Opinion issued December 17, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00982-CR
                           ———————————
             JUAN CARLOS BARRERA-MAGANA, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Case No. 1338054


                         MEMORANDUM OPINION

      The State charged Appellant, Juan Carlos Barrera-Magana, with murder.1

Appellant pleaded not guilty. The jury found him guilty and assessed punishment

at life imprisonment and a $10,000 fine. In three issues, Appellant argues the


1
      See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2) (Vernon 2011).
evidence is insufficient to establish that (1) the non-accomplice evidence tends to

connect him with the murder, (2) he committed the murder, and (3) he is responsible

for murder under the law of parties.

      We affirm.

                                   Background

      Arturo Chavez was involved in human trafficking, smuggling people from

Mexico to the United States. Appellant was Chavez’s “right hand man” in this

enterprise. In 2004, Daniel Torres, Jr. and Santiago Garcia also worked for Chavez

in smuggling. On November15, 2004, Appellant and Torres were together in a hotel

room they were using to conduct business. Chavez arrived, agitated. Chavez

claimed that Garcia “was going to snitch about something.” Chavez and Appellant

devised a plan. Under the plan, Chavez would pick Garcia up and drive him to a

park by Garcia’s grandmother’s house, where Garcia was living. Torres would drive

Appellant to the park and Appellant would kill Garcia at the park by shooting Garcia.

      After Chavez left, Torres drove Appellant to the park. During the drive,

Torres asked Appellant if he was really going to go through with the plan. Appellant

told Torres that he was only going to scare Garcia.

      Torres parked near the park but in a location where he could not see the park.

After waiting about ten minutes, Appellant received a phone call and got out of the

car, walking towards the park. While Appellant was gone, Torres heard multiple



                                         2
gun shots. An autopsy would later show that Garcia had three gunshot wounds.

Appellant returned to the car, visibly upset. Appellant said, “I got him, I got him, I

shot him.”

      Appellant and Torres left. Later, on Chavez’s instructions, Appellant and

Torres went to the house of Francisco Velasquez. Before anyone’s arrival, Chavez

called Velasquez, explaining that “[t]hat they had killed Guero [i.e., Garcia], and

Wacky [i.e., Appellant] and Mouse [i.e., Torres] were on the way to the house.”

After Appellant and Torres arrived at Velasquez’s house, Velasquez “opened the

door, [and] they were saying that they had killed [Garcia].”

      Chavez showed up with his then-wife, Concepción Chavez Benavides, and

their children in the car. Benavides and the children remained in the car. Chavez

had a plumber’s welding torch. Appellant pulled out a gun, and Chavez tried to

destroy the gun with the welding torch. Ultimately, the attempt failed. During this

time, Appellant, Chavez, and Torres talked about how they had killed Garcia. After

failing to destroy the gun, Chavez, took it apart. He threw one piece into the drainage

ditch behind Velasquez’s house, and gave the rest to Appellant and Torres.

      Chavez, Appellant, and Torres then drove to a park with a pier that extended

into the water. At the park, Appellant walked out onto the pier and threw something

into the water. Benavides testified at trial, “[H]e was trying to look unsuspicious

and because of that, he made himself really stand out.”



                                          3
      During that night, Chavez told Benavides that Garcia had been killed. At

another point that night, Chavez and Appellant were talking about the murder in

Benavides’s presence. Chavez told Appellant that they had done Garcia a favor by

killing him because “the only person that he had was his dad, and his dad was dead

and now he could be with his dad.” Appellant agreed.

      Shortly after the murder, Chavez and his family, Appellant, and Torres went

to Mexico. During their stay in Mexico, Chavez and Appellant discussed Garcia’s

murder multiple times.

                             Non-Accomplice Evidence

      In his third issue, Appellant argues the evidence is insufficient to establish that

the non-accomplice evidence tends to connect him with the murder.

A.    Standard of Review & Applicable Law

      “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 (Vernon 2005). “The

accomplice witness rule is a statutorily imposed sufficiency review and is not

derived from federal or state constitutional principles that define the legal and factual

sufficiency standards.” Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App.

