                                                                                                            ACCEPTED
                                                                                                       13-14-00123-CR
                                                                                       THIRTEENTH COURT OF APPEALS
                                                                                              CORPUS CHRISTI, TEXAS
                                                                                                  9/18/2015 9:58:12 AM
                                                                                                      Dorian E. Ramirez
                                                                                                                 CLERK

                                Cause No. 13-14-00123-CR

                       IN THE COURT OF APPEALS        FILED IN
                                              13th COURT OF APPEALS
            FOR THE THIRTEENTH SUPREME JUDICIAL     DISTRICT
                                           CORPUS CHRISTI/EDINBURG, TEXAS
                 AT CORPUS CHRISTI-EDINBURG, TEXAS
                                               9/18/2015 9:58:12 AM
                                                                      DORIAN E. RAMIREZ
                                                                           Clerk
----------------------------------------------------------------------------------------------------
                                    RAUL LARA, APPELLANT
                                                 v.
                         THE STATE OF TEXAS, APPELLEE
----------------------------------------------------------------------------------------------------

              APPEAL OF TRIAL COURT CAUSE NO. CR-4394-12-E
                          FROM THE 275TH DISTRICT COURT
                               HIDALGO COUNTY, TEXAS
                           The Honorable Juan Partida, Presiding
----------------------------------------------------------------------------------------------------

                  BRIEF OF THE STATE OF TEXAS/APPELLEE

----------------------------------------------------------------------------------------------------
                             Criminal District Attorney
                             Hidalgo County, Texas

                             Glenn W. Devino
                             State Bar No. 24012525
                             Lead Counsel for Appellee

                             Office of the Criminal District Attorney
                             100 N. Closner Blvd.
                             Edinburg TX 78539
                             Telephone 956-318-2300 ext. 808
                             Facsimile 956-380-0407

                             FOR THE STATE OF TEXAS, APPELLEE
                  IDENTIFICATION OF PARTIES AND COUNSEL
   Appellee certifies that the following is a complete list of the parties, attorneys, and
   all other interested persons regarding this matter:

1.) The Appellant is:
   Raul Lara

2.) Appellant was represented in the trial court by:
   Judith Pena-Morales, Esq.      120 S. 12th Ave., Edinburg TX 78539
   E. Omar Maldonado, Esq. 1      100 N. Closner, Edinburg TX 78539
   O. Rene Flores, Esq.           1308 S. 10th St., Edinburg TX 78539

3.) Appellant is represented on appeal by:
   Rolando Garza, Esq.            310 W. University Dr., Edinburg TX 78539

4.) The Appellee is:
   The State of Texas
   by and through Ricardo Rodriguez, Jr., Hidalgo County Criminal District Attorney

5.) Appellee was represented in the trial court by:
   Rene Guerra, Criminal District Attorney in and for Hidalgo County, Texas 2
   100 N. Closner, 3rd floor, Edinburg TX 78539
   by his Assistant Criminal District Attorneys Linda Castillo, Roberto ‘Bobby’ Lopez,
Jr. and Ashley Reeve

6.) Appellee is represented on appeal by:
   Ricardo Rodriguez, Jr., Criminal District Attorney in and for Hidalgo County, Texas
   100 N. Closner, 3rd floor, Edinburg TX 78539
   by his Assistant Criminal District Attorney Glenn W. Devino


   1
     E. Omar Maldonado, Esq., now sits as Judge Presiding, County Court at Law 8, Hidalgo
   County, Texas; his motion to be permitted to withdraw as counsel for Appellant was granted by
   written order before trial on the merits or any proceedings pertinent to this appeal. O. Rene
   Flores, Esq. was granted leave to substitute for E. Omar Maldonado as co-counsel with Ms.
   Morales, who represented Appellant throughout the course of proceedings in the trial court.
   CR169, CR171, CR249.
   2
    The term of office of Rene Guerra as Criminal District Attorney in and for Hidalgo County,
   Texas, ended after trial of this cause was concluded but during the pendency of this appeal.
                                                2
                    NOTES AS TO THE FORM OF CITATION


         A.) Citation to the Clerk’s Record will be to page number, e.g. CR 47
refers to Page 47 of the Clerk’s Record. Citation to a Supplemental Clerk’s Record
will be to volume and page number, e.g. 1SCR5 refers to Page 5 of Supplemental
Clerk’s Record, volume 1.
         B.) Citation to testimony in the Reporter’s Record will be to volume and
page number, e.g. 3RR56 refer to page 56 of volume 3 of the Reporter’s Record.
         Note: The numbering of the various volumes of the Reporter’s Record is in
some respects improper:
         a.) A reference to 17RR herein is a reference to the transcript
             memorializing proceedings conducted December 6, 2013; a reference
             to 1Supp. RR herein is a reference to the transcript memorializing
             proceedings conducted December 9, 2013.3
         b.) A reference to 25RR herein is a reference to the transcript
             memorializing proceedings conducted December 18, 2013, although
             the copy of the transcript memorializing these proceedings, as provided
             by the District Clerk of Hidalgo County, is labeled ‘volume 26 of 29’.
         c.) A reference to 26RR herein is a reference to the transcript
             memorializing proceedings conducted December 19, 2013.
         d.) A reference to Supp. RR1, followed by an exhibit number, is a reference
             to the Supplemental Reporters Record containing exhibits admitted in
             suppression hearing.



3
  Both of these referenced volumes are numbered ‘7 of 29’; staff of the Court has advised that the
latter volume will be and is redesignated so as to avoid confusion.

                                                3
                                    TABLE OF CONTENTS
Title Page…………………………………………………………………………...1

Identification of Parties and Counsel …...………………………………………….2

Note as to the Form of Citation……………………………………..……………...3

Table of Contents…………………………………………………………………...4

Index of Authorities………………………………………………………………...5

Statement of the Case………………………………………………………………7

Issues Presented…………………………………………………………………….9

Statement of Facts………………………………………………………………...10

Summary of Arguments……………………………………………………….......36

Note as to Oral Argument………………………………………………………....37

Arguments and Authorities………………………………………………………..38

Issue One:          The trial court did not reversibly err in putting to the jury the

determination of whether two particular witnesses were accomplices…...……….38

Issue Two:          Appellant is not entitled to reversal on his claim of error in the

admission of written custodial statements...............................................................45

