                            NUMBER 13-10-00505-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

DANIEL CANO HERNANDEZ,                                                     Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 103rd District Court
                        of Cameron County, Texas.


                       MEMORANDUM OPINION
                Before Justices Benavides, Vela, and Perkes
                Memorandum Opinion by Justice Benavides
      Appellant, Daniel Cano Hernandez, appeals his jury conviction for possession of

marihuana (fifty pounds or less, but more than five pounds), a third-degree felony, which

was enhanced to a second-degree felony based on an enhancement pleading of true.

See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West 2010); TEX. PENAL CODE ANN. §

12.42(a) (West 2011). The jury sentenced appellant to eighteen years’ imprisonment in
the Institutional Division of the Texas Department of Criminal Justice.                  By four issues, 1

Hernandez argues that:

        (1) the non-accomplice evidence insufficiently corroborated the accomplice
            witness testimony and does not tend to connect Hernandez with the crime;

        (2) trial counsel’s failure to request an accomplice witness instruction amounted to
            ineffective assistance of counsel;

        (3) the State made improper comments regarding Hernandez’s presumption of
            innocence as well as his right to remain silent during trial; and

        (4) the evidence is legally insufficient to support a conviction because the State
            failed to prove the weight of the marihuana beyond a reasonable doubt.

We affirm.

                                        I.      BACKGROUND

        Cameron County Sheriff investigators Omar Lerma and Carlos Martinez were

conducting routine interdiction2 duties the afternoon of July 21, 2009 at the Los Ebanos

Post Office in Brownsville, Texas, when two individuals caught their eye.                               The

investigators observed Emilio Rios carry a heavily-taped package, wrapped in

brown-paper, into the post office, after he exited a Chevy Malibu bearing North Carolina

license plates driven by Hernandez.           Investigators noticed that after dropping Rios off at

the post office, Hernandez drove off the premises and parked his vehicle at a gas station,

then at a watermill station, both located across the street. Hernandez later returned to

the post office parking lot to wait for Rios.               Curious about the suspicious activity,


        1
            For purposes of clarity, we reorganized Hernandez’s issues on appeal. See TEX. R. APP. P.
44.1.
        2
          “Interdiction duties” were defined by Sheriff’s Investigator Martinez as a type of investigation in
which plain-clothes investigators park at the post office and wait for suspicious-looking individuals who
enter the post office with suspicious packages. Investigators then make contact with the individuals
carrying the suspicious packages and obtain their consent to search the boxes, in an effort to find
contraband.

                                                     2
Martinez, who identified himself as a sheriff’s investigator, approached Hernandez as he

sat in the idling vehicle.     Lerma followed Rios and made contact with him inside the post

office.

          Lerma escorted Rios to the parking lot and began questioning him about the box’s

contents and its ownership.          Similar questions were posed to Hernandez, who denied

knowledge and ownership of the box.              Both Rios and Hernandez denied ownership of

the box, told investigators that the box belonged to the other, and each denied consent to

search it.

          Faced with conflicting stories, the investigators enlisted the assistance of K-9

officer William Jackson’s trained dog, Rex, to sniff the box and determine if it contained

narcotics.      Upon arrival, Rex alerted the investigators that the box contained

contraband.      After Rex’s positive identification, Rios voluntarily gave his verbal and

written consent to search it.        Investigators discovered a layer of spray-foam insulation

which masked six bundles of marihuana wrapped in cellophane and coated with axle

grease.3 Hernandez and Rios were subsequently placed under arrest and taken into

custody.      After their arrest, an inventory was taken of the Chevy Malibu, later

determined to be a rental vehicle procured by Hernandez’s neighbor.                           The vehicle

contained packing materials and receipts indicating the purchase of those materials.

          Hernandez and Rios were indicted together for possession of marihuana (fifty

pounds or less but more than five pounds). Hernandez’s charge was enhanced from a

third-degree felony to a second-degree felony stemming from a 2003 felony conviction of


          3
           Investigators testified that axle grease is rubbed on the cellophane packages in attempts to deter
drug-sniffing dogs.


                                                     3
possession of a controlled substance.             Rios pleaded guilty to the charged offense and

testified against Hernandez during his trial. The jury found Hernandez guilty of the

enhanced offense and sentenced him to eighteen years’ imprisonment. This appeal

ensued.

                              II.     NON-ACCOMPLICE EVIDENCE

       In his first issue, Hernandez contends that the State’s non-accomplice evidence

does not corroborate Rios’s accomplice testimony4 as required by article 38.14 of the

code of criminal procedure.          See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005).

A.     Applicable Law and Standard of Review

       Article 38.14 of the code of criminal procedure provides the following guidance:

       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.

