                            NUMBER 13-11-00778-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JOE DAVID LUNA,                                                            Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides
      Appellant, Joe David Luna, appeals his conviction for two counts of aggravated

assault, a second-degree felony, see TEX. PENAL CODE ANN. § 22.02(a) (West 2011), and

two counts of engaging in organized criminal activity, a first-degree felony.   See id. §

71.01 (West 2011). By three issues, Luna asserts that (1) the non-accomplice witness

evidence insufficiently connects him to the alleged offenses; (2) insufficient evidence
exists for him to be convicted as a party to the alleged offenses; and (3) the trial court

committed charge error by (a) failing to provide the jury with an accomplice-witness

instruction and (b) providing erroneous application paragraphs. We affirm.

                                  I.     BACKGROUND

        Luna and other individuals were indicted on two counts (Counts 1–2) of

aggravated assault and two counts (Counts 3–4) of engaging in organized criminal

activity related to a shooting in Taft, Texas.   Luna pleaded “not guilty” as to Counts 1

and 2 and “no contest” as to Counts 3 and 4. The State tried Luna alongside his

co-defendant Leonard Garcia before a San Patricio County jury, and presented the

following evidence at trial.

        On April 29, 2011, police were dispatched to a call of “shots fired” at a home on

the 500 block of Dolores Street in Taft, Texas.       Taft Police Officer Jeremiah Smith

arrived first on the scene and made contact with two shooting victims, Robert Franco and

Steven Rivera.    According to Officer Smith, Robert had “blood all over,” and people

around him “[tried] to keep pressure on his leg,” while Steven was “fading out a little bit,”

and his “lips turned blue.” As emergency workers treated Steven at the scene, he

identified several shooting suspects for Officer Smith, including:    (1) Luna, (2) Garcia,

(3) Rodolfo Salazar, and (4) Jose Jimenez.

        Robert and Steven each testified.    Robert stated that he was at Steven’s house

on April 29, 2011 when he “got shot four times in the legs” by someone wielding a

handgun and then “fell to the ground.” As a result, Robert was hospitalized for four

days.   Robert told the jury that he does not know who shot him nor does he know Luna

or Garcia, but that he does know Jimenez from time they spent together in prison.


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       Steven stated that he was in the front yard/porch area of his home when three

vehicles drove up to his house and Jimenez, Luna, Garcia, and Ruben Treviño exited.

Steven testified that Luna then opened fire at him after Jimenez and Luna each asked

him “who is Steve?” Steven said that when the first shot hit him, he felt like his “leg was

blown off.” Steven indicated that Luna fired either a .45 caliber or 9-millimeter silver

handgun that day.     When pressed on cross-examination, Steven testified that he was

“one-hundred percent sure” that Luna shot him.      Steven also admitted that at one point,

he was a “prospect” with the Raza Unida prison gang, but did not become a full-fledged

member and stopped affiliating with them because he “no longer wanted to carry out

their orders.”   Steven stated that he was hospitalized following the shooting and

underwent “several” surgeries to recover.

       Kimberly Rivera, Steven’s sister, also testified.   Kimberly stated that she drove

up to the Dolores Street home on the evening of April 29, 2011 and witnessed “a bunch

of guys,” including Luna, “leaving in trucks, SUVs, and cars.” Kimberly testified that the

men were running as if they wanted to leave and “get out of there.” Kimberly stated that

she did not stop at the house as planned, and, instead, left out of fear. The State also

called witness Ray Lopez III.   Lopez testified that he lived directly across the street from

Steven’s house. Lopez stated that he saw “five or six guys” drive up to Steven’s house

on April 29, 2011, before he heard gunfire. While Lopez could not identify any of the

shooters, he remembered seeing a nickel-plated gun and described one individual

involved as “young” with a light complexion.

       Luna’s co-conspirator Jimenez also testified. Jimenez, who was incarcerated at

the time of trial, admitted that he was a member of Raza Unida along with Luna and


                                             3
Garcia.      According to Jimenez, Luna proposed the idea of attacking Steven because

Steven sold drugs in Taft and refused to pay “taxes . . . to the gang . . . .”1 Jimenez

stated that all the firearms used in the attack belonged to Luna, and that it was Luna’s

idea to “take care of business” and “basically . . . kill them.”

