    NUMBERS 13-12-00148-CR & 13-12-00155-CR & 13-12-00439-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG

JOSE HOMERO SOSA CANTU                                                   Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 430th District Court
                         of Hidalgo County, Texas.


                        MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Perkes
                Memorandum Opinion by Justice Benavides
      In these consolidated appeals, appellant Jose Homero Sosa Cantu appeals three

related convictions.   In appellate cause number 13-12-00148-CR, Sosa appeals his

conviction for the murder of Gilberto Rosales Aguilar, arguing:   (1) that the evidence

was legally insufficient to support the conviction and (2) that he received ineffective
assistance of counsel.          See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through

2013 3d C.S.).          In appellate cause number 13-12-00439-CR, Sosa challenges the

sufficiency of the evidence supporting his conviction for the murder of Roberto Javier

Resendez.          See id.       And finally, in appellate cause number 13-12-00155-CR,

concerning Sosa’s conviction for possession of marihuana, he contends that:                     (1) the

use of a drug-sniffing dog at his home constituted an unreasonable search under the

Fourth Amendment; (2) he did not receive a Miranda warning before confessing to

having marihuana in his home; and (3) he received ineffective assistance of counsel.

See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West, Westlaw through 2013 3d C.S.);

Miranda v. Arizona, 384 U.S. 436 (1966). We affirm all three convictions.

                                             I. BACKGROUND

A.      Cause Number 13-12-00148-CR:                  The Murder of Gilberto Rosales Aguilar

        On February 6, 2010, City of Mission police officers found the body of Gilberto

Rosales Aguilar, also known as “El Gavilan,”1 in a field in northwest Hidalgo County.

Aguilar, whose t-shirt had been pulled up to expose his chest, had a gunshot wound to

the head.       His body was wrapped in duct tape from his mouth to his neck and from his

waist to his ankles. The word “rata”2 had been written on his neck, and his ears had

been cut or clipped. A .45 caliber shell casing was found at the scene.                   Aguilar was

identified by his fingerprints, which were in the Hidalgo County Sheriff’s Office database

due to his past criminal history.

        1.     Testimony of Investigator Fernando Tanguma

        1    The Spanish word “gavilan” translates into “sparrow.”

        2 Later, Investigator Fernando Tanguma explained that this Spanish word translates literally into

the word “rat,” but can also mean “a thief,” “a snitch,” or “someone who cannot be trusted.”


                                                      2
        At trial, Hidalgo County Sheriff’s Investigator Fernando Tanguma explained his

investigation of Aguilar’s death and how the investigation eventually led to the arrest of

Sosa.       Investigator Tanguma testified that when he took over the investigation, he

learned that Aguilar had been dealing drugs.             He spoke to Daniel Gutierrez, also known

as “Danny Boy,” who was apparently the last person to see Aguilar alive.                     Gutierrez told

Investigator Tanguma about Johnny Garcia, who was Aguilar’s friend.                         Garcia used to

date Erica Yvette Obregon Sosa, Sosa’s daughter.                          Gutierrez told Investigator

Tanguma that Garcia was involved in a recent shooting that occurred in McAllen, Texas.

Upon further inquiry, Investigator Tanguma learned that the McAllen shooting also

involved .45 shell casings.        Forensic analysis revealed that the casings from the scene

of Aguilar’s death and the McAllen shooting came from the same gun.                            Investigator

Tanguma also learned that a white four-door pickup was used in the McAllen shooting.

        When Investigator Tanguma went to Erica’s home to speak with her about her

ex-boyfriend Garcia, he met the appellant for the first time.              Sosa introduced himself as

“El Licensiado.”3 Investigator Tanguma asked Erica and Sosa if they had ever owned a

white four-door pickup.        Erica admitted that she used to own a truck like that and she

had let her ex-boyfriend, Garcia, drive it for three to four months while they were still

together. She, however, had since sold the vehicle.                   Investigator Tanguma thought

this sale was suspicious, though, because the bill of sale did not show who purchased

the vehicle.

        Investigator Tanguma then testified that he received a call from Texas Ranger

Melba Molina.       Ranger Molina learned that Hector Gonzalez, who was in the custody of


        3   The Spanish word “licensiado” translates into the word “attorney” in English.

                                                     3
the U.S. Department of Homeland Security—Immigration and Customs Enforcement

Division, had information about a murder that occurred in Mission, Texas.    Investigator

Tanguma went to speak with Gonzalez.           Gonzalez told Investigator Tanguma that

Gutierrez and another man, Mark Anthony Garza, were involved in drug trafficking and in

Aguilar’s murder.   Gonzalez also stated that Gutierrez had recently been arrested

driving a 1997 maroon GMC Yukon in Falfurrias, Texas and that the vehicle had been

impounded.    Gonzalez told Investigator Tanguma that he had also been to Sosa’s

house once with Gutierrez and that while he was there, Sosa asked for the day’s

newspaper. After perusing the newspaper, Sosa allegedly stated that the police “did

not have anything or any suspects,” that “that’s what happens to thieves,” and that they

should have written “rata” on the deceased person’s forehead instead of his neck.

      Gonzalez then told Investigator Tanguma that he had recently taken possession

of a handgun from Gutierrez.     Gonzalez sold it to his girlfriend’s father, Juan Tapia.