Id. In our review, we “eliminate the accomplice testimony from consideration and then

examine the remaining portions of the record to see if there is any evidence that tends to

connect the accused with the commission of the crime.”                  Solomon v. State, 49 S.W.3d

356, 361 (Tex. Crim. App. 2001); see Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim.

App. 2007). Rather than rational sufficiency, “tendency to connect” is the standard of

review—that is, “there simply needs to be ‘other’ evidence ‘tending to connect’ the

defendant to the offense.”          Castillo, 221 S.W.3d at 691; see Solomon, 49 S.W.3d at

361.   Finally, the non-accomplice evidence does not have to directly link the accused to

the crime, nor by itself establish guilt beyond a reasonable doubt.                   See Castillo, 221

S.W.3d at 691.

       4
           Neither side disputes that Rios was an accomplice as a matter of law in this case.

                                                     4
B.     Analysis

       In this case, we disagree with Hernandez that the non-accomplice evidence does

not corroborate Rios’s testimony or tend to connect him to the offense. Investigators

Lerma and Martinez each testified to observing co-defendant Rios exit the Chevy Malibu

that was driven and possessed by Hernandez, holding the package later determined to

contain bundles of marihuana. While we recognize that the accused’s “mere presence

in the company of the accomplice before, during, and after the commission of the

offense” is insufficient by itself to establish corroboration under article 38.14, other

suspicious circumstances or “even apparently insignificant incriminating circumstances,”

coupled with that fact may be satisfactory.   Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.

Crim. App. 1996).

       Here, the jury was allowed to consider other evidence, such as the investigators’

discovery of packaging materials inside the Chevy Malibu similar to the packaging used

for the box in question.   Also, the State elicited testimony about Hernandez’s behavior

after dropping off Rios at the post office which noted that:    (1) Hernandez left the post

office parking lot to park across the street at the gas station, but never got out of the

vehicle; (2) moved the Chevy Malibu to a nearby watermill station, but, again, never got

out of the vehicle; and (3) returned to the post office parking lot and parked in a reverse

manner.    We conclude that the non-accomplice evidence was sufficient to show a

tendency to connect Hernandez to the offense.         See Dowthitt, 931 S.W.2d at 249;

Castillo, 221 S.W.3d at 691; Solomon, 49 S.W.3d at 361.        Issue one is overruled.




                                              5
                    III.   INEFFECTIVE ASSISTANCE OF COUNSEL

         In his second issue—which, as briefed, was an alternative argument to issue

one— Hernandez asserts that his trial counsel’s failure to request an accomplice witness

instruction in the charge amounted to ineffective assistance of counsel.

A.       Applicable Law and Standard of Review

         To successfully argue that counsel was ineffective, Hernandez must show that (1)

counsel’s performance fell below an objective standard of reasonableness; and (2) but

for counsel’s errors, the result would have been different.            See Strickland v.

Washington, 466 U.S. 668, 669 (1984).         In our review, we must “indulge a strong

presumption that counsel’s conduct falls within the wide-range of reasonable

professional assistance.”    Id.

B.       Analysis

         Here, it is undisputed that Rios was an accomplice as a matter-of-law by virtue of

being Hernandez’s co-indictee and his prior plea of guilty to the charge.    See Smith v.

State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011); Solis v. State, 792 S.W.2d 95, 97

(Tex. Crim. App. 1990) (en banc). Accordingly, when a witness is an accomplice as a

matter-of-law the trial court is under a duty to so instruct the jury.     See Smith, 332

S.W.3d at 439–40; Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998) (en

banc).    Based on the record, we conclude that Hernandez’s trial counsel performed

deficiently for not requesting an accomplice-witness instruction regarding Rios because

“an instruction concerning accomplice witness testimony would have informed the jury

that it could not convict applicant without corroborating evidence which tended to

connect applicant to the commission of the offense, and that evidence merely showing


                                             6
commission of the offense would not be sufficient.” Henson v. State, 915 S.W.2d 186,

197 (Tex. App.—Corpus Christi 1996, no pet.) (holding that trial counsel was deficient

under Strickland for not requesting an accomplice-witness instruction).

       Notwithstanding counsel’s deficient performance, we explained earlier in this

opinion that sufficient non-accomplice evidence was presented to the jury which tended

to connect Hernandez to the crime.         Furthermore, the record does not reveal any

rational basis on which the jury could have disregarded or doubted that non-accomplice

evidence. Consequently, Hernandez did not meet the second prong of Strickland, also

known as the “prejudice” requirement to prove ineffective assistance of counsel.         See

Davis v. State, 278 S.W.3d 346, 353 (Tex. Crim. App. 2009); Gonzalez v. State, 350

S.W.3d 356, 361–62 (Tex. App.—Beaumont 2011, pet. dism’d). Hernandez’s second

issue is overruled.