Conclusion………………………………………………………………………...50

Prayer……………………………………………………………………………...50

Certificate of Compliance…………………………………………………………50

Certificate of Service……………………………………………………………...51


                                                    4
                        INDEX OF AUTHORITIES

Cases

Alvarado v. State, 912 S.W.2d 199 (Tex. Crim. App. 1995)……………………..46

Brown v. State, 960 S.W.2d 265 (Tex. App.—Corpus Christi 1997, no pet.)…....48

Castillo v. State, 221 S.W.3d 689 (Tex. Crim. App. 2007)………………….44fn33

Cocke v. State, 201 S.W.3d 744 (Tex. Crim. App. 2006, cert. denied)…………..38

Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996, cert. denied)………..48

Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007, cert. denied)………….38

Ex parte Bowers, 886 S.W.2d 346 (Tex. App.—Houston 1994, writ dism’d)……48

Gomez v. State, 1999 Tex. App. Lexis 2918 at 3 (Tex. App.—Dallas 1999, no

        pet.)(memorandum opinion—not designated for publication)…………...49

Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996, cert. denied)………..47

Herron v. State, 86 S.W.3d 621 (Tex. Crim. App. 2002)……………………..38, 43

Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996, cert. denied)…………...47

Kunkle v. State, 771 S.W.2d 435 (Tex. Crim. App. 1986, cert. denied)………….40

Matthews v. State, 2013 Tex. App. Lexis 9251 (Tex. App.—Corpus Christi

        2013, pet. ref’d)(memorandum opinion—not designated for

        publication)………………………………………………………….44fn34

McNac v. State, 215 S.W.3d 420 (Tex. Crim. App. 2007)……………………….48

Moulton v. State, 508 S.W.2d 833, 836 (Tex. Crim. App. 1974)………………...39

                                      5
Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994)………………………48

Romero v. State, 716 S.W.2d 519 (Tex. Crim. App. 1986, cert. denied)……44fn33

Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011)……………………..39, 41

Solis v. State, 792 S.W.2d 95 (Tex. Crim. App. 1990)…………………………...42

Taylor v. State, 2013 Tex. App. Lexis 10129 (Tex. App.—Dallas 2013

        (memorandum opinion—not designated for publication)…………...44fn34

Williams v. State, 974 S.W.2d 324 (Tex. App.—San Antonio 1994, pet. ref’d,

        cert. denied)………………………………………………………………42

Worthen v. State, 59 S.W.3d 817 (Tex. App. Austin 2001, no pet.)…………44fn34

Zuliani v. State, 903 S.W.2 812 (Tex, App.—Austin 1995, pet. ref’d)…………...47




Statutes

Tex. Code Crim. P. Art. 38.14……………………………………………….44fn33

Tex. Code Crim. P. Art. 38.22…………………………………………………….45



Rules

Tex. R. App. P. 44.2………………………………………………………………48




                                       6
                          STATEMENT OF THE CASE

      Appellant was charged by Indictment with Murder. CR1.

      Appellant filed motions to suppress evidence including Appellant’s written

and recorded statements of accused; and a memorandum in support thereof. CR78,

CR106, CR116, CR223. The trial court conducted evidentiary hearing thereon. RR

vol. 17.

      Appellant filed a Motion for Identification Hearing Out of Presence of Jury.

CR101. The trial court, by written Order, granted Appellant’s prayer for hearing.

CR183. The trial court conducted evidentiary hearing thereon. Supp RR vol. 1.

      Appellant filed his Defendant Raul Trevino Lara, Jr.’s Specific Brady,

Whitley and Bagley Request for Pre-Trial Determination of Codefendants’

Intention to Invoke Their 5th Amendment Right to Remain Silent and for Hearing.

CR156. All codefendants declined, in pretrial conference, to at that point testify as

to or give any indication of their intent regarding whether they would testify

against Appellant in his trial. RR vol. 11.

      The trial court rendered an Order Granting Defendant’s Motion for

Discovery/Disclosure of Any Agreements Between the State of Texas and Any

Witness That Court Conceivably Influence Testimony. CR182.

      Appellant was convicted of Murder as charged. CR221, 25RR5. Appellant

submitted the issue of punishment to the jury, which rendered verdict sentencing

                                              7
Appellant to 55 years’ imprisonment. CR221, CR266, 26RR137. The trial court

rendered Judgment in accordance with the verdicts of the jury. CR267. Appellant

did not file a Motion for New Trial. Appellant timely filed Notice of Appeal.

CR279.




                                      8
                                ISSUES PRESENTED

Issue One:

The trial court did not reversibly err in putting to the jury the determination of

whether two particular witnesses were accomplices.



Issue Two:

Appellant is not entitled to reversal on his claim of error in the admission of

written custodial statements.




                                        9
                                 STATEMENT OF FACTS4

      A. Suppression

The trial court conducted a suppression hearing on a date before commencement of

trial. RR vol. 17. Appellant was questioned on two separate occasions by different

investigators.5 17RR11. Both interviews were recorded. 17RR12, 40.



                 1. Circumstances of the first interview

Appellant was apprised as to his Miranda warnings before the first interview and

acknowledged his understanding of them. 17RR13, 27. Appellant elected to waive

these rights and speak with officers; this waiver is memorialized in a written

document and on the written statement of Appellant arising from this interview.

17RR13-14, 20, 23, 36; Supp. RR State’s Exhibits 1-2; 28RR State’s Exhibits 83-

84. An interviewing investigator testified that there was no indication that

Appellant’s election to waive his rights was anything other than knowing and

intelligent. 17RR28. Appellant at no point indicated any lack of understanding of

or confusion about the rights as set out on the waiver form, and never requested

clarification thereof. 17RR28, 30, 33. Appellant at no point invoked the right to

counsel. 17RR28. This statement was not the product of threats or promises.
4
  As to physical objects admitted into evidence, the bound volumes of the Reporter’s Record
contain photographs of the objects rather than the objects themselves.
5
    Appellant was taken into custody before the first interview. 17RR11-12, 19-20.

                                                 10
17RR18. Investigators did, in the course of the interview process, convey to

Appellant that they had already talked with other witnesses and, because others had

implicated him, ‘you might as well tell us what happened.’ 17RR35. The

statement, as reduced to writing, is a brief synopsis of the facts relayed by

Appellant during this interview rather than a verbatim memorialization of his

recitations. 17RR25.



The recording of this first interview was admitted for purposes of suppression

hearing. 13RR16-18; Supp. RR State’s Exhibit 3. The recording reflects the

issuance of required warnings, and further reflects the acknowledgement by

Appellant that he understood his rights, that he had read the written statement, that

he willingly waived his rights, and that the statement did not result from any

promises, threats, pressure or coercion. 17RR31-32.



             2. Circumstances of the second interview

In light of additional information gained from other witnesses, authorities

conducted a second interview of Appellant. 17RR38-39. As with the first

interrogation, Appellant acknowledged and waived his rights vis-à-vis questioning

and executed a written statement arising in this second interview. 17RR39-41, 48;

Supp. RR State’s Exhibits 4-5; 28RR State’s Exhibits 85-86. Appellant’s waivers

                                         11
appeared to the investigator as having been made knowingly, intelligently and

voluntarily. 17RR41-42, 57. On cross-examination, the investigator acknowledged

that, after advising Appellant of his rights, Appellant affixed his initials to the

waiver form only upon the investigator’s saying to Appellant something akin to,

‘ok, then…I’ll need your initials here.’ 17RR65. The statement itself set out that it

was made by Appellant knowingly and voluntarily. 17RR76; Supp. RR State’s

Exhibit 5; 28RR State’s Exhibit 86. Appellant did not appear in any way confused

as to his rights, and did not request further explanation of them. 17RR42. He did

not invoke his rights at any point in the interview process. 17RR43. Although

execution by Appellant of the statement itself was witnessed by police department

personnel other than the investigator, the execution by Appellant of the preliminary

waiver form was not. 17RR50-52. The written statement is a summary of facts

conveyed by Appellant during this interrogation rather than a verbatim

transcription of the interchange between Appellant and the investigator. 17RR53-

54. Appellant was offered the opportunity to draft the written statement himself but

elected to have the investigator do so. 17RR55. After preparation of a draft

statement, Appellant was given the opportunity to review it, change it, to add to it,

and to delete from it before signing but did not indicate need of, request or demand

any such alterations. 17RR55-56, 62.




                                         12
The investigator who conducted the second interview conceded in cross-

examination that he would have elected not to employ certain approaches to

questioning used in Appellant’s first interrogation. 17RR70-71. In response to the

question from Appellant’s counsel, “And you wouldn’t have done it [taken the first

investigator’s approach] because that would have been coercive?”, the officer

responded, “No. I have different techniques.” 17RR71.



Whereas the first interview was recorded only in an audio format, the second was

recorded on video with accompanying audio recording. 17RR40; Supp. RR State’s

Exhibit 6. This recording memorializes the issuance of required warnings; in fact,

depicted thereon is Appellant reading a form associated with his waiver of rights.

17RR40, 59, 72-73. On the recording, Appellant recites that he was willing to

disclose facts and answer questions and did not wish the presence of an attorney,

acknowledged understanding of his rights, and stated that no promises to or

pressure against him were made or employed to persuade him to make the

statement. 17RR73. The following colloquy sheds further light on Appellant’s

level of understanding:

            Question (from Appellant’s trial counsel):   Okay.   So    once
      again, that begs a question. What did you refer to when you said that
      he apparently understood his rights? You don’t even know if he can
      read. You don’t even know if he can write.