1999). Accordingly, we do not apply a typical legal-sufficiency review. Id. at 462.



                                           4
The State bore the burden of showing other evidence tending to connect the

defendant with the offense, and we review whether such evidence exists in the

record. See id. at 463.

      In reviewing the sufficiency of the corroborating evidence, we exclude the

accomplice-witness testimony from our review and determine whether there is any

other evidence that tends to connect the defendant to the commission of the offense.

Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). The evidence must

link the accused in some way to the commission of the offense and show that rational

jurors could conclude that the evidence sufficiently tended to connect the accused to

the offense. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009);

Malone, 253 S.W.3d at 257. “[W]hen there are conflicting views of the evidence—

one that tends to connect the accused to the offense and one that does not—we will

defer to the factfinder’s resolution of the evidence.” Smith v. State, 332 S.W.3d 425,

442 (Tex. Crim. App. 2011). In performing our review, we defer to the jury’s

exclusive province to evaluate the credibility of the witnesses and of the weight to

be given their testimony. See Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App.

2008). Corroborating evidence may be direct or circumstantial, and it need not be

sufficient by itself to establish guilt. See Cathey, 992 S.W.2d at 462.




                                          5
B.    Analysis

      Much of the evidence directly linking Appellant to the murder of Garcia came

from Torres. Torres admitted in his testimony that he was involved in the murder

and that he had been charged with the murder of Garcia. No one disputes that Torres

is an accomplice-witness. See Smith, 332 S.W.3d at 439 (“A witness who is indicted

for the same offense or a lesser-included offense as the accused is an accomplice as

a matter of law.”). Appellant acknowledges that Velasquez and Benavides testified

to some events surrounding the murder but argues that their testimony was

insufficient to tend to connect him to the offense. We disagree.

      Velasquez testified that Chavez, Torres, and Appellant came to his house on

the night of the murder.     Before they came over, Chavez called Velasquez.

Velasquez testified that, in that telephone call, Chavez said “[t]hat they had killed

[Garcia], and [Appellant] and [Torres] were on the way to the house.” After

Appellant and Torres arrived at Velasquez’s house, Velasquez “opened the door,

[and] they were saying that they had killed [Garcia].” Velasquez testified that

Benavides arrived with Chavez but that she remained in Chavez’s car the entire time.

      Chavez tried to destroy the gun with a small welding torch, but failed. During

this time, Appellant, Chavez, and Torres talked about how they had killed Garcia.

After failing to destroy the gun, Chavez, took it apart. He threw one piece into the

drainage ditch behind Velasquez’s house, and gave the rest to Appellant and Torres.



                                         6
      Benavides testified that she went with Chavez to Velasquez’s house late one

night in November 2004. She saw Appellant and Torres there that night. She

remained in Chavez’s car. After they left, Chavez told her that Garcia had been

killed. Later that night, she was present when Appellant and Chavez were talking

about the murder. Chavez told Appellant that they had done Garcia a favor by killing

him because “the only person that he had was his dad, and his dad was dead and now

he could be with his dad.” Appellant agreed.

      After they left Velasquez’s house, Chavez drove Benavides to a park that was

along the water and that had a pier extending into the water. Benavides testified she

saw Appellant walk out onto the pier and throw something into the water. “[H]e was

trying to look unsuspicious and because of that, he made himself really stand out.”

      Finally, Benavides testified that, shortly after the murder, Appellant, Chavez,

and Torres went to Mexico. While there, Appellant and Chavez discussed Garcia’s

murder on numerous occasions.

      The non-accomplice testimony, then, shows that Appellant admitted to

Velasquez his participation in the murder, assisted in disposing of the murder

weapon, fled the country shortly after the murder, and discussed the murder with

Chavez on multiple occasions. Appellant suggests that the testimony of Velasquez

and Benavides is insufficient because both contain hearsay statements about what

Appellant and others said. Such an argument is not relevant because the only



                                         7
evidence excluded from our review is the testimony of the accomplice-witness. See

Malone, 253 S.W.3d at 257. When considering the sufficiency of the evidence to

support a jury’s determinations, we consider all evidence before the jury, including

evidence that was improperly admitted. See Thomas v. State, 444 S.W.3d 4, 8 (Tex.