        Jimenez testified that the group descended on the Dolores Street residence in the

early evening hours of April 29, 2011 in three separate vehicles.                   Jimenez used a

9-millimeter firearm, while Luna used a .357 caliber weapon.                Jimenez stated that he

shot Franco one time, “probably in the thigh,” and then returned to his car and drove

away.       Prior to leaving the scene, Jimenez recalled seeing Luna fire his weapon.

Jimenez indicated that he abandoned his getaway vehicle later that night along a rural

road and was picked up by another vehicle and transported to Corpus Christi, Texas to

regroup with the others.      The gang later rented rooms at a local Corpus Christi motel in

order to hide out.       Jimenez testified that once at the motel, Luna bragged about

shooting Robert and Garcia stated that he shot Steven.                 Later that night, the group

visited a local carnival and returned to the motel. Luna, Garcia, and Treviño were

arrested the next day in Corpus Christi, while Jimenez was later captured in McAllen,

Texas.

        Co-conspirator Salvador Gonzalez also testified and corroborated much of

Jimenez’s testimony, including the plan to “tax” Steven and Robert for selling drugs in

Taft.    Gonzalez also stated that Garcia carried a “nickel-plated revolver” during the

attack and that he believed that Luna shot Steven that evening.             Gonzalez remembered


        1
           Jimenez defined “taxes” as a certain percentage of drug proceeds that were owed to Raza Unida
for selling drugs in Taft.


                                                   4
that Garcia and Luna joked later that evening in Corpus Christi about who shot Steven

first.

         The State also called witness Lindsay Ann Gonzales.                       Gonzales testified that

she was acquainted with Luna prior to April 29, 2011 and that Luna—along with Garcia

and another unidentified male—arrived in Corpus Christi at 8 p.m. on April 29, 2011

driving a gold-colored sports utility vehicle.                Gonzales admitted that she rented a

Corpus Christi-area motel room later that night for Luna, at Luna’s request, and with

Luna’s money.

         Finally, the State called Investigator Isaac Leal of the San Patricio Sheriff’s

Department.         Investigator Leal stated that one of his duties with the sheriff’s department

is to maintain the county’s “gang registry,” which identifies and classifies known and

suspected gang members around the county and the state.                         Investigator Leal testified

about the history of the Raza Unida prison gang and its leadership structure.                           At the

time of the shooting, Investigator Leal stated that Luna was the highest-ranking Raza

Unida gang member 2 in Taft and that Garcia, Jimenez, and Gonzalez were

subordinates.         According to Investigator Leal, “nothing” could have been done without

Luna’s approval.

         The jury found Luna guilty of each count as alleged in the indictment and

assessed punishment at:              (1) thirty years’ imprisonment with a $5,000 fine for each

aggravated assault charge (Counts 1 and 2); and seventy-five years’ imprisonment with




         2
             According to Investigator Leal, the title of “pano” is given to a city’s highest ranking Raza Unida
member.


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a $10,000 fine for each engaging in organized criminal activity charge (Counts 3 and 4)

to run concurrently.3 This appeal followed.

                       II.     ACCOMPLICE WITNESS TESTIMONY

       By his first issue, Luna asserts that the non-accomplice witness evidence

insufficiently connects him to the alleged offenses.

       A.      Applicable Law and Standard of Review

       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. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Stated another way,

the test for weighing the sufficiency of corroborative evidence is to eliminate from

consideration the testimony of the accomplice witness and then examine the testimony

of other witnesses to ascertain if there is evidence which tends to connect the accused

with the commission of the offense.         Hernandez v. State, 939 S.W.2d 173, 176 (Tex.

Crim. App. 1997).       The corroborative evidence need not be sufficient in itself to

establish guilt, nor must it directly link the accused to the commission of the offense.

Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (citing Hernandez, 939

S.W.2d at 176). We view the evidence in the light most favorable to the jury’s verdict.

Brown, 270 S.W.3d at 567.

       An accomplice is someone who participates with the defendant before, during, or

after the commission of a crime and acts with the required culpable mental state.