                          IV.    PROSECUTOR’S COMMENTS

       In his third issue,5 Hernandez asserts that the State made two separate improper

comments to the jury which requires reversal and a new trial.

A.     Standard of Review

       We review error in criminal cases according to the following standard:

       If the appellate record in a criminal case reveals constitutional error that is
       subject to harmless error review, the court of appeals must reverse a
       judgment of conviction or punishment unless the court determines beyond a
       reasonable doubt that the error did not contribute to the conviction or
       punishment.

       Any other error, defect, irregularity, or variance that does not affect
       substantial rights must be disregarded.


       5
        We combined Hernandez’s third and fourth issues as they each alleged improper comments
made by the prosecution. See TEX. R. APP. P. 44.1.

                                              7
TEX. R. APP. P. 44.2. As a pre-requisite to presenting a complaint for appellate review,

the record must show that the error was preserved by: (1) a complaint made to the trial

court by a timely request, objection, or motion that stated the grounds for the ruling sought

with specificity; and (2) the trial court ruled on the request, objection, or motion either

expressly or implicitly. See TEX. R. APP. P. 33.1(a).

B.     Analysis

       1. Presumption of Innocence

       The first comment at issue is illustrated by the following excerpt from voir dire:

       PROSECUTOR:                 Like the judge noted, this is a two-step process.
                                   When we have trial, there is a guilt and
                                   innocence phase, which, if you are chosen as a
                                   juror, you will have to determine whether or not
                                   a defendant is innocent or guilty. If and when
                                   you do find him guilty, you will then go on to
                                   decide what his punishment will be.

       Hernandez contends that this comment was improper and violated his

presumption of innocence.     See TEX. CODE CRIM PROC. ANN. art. 38.03 (West 1979 &

West Supp. 2011).      As a preliminary step, we must determine whether Hernandez

properly preserved error for our review.         See TEX. R. APP. P. 33.1(a).     “When [a

defendant] complains about an improper remark by the prosecutor during voir dire,

appellant must object when the remark is made.”         Espinosa v. State, 194 S.W.3d 703,

708 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Beltran v. State, 99 S.W.3d

807, 811 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)); see also Cruz v. State, 877

S.W.2d 863, 868 (Tex. App.—Beaumont 1994, pet. ref’d) (overruling issue of improper

comment because defendant did not object to the improper comment at the time it was

made during voir dire); Peralez v. State, No. 13-06-376-CR, 2007 WL 2265111, at *5


                                             8
(Tex. App.—Corpus Christi 2007, no pet.) (mem. op.) (not designated for publication).

Here, the record does not reflect that Hernandez complained about this remark.

Accordingly, he did not properly preserve error.         See Espinosa, 194 S.W.3d at 708.

       2. Refusal to Testify

       Hernandez’s second complaint stems from a rebuttal argument made by the

prosecution during its closing argument:

       PROSECUTOR:                   [Defense counsel] brought up an important point.
                                     You know, he doesn’t have a right to testify. You
                                     know, he doesn’t have to bring witnesses, but he can.

       DEFENSE COUNSEL:              Yes, he has a right not to testify, Your Honor.

       PROSECUTOR:                   I just said that.

       THE COURT:                    No, I think—

       PROSECUTOR:                   He doesn’t have

       THE COURT:                    He has a right to testify; he also has a right not to
                                     testify; okay?

       PROSECUTOR:                   Okay.        That’s correct. I’m sorry.

       THE COURT:                    All right.     Go ahead.

       Hernandez argues that the prosecutor’s misstatement of the law was an attempt

to bolster the State’s case and impeach Hernandez by telling the jury that he did not

want to present a defense.     See Griffin v. California, 380 U.S. 609, 611–14 (1965);

Doyle v. Ohio, 426 U.S. 610, 615–20 (1976). We disagree.                  Griffin and Doyle are

distinguishable from the present set of facts.              First, in Griffin, the prosecution’s

comments about the defendant’s right not to testify as well as the trial court’s instruction

to the jury to evaluate that silence, was interpreted as an unconstitutional offer of

evidence for the jury to consider.    See Griffin, 380 U.S. at 612–15. Second, the Doyle

                                                   9
Court    held    that   a   prosecutor’s   attempt   to   impeach    the   defendant     during

cross-examination through his post-arrest silence was unconstitutional.        See Doyle, 426

U.S. at 613–20. The constitutional protections afforded by Griffin and Doyle are not

analogous to this case.