Investigator Tanguma obtained consent from Tapia to take the gun, which was a .25

caliber semi-automatic handgun with white grips, and logged it into evidence.

      Investigator Tanguma then spoke with Aida and Juan Villarreal, who found

Aguilar’s body the night of the murder and reported it to law enforcement authorities.

Aida said her daughter recalled seeing “GMC” on the front grill of an SUV leaving the

scene of the crime; Aida recalled that it was a dark-colored SUV.

      Investigator Tanguma then spoke with Mark Anthony Garza, as Gonzalez had

mentioned his name during his interrogation. Garza admitted that he knew Gonzalez,

Gutierrez, Erica, and Sosa.   Garza also mentioned that he knew a “Gordo One,” “Gordo

Two,” and Luis Marroquin who lived at the Sosa household.


                                           4
      Luis Adan Aleman Marroquin, also known as “Wicho,” was eventually brought into

custody.    Marroquin explained that he was from Mexico and had gone to work for Sosa

when he came to the United States.    Marroquin handled animals, cleaned cars, and did

chores for the Sosa family.   Marroquin told Investigator Tanguma that he, “Gordo One,”

“Gordo Two,” and Roberto Javier Resendez all worked for the Sosa family and lived at

their residence.   Marroquin stated that, one day, Gutierrez and Garza arrived at the

Sosa home and Gutierrez showed Sosa his new gun.       Sosa informed Gutierrez that the

gun was actually his—Sosa’s gun had been missing—and asked Gutierrez where he got

the gun.     Gutierrez told Sosa that he had gotten the gun from Aguilar.          Sosa

remembered that Aguilar had been to his home several times on drug-related business

with Erica’s ex-boyfriend, Garcia. Sosa asked Gutierrez and Garza to bring Aguilar to

his home.

      Marroquin stated that Gutierrez and Garza brought Aguilar to the home in a

maroon Yukon SUV. Aguilar’s head was bleeding when he arrived, and his hands were

tied behind his back.   Aguilar was taken to the garage.    Marroquin told Investigator

Tanguma that Sosa ordered Gordo One and Gordo Two to wrap Aguilar’s head with gray

duct tape so that he would not bleed in the garage.     Sosa questioned Aguilar about

Gutierrez’s gun, some marihuana that had recently been stolen from him, and also a

recent attempt to kidnap Erica’s young son. Sosa also wanted to know if Garcia, Erica’s

ex-boyfriend, was involved in any of these occurrences. Throughout this questioning,

Gordo One and Gordo Two beat Aguilar.       Although Aguilar initially denied everything,

he eventually admitted that he and Garcia stole the marihuana and that it was Garcia’s

idea to kidnap Erica’s son.


                                           5
       Marroquin told Investigator Tanguma that when Erica learned that Aguilar and

Garcia were behind the kidnapping attempt of her son, she retrieved a large pan from the

kitchen and hit Aguilar on the head with it.            Sosa ordered Gordo One and Gordo Two to

wrap Aguilar up with duct tape.            He was then taken to the GMC Yukon. According to

Marroquin, Sosa gave orders to shoot Aguilar twice in the head and Resendez

volunteered to do so.         Marroquin saw Sosa give Resendez a black .45 caliber handgun.

Marroquin then witnessed Resendez write “por rata” on the left side of Aguilar’s head.

According to Investigator Tanguma, “rata” means “a thief,” “a snitch,” or “someone who

cannot be trusted.”        Marroquin stated that when everyone returned, they all burned their

clothes and cleaned the GMC Yukon.

       Based on this information, Investigator Tanguma obtained a felony arrest warrant

to bring Sosa into custody.           He did not execute the warrant, but rather had Lieutenant

Esteban “Steve” Herrera do so.4 Law enforcement officials then arrested Sosa and

brought him to the Hidalgo County Sheriff’s Department.

       2. Sosa’s Statement

       Investigator Tanguma testified that, prior to taking Sosa’s statement, Sosa was

given written and verbal Miranda warnings in English and Spanish. The written Spanish

warnings are in the appellate record and show that Sosa initialed and signed his name

where appropriate.

       The relevant portions of Sosa’s statement follow:

       I would like to say that my daughter Erica used to date a man by the name
       of Johnny Garcia for about 3 or 4 months. I believe Erica started dating
       Johnny the last month of December 2009. Everything was okay with


       4   See the discussion at section I(C), infra, for a full account of Sosa’s arrest.

                                                       6
Erica and [Garcia] until Erica’s birthday on January 15, 2010.   Erica broke
up with [Garcia] and he was very upset.

[Garcia] had introduced me to two people by the names of Saul Casas and
Oscar Cantu several months before Erica started dating him. Saul and
Oscar ended up living in my house for about a year. I gave Saul the nick
name of Gordo-1 and Oscar the nick name of Gordo-2.

In the month of January 2010 my friend Angie introduced me to “Wicho”,
[Marroquin] and Roberto [Resendez]. [Marroquin] started working at my
house cleaning the yard.

I would like to say that sometime in the month of February 2010 I started
looking for my .25 caliber semi-auto handgun in my garage. I had
[Marroquin] and [Resendez] looking for my gun but we never found [it].