                                       13
            Answer (from the investigator): I know he can read because he
      read the waiver.
            Question. Right. And, so, again, lastly, your presumption that
      Mr. Lara understood his Miranda warnings well enough to have
      knowingly, intelligently and voluntarily waive them is based solely on
      his reading of the waiver language in (the waiver form and statement
      admitted into evidence)”?
            Answer:      No, sir. On the video it actually shows him
      agreeing and nodding his head that he understood his rights.
      17RR75-76



            3. Arguments and ruling

On the date of the suppression hearing, Appellant filed his Memorandum of

Defendant Lara’s Motion to Suppress Written Statement of Accused. CR223. In

light of the lack of opportunity for the State and the Court to have read the said

document before argument and ruling, Appellant suggested that the Court entertain

argument of the parties and then take the matter under advisement rather than

ruling immediately. 17RR78.



One line of argument advanced by Appellant posited that, as the initial waiver

form admitted as Supp. RR State’s Exhibit 1, 4 / 28RR State’s Exhibit 83, 85 and

the statements of accused admitted as Supp. RR State’s Exhibit 2, 5 / 28RR State’s

Exhibit 84, 86 were separate documents, the said statement allegedly did not meet
                                        14
the requirement set out in Tex. Code Crim. P. Art. 38.22 sec. 2(b) that it was not in

fact shown on the face of the statement that the accused, prior to and during the

making of the statement, knowingly, intelligently and voluntarily waived his rights.

17RR79-80. Connected with that reasoning is the further claim of Appellant

alleging the statement to be in admissible on grounds that there is nowhere in the

statement or on the recording any express question as to whether Appellant, as the

accused, wished to waive his rights. 17RR74, 83. Appellant also contended that the

first statement was the product of coercion. 17RR84. Appellant also contended that

his claimed lack of formal education rendered him incapable of making a knowing,

intelligent and voluntary waiver. 17RR83.



The prosecutor responded that review of the video recording and documents

conclusively established that Appellant did in fact adequately comprehended his

rights and made a valid waiver thereof; and that the waiver document and the

statement established that all required cautions were issued. 17RR86.                    As to

Appellant’s level of intellectual understanding, the prosecutor made the following

observations:

       The mere fact that even if you were to assume that this Defendant
       cannot read6,he did understand what was going on, he did understand

6
 Which assumption is directly contradicted by the video itself, which portrays Appellant reading
certain documents albeit with slight difficulty.
                                              15
      questions posed to him. He did understand those questions because he
      provided intelligent answers to those questions. Not only the
      warnings, not only the waivers, but the actual questions about the
      offense itself. He is intelligent enough to understand what these words
      mean. He is intelligent enough to understand that this is a waiver. To
      know that this is a waiver. To voluntarily make this waiver of those
      rights, both at the beginning of the interview, and through the
      interview, and to the end of the interview…If you listen to the entire
      interview, not just the portion in isolation of the warnings, you begin
      to understand the level of intelligence of this defendant.
      17RR92-93


Appellant, in contrast, took the position that “[t]he voluntariness has to be heard in

a vacuum...”. 17RR102.



Both State and defense stipulated that all arguments as to the admissibility of the

waiver, statement, and recording connected with the initial interview would apply

equally as to the admissibility of documents and recording of the subsequent

interrogation, with the defense making a further and more particularized argument

as relates to the waiver form associated with the second statement. 17RR96. As to

the recordings, Appellant raised further complaint that “both of these oral

statements are rife with inadmissible evidence, gang affiliation of Mr. Lara, rife

with prior convictions of Mr. Lara, rife with Mr. Lara’s previous trip to the

                                         16
penitentiary” in addition to segments involving information from codefendants

who could assert the 5th Amendment right not to testify. 17RR98-100. The

prosecutor stipulated as to the impropriety of playing the recordings in their

entirety before the jury and agreed to take measures to ensure that portions to

which the jury should not be exposed would not be played in the jury’s presence.

17RR99-100; 1Supp. RR12. As to the mechanics of how to accomplish the task of

allowing review by the jury of only portions of the recordings held to be proper,

Appellant’s attorney made the following remarks:

      The understanding that I had from the State on Friday when we were
      here at that suppression hearing was, in fact, that the video and the
      audio could not be enhanced to be redacted as the Court has ordered,
      which only leaves me with one conclusion and that is that counsel will
      be pausing and playing and pausing and playing when ultimately
      published to the jury during the trial. Our objection is that those
      portions that are being redacted for purposes of being published to the
      jury are being admitted into evidence. In other words, once the jury
      retires to deliberate, they are entitled to review this evidence. These
      audios and videos are being admitted without actually being redacted
      as the Court is ordering.
      1Supp. RR14.
The prosecution suggested that this potential issue could be avoided by, in the

event the jury asked to review the recordings while deliberating the case, returning

the jury to the courtroom and playing the proper portions rather than sending the

                                        17
exhibits themselves into the jury room for consideration. 1Supp. RR15. This issue

was discussed again, during trial but outside the presence of the jury. 20RR87-88.



At the conclusion of the evidentiary hearing, the trial court advised that the matter

would be taken under advisement for review of memoranda and authorities.

17RR94. The trial court subsequently orally denied the suppression motions as to

both written statements and both electronic recordings. 1Supp. RR5-7. The trial

court was aware of the requirement for making and filing findings, conclusions and

an order regarding the admissibility of the challenged statements; and Appellant

made a specific and express request therefor. 17RR97; 1Supp. RR7.



The defense objected to presentation of the recordings to the jury without the

preparation and submission of a transcript of these interviews. 1Supp. RR 13.



   B. Agreements for testimony

Lucinda Tijerina and Julissa Tijerina, both of whom were juveniles at the time of

the offense, were taken into custody and detained in connection with the shooting.

22RR79, 112. Neither was subject of a petition alleging delinquent conduct in

connection with this matter.




                                         18
The following colloquy transpired during a pre-trial conference:

              (trial counsel for Appellant):      There has been, for the record
       as I understand, a ‘reveal the deal’ motion7, which has already been
       urged and granted by the Court. At best we would like the record once
       again to reflect today by way of Mr. Lopez (referring to prosecutor
       Roberto ‘Bobby’ Lopez, Jr.), that of the codefendants who have been
       arrested, charged, indicted and now are facing trial in this case, that
       there is no agreement with any of them to testify against Mr. Lara.
              (the prosecutor):     Judge, there is no agreement in relation to
       any of the codefendants to testify against Mr. Lara. We don’t
       anticipate any agreements being reached. And we don’t anticipate any
       codefendants being called to testify.
              (trial counsel for Appellant):      And, to supplement that, Your
       Honor, we also understand at that (sic) there [were] two juveniles
       arrested in this case, and charged originally. However, those
       juveniles’ cases were later disposed by way of dismissal. And so,
       although they are no longer codefendants, we would once again ask
       the Court to reflect by way of Mr. Lopez that no deals have been
       made as it relates to those particular witnesses.
              (the prosecutor):     Judge, I don’t believe any deals were made
       as to those particular witnesses. However, they are dealt with [by]
       separate prosecutors in the juvenile division. I can double check.




7
   This by all indications is a reference to Appellant’s Motion to Require the State to Reveal
Agreements Entered Into and Between the State and Its Witnesses, in the record at CR62. The
trial court rendered an order granting this motion, which order is in the record at CR182.

                                             19
      Those particular defendants, I believe, were dismissed before these
      cases were brought before us, Your Honor.
      14RR20-21



In the course of trial but outside the presence of the jury, the prosecution advised

the Court that Lucinda Tijerina had accepted an offer of immunity “for anything

that she did that night, or anything associated with this murder investigation…She

will not be prosecuted for those actions for any testimony that she gives related to

those actions…” in exchange for her testimony in Appellant’s trial. 20RR114-115.

This witness was then sworn, whereupon she was examined by her attorney and by

Appellant’s counsel as to the immunity agreement. 20RR117-119. Before she was

summoned to testify before the jury, this witness was admonished as to the

substance of certain limine motions and rulings. 22RR13-15.