Brown, 270 S.W.3d at 567; Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App.

       3
          The jury made affirmative enhancement findings that Luna used or exhibited a deadly weapon
during the commission of these offenses.

                                                 6
2004) (citing TEX. PENAL CODE ANN. § 7.02(a) (West 2011)).      Here, the State does not

dispute that Jimenez and Gonzalez are accomplices. Thus, for the conviction to rest

upon Jimenez and Gonzalez’s testimony, “there must simply be some non-accomplice

evidence which tends to connect appellant to the commission of the offense alleged in

the indictment.”   Brown, 270 S.W.3d at 567 (internal quotations omitted); McDuff v.

State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (en banc).

      B.     Discussion

      In this case, Steven identified Luna directly in his testimony at trial as one of the

shooters and a participant to the offenses charged.     More specifically, Steven stated

that he was “one-hundred percent sure” that Luna was the individual who shot him while

he ran away from the gunfire.   Steven also described a silver gun that was used during

the offense, which corroborates Gonzalez’s testimony.     Furthermore, Taft police officer

Smith stated that Steven identified Luna while emergency workers treated him on the

day of the shooting.   Steven’s sister, Kimberly, also testified that Luna was “running”

from the Dolores Street house on the day of the shooting and fled in a vehicle along with

the other accomplices. Finally, Lindsay Gonzales testified that Luna arrived in Corpus

Christi along with other accomplices on the night of the shooting and rented a motel

room for him because they “weren’t going back home.”

      After eliminating accomplice witness testimony from our consideration and

conducting an examination of the independent non-accomplice evidence, we conclude

that such non-accomplice evidence tends to connect appellant to the offense sufficiently

to corroborate the testimony of the accomplice witnesses.     See Brown, 270 S.W.3d at

569. Luna’s first issue is overruled.


                                            7
                            III.    SUFFICENCY CHALLENGE

       By his second issue, Luna contends that insufficient evidence supports his

conviction as a party to the aggravated assault offenses.

       A.      Standard of Review

       When reviewing a defendant’s sufficiency challenge, we view the evidence in the

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

have found the essential elements of the crime beyond a reasonable doubt.”

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v.

State, 323 S.W.3d 893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319

(1979). The jury is the sole judge of the credibility of witnesses and the weight to be

given to their testimonies, and the reviewing court must not usurp this role by substituting

its own judgment for that of the jury.   Montgomery, 369 S.W.3d at 192. Thus, our duty

is “simply to ensure that the evidence presented supports the jury's verdict and that the

State has presented a legally sufficient case of the offense charged.”            Id. (internal

citations omitted). When faced with a record supporting contradicting inferences, we

must presume that the jury resolved such conflicts in favor of the verdict, even if not

explicitly stated in the record.   Id. (citing Brooks, 323 S.W.3d at 899 n.13).

       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


                                               8
tried.   Id.

         B.        Discussion

         Here, the State alleged by two counts that Luna committed aggravated assaults

against Robert and Steven.         Under a hypothetically correct jury charge, Luna is guilty of

aggravated assault if he (1) intentionally, knowingly, or recklessly caused bodily injury to

Robert and/or Steven and (a) caused serious bodily injury to Robert and/or Steven; or (b)

used or exhibited a deadly weapon, to wit: a firearm during the commission of the

assault.       See TEX. PENAL CODE ANN. §§ 22.01–.02.          At trial, the State argued two

potential theories of liability:    (1) that Luna acted as the principal to both aggravated

assaults; or (2) that he acted as a party to the offense.        See TEX. PENAL CODE ANN. §

7.01(a) (West 2011) (“a person is criminally responsible 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 by both”); see also id. § 7.01(b) (“Each party to an offense may

be charged with commission of the offense”).

              Luna specifically challenges the sufficiency of the evidence to convict him as a

party to the aggravated assault offenses.        However, Steven directly testified that Luna

opened fire on him and was “one-hundred percent sure” that Luna shot him.              Further,

accomplice Gonzalez also testified that he believed that Luna shot Steven that day and

that Luna and Garcia were joking about who shot Steven first. While Robert could not

identify who shot him on April 29, 2011, Jimenez testified that Luna bragged later that

night at the Corpus Christi motel that he “shot [Robert] as many times as he could.”