        Here, the prosecutor misstated the law during rebuttal, defense counsel brought

the error to the trial court’s attention, and the trial court implicitly sustained the complaint

and corrected the misstatement. The State was not attempting to offer evidence of

Hernandez’s right to silence, nor was the State attempting to impeach Hernandez during

cross-examination about his post-arrest silence.          See Griffin, 380 U.S. at 612–15;

Doyle, 426 U.S. at 613–20.           However, assuming without deciding that the State’s

misstatement was error, it was nonetheless not preserved for review.              A defendant

“may not complain because he received all of the relief he requested, and no adverse

ruling.” Caron v. State, 162 S.W.3d 614, 617 (Tex. App.—Houston [14th Dist.] 2005, no

pet.) Failure to request further relief after an objection is sustained preserves nothing

for review.     See Henderson v. State, 617 S.W.2d 697, 698 (Tex. Crim. App. 1981);

Caron, 162 S.W.3d at 617.       Here, Hernandez’s objection to the State’s misstatement of

the law ended when the trial court sustained it and corrected the prosecutor.

Hernandez’s third issue is overruled.

                                V.      LEGAL SUFFICIENCY

        In his fourth issue, Hernandez challenges the legal sufficiency of the State’s

evidence on the ground that the State failed to prove the weight of the marihuana as

charged in the indictment.




                                              10
A.        Standard of Review

          We review challenges to the sufficiency of evidence using the Jackson v. Virginia

standard.      See 443 U.S. 307, 318–19.          Having concluded that “no meaningful

distinction” exists between a factual-sufficiency and legal-sufficiency standard, the court

of criminal appeals held that 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, 893–903 (Tex. Crim. App. 2010) (plurality op.).

Accordingly, we inquire whether “[c]onsidering all of the evidence in the light most

favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable

doubt?”      Id. at 899.

          “[S]ufficiency of the evidence should be measured by the elements of the offense

as defined by the hypothetically correct jury charge for the case.”      Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc).        Such a charge would be 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.; Trevino v. State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006, pet.

ref’d).    Finally, in our review we are to “defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the

weight given to their testimony.”    Brooks, 323 S.W.3d at 899.




                                             11
B.      Analysis

        A person commits the crime of possession of marihuana (fifty pounds or less, but

more than five pounds) if he:

        (1) knowingly or intentionally possesses;

        (2) a usable quantity of marihuana;

        (3) in the amount of fifty pounds or less, but more than five pounds.

See TEX. HEALTH & SAFETY CODE ANN. § 481.121.

        Hernandez solely challenged the State’s evidence regarding the weight of the

seized marihuana through a motion for directed verdict.6 Hernandez argued that the

State did not meet its burden beyond a reasonable doubt because they weighed the

contraband with the cellophane and some spray foam still included.                                 The State’s

witnesses testified that the marihuana, including the cellophane and some remnant

spray foam, weighed a total of fourteen pounds. The State introduced the marihuana

bundles to the jurors, who were able to observe it as they were at the time of weigh-in.

        The trial court instructed the jury in its charge that before convicting Hernandez,

they had to believe “from the evidence beyond a reasonable doubt” that he possessed

marihuana “50 pounds or less but more than 5 pounds.”                               The trial court further

instructed that “if you have a reasonable doubt thereof, you will acquit the defendant and

say by your verdict ‘Not Guilty.’”

        Because extra items were weighed by the State rather than the raw marihuana

crop, Hernandez argued to the jury that the weight of the marihuana was put into


        6
           “[A] motion for directed verdict is really a challenge to the sufficiency of the evidence. . . .” Garcia
v. State, 827 S.W.2d 25, 26 (Tex. App.—Corpus Christi 1992, no pet.).


                                                       12
question because it was weighed with the other items and could possibly weigh less than

the five-pound statutory threshold for the offense. The jury apparently rejected this

argument by its verdict.   See Marroquin v. State, 746 S.W.2d 747, 749–50 (Tex. Crim.

App. 1988) (en banc).      It is well-established that “the jury is the sole judge of the

witnesses’ credibility and the weight given to their testimony.”    Brooks, 323 S.W.3d at

899. In this case, the jury appeared to be persuaded by Lerma’s testimony that the

wrapping and spray foam would “slightly increase” the weight of the drugs but “would not

make a big difference” to affect the statutorily required weight element of the offense.   In

viewing the evidence in a light favorable to the verdict, we conclude that the jury was

rationally justified in finding that the State carried its burden beyond a reasonable doubt

regarding the weight element of the charged offense.      See id.; Marroquin, 746 S.W.2d

at 750.   Hernandez’s fourth issue is overruled.

                                  VI.    CONCLUSION

       We affirm the trial court’s judgment.



                                                        __________________________
                                                        GINA M. BENAVIDES,
                                                        Justice

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

Delivered and filed the
31st day of May, 2012.




                                               13