The trial court conducted a similar proceeding regarding witness Julissa Tijerina.

22RR25-31. The prosecutor advised the Court and Appellant that, “Judge, just for

purposes of the record, Ms. Tijerina has been offered immunity in exchange for her

testimony regarding the murder…and her alleged involvement in that murder and

any other involvement she may have had in the aftermath…” 22RR26.




                                        20
Both Julissa and Lucinda had given statements to authorities before immunity was

discussed, offered or granted. 22RR82-83, 129.



   C. Trial on the merits / adjudicative facts

      1.) Evidence

A resident of the neighborhood in which the killing occurred testified that, on the

night in question, he heard what sounded to him to be fireworks. 19RR28. He then

discovered that a bullet had struck his home. 19RR28. Authorities were summoned

“so they can come and see the hole.” 19RR31. A spent bullet was recovered from

the structure. 19RR136-137. Another man attested to having heard “what sounded

like really loud Black Cat firecrackers, like a popping sound.” 19RR60.



Witness Stevie Ray Aguilar (‘Aguilar’) testified that, on that night, he, Miguel

Vasquez and Ivan Lopez had decided to go to a restaurant and went to the home of

another friend to determine if this person wanted to join them. “Well, we had just

gotten there, and we just pulled up. And when we pulled up they were having like

sort of a, I guess like a get together in the parking lot (depicted in State’s Exhibit 4,

in volume 27 of the Reporter’s Record). And they were just all hanging there,

drinking, like relaxing. There was no loud music. It wasn’t a party there.” 19RR40.

Aguilar saw ten to twelve people gathered on the lot, most if not all of whom were

                                           21
male. 19RR41. Vehicles in the vicinity included “Steve’s black GTO, Joe B’s 8

truck, and I think it was a maroonish Malibu Impala.” 21RR11.

An argument erupted, with one girl telling two others to leave the gathering.

21RR32-33. At this point the two girls directed to leave, Lucinda Tijerina and

Julissa Tijerina, did in fact depart on foot. 21RR33.



Lucinda Tijerina testified that she went to the location along with several other

girls, including her cousin Julissa, to ‘party.’ 22RR42-43 She and her friends were

directed to leave the gathering because they were underage; moreover, Lucinda

was advised in a telephone conversation with her sister, Yaritza Tijerina “[t]hat her

mom wanted us to go home.” 22RR48, 95. Lucinda asked for a ride but found no

one willing to give her one. 22RR49. As Julissa Tijerina testified, “Well, at first we

asked Crystal to give us a ride, but she said that she didn’t have any gas. So me and

Lucy (referring to Lucinda) just – we started walking.” 22RR96. After leaving the

area on foot, Lucinda’s sister Yaritza Tijerina picked the two girls up at a location

away from the gathering, in Yaritza’s van. 22RR50, 97.




8
    A reference to Joe Brandon. 21RR10.

                                          22
The van, with several occupants, then returned to the location of the gathering and

passes by it. 22RR54-55, 99. The van then makes a ‘u-turn’, returns to the site of

the party, and stops. 22RR55, 99-100.



Aguilar testified that, “When we had gotten there we noticed a van sort of like pass

by us. And at first we didn’t really think anything of it. But it ended up that was –

that the van was there who came and shot up.”9 19RR43. According to other

witnesses, the van was driven by a man when it first past the gathering, but upon

return was driven by Yaritza Tijerina.10 20RR130; 21RR59, 80-81. “When the van

came back, that’s when I noticed that they had opened the side door11, and one of

the individuals in the van called out to one of the individuals in the party in the

parking lot. And when he called them out, all he was saying was something that do

not be messing with his ‘prima’12.” 19RR47; 22RR55. Aguilar testified that this


9
 This van was known to witnesses to belong to Yaritza Tijerina, a relative of Julissa Tijerina and
Lucinda Tijerina. 21RR39, 56-57.
10
   One witness identified the driver in the first pass as ‘El Negro’ (Eric Atwood), who is the
husband of Yaritza Tijerina. 20RR128; 21RR79-80. This witness later attested that she was not
in fact certain of her identification regarding the male driver on the first pass, but “If Yaritza
goes, Negro is always with her.” 21RR80. Lucinda Tijerina and Julissa Tijerina both confirmed
that it was Atwood who was initially driving the van. 22RR51, 97.
11
  The van in question has a passenger-area door on each side that slides rearward. 19RR178;
28RR State’s Exhibits 71-73.
12
  ‘Female cousin.’ New Revised Velazquez Spanish and English Dictionary, Follett Publishing,
1974.

                                               23
remark was directed at ‘J.B.’13 19RR47-48. Juan Pablo Sosa, the person who

replied, testified that, “I responded with, ‘What’s up?’ Because I did not know

what he was talking about.” 21RR219.



As to the actual deadly act, Aguilar testified that:

         After that, I guess the individual in the van got irritated or something,
         and that’s when I noticed he pulled out a pistol…When I saw him pull
         out the pistol, I notice how ‘J.B.’ reacted to it. And I see him take a
         few steps back like he’s going to run. And that’s when I heard the
         man, the individual, just cocked the gun. And when I heard him cock
         the gun, he also threw like a sort of like a little towel or something
         over it.14 And when he did that, that’s when I noticed ‘J.B.’
         run…When they (the other people in the parking lot) noticed him run,
         they started to scatter. And they scattered. That’s when he started
         shooting.
         19RR480-49.




13
  Later testimony established that the person knows as ‘J.B.’ is Joe Brandon. 21RR10. A
possibility exists that Aguilar in fact said ‘J.P., in light of testimony that another witness that it
was ‘J.P.’, Juan Pablo Sosa, who in fact was engaged in discussion with a person in the van.
21RR7, 15.
14
     This towel was recovered from the suspect vehicle and admitted into evidence. 19RR175-177.

                                                 24
Witness Antonio Navarro described the episode as follows: “After they (the person

in the van and J.P.15) exchanged words, he pulled out a gun, asked him one more

time, ‘Are we cool?’ J.P. said, ‘Yes.’ He took a step back, and once he did, he

loaded it.” 21RR18. Lucinda Tijerina and Julissa Tijerina testified that both

Appellant and another occupant opened fire, each with his own weapon. 22RR56-

58, 101. Julissa identified both gunmen in initial statements to authorities as well

as in her trial testimony. 22RR130. Navarro testified that it did not appear that

Miguel Vasquez’ automobile was a specific target. 21RR19. Another witness

testified that gunman was “[S]hooting. Just shooting…Yeah. At the crowd,

everybody.” 21RR169.



In an attempt to avoid being struck by gunfire, Aguilar ‘ducked down’ in the back

seat of Vasquez’ automobile as Vasquez attempted to drive away from the scene.

19RR50. When asked, “Did you feel the car begin to move?”, Aguilar responded,

“No. I just heard when the glass was shattering and the bullets were hitting the

car16…The car starts moving slowly. Like when everything happens, I just hear my

friend Ivan say Miguel was shot and that the car was moving slowly, like if they

had put it in neutral.” 19RR51. The victim’s automobile was struck by multiple


15
     Juan Pablo Sosa. 21RR214.
16
     Another vehicle in the area was also struck by gunfire. 19RR100-103.

                                                25
projectiles, at different angles.17 19RR105; 20RR93-94. Miguel Vasquez, the

driver, was unable to move the vehicle because “he couldn’t press on it (the

accelerator pedal) because he was hit. So the car kept moving on its own. And I

had to stop the car. I had to step on the brakes to stop it.” 19RR52. This was

accomplished when “[h]e (Aguilar) was able to step out of the car, open Miguel’s

driver door, put the step on the break (sic), and put the car in park.” 21RR182.

Aguilar was unable to identify the person who opened fire. 19RR55, 58.