On the same month a person by the name of Mark Anthony Garza started
dating my daughter Erica Yvette Sosa. [Garza] was always with his friend
[Gutierrez]. One time [Garza] and [Gutierrez] came by my house and
[Gutierrez] showed me a .25 caliber chrome handgun with bone color
handgrips. I saw the gun and recognized it right away. I asked
[Gutierrez] where he got the gun from. [Gutierrez] told me he got it from a
friend of his. I checked out the gun very carefully and noticed it was the
gun that I had lost several weeks ago. I asked [Gutierrez] what was the
name of his friend he bought the gun from. [Gutierrez] told me that he got
the gun from his friend [Aguilar]. [Aguilar] was introduced to me by
[Garcia] when he was dating Erica. [Aguilar] came to my house several
times with [Garcia]. I told [Gutierrez] that the gun belonged to me.
[Gutierrez] told me to keep the gun and I told him to keep it.

I was told [b]y [Gutierrez] and [Garza] that they would get [Aguilar] and
bring him to my house. [Garza] and [Gutierrez] were in a 1997 or 1998
green SUV. Several hours later [Garza] and [Gutierrez] returned to my
house and parked their truck in the back yard of my house. I noticed that
[Garza] and [Gutierrez] had a male subject in the back seat of the SUV. I
saw the subject was [Aguilar] who had his hands tied with gray tape. I
saw [Garza] and [Gutierrez] take [Aguilar] out of the truck and walked him
to the garage. I saw that [Aguilar] was bleeding from his mouth when
[Garza] and [Gutierrez] brought him inside the house.

I also saw Gordo-[]1[,] Gordo-2, [Marroquin], and [Resendez] enter the
garage. I walked inside the garage and noticed Gordo-1, Gordo-2,
[Marroquin] and [Resendez] punching and hitting [Aguilar] on his head and
body. When I saw them hitting [Aguilar], I decided to walk out of the
garage. I heard [Garza] yelling at [Aguilar] and asking him who had stolen
the gun and who wanted to kidnap Erica’s son, Angelito. I heard [Aguilar]

                                     7
       say that he stole the .25 caliber handgun and the person who wanted to
       kidnap Angelito was [Garcia].

       I walked back inside the garage and noticed Gordo-1 and [Marroquin] were
       using gray tape to tape [Aguilar’s] face, hands and feet. I saw [Gutierrez],
       [Garza], and Gordo-1 picked up [Aguilar] from the floor and place him in the
       back of green SUV. [Aguilar] was not moving or making any noise.

       I decided to give [Garza] 2 handguns that I owned. The guns were .45
       calibers semi-auto handguns, one was chrome and the second gun was
       black. I told [Garza] that I did not want the guns in my house because of
       my grandchildren.

       [Marroquin], [Gutierrez], [Garza], Gordo-1, and [Resendez] left in the green
       SUV. I was not told where they were getting rid of the [Aguilar] body. I
       stayed at home and about 1 ½-2 hours later [Garza], [Gutierrez], Gordo-1,
       [Resendez], and [Marroquin] returned home. I was told by [Garza] that
       [Resendez] had shot [Aguilar] in the head.

       3. Testimony of Hector Gonzalez

       Gonzalez testified at trial and confirmed most of what Investigator Tanguma had

already described to the jury.     He stated that he had known Garza since high school

and had met Garza’s friend, Gutierrez, in January of 2010.      He knew that Garza and

Gutierrez were involved in drug trafficking. He confirmed that Garza dated Erica Sosa

at one point and that one time he went to her house and met Erica’s father “El

Licensiado,” or Sosa. Gonzalez confirmed that Sosa had several men working for him

and living at his residence, including Marroquin and Gordo One.

       Gonzalez testified that one morning he was with Garza when Garza received a

call to pick up the day’s newspaper.        They then took the newspaper to Sosa’s

residence.   Gonzalez noticed an article in the day’s paper about a murder in the

“woods” or “brush.” He noticed that others in the house read the same story.          He

testified that Sosa had asked if there was any evidence against him, and what the

officers had found, if anything.   He also heard Sosa use the term “por rata” about the

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person who had been killed, and that Sosa quipped, “that’s just what he deserves for

stealing.”

         4. Testimony of Mark Garza

         Garza testified that he had been charged with the capital murder of Aguilar, had

entered into an agreement to plead guilty to the charge of aggravated kidnapping

instead, and received a twenty-five year sentence in exchange for his testimony against

Sosa.     He testified that he and his friend Gutierrez were in the business of transporting

drugs.    He stated that he knew Erica Sosa and had met her father, Sosa, who was also

known as “El Licensiado.” He stated that he and Erica were just friends.       He admitted

that Sosa told him at one point that Garcia, Erica’s ex-boyfriend, had once stolen

marihuana from him.

         Garza testified that, besides Erica, her mother, and Sosa, he knew of four other

men who lived at the Sosa residence—“Gordo One,” “Gordo Two,” Marroquin, and

Resendez.      He testified that one day his friend Gutierrez had purchased a gun from

Aguilar and paid $150 for it.    On the day Gutierrez purchased the gun, they went to

Sosa’s house.     Garza testified that when Gutierrez showed Sosa the gun, Sosa looked

surprised and told Gutierrez that it was actually his gun that had been stolen recently.

