Opinion issued August 16, 2012.




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                NOS. 01-10-00176-CR and 01-10-00177-CR
                         ———————————
                 STEVEN CECEILIO TORRES, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 185th District Court
                          Harris County, Texas
                Trial Court Case Nos. 1246750 and 1246751



                                  OPINION

     A jury found Steven Ceceilio Torres guilty of two capital murder offenses,

for hiring two people who murdered Jose Perez. The trial court assessed
punishment at life imprisonment.1 TEX. PENAL CODE ANN. § 19.03(a)(3) (West

Supp. 2011). On appeal, Torres contends that the trial court committed jury charge

error, by (1) denying his request for a jury charge for murder, rather than for

capital murder, based on his reading of the indictment; and (2) failing to properly

instruct the jury that independent corroboration of accomplice witness testimony is

a necessity. Finding no reversible error, we affirm.

                                   Background

      Jose Perez was shot and killed in front of his family in a Houston restaurant

parking lot. He was a man in the wrong place at the wrong time. As Perez left the

restaurant after dinner, the shooter, Peter Quintanilla, and his accomplice, Michael

Belmarez, mistook Perez for their intended target, Santiago Salinas, whom they

sought as a part of a drug-related revenge killing. Evidence at trial revealed that

Salinas had been targeted for death by Jaime Zamora, a drug cartel leader, because

Salinas had hurt members of Zamora’s family back in Mexico.

      Torres worked for the drug cartel headed by Zamora and Jose Chapa. Chapa

ordered Torres to find Salinas, and Zamora later met with Torres to give him a

picture of Salinas. Chapa told Torres that he could find Salinas at the restaurant,



1
      Trial-court case number 1246750 and appellate case number
      01-10-00176-CR (employing Peter Quintanilla); trial-court case number
      1246751 and appellate case number 01-10-00177-CR (employing Michael
      Belmarez).
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and that Salinas would be wearing a jersey. Torres called Quintanilla, told him

about the jersey, and directed Quintanilla to the restaurant. Belmarez testified that

he heard Torres tell Quintanilla over the phone to “take care of [Salinas].”

      On the day he was killed, Perez was wearing an Astros jersey. Mistakenly

believing that Perez was Salinas, Quintanilla shot and killed Perez. Salinas was in

the restaurant at the time of the murder. Realizing that he was likely the intended

target, Salinas fled to Mexico. Salinas was killed in Mexico several months later.

      After the shooting, Quintanilla left the restaurant parking lot with Belmarez.

Two days later, Chapa gave Torres money in an envelope to pay Quintanilla.

Torres went to Belmarez’s house to meet with Quintanilla, and he delivered the

money.

      After police discovered Belmarez’s involvement in Perez’s murder,

Belmarez was indicted for capital murder. He entered into a plea bargain with the

State in which he agreed to testify against Torres in exchange for a forty-five-year

sentence for the lesser offense of murder. Belmarez admitted to police that he was

the driver on the night of the murder and testified at trial that Torres contacted both

Quintanilla and Belmarez, gave them two guns, and asked them to kidnap Salinas.

The first time Belmarez knew they were supposed to kill Salinas, rather than

kidnap him, was when Torres called Quintanilla on the evening of the murder and




                                          3
told them to “take care” of Salinas, which both men understood to mean to kill

him. Torres also gave $1,500 to each of them after the murder.

                                    Discussion

      Capital Murder Instruction

      Torres complains that the trial court erroneously denied his request for a jury

charge on murder, rather than capital murder, because the indictments did not

properly charge him with capital murder for hire. The indictments, in relevant

part, read:

Trial-court case number 1246750

      . . . STEVEN CECELIO TORRES, hereinafter styled the
      Defendant, heretofore on or about MAY 20, 2006, did then and there
      unlawfully, intentionally and knowingly cause the death of JOSE
      PEREZ, hereinafter called the Complainant, by employing PETER
      QUINTANILLA for remuneration and a promise of remuneration,
      to-wit: MONEY, by SHOOTING THE COMPLAINANT WITH A
      DEADLY WEAPON, NAMELY A FIREARM.

Trial-court case number 1246751

      . . . STEVEN CECELIO TORRES, hereinafter styled the
      Defendant, heretofore on or about MAY 20, 2006, did then and there
      unlawfully, intentionally and knowingly cause the death of JOSE
      PEREZ, hereinafter called the Complainant, by employing MICHAEL
      BELMAREZ for remuneration and a promise of remuneration, to-wit:
      MONEY, by SHOOTING THE COMPLAINANT WITH A
      DEADLY WEAPON, NAMELY A FIREARM.