Responding officers transported numerous witnesses to department headquarters

for questioning as to their knowledge of the shooting. 20RR97-100. Officers were

thereafter dispatched to a particular property based on information provided by one

or more witnesses. 20RR101-102. As noted above, a van matching the description

provided by witnesses of the suspect vehicle was discovered at that location.

19RR184-185. Officers made contact with witnesses believed by officers to have

information relevant to the shooting. 19RR183, 186; 20RR103. Julissa Tijerina,
                                                                18, 19
Lucinda Tijerina, and their mother were present.                         19RR186. Julissa and


17
   Rods tracking and illustrating the bullets’ trajectories are depicted in State’s Exhibits 40-50,
within volume 28 of the Reporter’s Record.
18
   The State of Texas will hereinafter on occasion refer to witnesses and involved parties who
have similar last names by their first name only.
19
  “Yaritza Tijerina, Martin Tijerina and Lucinda Tijerina are siblings. Julissa Tijerina is their
cousin.” 20RR107, 201-202; 22RR37, 91. Eric Atwood is Yaritza’s husband. 20RR128;
22RR37. Marissa Tijerina is the mother of Yaritza, Martin and Lucinda. 22RR122.
                                                26
Lucinda were also believed to have been witnesses to the offense. 20 19RR187;

20RR103. Julissa pointed out for investigators the residence of Appellant.

19RR187-188.



Witness Nicholas Zapata saw the face of the shooter and, upon viewing images in

news media depicting Appellant in a post-arrest proceeding, recognized Appellant

as the gunman and so advised authorities. 21RR102-104, 112. As this witness put

it, “But I remember a face. I’m not going to forget a face after they shoot at you.”

21RR114. Other witnesses also identified Appellant as being the person who

opened fire. 21RR144-145, 166, 199-201, 226-227. Juan Pablo Sosa testified as

follows, regarding recognizing Appellant and notifying law enforcement officials:

              Question (from Appellant’s trial counsel):          There’s          been
       testimony that Mr. Lara was in fact arrested October the 8th. Why did
       you wait 22 days to go back to the police department to tell them that
       the shooter –
              Answer (from Juan Pablo Sosa):               Because      I   got     that
       newspaper, and I recognized Mr. Lara in the newspaper. And I




20
   According to witnesses, Atwood was the driver of the van, Yaritza was the right passenger,
and Appellant and Leonardo Moreno were in the middle seat; Julissa and Lucinda were also
reportedly in the van. 20RR175. As to the reported involvement of Jorge Caballero, “We did
research on Jorge Caballero through the investigation, later his name was cleared. He was not in
the van.” 20RR175, 198, 205.

                                              27
          recognized him because you will never forget who would want to take
          your life. And you could actually picture him. You’ll never forget.
          21RR228-229.
Zapata and other witnesses identified Appellant in trial as being the same person

they saw on the night in question firing a weapon. 21RR104-105, 117, 201-202.



One witness identified the gunman as Eric Atwood, testifying that she recognized

his voice in demanding that the other person keep away from his cousins and that

this witness saw a gun in Atwood’s hand when the van passed the second time.

21RR81-82. This witness, however, conceded that she did not see the actual

gunplay. 21RR83. Moreover, as she had never heard the voice of Appellant, she

admitted that she had no way of knowing whether Appellant’s voice was similar to

Atwood’s. 21RR86. This witness’ response to the question, “So the reason, and the

only reason, that you told the police that the person that was talking to them was

Negro21 was because that’s the voice that you thought you heard”, the witness

responded, simply, “Yes.” 21RR86-87.



After leaving the area following the shooting, Appellant told the other people in

the van “[t]hat he hadn’t done that in a long time.” 22RR61. Julissa testified that

Appellant said “[i]t was fun.” 22RR103. Upon arrival at the home of one of the

21
     This is a reference to Eric Atwood. 22RR38 lines 1-2.
                                                 28
occupants, Appellant and Leonardo Moreno started looking through the van for

any evidence of the shooting such as cartridge casings. 22RR62-63, 104.



       2. Appellant’s custodial statements

                  a. Appellant’s first custodial statement

Appellant’s first interview was conducted by Investigator Ileana Pena. Before

questioning Appellant, Pena advised Appellant of his rights; Appellant

acknowledged issuance and understanding thereof and elected to waive his rights.22

20RR108-109, 181-182; 28RR State’s Exhibit 83. No threats were made against

Appellant during the interview process. 20RR155. Appellant read the waiver form

before executing it, and manifested understanding thereof. 20RR181. This

investigator employed the interview tactic of advising Appellant, as the accused,

that officers had already spoken with and obtained information from other

witnesses that tended to implicate Appellant. 20RR141-142. The interviewing

officer did not advise Appellant of witness statements indicating another person,

‘El Negro’ (Atwood) was the shooter. 20RR143. As to whether any untruths were

conveyed to Appellant during the interview in an effort to obtain a statement from

him, the following colloquy transpired:

22
   In his cross-examination of the investigator who took Appellant’s first custodial statement,
Appellant elicited testimony regarding the particular circumstances of the interview and
statement and regarding the investigator’s familiarity with the rights of an accused. 20RR136-
140.
                                              29
                Question (from Appellant’s trial counsel):       We’ve learned a
       little bit during this trial, Sergeant Ruiz, that it’s permissible and even
       course of conduct for investigators to lie to people that are being
       interrogated, is that correct?
                Answer (from a second investigator involved in the initial
       custodial interview of Appellant):                 We don’t. That’s not our
       practice, no.
                Question:    So you don’t tell them things that are not true so
       that you can get the truth out of them?
                Answer:      That’s not exactly – that’s not our practice.
                Question:    So you are now saying to the ladies and gentlemen
       that things that are not true are not told to people so they can say a
       truth?
                Answer:      We don’t use that tactic. That’s incorrect.
                Question:    So you didn’t tell Mr. Lara that everyone was
       pointing the finger at him?
                Answer:      That is not a lie. That’s true.
                Question:    Okay. But you’re also aware that Jasmine had not
       pointed the finger at him. Jasmine pointed the finger at Atwood?
                Answer:      That is Jasmine. Every witness views certain areas.
       Not everybody saw everything.
       20RR191-192.
In his first written statement,23 Appellant disavowed any knowledge of the

shooting whatsoever.24 20RR183, 192; 28RR State’s Exhibit 84. Pena did not


23
  The copy thereof which was admitted into evidence for consideration of the jury was partially
redacted. 28RR State’s Exhibit 84.
                                              30
perceive Appellant’s factual recitations as truthful. 20RR120. Pena then made

further contact with several witnesses. 20RR120-121.



                  b. Appellant’s second custodial statement

Following Appellant’s first interrogation, “We (members of the investigative team)

had a meeting with our division lieutenant…Investigator Ileana Pena was the case

agent and during the course of the interview briefing with them, they asked me

(Sergeant Orlando Garcia) to reinterview him to see if I could get more

information from him for the case.” 20RR206-207. Garcia testified that it was law-

enforcement officials, rather than Appellant himself, who initiated this second

interview. 20RR233-234.



As was done before the first interrogation, Garcia advised Appellant as to his rights

and obtained Appellant’s written waiver thereof before commencing this second

custodial interview. 20RR207-208; 28RR State’s Exhibit 85. Appellant himself

read the waiver form aloud before signing it. 20RR209. Garcia conceded on cross-

examination that he directed rather than requested that Appellant affix his initials

and signature on the waiver document. 20RR223-225. Garcia further conceded on


24
   In cross-examination of the officer who took Appellant’s second statement, the defense noted
the distinction between Appellant’s assertion in his first statement of ‘I do not remember’ and an
affirmative statement of ‘I do not know.’ 20RR222.
                                               31
cross-examination that the witnesses whose signature appears on the waiver form

admitted as State’s Exhibit 85 did not in fact observe the issuance of the rights set

out on the document. 20RR231-232. The investigator emphasized that the waiver

was obtained before the interrogation began. 20RR226. Although given the option

to draft the statement himself, Appellant elected to have the officer do so.