When Gutierrez stated that he had purchased it from Aguilar, Garza stated that Sosa

looked angry.    Gutierrez and Garza then went to bring Aguilar to Sosa’s home. Garza

stated that he waited in the car while Gutierrez went to retrieve Aguilar from where he

was staying.    He reported that Aguilar came to the car bleeding from his head because

he and Gutierrez fought; Aguilar had not wanted to accompany them.




                                              9
       Garza testified that when they arrived at the Sosa house with Aguilar, that Gordo

Two put handcuffs on Aguilar and took him to the garage.               Garza stayed in the kitchen

with Gutierrez, but later went to the garage where he saw Resendez cut Aguilar’s ears

with a pair of scissors. He also saw Gordo5 kick Aguilar in the ribs and witnessed Erica

hit Aguilar over the head with a kitchen pan.           Aguilar’s body was then loaded into the

Yukon.      Garza then testified that he, Gutierrez, and Gordo One got into a white Xterra,

while Resendez, Marroquin, and Gordo Two got into the Yukon. He testified that they

drove “to 107 towards Western and Texas road.” He heard two to three gun shots.

Later, he learned that Resendez had shot Aguilar.

       Garza testified that, the next day, he and Gonzalez took a newspaper to Sosa’s

house.     He heard Sosa say, “that’s what happens to people that steal from me” and

make a comment about rats.           Sosa also stated that Aguilar had stolen merchandise and

a gun from him.

       5. Testimony of Luis “Wicho” Marroquin

       Marroquin testified that, although he had been charged with capital murder of

Aguilar, he entered into a plea agreement to plead guilty to murder and received a

twenty-five year prison sentence in exchange for testifying truthfully at trial.        Marroquin

testified that he lived with Sosa, Sosa’s wife, Erica and her children, Gordo One, Gordo

Two, and Resendez at Sosa’s home.                  He knew Garza and Gutierrez and Erica’s

ex-boyfriend Garcia.

       Marroquin described what happened the day Gutierrez showed Sosa his new

gun.   He stated that when Sosa realized that the gun was one that had been stolen from


       5   The record is not clear whether Gordo One or Two committed this act.

                                                   10
him, he ordered Gutierrez and Garza to bring Aguilar to the house. Marroquin reported

that when Aguilar arrived, he was injured on the mouth because he had been beaten so

that they could kidnap him.    Marroquin testified that Aguilar was questioned in the

garage about the stolen gun.   During the questioning, Resendez hit Aguilar with a pipe,

Erica hit Aguilar on the head with a frying pan, and Gordo Two punched Aguilar in the

abdomen.    Marroquin also witnessed Resendez cut Aguilar’s ears.       Marroquin stated

that, after the beating, Aguilar seemed to be immobile.     Marroquin testified that Sosa

ordered him to wrap up Aguilar with duct tape.    Marroquin taped Aguilar’s body from his

abdomen up to his head, while Gordo Two taped Aguilar’s legs.         Sosa then ordered

Marroquin to take Aguilar to the maroon Yukon and asked for volunteers to kill Aguilar.

Resendez offered to shoot him.    Marroquin stated that Sosa gave Resendez a gun and

ordered him to shoot Aguilar twice in the head.

      Marroquin testified that he did not go with the rest of the men to shoot Aguilar and

dump his body.   He did testify, though, that Gordo Two cleaned the maroon Yukon the

next day and that all of the men burned their clothes from the day before because they

had blood on them.

B.    Cause Number 13-12-00439-CR:         The Murder of Roberto Javier Resendez

      Marroquin testified that, after Aguilar was murdered, Sosa refused to let him,

Gordo One, Gordo Two, or Resendez leave the house because he feared one of them

would talk about the circumstances surrounding Aguilar’s death. Their living situation

“was more tense.”    Marroquin stated that Resendez admitted to murdering Aguilar, and

that Sosa promised to pay Resendez $20,000 to kill Aguilar.        However, when Sosa

failed to pay Resendez, Resendez became “upset . . . he wanted his money.”


                                           11
Resendez apparently threatened to cut off the fingers of Sosa’s family members if Sosa

did not pay him.

         Marroquin then stated that Sosa confessed to wanting to “get rid of,” or kill,

Resendez because he was afraid that Resendez would talk about Aguilar’s murder.

Marroquin confessed that Gordo One and Gordo Two then told him that they were going

to take Resendez back to where the animals were on Sosa’s property, kill him, and bury

him in a hole they dug inside the chicken coop for this purpose.     Marroquin stated that

Garza and Gutierrez also participated in Resendez’s murder by purchasing “some

materials so the body wouldn’t smell, and also cement to put in the hole.”       Marroquin

testified that Sosa gave Gordo One and Gordo Two each an ice pick to stab Resendez to

death.    Later, Marroquin saw Resendez’s body covered with holes, lying dead in a

grave dug inside the chicken coop.      He also learned that Resendez’s throat had been

slit with a saw, but he did not know who had done that.    Gutierrez and Garza later came

to cover the body with lye and cement.

