, we

overrule appellant’s second issue.


                                      Conclusion


      Having overruled appellant’s issues, we affirm the trial court’s judgment.




                                        Mackey K. Hancock
                                            Justice


Do not publish.




                                           14