The trial court’s jury charge tracked the indictments, in that “by shooting”

followed after “by employing . . . for renumeration”:

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Trial-court case number 1246750

            Now, if you believe from the evidence beyond a reasonable
      doubt that Steven Torres, in Harris County, Texas, on or about May
      20, 2006, unlawfully intended to cause the death of Santiago Salinas
      by employing Peter Quintanilla for remuneration or the promise of
      remuneration, to-wit, money, by shooting Santiago Salinas with a
      deadly weapon, namely a firearm, but instead Peter Quintanilla caused
      the death of Jose Perez by shooting Jose Perez with a deadly weapon,
      namely a firearm, then you will find the defendant guilty of capital
      murder, as charged in the indictment.

Trial-court case number 1246751

            Now, if you believe from the evidence beyond a reasonable
      doubt that Michael Belmarez, in Harris County, Texas, on or about the
      20th day of May, 2006, did then and there unlawfully intend to cause
      the death of Santiago Salinas for remuneration from the defendant,
      Steven Torres, to-wit, money, by shooting Santiago Salinas with a
      deadly weapon, namely a firearm, but instead caused the death of Jose
      Perez by shooting Jose Perez with a deadly weapon, namely a firearm,
      then you will find the defendant guilty of capital murder, as charged
      in the indictment; or if you believe from the evidence beyond a
      reasonable doubt that Michael Belmarez, acting alone or with Peter
      Quintanilla as a party to the offense, did then and there unlawfully
      intend to cause the death of Santiago Salinas for remuneration from
      the defendant, Steven Torres, to-wit, money, by shooting Santiago
      Salinas with a deadly weapon, namely a firearm, but instead caused
      the death of Jose Perez by shooting Jose Perez with a deadly weapon,
      namely a firearm, then you will find the defendant guilty of capital
      murder, as charged in the indictment

      At the charge conference, Torres’s counsel objected, claiming that the

indictment did not set forth a proper definition of capital murder:

             [Torres’s lawyer:] And our argument is set out in the motion
      and basically based on upon the grammatical structure of the
      indictment, that Mr. Torres is charged with shooting Jose Perez, and
      the language regarding remuneration or employing either Quintanilla
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      or Belmarez, this applies to both causes, is surplusage and does not
      have an object or does not alert Mr. Torres or anyone else, any reader,
      that he employed him for the purpose of killing someone else. We
      argue that is does not state a capital murder offense; it merely states a
      murder offense.

            THE COURT: I just want to be clear: that argument is sort of a
      legal argument based on the indictment as opposed to a factual
      argument based on the evidence presented?

           [Torres’s lawyer:] Yes. It’s also a grammatical argument,
      Your Honor.

On the day of the charge conference, Torres also filed a “Defendant’s Motion That

Jury Only Be Instructed for the Offense of Murder, and Defendant’s Requested

Jury Instruction.” The specific objection in the motion is as follows:

      The Defendant submits that the State’s indictments herein, in effect,
      allege that the manner and means whereby Defendant caused the
      death of Jose Perez was by 1) employing either Peter Quintanilla or
      Michael Belmarez, for remuneration of the promise of remuneration
      (money), and 2) by shooting Jose Perez with a deadly weapon,
      namely, a firearm. The indictments, however, do not allege what
      Quintanilla or Belmarez were to do after being employed by the
      Defendant. For example, were they to be look-outs, were they to lure
      Perez to his death, or were they to be get-a-way drivers? Neither
      indictment alleges conduct on the part of either Quintanilla or
      Belmarez other than a passive employment relationship with the
      Defendant. What the indictments do allege, in a common sense
      reading is that the Defendant caused the death of Jose Perez by the
      Defendant shooting Perez with a deadly weapon namely a Firearm.

Torres contends that the indictments charged him only with murder, not capital

murder for remuneration, and thus the trial court erred in denying his requested

jury charges on murder. In support of his contention, Torres relies on our court’s

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decision in Robinson v. State. 266 S.W.3d 8, 10–13 (Tex. App.—Houston [1st

Dist.] 2008, pet. ref’d). In Robinson, we reversed a conviction for capital murder

because the application paragraph of the jury charge instructed that the jury could

find the defendant guilty of either capital murder for hire (in the first paragraph), or

of murder (in the second paragraph, because it failed to include the aggravating

factor of murder for remuneration). Id. at 15.