         When Sosa was brought into custody and questioned by Investigator Tanguma,

he also mentioned the death of Resendez.            Sosa provided the following relevant

information in his statement:

         I would like to add that about three weeks after Aguilar’s death, [Resendez]
         was upset at me because I had not paid him for a job he had done for me.
         I told [Resendez] that I had not gotten paid for the marihuana but would
         pay him the minute I had money.

         Gordo-1 and Marroquin told [Resendez] to calm down but he was very
         upset. I saw Gordo-1 walk to the back room that is located behind the
         chicken coop. I saw that Gordo-1 had an ice pick in his right hand. I told
         Gordo to calm down because they all worked together. I then walked
         inside my house and [Resendez], Gordo and [Marroquin] stayed outside.
         I did not go outside anymore. I noticed after that day I did not see
         [Resendez] anymore. Several days later I was told by Gordo-1 that

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       Marroquin and him had stabbed [Resendez] with [an] ice pick then they
       buried him in the chicken coop in the back yard. I told Gordo-1 and
       [Marroquin] that was the wrong thing to do.

C.     Cause Number 13-12-00155-CR:            Confiscation of the Drugs

       As stated before, Investigator Tanguma obtained a felony arrest warrant for Sosa

after he questioned Marroquin and realized that Sosa was involved in Aguilar’s murder.

Although Investigator Tanguma obtained the warrant, Lieutenant Steve Herrera

executed it.   Lieutenant Herrera testified that he was briefed regarding the ongoing

investigations.   He stated that he and fellow officers then got a cellular telephone

number for Sosa and got a “ping” on Sosa’s location.

       Lieutenant Herrera, along with the sheriff’s tactical patrol unit, travelled to the

residence where the “ping” originated.      He testified that he and his fellow officers set up

a perimeter around the residence, as per protocol, and that he then knocked on the door.

Sosa answered the door.           Lieutenant Herrera spoke with Sosa and took him into

custody.   Lieutenant Herrera then testified that the tactical team entered the residence

to secure the officers’ safety.    Officers “make sure that there is not any potential danger

inside of the house before [they] walk away….” The officers evacuated two women and

two young children.

       At some point, K-9 Officer Jaime Garcia, who was at the scene with his trained

narcotics dog Bosco, informed Lieutenant Herrera that Bosco had alerted him to the

presence of narcotics. Another officer, Senior Deputy John Ortega, told Lieutenant

Herrera that he noticed narcotics in the home while he secured the premises.           Deputy

Ortega saw large bundles of marihuana in one room during the protective sweep and

also detected the smell of marihuana.


                                              13
        Deputy Cavazos testified that Sosa gave him verbal consent to search for

narcotics in the home, but that Lieutenant Herrera decided to inform the narcotics unit

about the drugs instead.          Lieutenant Herrera explained that he made this decision

because his officers “were there to serve a felony arrest warrant” and not to “seize

mari[h]uana.” Lieutenant Herrera advised the sheriff’s department narcotics unit about

the potential find and they came later with a warrant to seize the narcotics.

        Deputy Cavazos also testified that he did not give Sosa a Miranda warning prior to

asking Sosa if he was aware of the presence of marihuana in the house.                               Sosa

responded in the affirmative and also informed Cavazos that there were more drugs in

the bathroom.       Deputy Cavazos stated that the narcotics investigators found a total of

460 pounds of marihuana in a bedroom and bathroom. They also found a hydraulic

press to compress marihuana; clear tape, Reynolds wrap, and cellophane, which are

used to package marihuana; weapons, including a hunting rifle, a .270 rifle, “an A.K. with

a long magazine,” a shotgun, and several handguns; and a bullet proof vest.

                               II. CAUSE NUMBER 13-12-00148-CR

        In Cause Number 13-12-00148, Sosa was convicted of the murder of Gilberto

Rosales Aguilar”.6 By two issues, which we renumber as three, he argues:                          (1) that

co-conspirator testimony should not have been used to convict him; (2) that the evidence

was insufficient to establish the requisite mens rea to support a murder conviction; and


        6   In the original indictment, Sosa was charged with capital murder because of the kidnapping of
Aguilar prior to Aguilar’s execution. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West, Westlaw through
2013 3d C.S.) (stating that a person commits capital murder if the person commits murder in the course of
committing or attempting to commit kidnapping). However, in this case, the jury ultimately convicted Sosa
of the lesser-included charge of murder. See id. § 19.02(b)(1) (West, Westlaw through 2013 3d C.S.).
The trial court sentenced Sosa to forty-five years in the Texas Department of Criminal Justice–Institutional
Division.


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(3) that he received ineffective assistance of counsel.

A.     Co-conspirator Testimony

       In his first issue, Sosa challenges the State’s use of the co-conspirator testimony

of Garza and Marroquin to convict him.

       1. Applicable Law

       A person cannot be convicted based upon the testimony of an accomplice witness

unless the testimony is 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, Westlaw

2013 through 3d C.S.). Corroborating evidence can be direct or circumstantial and

does not have to establish the guilt of the accused. Smith v. State, 332 S.W.3d 425,

442 (Tex. Crim. App. 2011) (“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.”); Gill v. State, 873 S.W.2d 45, 48 (Tex.