Crim. App. 2014). Accordingly, even if statements by Velasquez and Benavides

had been improperly admitted, they would still be part of our review.

       Appellant also suggests that Velasquez’s testimony cannot be credited in our

review because he admitted having a number of drinks that night and having some

difficulty remembering the details of the night due to the lapse of time between the

event and his testimony. Weighing the credibility of a witness’s testimony, however,

is left to the jury. See Brown, 270 S.W.3d at 568.

      We hold the evidence was sufficient to support the jury’s determination that

there was corroborating evidence tending to connect the Appellant with the offense

committed. See CRIM. PROC. art. 38.14. We overrule Appellant’s third issue.

                            Sufficiency of the Evidence

      In his first issue, Appellant argues the evidence is insufficient to establish that

he committed the murder.

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single standard



                                           8
of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This standard of

review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.

Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App.

2013). Pursuant to this standard, evidence is insufficient to support a conviction if,

considering all the record evidence in the light most favorable to the verdict, no

rational fact finder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009. We can

hold evidence to be insufficient under the Jackson standard in two circumstances:

(1) the record contains no evidence, or merely a “modicum” of evidence, probative

of an element of the offense, or (2) the evidence conclusively establishes a

reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786,

2788–89 & n.11; Laster, 275 S.W.3d at 518.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court presumes that the fact finder resolved any conflicts in the

evidence in favor of the verdict and defers to that resolution, provided that the



                                          9
resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing

the record, direct and circumstantial evidence are treated equally; circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235

S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence

can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.

Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B.    Analysis

      As it relates to Appellant under this issue, “A person commits an offense if he

intentionally or knowingly causes the death of an individual.” TEX. PENAL CODE

ANN. § 19.02(a)(1) (Vernon 2011). Appellant argues the evidence is insufficient to

show anything more than his presence at the scene of the crime. We disagree.

      In addition to the non-accomplice evidence establishing that Appellant

admitted to being involved in the murder to Velasquez, participated in disposing of

the murder weapon, and fled the country after the murder, the jury also had the

testimony of Torres. Torres testified that, on the day of the murder, Chavez was

agitated, claiming Garcia “was going to snitch about something.” Chavez and

Appellant devised a plan. Under the plan, Chavez would pick Garcia up and drive

him to a park by Garcia’s grandmother’s house, where Garcia was living. Torres




                                         10
would drive Appellant to the park and Appellant would kill Garcia at the park by

shooting Garcia.

       After Chavez left, Torres drove Appellant to the park. Torres parked in a

location where he could not see the park. After waiting about ten minutes, Appellant

received a phone call and got out of the car, walking towards the park. While

Appellant was gone, Torres heard multiple gun shots. An autopsy would later show

that Garcia had three gunshot wounds. Appellant returned to the car, visibly upset.

Appellant said, “I got him, I got him, I shot him.” Later, when they arrived at

Velasquez’s house, Torres saw that Appellant had a gun. This was the gun that

Appellant and Chavez disassembled and threw into the drainage ditch and the water

off the pier.

       Appellant argues the evidence is insufficient to show that he intended to kill

Garcia because Torres testified that, during the ride to the park, Appellant told Torres

that he was only going to scare Garcia. Any conflict in the evidence created by this

statement was for the jury to resolve. See Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; Clayton, 235 S.W.3d at 778.

       We hold the evidence was sufficient to support the jury’s determination that

Appellant committed murder.2 We overrule Appellant’s first issue.



2
       Because the evidence is sufficient to support a determination that Appellant
       murdered Garcia, we do not need to reach Appellant’s second issue, challenging the

                                           11
                                     Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Higley, Huddle, and Lloyd.

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




      sufficiency of the evidence to support his conviction under the law of parties. See
      TEX. R. APP. P. 47.1.

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