      The error in Robinson is not present here. In contrast to Robinson, in which

the application paragraph allowed a conviction for murder without any reference to

an aggravating factor, here, the indictment and charge in both instances instruct

that the jury must find that Torres employed his co-conspirators to commit the

murder. Torres argues that Robinson applies by analogy: because the jury charge

here lacks an expressed direct object in both application paragraphs, a jury could

conclude that Torres committed only murder (by shooting Perez himself) and not

murder for hire. He contends that one could read the paragraph to require that

Torres hired others, but not “to shoot”, because the final clause reads “by

shooting”. But in Robinson, the requisite element of remuneration was entirely

missing from the faulty portion of the charge. Not so here: the intervening clause

instructs that the jury must find that Torres caused the death “by employing”

another “for renumeration. According to Torres, this clause is surplusage. But, the

final participle phrase—“by shooting”—fairly refers to causing the death of Perez,

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and reasonably conveys the intended meaning. Giving effect to both phrases, the

charge instructs the jury that that Torres should be found guilty of capital murder if

he employed Quintanilla or Belmarez to cause the death of another “by shooting”

that person. We hold that the trial court did not err in instructing the jury on the

aggravating factor of murder for hire.

      Accomplice-Witness Instruction

      Torres next contends that the trial court erred in failing to instruct the jury

that accomplice-witness testimony must be independently corroborated. See TEX.

CODE CRIM. PROC. ANN. art. 38.14 (West 2005) (“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.”).            The State

acknowledges that Belmarez is an accomplice witness as a matter of law, because

he had pleaded guilty to Perez’s murder at the time of Torres’s trial. The State also

concedes that the trial court had an affirmative duty to submit an accomplice

witness instruction to the jury. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim.

App. 2011). We hold that the trial court erred in failing to exercise its independent

duty to instruct the jury that accomplice-witness testimony must be corroborated.

      Torres has conceded that this issue was not preserved by an objection in the

trial court.   We therefore review this charge error under the egregious harm

                                          8
standard of review. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (test for egregious harm is whether the defendant has been denied a fair and

impartial trial). A defendant is egregiously harmed by the trial court’s omission of

an accomplice-witness instruction if a rational jury “would have found the

corroborating evidence so unconvincing in fact as to render the State’s overall case

for conviction clearly and significantly less persuasive.” Saunders v. State, 817

S.W.2d 688, 692 (Tex. Crim. App. 1991). We consider the extent of any harm “in

light of the entire jury charge, the state of the evidence, including the contested

issues and weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole.” Id. at 690

(quoting Almanza, 686 S.W.2d at 171).

      To measure the sufficiency of the corroborating evidence, we eliminate the

accomplice evidence from the record and determine whether the remaining

inculpatory evidence tends to connect the defendant to the offense. Malone v.

State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). This evidence may be direct

or circumstantial. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993).

In evaluating the non-accomplice evidence, we consider its reliability and the

strength of its tendency to connect the defendant to the crime. Herron v. State, 86

S.W.3d 621, 632 (Tex. Crim. App. 2002). Corroborating evidence is reliable if

“there is no rational and articulable basis for disregarding it or finding that it fails

                                           9
to connect the defendant to the offense.” Id. at 633. We evaluate the sufficiency

of non-accomplice evidence in light of the particular facts and circumstances of

each case. Smith, 332 S.W.3d at 442.

      On appeal, Torres admits independent corroborating evidence—including

his own statements—exists, showing that: (1) Torres was worked for a drug cartel

in Houston led by Zamora and Jose Chapa; (2) Chapa told Torres to find Salinas;

(3) Zamora met with Torres and gave him a picture of Salinas; (4) Chapa told

Torres to find someone to go to the restaurant where Salinas was eating and that

Salinas was wearing a jersey; (5) Torres enlisted Quintanilla to go to the restaurant;

(6) Torres later called Quintanilla and informed him about the man wearing a

jersey; (7) After the murder, Chapa gave Torres gas money and additional money

in an envelope to pay Quintanilla for killing a man Torres thought was Salinas; and

(8) Torres met with Quintanilla at Belmarez’s house to deliver the envelope

containing the money. Torres also identified Quintanilla in a police photo spread

as Peter Quintanilla—the man whom he had conversed with on the day of the

murder.

      Reliable evidence from sources other than Belmarez connects Torres to the

capital murder, and independently corroborates Belmarez’s testimony. Given the

strength of this independent evidence, we hold that the jury would not have

disregarded the accomplice witness testimony, even had it received the proper

                                         10
instruction. Accordingly, we conclude that Torres has failed to show that he was

egregiously harmed by the failure to include the instruction.

                                    Conclusion

      We affirm the judgments of the trial court.




                                              Jane Bland
                                              Justice


Panel consists of Justices Keyes, Bland, and Sharp. Justice Sharp, concurring in a
separate opinion.

Publish. TEX. R. APP. P. 47.2(b).




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