Crim. App. 1984) (en banc). The corroborating evidence must merely tend to connect

the accused to the commission of the offense.             Smith, 332 S.W.3d at 442.         In

reviewing a complaint of insufficient corroborating evidence, we are required “to consider

the combined force of all of the non-accomplice evidence that tends to connect the

accused to the offense.”    Id.

       2. Discussion

       Here, even if we completely disregard the testimony of Garza and Marroquin, both

of whom were charged as co-conspirators, there is evidence tending to connect Sosa

with Aguilar’s murder. Gonzalez, who was not a co-conspirator, testified that he went to


                                              15
Sosa’s house the day after Aguilar was killed.               Gonzalez noticed Sosa read an article

in the day’s newspaper regarding a murder in the “woods” or “brush.” He stated that

Sosa had asked the others in the room if there was any evidence against him and what

the officers had found, if anything.          He also heard Sosa use the term “por rata” about

the person who had been killed and explain, “that’s just what he deserves for stealing.”

Investigator Tanguma testified that Aguilar had the word “rata” written on his neck.

        Further, Sosa’s own statement to the police corroborates many of the findings that

Investigator Tanguma confirmed through other witnesses.                      Although Sosa minimizes

his involvement in Aguilar’s death, he confirmed that Gutierrez showed him a gun that he

believed Aguilar had stolen from his home weeks before.                        He also confirmed that

Gutierrez and Garza brought Aguilar to his home, and that Aguilar was questioned and

beaten in his garage by Gordo One, Gordo Two, Marroquin, and Resendez.                             He even

admitted giving Garza a gun:            “the guns were .45 calibers semi-auto handguns, one

was chrome and the second gun was black.” This combined corroborating evidence

tends to connect Sosa to the commission of the offense.                    Smith, 332 S.W.3d at 442.

Accordingly, we overrule this issue.

B.      Sufficiency of the Evidence7

        In his second issue, Sosa argued that there was not enough evidence to establish

that he had the requisite mens rea to commit murder.

        1. Applicable Law

        7   Sosa contested both the legal and the factual sufficiency of the evidence to support his murder
conviction. In 2010, however, the Texas Court of Criminal Appeals held that there is no “meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-sufficiency
standard” and the Jackson standard “is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt”. Brooks v. State, 323 S.W.3d 893, 902–03 (Tex. Crim. App. 2010)
(plurality op.). Accordingly, we consolidate Sosa’s two points of error on sufficiency into one analysis.

                                                     16
       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’”       Johnson v. State, 364 S.W.3d 292, 293–94 (Tex.

Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v.

State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is

the exclusive judge of the credibility of witnesses and of the weight to be given to their

testimony.   Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.]

2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).

Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province.

Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve

any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000)).

       We measure the sufficiency of the evidence by the elements of the offense 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 tried.      Id. A person commits murder if he “intentionally or

knowingly causes the death of an individual.”      TEX. PEN. CODE ANN. § 19.02(b)(1).

       Here, Sosa was charged under the law of the parties, which provides as follows:

       All persons are parties to an offense who are guilty of acting together in the
       commission of an offense. A person is criminally responsible as a party to

                                              17
       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. Each party to
       an offense may be charged with the commission of the offense. A person
       is criminally responsible for an offense committed by the conduct of
       another if acting with intent to promote or assist the commission of the
       offense, he solicits, encourages, directs, aids, or attempts to aid the other
       person to commit the offense.

See id. §§ 7.01(a)–(b), 7.02(a)(2) (West, Westlaw through 2013 3d C.S.).               “Intent

may . . . be inferred from circumstantial evidence such as acts, words, and the conduct

of the appellant.”   Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

       2. Discussion

       Sosa contends that the State did not prove the culpable mental state of

“knowingly” or “intentionally” to support his murder conviction.           “A person acts

knowingly, or with knowledge, with respect to the nature of his conduct or to

circumstances surrounding his conduct when he is aware of the nature of his conduct or

that the circumstances exist.” TEX. PENAL CODE ANN. § 6.03(b) (West, Westlaw 2013

through 3d C.S.).    A person acts “intentionally” “when it is his conscious objective or

desire to engage in the conduct or cause the result.”    Id. § 6.03(a) (West, Westlaw 2013

through 3d C.S.).

       “Section 7.02(b) allows criminal responsibility for the conduct of another,

eliminating the necessity for proof of intent to commit the felony actually committed, but it

does not excuse the State from proving a culpable mental state.”         Gonzalez v. State,

296 S.W.3d 620, 630 (Tex. App.—El Paso 2009, no pet.) (citing Gravis v. State, 982

S.W.2d 933, 938 (Tex. App.—Austin 1998, pet. ref'd)). “The State is required to show

that the accused had both the mens rea to engage in the conspiracy and the culpable

mental state to commit the underlying, i.e., the intended, felony.”   Id. “The mental state


                                             18
for the underlying felony supplies the mens rea for the felony actually committed by the

co-conspirator.” Id.

       Under the law of the parties, Sosa “solicit[ed],” “encourage[d],” and “direct[ed]” the

murder of Aguilar.      Marroquin testified that, after Aguilar was beaten for stealing

Sosa’s gun, Sosa ordered Marroquin to wrap Aguilar with duct tape and carry him to the

maroon Yukon.      Marroquin also stated that Sosa then asked for volunteers to kill

Aguilar, and that Resendez voluntarily offered to do so.