Jimenez also testified that Luna wielded a gun that day and fired it after the gang arrived

at the Dolores Street residence.


                                                 9
        Jimenez also testified that it was Luna’s idea to attack Steven and Robert that day

because Steven sold drugs in Taft and refused to pay “taxes” to the Raza Unida prison

gang.    Gonzalez also testified that the gang met before the shooting in order to plan the

attack against Steven and Robert. Jimenez stated that all of the guns used in the

assault belonged to Luna.     According to Jimenez and Gonzalez, the gang later met up

at a predetermined location in Corpus Christi where Luna in particular discussed the

shooting and the ramifications of death for anyone who showed “weakness” and told the

authorities about what happened.

        After viewing this evidence in the light most favorable to the verdict, we conclude

that any rational trier of fact could have found Luna guilty of both counts of aggravated

assaults, under either of the State’s theories of liability, beyond a reasonable doubt.

We overrule Luna’s second issue.

                                  IV.    JURY CHARGE

        By Luna’s final issue, he contends that the trial court committed harmful jury

charge error.

        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 objection.        Id.   If the error was preserved by

objection, we will reverse if we find “some harm” to the defendant’s rights.       Id.   If no

objection was made, we will reverse only if the record shows “egregious harm” to the

defendant. Id.


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       B. Discussion

       Luna first argues that the trial court erred by not providing the jury with an

accomplice witness instruction with regard to Jimenez and Gonzalez’s respective

testimonies.

       If there exists no doubt or the evidence clearly shows that a witness is an

accomplice as a matter of law then the trial court is under a duty to so instruct the jury.

Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); Blake v. State, 971

S.W.2d 451, 455 (Tex. Crim. App. 1998) (en banc); see also Smith v. State, 332 S.W.3d

425, 441 (Tex. Crim. App. 2011). Here, no doubt exists and the evidence clearly shows

that Jimenez and Gonzalez are accomplices as a matter of law because they were both

indicted along with Luna for the charged offense. Therefore, we conclude that the trial

court erred by failing to instruct the jury under article 38.14.   See TEX. CODE CRIM. PROC.

ANN. art. 38.14.    Because Luna failed to preserve error on this issue, he must show

egregious harm. See Ngo, 175 S.W.3d at 743.

       Under the egregious harm standard, the omission of an accomplice witness

instruction is generally harmless unless the corroborating (non-accomplice) evidence is

“so unconvincing in fact as to render the State's overall case for conviction clearly and

significantly less persuasive.”    Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App.

2002) (en banc) (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App.

1991) (en banc)). The court in Saunders found error under this standard because the

corroborating non-accomplice evidence was weak and was contradicted by other

evidence.    See Saunders, 817 S.W.2d at 693.




                                              11
      Unlike in Saunders, however, the corroborating non-accomplice evidence in this

case is not weak, as outlined in Part II of this opinion, and contradicted only by two

witnesses—Ramiro Rubio and Luna’s brother, Jason Luna—who both testified that Luna

was moving appliances with them on the evening of April 29, 2011. We defer to the jury

as to the credibility of these witnesses and the weight to be given to their testimonies.

See Montgomery, 369 S.W.3d at 192. Accordingly, we conclude that the trial court’s

error was harmless.

      Next, Luna argues that the trial court erred by including the names of the other

accomplices in the application paragraph of the jury charge. We agree.     Under the law

of parties, the State is able to enlarge a defendant’s criminal responsibility to acts in

which he may not be the primary actor.    Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim.

App. 1996). However, if the defendant requests that the application paragraph of the

jury charge refer only to those specific party-liability acts that are supported by the

evidence, then he is entitled to such a narrowing.   Vasquez v. State, 389 S.W.3d 361,

368 (Tex. Crim. App. 2012) (emphasis in original) (citing Campbell v. State, 910 S.W.2d

475, 477 (Tex. Crim. App. 1995)).