20RR230. It appeared to this investigator that Appellant understood his rights and

that his waiver was made knowingly, voluntarily and intelligently. 20RR208-209.

Apart from the waiver form itself, required warnings were again issued and appear

on the statement admitted as State’s Exhibit 86 itself. 20RR237-238. Appellant did

not invoke any of his rights at any point. 20RR234-235.



In his second written statement,25 Appellant admitted having been in the van

during the episode but denies having interacted with any of the people on the

parking lot and implicated ‘Little Bear’ (Leonardo Moreno) as being the person

who opened fire and stated, “I don’t know what happened to the gun that ‘Little

Bear’ used.26 20RR213;28RR State’s Exhibit 86. Appellant, who states he was

initially in the middle seat of the vehicle but at some point moved to the rear seat,

25
  The copy thereof which was admitted into evidence for consideration of the jury was partially
redacted. 28RR State’s Exhibit 86.
26
   As discussed elsewhere herein, authorities determined that Jorge Caballero was not in fact in
the van at relevant times. Appellant, in his second written statement, does not identify Caballero
as among the people Appellant states were in the vehicle. 20RR217; 28RR State’s Exhibit 86.

                                               32
then avers that, from the rear seat of the van, he was able to open the driver-side

passenger door.27 20RR212-213; 28RR State’s Exhibit 86. The testifying officer

attested that, to be able to reach a passenger door latch from the rear seat in such a

vehicle, “You’d have to be very, very tall.” 20RR213-214.



     D. Charge of the Court/final argument

Other than mention of a need for a correction in the charge as to the case number,

which correction was made without objection, the record memorializes no

discussion of the proposed jury charge. 23RR5. The record is devoid of any

objection to the charge as proposed and of any requests for additions, deletions or

changes thereto. The defense, on two occasions, affirmatively stated there was no

objection to the jury instructions as proposed. 23RR5-6.



The charge is in the Clerk’s Record at CR250; and the memorialization of the

reading of the charge to the jury is memorialized at 23RR8-17. The jury charge

instructed the jury on the law pertaining to statements of an accused. In the

instructions pertaining to accomplice testimony, the trial court put before the jury

the question as to whether Julissa Tijerina and Lucinda Tijerina were either or both

27
  As noted hereinabove, the van in question has passenger doors that latch at the front of the
passenger compartment and slide rearward on a track. 19RR178; 20RR213; 28RR State’s
Exhibits 72-73.

                                             33
accomplices rather than deeming either or both of them to be an accomplice as a

matter of law.CR254-256. The trial court, as to this issue, instructed the jury that:

      Upon the law of accomplice witness testimony, you are instructed that
      a person who has participated with someone else before, during or
      after the commission of a crime, is an accomplice witness. In such a
      case, there must be some evidence of an affirmative act on the
      witness’ part to assist in commission of the offense. If a witness
      cannot be prosecuted for the offense with which the accused is
      charged, then the witness is not an accomplice witness as a matter of
      law. A witness is not an accomplice witness merely because he or she
      knew of the offense and did not disclose it, or even concealed it. The
      witness’ presence at the scene of the crime does not render the witness
      an accomplice witness.
      CR254-255 (emphasis added).



The prosecutor, in discussing the issue of whether Julissa and/or Lucinda should

properly be considered accomplice witnesses, noted that there had been no

evidence adduced of any affirmative act by either in furtherance of the commission

of the offense. 23RR32. Further, even if deemed by the jury to be accomplices,

“[y]ou can still consider the testimony if what they provided is corroborated by

some other evidence tending to connect the Defendant with the offenses charged.

What other corroborative evidence? The eyewitness testimony, the fingerprints,




                                          34
Mr. Lara’s own statement puts him in the car. It even puts him in that same middle

seat…” 23RR33.



The record is devoid of any reference by the defense to any affirmative act alleged

to have been committed by either Julissa or Lucinda in furtherance of the crime, by

which either or both of them could properly be found by the jury to be an

accomplice.




                                        35
                         SUMMARY OF ARGUMENTS

The trial court did not reversibly err in submitting to the jury the question as to

whether either or both of two particular witnesses were accomplices rather than

deeming them accomplices as a matter of law. The fact that a witness is testifying

under and pursuant to a grant of immunity does not without more render that

witness an accomplice as a matter of law. Neither of the subject witnesses were

subject of any charging instrument alleging any criminal or quasi-criminal liability

in the offense at issue. The evidence did not show an affirmative act in furtherance

of the killing by either of these witnesses.



The trial court did not err in its rulings admitting Appellant’s two written

statements. Neither was the product of force, threats, improper promises, or

coercion. Each was made and executed by Appellant voluntarily and intelligently.

Even if error is found, Appellant is not entitled to reversal on this claim because

the statements did not contribute to his conviction.




                                          36
                         NOTE AS TO ORAL ARGUMENT


Appellant has requested oral argument. The State of Texas respectfully submits

that oral argument in the case at bar would not serve to enlighten the Court further

or illuminate the issues in that, because the facts and legal arguments are

adequately presented in the briefs and record, the decisional process of the Court

would not be significantly aided by oral argument. The State of Texas, therefore,

respectfully submits that oral argument in the instant case is not necessary and that

the request for oral argument should be denied.



The State of Texas reserves the right to present oral argument should the Court

grant the request of Appellant for oral argument.




                                         37
                        ARGUMENTS AND AUTHORITIES


Issue One:       The trial court did not reversibly err in putting to the jury the

determination of whether two particular witnesses were accomplices.



A witness is an accomplice as a matter of law only when, either based on trial

evidence or the status of the witness as having been charged for the subject

offense, “[T]here exists no doubt that the witness is an accomplice.” Druery v.

State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007, cert. denied). Appellant’s

claim of error in the jury instructions is grounded on a contention that the court did

not properly charge the jury as to accomplice witnesses in that the trial court left to

the jury the determination of whether either Lucinda Tijerina or Julissa Tijerina, or

both of them, were accomplices rather than instructing the jury that both were

deemed accomplices as a matter of law. CR255. It is beyond dispute that a trial

court is bound to issue a proper instruction as regards any testimony from a witness

deemed or established by evidence as being an accomplice as a matter of law.

Herron v. State, 86 S.W.3d 621 (Tex. Crim. App. 2002). Conversely, if the status

of a witness is subject to dispute in light of the evidence, the trial court is to leave

to the jury the determination as to whether a person is an accomplice, thus

requiring that the witness’ testimony be corroborated to sustain conviction. Cocke

v. State, 201 S.W.3d 744 (Tex. Crim. App. 2006, cert. denied).
                                          38
In advancing the argument that the trial court should have deemed both of these

witnesses to be accomplices as a matter of law, Appellant points to the indisputable

fact that both were testifying under a grant of immunity. However, a grant of

transactional immunity does not, in and of itself, mean that a witness’ status is that

of an accomplice as a matter of law:

      The main thrust of the objection was that since Sandoval had
      theretofore been granted immunity by the State, "that in and of itself
      makes him an accomplice to the offense with which this defendant is
      charged”…The mere fact that State granted transactional immunity to
      Sandoval did not, ipso facto, change his status into that of an
      accomplice as a matter of law…The most that appellant was entitled
      to receive in the charge was a submission of the question as one of
      fact.
      Moulton v. State, 508 S.W.2d 833, 836 (Tex. Crim. App. 1974)



Likewise, although a person testifying while a charge related to the case on trial is

pending is an accomplice as a matter of law or agrees to testify in consideration of

a dismissal of such charges, in the instant case no charging instrument was ever

brought against either Lucinda Tijerina or Julissa Tijerina. See, Smith v. State, 332

S.W.3d 425 (Tex. Crim. App. 2011). While both of them were initially suspected

of involvement with and detained in connection with the killing, both were

released soon thereafter and neither was subject of a charging instrument related to


                                         39
the murder at issue. 14RR21; 22RR112. Both Julissa and Lucinda had given

statements to authorities before immunity was discussed, offered or granted.