       Garza testified that Sosa became angry when he realized that Aguilar had stolen

a gun from him and subsequently gave it to Gutierrez.      Garza also testified that, the day

after Aguilar’s murder, he and Gonzalez took a newspaper to Sosa’s house.          He heard

Sosa say, “that’s what happens to people that steal from me” and make a comment

about rats.   Garza also testified that Sosa said Aguilar had stolen merchandise and a

gun from him, which would constitute a possible motive for Sosa to order Aguilar’s death.

       Viewing the evidence in the light most favorable to the prosecution, we hold that a

rational trier of fact could have found beyond a reasonable doubt that Resendez

intentionally or knowingly killed Aguilar and that Sosa solicited, encouraged, or directed

the murder.    Accordingly, Sosa had a “knowing” and “intentional” mental state to be

convicted of murder under Texas’s law of the parties.        See TEX. PEN. CODE ANN. §§

7.01(a)–(b), 7.02(a)(2). We overrule this issue.

C.   Ineffective Assistance of Counsel

       Sosa also argues that he received ineffective assistance of counsel in his trial for

the murder of Aguilar. Specifically, he contends that his attorney’s performance was

deficient because he failed to file a motion to suppress and failed to apprise him of the


                                             19
risks of a judge determining his sentence rather than a jury.

       1.   Applicable Law

       “To obtain a reversal of a conviction under the Strickland test, a defendant must

show that: (1) counsel's performance fell below an objective standard of reasonableness

and (2) counsel's deficient performance prejudiced the defense, resulting in an unreliable

or fundamentally unfair outcome of the proceeding.”     Davis v. State, 278 S.W.3d 346,

352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

“Deficient performance means that ‘counsel made errors so serious that counsel was not

functioning as the counsel guaranteed the defendant by the Sixth Amendment.’”           Ex

parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.

at 687). “The prejudice prong of Strickland requires showing ‘a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have

been different.’”   Id. at 248 (quoting Strickland, 466 U.S. at 694).      “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”        Id.

(quoting Strickland, 466 U.S. at 694). “[E]ach case must be judged on its own unique

facts.” Davis, 278 S.W.3d at 353.

       The burden is on the appellant to prove ineffective assistance of counsel by a

preponderance of the evidence.      Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Appellant must overcome the strong presumption that counsel's conduct

fell within the wide range of reasonable professional assistance and that his actions

could be considered sound trial strategy.    See Strickland, 466 U.S. at 689; Jaynes v.

State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing

court will not second-guess legitimate tactical decisions made by trial counsel.   State v.


                                            20
Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (“[U]nless there is a record

sufficient to demonstrate that counsel's conduct was not the product of a strategic or

tactical decision, a reviewing court should presume that trial counsel's performance was

constitutionally adequate . . . .”).   Counsel's effectiveness is judged by the totality of the

representation, not by isolated acts or omissions.      Thompson, 9 S.W.3d at 813; Jaynes,

216 S.W.3d at 851. An allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.

Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814

n.6.

       2.   Discussion

       Sosa claims that his attorney performed deficiently when he failed to file a pre-trial

motion to suppress. However, a review of the clerk’s record in this case reveals that

Sosa’s attorney filed a motion to suppress on July 21, 2011, almost two months prior to

the date of trial.   The motion sought to suppress “any tangible evidence seized in

connection with this case without lawful warrant, probable cause, or other lawful

authority,” as well any statements or testimony elicited during the investigation “in

violation of Defendant’s [r]ights” under the U.S. or Texas Constitutions be suppressed.

Because Sosa’s argument is belied by the record, we overrule this sub-issue.

       Sosa further contends that his trial counsel performed deficiently when counsel

failed to apprise him of the risk of having a judge assess his punishment instead of jury.

He argues, “A jury is more inclined to be more receptive to factors which militate against

assessing a more severe sentence.” In contrast, he asserts that “the trial judge, an

elected official, is more inclined to make an example of the defendant.” The record,


                                               21
though, is silent regarding why Sosa’s counsel elected for the judge to determine

punishment.        Moreover, counsel’s actions were not “so outrageous that no competent

attorney would have engaged in it.”           Goodspeed, 187 S.W.3d at 392.            Accordingly, we

hold that Sosa has failed to overcome the strong presumption that his counsel's decision

fell within the wide range of reasonable professional assistance and that his actions

could be considered sound trial strategy.            See Strickland, 466 U.S. at 689; Jaynes, 216

S.W.3d at 851. We overrule this second sub-issue.

                                III. CAUSE NUMBER 13-12-00439-CR

         In this cause, Sosa was convicted of the murder of Resendez, the man who

allegedly killed Aguilar.         See TEX. PENAL CODE ANN. § 19.02.                  Sosa received a

forty-year sentence for this conviction.

         Here, Sosa asserts that there was insufficient evidence to prove that he was guilty

of the murder of Resendez.            Based on the record, we disagree.            Marroquin testified

that Resendez admitted to murdering Aguilar and was upset when Sosa failed to pay him

the $20,000 promised for the murder.8 Marroquin also testified that Sosa confessed to

wanting to “get rid of” Resendez because Sosa feared that Resendez would talk about

Aguilar’s murder.          Sosa’s statement to the police, while again underplaying his

involvement, essentially confirmed the facts of how Resendez was murdered and buried

in Sosa’s chicken coop.