      The following application paragraphs were submitted to the jury:

                                         COUNT 1

      Now, if you find from the evidence beyond a reasonable doubt that on or
      about April 29, 2011, in San Patricio County, Texas, [Jimenez], [Gonzalez],
      [Luna], [Garcia], [Treviño] and [Salazar], acting alone or together, did then
      and there intentionally, knowingly, or recklessly cause bodily injury to
      [Steven] by shooting [Steven] with a handgun, to wit a firearm, then you will
      find [Luna] guilty of Aggravated Assault as alleged in the indictment.

      If you do not so believe, or if you have a reasonable doubt thereof, you will
      find the defendant not guilty.


                                           12
                                        COUNT 2

       Now, if you find from the evidence beyond a reasonable doubt that on or
       about April 29, 2011, in San Patricio County, Texas, [Jimenez], [Gonzalez],
       [Luna], [Garcia], [Treviño] and [Salazar], acting alone or together, did then
       and there intentionally, knowingly, or recklessly cause bodily injury to
       [Robert] by shooting [Robert] with a handgun, to wit a firearm, then you will
       find [Luna] guilty of Aggravated Assault as alleged in the indictment.

       If you do not so believe, or if you have a reasonable doubt thereof, you will
       find the defendant not guilty.

       At the trial court’s charge conference, Luna objected to the application paragraphs

on the grounds that it would confuse the jury to include all of the defendants’ names as

written.   Luna requested that the charge only list his name in the application paragraph,

or in the alternative, the following:

       [Luna], acting alone or together with, [Jimenez, Gonzalez, Garcia, Treviño,
       and Salazar] . . . .

Under Vasquez, we conclude that the trial court erred by denying Luna’s request to

narrow the application paragraph, in order to prevent juror confusion on how to apply the

abstract paragraph instruction on the law of the parties to the specific application

paragraph of the charges alleged against Luna.           Thus, because Luna properly

preserved error on this issue, the error is reversible if the defendant has suffered actual

harm to his rights.    See Vasquez, 383 S.W.3d at 368 (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1984) (holding that “if the error in the charge was the

subject of a timely objection in the trial court, then reversal is required if the error is

‘calculated to injure the rights of defendant,’ which means no more than that there must

be some harm to the accused from the error)).

       We analyze for harm in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

                                            13
counsel, and any other relevant information revealed by the record of the trial as a whole.

Vasquez, 389 S.W.3d at 368–69.

      Luna’s charge objection asserted that the application paragraph, as written,

allowed the jury to convict him purely based upon the self-incriminating testimony of his

accomplices, who admitted to planning, participating, and aiding in the commission of

the aggravated assault. We disagree.       Luna’s argument ignores the amount of other

evidence discussed in Parts II and III, which directly implicates Luna as one of the

shooters and fully corroborates the accomplice’s testimony offered by the State to

connect Luna to the charged offenses.       Furthermore, during closing arguments, the

State’s prosecutor paraphrased, explained, and clarified the law of parties and its

application to the present case in the following manner:

              And if you believe [Jimenez] shot [Robert] and you believe [the
      defendants] aided, assisted, encouraged, solicited, promoted this activity in
      any way, then they’re guilty, ladies and gentlemen, because that is the law
      of parties.

             You do not actually have to believe they fired the shot to find them
      guilty. However, I contend that both of them did, based on the evidence.
      Both of them did.

             But you don’t have to believe that to find them guilty and that’s what
      the law of parties talks about in the charge.

Luna’s counsel, however, focused on inconsistencies in the evidence during her closing

arguments and did not specifically address the law of parties except to say that Luna was

not at the scene on Dolores Street when the crime took place.    Finally, the verdict forms

in this case name Luna as the only defendant to find guilty or not guilty for the charged

offenses. We also agree with the trial court’s comments during the charge conference

that these verdict forms alleviated any concerns of confusion to the jury.


                                            14
       Accordingly, after reviewing the record, we conclude that Luna’s rights were not

harmed by the trial court’s erroneous denial of his request to narrow the application

paragraph of the jury charge.   Luna’s final issue is overruled.

                                  V.     CONCLUSION

       We affirm the trial court’s judgments.



                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
9th day of May, 2013.




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