22RR82-83, 129. Moreover, in addition to conveying information to law

enforcement authorities, more than a year before trial Lucinda testified before the

grand jury without any grant of immunity.28 22RR82-83. An agreement of

immunity for Lucinda was reached in the days before Appellant’s trial, and the

agreement regarding immunity for Julissa was reached during trial itself. 22RR82,

109-110. Stated more simply, neither Lucinda nor Julissa were ever charged by

prosecutorial authorities for any act connected with the instant offense, no charges

against either were pending at time of the instant trial, both had given statements

upon initial contact with law enforcement authorities with no grant of immunity,

and Lucinda had also testified before the grand jury long before the matter of

immunity was raised.



For a witness to be considered an accomplice witness based on evidence of the

person’s role in the commission of an offense, “[T]here must be some evidence of

an affirmative act by the witness committed to assist in commission of the offense

before that witness may be considered an accomplice.” Kunkle v. State, 771


28
  The instant trial was conducted in December, 2013; Lucinda testified before the grand jury
“back in November of last year.” 22RR82-83.

                                            40
S.W.2d 435, 441 (Tex. Crim. App. 1986, cert. denied).29 Mere presence during the

commission of an offense does not make a person an accomplice. Smith, 332

S.W.3d 425. There was no evidence adduced of an affirmative act by either that

would necessitate a finding of either or both being an accomplice as a matter of

law under the evidence presented. Id. (when doubt exists as to whether a witness is

an accomplice, trial court may leave this determination to the jury).                       As to

Appellant’s claim that Julissa was overheard saying something akin to, “shoot, but

not at my friends,” and thus was in fact susceptible to prosecution as a party, this

testimony was later clarified:

                  Question (from the prosecutor): We're        talking     about     this
          conversation that you had 5 on speaker phone. Explain again that
          conversation.
                  Answer (from witness Jasmine Villegas):            Conversation?
                  Question:      That you had with Julissa on speaker phone?
                  Answer:        First Jamika was texting her. Then she called. And
          she said if you knew your friends were there why did you shoot . And
          Julissa says: I told him not to shoot at my friends.
                  Question:      Now this is the affidavit, right?
                  Answer:        Yes.
                  Question:      Now, right now you're saying she told—that
          Julissa said she told the shooter not to shoot at her friends, correct?
          Did Julissa ever say that she told the shooter to shoot at anyone?


29
     The trial court so instructed the jury. CR254-255.
                                                   41
              Answer:               No.30
       21RR90
Neither Julissa nor Lucinda was an accomplice as a matter of law either by virtue

of status in a prosecution or under the evidence adduced at trial; thus, the trial court

committed no error in submitting this question to the jury.



Even if error is found, reversal of conviction is not warranted. This case does not

present a circumstance in which no accomplice instruction was issued; rather,

Appellant’s argument rests upon the contention that the trial court should have, but

did not, sua sponte issue a ‘matter of law’ declaration rather than submitting the

question to the jury. Restated, the issue is not an omission of an accomplice-

witness instruction but instead rests on a claim that the trial court issued the wrong

instruction. In light of the lack of any objection to or request for an instruction to

be included within the charge, Appellant is not entitled to reversal absent a

showing of egregious harm. Solis v. State, 792 S.W.2d 95 (Tex. Crim. App. 1990);

see, Williams v. State, 974 S.W.2d 324, 328 (Tex. App.—San Antonio 1994, pet.

ref’d, cert. denied)(“Since Williams requested and received an accomplice as a

matter of fact instruction as to each of these witnesses, Williams must show that

the trial court erred in failing to submit an accomplice as a matter


30
  It is noteworthy that the defense did not question Julissa about this claimed conversation
during her testimony.
                                            42
of law instruction and that such error, if any, resulted in egregious harm to

Williams.”). Under this standard, omission of a proper accomplice instruction is

generally harmless unless the corroborating evidence is so weak as to render the

prosecution’s case ‘clearly and significantly less persuasive.’ Herron, 86 S.W.3d at

632. Appellant cannot make such a showing.



The Appellant himself, in the written statement admitted in trial as State’s Exhibit

86, gives evidence tending to connect himself with the killing, in that he admits to

having been in the vehicle during the shooting and opening the van’s sliding

door.31 Moreover, his fingerprints on the vehicle provide further corroboration.

20RR77-81. More significant than this circumstantial evidence, though, is the

identification of Appellant, by five independent witnesses32 as the person who

opened fire. 21RR102-10, 114, 144, 166, 199, 226. Even under a scenario in which

the ‘standard’ rule as to requirement of corroboration was to be applied33, let alone


31
  As admitted into evidence in trial, both written statements of accused were redacted, in part, to
exclude portions therein as compared to the original statements. 28RR State’s Exhibits 84, 86.
32
  The term ‘independent witnesses’, as used herein, means witnesses who are unconnected to
Tijerina/Atwood family and who are in no way implicated in this crime. Much of Appellant’s
argument in trial and on appeal rests upon the supposition that Julissa and Lucinda lied to
authorities, to the grand jury, and to the trial jury to protect Atwood and, possibly, other
members of their family.
33
   The State of Texas would note that, in a ‘sufficiency of corroboration’ challenge, which is not
raised in the instant case, the corroborating need not in itself directly link the accused to the
crime or be sufficient in itself to prove guilt beyond a reasonable doubt; rather, corroboration is
sufficient if the non-accomplice testimony tends to connect the defense with the offense alleged.
                                                43
under the principle applicable here, Appellant has not shown the level of harm

necessary to establish entitlement to reversal. Even wholly disregarding the

testimony of Julissa and Lucinda, assuming arguendo error in not issuing a ‘matter

of law’ instruction, there exists direct evidence in the record adequate to overcome

Appellant’s challenge.



As the verdict is general in form, there is no specific finding in this case as to

whether the jury found that either Julissa or Lucinda Tijerina, either or both, was or

was not an accomplice; it is thus not possible to ascertain, by the verdict, the

determination made by the jury as to this question.34 Assuming arguendo that

neither of these witnesses were determined by the jury to be an accomplice, their


Tex. Code Crim. P. Art. 38.14; see, Romero v. State, 716 S.W.2d 519, 523 (Tex. Crim. App.
1986, cert. denied). “Under this rule, the reviewing court eliminates all of the accomplice
testimony from consideration and then examines 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.”
Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007).


34
   Texas courts have split on the question of whether, when the determination of whether a
particular witness is or is not an accomplice is left to the fact finder rather than determined by the
trial court as a matter of law, and verdict of guilt is rendered, a reviewing court should assume
that the finder of fact determined the witness not to be an accomplice, in which event no
corroboration is required, or did find the witness to be an accomplice, in which case conviction
cannot stand absent sufficient evidence adduced through non-accomplices. See, e.g. Worthen v.
State, 59 S.W.3d 817, 821 (Tex. App. Austin 2001, no pet.)(question of whether a particular
witness was an accomplice was submitted to the jury; “[T]o the extent Debrow's testimony is
necessary to sustain Worthen's conviction, we assume the jury found that he was not an
accomplice.”); c.f. Matthews v. State, 2013 Tex. App. Lexis 9251 at 38 (Tex. App.—Corpus
Christi 2013, pet. ref’d)(memorandum opinion—not designated for publication), Taylor v. State,
2013 Tex. App. Lexis 10129 at 18 (Tex. App.—Dallas 2013 (memorandum opinion—not
designated for publication)(same).
                                                 44
testimony would not be subject to a corroboration requirement. If, however, the

assumption is made that the jury determined either or both to be, as a matter of

fact, an accomplice, the ‘accomplice witness’ rule would apply to the testimony of

that witness. There exists more than adequate other evidence tending to connect

Appellant to this offense.




Issue Two:       Appellant is not entitled to reversal on his claim of error in the

admission of written custodial statements.



The trial court having now rendered factual findings, legal conclusions and orders

regarding Appellant’s custodial statements, as required by Tex. Code Crim. P. Art.