         Sosa points out, and we acknowledge, that Marroquin entered into a plea

agreement to plead guilty to murder instead of capital murder in exchange for testifying

at trial.    He suggests that Marroquin, therefore, had an incentive to assist the State’s

         8   We note that Sosa did not raise the issue of using accomplice testimony corroboration in this
cause.

                                                    22
case against Sosa.      However, the jury is the exclusive judge of the credibility of

witnesses and of the weight to be given to their testimony.     Anderson, 322 S.W.3d at

405; Lancon, 253 S.W.3d at 707.        Although the jury was advised of Marroquin’s plea

agreement, it appears that the jury still believed Marroquin when he testified that Sosa

ordered Resendez’s death.        We will not substitute our judgment for that of the

factfinder.   Anderson, 322 S.W.3d at 405. We overrule this issue.

                           IV. CAUSE NUMBER 13-12-00155-CR

       In this cause, Sosa was convicted of the offense of possession of marihuana in an

amount of 2,000 pounds or less, but more than 50 pounds.       See TEX. HEALTH & SAFETY

CODE ANN. § 481.121. He received a ten year prison sentence for this conviction. He

appeals this conviction by three issues:      (1) the use of a drug-sniffing dog was a

violation of his Fourth Amendment rights; (2) he did not receive a proper Miranda

warning; and (3) he received ineffective assistance of counsel.

A.     Use of a Drug-Sniffing Dog

       By his first issue, Sosa argues that the use of a drug-sniffing dog while officers

executed the felony arrest warrant was a violation of his Fourth Amendment rights.

Sosa cites the recent U.S. Supreme Court case, Florida v. Jardines, in support of his

argument.     133 S. Ct. 1409 (2013) (holding that the use of a trained narcotics-detecting

canine at a residential curtilage requires a search warrant, absent consent).    However,

as the State correctly points out, Sosa failed to preserve this alleged issue.   Although

the record shows that Sosa filed a motion to suppress the fruits of the search at his

residence and not allow “any tangible evidence seized in connection with this case,” the

motion to suppress was later withdrawn.     Further, Sosa failed to object to the admission


                                            23
of the evidence at the time of trial.      See TEX. R. APP. P. 33.1. Therefore, this issue is

unpreserved for our review.9

B.     Failure to Issue a Proper Miranda Warning

       By his second issue, Sosa argues that he did not receive Miranda warnings prior

to telling Deputy Cavazos that he was aware of drugs being in his home and that there

were more in the bathroom.         However, again, Sosa failed to preserve this issue by not

objecting to the admission of this statement at trial.        See TEX. R. APP. P. 33.1.       Also, we

note that even though Sosa’s counsel filed a “Jackson v. Denno Motion for Hearing on

the Voluntariness of Any Admission or Confession Whether Written,” there is no

indication in the record that his attorney ever set this motion for hearing or received an

order for it.   Furthermore, the error, if any, in the admission of Sosa’s statement was

minimized when the trial court gave the following instructions to the jury:

       In this case, if you find from the evidence, or if you have reasonable doubt
       thereof, that prior to the time the defendant gave the alleged statement or
       confession to Officer Robert Cavazos, if he did give it, the said Officer
       Robert Cavazos did not warn defendant in the respects enumerated above
       [which set forth the Miranda requirements], or as to any one of such
       requirements, then you will wholly disregard the alleged confession or
       statement and not consider it for any purpose.

       For all of these reasons, we overrule this issue.

C.     Ineffective Assistance of Counsel

       In his final issue, Sosa argues that his trial counsel failed to pursue appropriate

motions to suppress evidence that the State used to convict Sosa. Sosa admits that “in

trial, counsel did object to portions of the incriminating evidence against appellant”;


        9 This Fourth Amendment argument is also problematic because there is testimonial evidence

that Sosa consented to the search of his home. See Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim.
App. 2010). However, we need not delve into this analysis as the issue was not preserved for our review.


                                                  24
however, he argues that those objections “did not address the relevant issue at hand:

the illegality of the evidence used against the appellant.” Specifically, Sosa contends

that the statements Sosa made, along with the evidence allegedly found through the use

of the drug-sniffing dog, should have been excluded.      First, because Sosa’s counsel did

object to this evidence, this argument is waived.     Second, the record is silent as to why

Sosa’s counsel filed the motion to suppress but later withdrew it.     In light of this, Sosa

has failed to overcome the strong presumption that his counsel's decision fell within the

wide range of reasonable professional assistance.        See Strickland, 466 U.S. at 689;

Jaynes, 216 S.W.3d at 851.

       Sosa also argues that the attorney should not have allowed the trial judge to

assess punishment against him and instead should have allowed the jury to do so.

Again, though, the record is silent on this matter.    Sosa has not met his burden on this

argument, either, of showing how it constituted deficient performance or how it

prejudiced the ultimate outcome of his case. Davis, 278 S.W.3d at 352. We overrule

this issue.

                                     V. CONCLUSION

       Having overruled all of Sosa’s issues, 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
20th day of March, 2014.

                                            25
