                                 NO. 07-07-0029-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                               FEBRUARY 14, 2008
                         ______________________________

                                  FRANK CHACON,

                                                            Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                    NO. 17,290-A; HON. HAL MINER, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Frank Chacon was convicted of murder. He appeals that conviction by contending

1) he was improperly convicted by accomplice witness testimony for which there was no

corroboration, and 2) the evidence was legally and factually insufficient to sustain the

verdict. We disagree and affirm the judgment.

      Background

      Appellant was part of a drug selling operation in Amarillo which operation was

headed by Craig Kimberlin. Other members of that operation included Josh Stocker, Josh
Bledsoe, Destry Keeling, and Michael Elliston. In 2002 and 2003, Kimberlin’s group was

experiencing problems created by Dustin Pool, the head of a rival drug operation. Pool

was believed to have been the informant for a police raid that was conducted at Kimberlin’s

house and was threatening Bledsoe who was the drug supplier for Kimberlin’s group. At

a meeting at Stumpy’s lounge in February 2003, Bledsoe suggested that he could hire

someone to kill Pool for $10,000.1 Another meeting concerning the Pool problem also took

place at Kimberlin’s residence. Thereafter, on March 9, 2003, Stocker, on his own

initiative, requested that a woman, Tori Patrick, lure Pool to her apartment. When Pool

arrived in the early morning hours of March 10, Stocker and his brother attacked Pool with

a fireplace poker. Stocker then called Kimberlin and told him he had Pool.

       Kimberlin arrived at the apartment and called Elliston, who owned a place in the

country referred to as “the farm.” Kimberlin asked Elliston to bring a box to the apartment

that was big enough to hold a body. When Elliston arrived, Pool was placed in a

refrigerator box and transported to Elliston’s farm where he was taken to the second floor

of Elliston’s workshop. Stocker beat Pool during the course of the afternoon. Later,

appellant, Kimberlin, and Bledsoe arrived. Over a number of hours, Pool was beaten,

tortured, and had a sock stuffed in his mouth and his face duct taped. It is believed that

he died sometime in the early morning of March 11 from blunt force trauma to the head

and/or asphyxiation. Several days later, appellant, Kimberlin, and Keeling buried the body

in concrete at an abandoned grain silo.




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           There was conflicting evidence as to whether this was intended as a serious offer.

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        Accomplice Witness Testimony

       Appellant initially claims that there is no non-accomplice corroboration of his

involvement in the murder. We overrule the issue.

       A conviction may not rest upon the testimony of an accomplice unless that testimony

is corroborated by other evidence tending to connect the defendant to the offense. TEX .

CODE CRIM . PROC . ANN . art. 38.14 (Vernon 2005). The other evidence need not directly link

the accused to the crime or establish his guilt beyond a reasonable doubt. McDuff v. State,

939 S.W.2d 607, 613 (Tex. Crim. App. 1997). It need only tend to connect him to the

offense. Id. at 613. In addition, “tending to connect” has been interpreted as “to serve,

contribute or conduce in some degree or way . . . to have a more or less direct bearing or

effect,” and while not contemplating conjecture, “has a tendency to prove the averments in

the indictment.” Holladay v. State, 709 S.W.2d 194, 198 (Tex. Crim. App. 1986), quoting

Boone v. State, 235 S.W. 580 (Tex. Crim. App. 1922); In re C.M.G., 905 S.W.2d 56, 58

(Tex. App.–Austin 1995, no pet.). Furthermore, each case must be decided upon its own

facts and circumstances. Martinez v. State, 163 S.W.3d 92, 94 (Tex. App.–Amarillo 2005,

no pet.).

       Appellant’s own statement appears in the record before us. In that statement, he

admits to being present at a meeting where 1) the group spoke about the trouble Pool was

causing them and 2) one participant brought up the subject of hiring someone to kill Pool

for $10,000. The statement further reveals that appellant traveled to the scene of the

murder with Kimberlin, remained abreast of the conduct surrounding the disposition of

Pool’s body once Pool died, heard one of his compatriots say that if he “‘got bust [sic] we



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were all going down,” went to the Home Depot to buy concrete and a trash can for water,

and ultimately helped bury Pool’s body in cement so it could not be found. While this alone

may not establish appellant’s guilt for murder it does tend to connect him to the crime. See

Rule v. State, 890 S.W.2d 158, 170 (Tex. App.–Texarkana 1994, pet. ref’d) (finding the

evidence sufficient to connect Rule to the murder because he was present at the murder

scene, helped dispose of the body and murder weapon and attempted to flee).

       Sufficiency of the Evidence

       Next, appellant challenges the sufficiency of the evidence to sustain his conviction.

We overrule this issue as well.

       The standards by which we make such determinations are well known. We refer the

parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for an explanation of the same.

       The medical examiner opined that Pool died from blunt force injuries and asphyxia

and that either one alone could have caused Pool’s death. Pool had a skull fracture that

included both a calvarial fracture and a basilar fracture which could have resulted from

multiple blows. The basilar fracture would have required a force much stronger than for the

simple linear fracture on top of the head. Furthermore, the injury could have been

exacerbated by continued blows to the head.

       Appellant argues that he was not a part of the kidnaping and not responsible for the

blow to Pool’s head from the fireplace poker, therefore leaving suffocation as the only

possible means of murder by him. Nevertheless, it is undisputed that Pool was alive for a

considerable length of time after his initial head injury. Moreover, there was evidence from

Bledsoe that appellant struck Pool in the head with pliers when Pool was at the farm. Since

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Pool could have died as a result of the trauma to his head alone and there is evidence that

appellant struck him in the head at the farm and/or encouraged Kimberlin to do so, a

rational jury could have found beyond a reasonable doubt that appellant was guilty of

murder and such a finding after a review of the entire record does not undermine our

confidence in the verdict. It is true that many of the witnesses gave multiple statements to

police and lied in some of those statements. However, it was for the jury to resolve any

conflicts in the evidence and determine which witnesses and what parts of their stories to

believe. Simply put, the evidence is legally and factually sufficient to support the conviction.

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



                                                   Brian Quinn
                                                   Chief Justice

Do not publish.




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