38.22 sec. 6, there exists no need to abate this appeal as suggested by Appellant;

the prayer for abatement is moot, as the relief requested has been granted. Brief of

Appellant 26-27; 1 Supp CR7.



Appellant contends error in the admission of his two written custodial statements

based on his claim that each was involuntarily made. 35 The Texas Court of


35
  The State of Texas would note that, although both interviews of Appellant were recorded by
electronic means, neither recording was offered or admitted into evidence at trial and thus
necessarily could not have contributed to Appellant’s conviction.
                                            45
Criminal Appeals succinctly articulated the principles governing proceedings

challenging the voluntariness of a statement in its opinion in Alvarado v. State:

      Once a defendant moves to suppress a statement on the ground of
      "involuntariness," the due process guarantee requires the trial court to
      hold a hearing on the admissibility of the statement outside the
      presence of the jury. Jackson v. Denno, 378 U.S. 368, 380, 12 L. Ed.
      2d 908, 84 S. Ct. 1774 (1964). Article 38.22, § 6 and Texas Rule of
      Criminal Evidence 104(c) have the same requirement. At the hearing,
      the trial court is the sole judge of the weight and credibility of the
      evidence, and the trial court's finding may not be disturbed on appeal
      absent a clear abuse of discretion. The burden of proof at the hearing
      on admissibility is on the prosecution, which must prove by a
      preponderance of the evidence that the defendant's statement was
      given voluntarily. A statement is "involuntary," for the purposes of
      federal due process, only if there was official, coercive conduct of
      such a nature that any statement obtained thereby was unlikely to have
      been the product of an essentially free and unconstrained choice by its
      maker. "Absent [coercive] police conduct causally related to the
      confession, there is simply no basis for concluding that any state actor
      has deprived a criminal defendant of due process of law." Colorado v.
      Connelly, 479 U.S. at 164.
      Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App.
      1995)(certain internal citations omitted)




                                         46
In a suppression hearing, determination of facts on disputed evidence is solely

within the province and discretion of the trial judge. See, e.g., Jones v. State, 944

S.W.2d 642 (Tex. Crim. App. 1996, cert. denied); Green v. State, 934 S.W.2d 92,

98 (Tex. Crim. App. 1996, cert. denied)(trial court is in the best position to

determine which testimony to believe and which testimony to disbelieve;

determinations that rest upon findings as to credibility are within the sole province

of the trial court.). As one Texas appellate court has stated:

      The trial court may accept or reject all or any part of a witness’s
      testimony. In reviewing the trial court’s decision, an appellate court
      does not engage in its own factual review; it determines only whether
      the record supports the trial court’s fact findings. If the trial court’s
      fact findings are supported by the record, an appellate court is not at
      liberty to disturb the findings absent an abuse of discretion.
      Zuliani v. State, 903 S.W.2 812, 819 (Tex, App.—Austin 1995, pet.
      ref’d)(internal citations omitted).



The trial court found that, as to both custodial statements, each was made

voluntarily, without compulsion or coercion, upon a knowing and intelligent

waiver of rights after proper admonishments, that each comported in all respects

with the requirements of the law, and that Appellant at no time invoked his rights

to silence or counsel. SCR7. These findings are supported by the record. 17RR13-

14, 18, 20, 23, 28, 36, 27-33, 38-41, 43 48, 76; 20RR2108-109, 155, 181-182, 207-

                                            47
209, 226, 234-235; Supp. RR State’s Exhibits 1-2, 4-5; 28RR State’s Exhibits 83-

86. The conclusions of law that both statements were admissible are in all respects

proper.



It is axiomatic that admission of an involuntary statement is of constitutional

dimension; thus, reversal is required absent a finding beyond a reasonable doubt

that such error did not contribute to the conviction of Appellant. Tex. R. App. P.

44.2(a); Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994); see, also, Ex

parte Bowers, 886 S.W.2d 346 (Tex. App.—Houston 1994, writ dism’d). The

existence and weight of other evidence establishing the guilt of the accused is to be

considering in conducting this harm analysis. See, e.g. McNac v. State, 215 S.W.3d

420 (Tex. Crim. App. 2007).



In determining whether any error in the admission of a confession contributed to a

defendant’s conviction, Texas courts have repeatedly looked to whether the

statement incriminates the accused. See, e.g. Dowthitt v. State, 931 S.W.2d 244

(Tex. Crim. App. 1996, cert. denied); Brown v. State, 960 S.W.2d 265 (Tex.

App.—Corpus Christi 1997, no pet.). In a case applying the principles set forth in

Dowthitt, the Dallas Court of Appeals stated that, “In point one, Gomez complains

of police testimony that he denied being involved in the collision but stated one of

                                         48
the cars involved belonged to him. Regardless of error, we determine beyond a

reasonable doubt that Gomez's statements did not contribute to his conviction.

Compared to the testimony of how police found Gomez near the collision scene

and the testimony identifying him as the driver, his statements had little

incriminating value.” Gomez v. State, 1999 Tex. App. Lexis 2918 at 3 (Tex.

App.—Dallas       1999,    no   pet.)(memorandum        opinion—not       designated    for

publication). Nothing in the statements of Appellant regarding the events at issue

were directly incriminating in nature. Moreover, other evidence of Appellant’s

guilt included but was not necessarily limited to the identification of Appellant, by

five independent witnesses36 as the person who opened fire. 21RR102-10, 114,

144, 166, 199, 226.



Even assuming arguendo that the trial court erred in admitting the two written

statements, it is clear beyond a reasonable doubt that this evidence did not

contribute to Appellant’s conviction. Thus, any error, even assuming that it was

preserved, is harmless and does not entitle Appellant to reversal of judgment.




36
  The term ‘independent witnesses’, as used herein, means witnesses who are unconnected to
Tijerina/Atwood family and who are in no way implicated in this crime. Much of Appellant’s
argument in trial and on appeal rests upon the supposition that Julissa and Lucinda lied to
authorities, to the grand jury, and to the trial jury to protect Atwood and, possibly, other
members of their family.

                                            49
                                    CONCLUSION

Appellee respectfully submits, for the reasons set forth herein, that the Judgment of

the trial court was proper and should in all respects be affirmed.



                                     PRAYER

Wherefore, premises considered, the State of Texas prays the Court affirm the

Judgment of the trial court.

                                 Respectfully submitted,

                                 ______/s/ Glenn W. Devino_____________
                                 Glenn W. Devino
                                 Assistant Criminal District Attorney
                                 Hidalgo County, Texas
                                 100 N. Closner, 4th floor
                                 Edinburg TX 78539
                                 Telephone 956-318-2300
                                 Facsimile 956-380-0407
                                 State bar no. 24012525


Certificate of Compliance
I hereby certify that this Brief, including footnotes but excluding those parts listed
in Rule 9.4(i)(1), Tex. R. App. P., contains 10,655 words

                                 ______/s/ Glenn W. Devino_____________
                                 Glenn W. Devino
                                 Assistant Criminal District Attorney
                                 Hidalgo County, Texas
                                 100 N. Closner, 4th floor
                                 Edinburg TX 78539
                                 Telephone 956-318-2300
                                 Facsimile 956-380-0407
                                 State bar no. 24012525
                                          50
Certificate of Service

I hereby certify that I have sent a true and correct copy of the foregoing Brief of
Appellee to Appellant, Raul Lara, which Brief is electronically filed, by serving
Appellant therewith through the electronic filing manager to his attorney, Rolando
Garza, on this the 19th day of September, 2015.

                               _____/s/______Glenn W. Devino
                               Glenn W. Devino
                               Assistant Criminal District Attorney
                               Hidalgo County, Texas
                               100 N. Closner, 4th floor
                               Edinburg TX 78539
                               Telephone 956-318-2300
                               Facsimile 956-380-0407
                               glenn.devino@da.co.hidalgo.tx.us
                               State bar no. 24012525




                                        51
