   TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                    NO. 03-10-00730-CR



                              Juan Diego Aguilar, Jr., Appellant

                                              v.

                                 The State of Texas, Appellee


FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
   NO. A-09-0967-SA, HONORABLE BARBARA WALTHER, JUDGE PRESIDING



                          MEMORANDUM OPINION


               A jury found Juan Diego Aguilar, Jr. guilty of aggravated assault with a deadly

weapon, enhanced to a first-degree felony due to a prior conviction. See Tex. Penal Code Ann.

§ 12.42 (West 2011), § 22.02 (West Supp. 2011). A jury assessed his punishment at fifty years’

confinement and a fine of $10,000. Aguilar’s criminal responsibility for the offense was proved

largely through the testimony of four witnesses: Virginia Cardenas, Gabriel Wilkins, and

teenagers M.D. and S.M. The trial court instructed the jury that Cardenas was an accomplice

as a matter of law but submitted the question of whether Wilkins, M.D., or S.M. were

accomplices to the jury. In one point of error, Aguilar claims that all of these witnesses were

accomplices whose testimony was uncorroborated, with the result that insufficient evidence

supported his conviction. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). We affirm

the judgment of conviction.
                                          BACKGROUND

                On the evening of July 12, 2009, police responded to a shooting at a home in

San Angelo in Tom Green County, Texas.1 The victim, Joe Robles, had suffered numerous wounds

from shotgun pellets in his back and abdomen but survived. An investigation led to the arrest and

indictment of Aguilar for aggravated assault with a deadly weapon. At Aguilar’s trial before a jury,

several witnesses testified to the events that night.


Testimony of M.D.

                M.D., who is Aguilar’s stepson, was living with Aguilar that July even though

his mother and Aguilar were separated. M.D. testified that on the night in question, he and his

girlfriend, S.M., were with Aguilar at the home of Virginia Cardenas, where they were all drinking

alcohol and using methamphetamine.

                M.D. testified that at one point, he heard loud voices outside and saw Cardenas

standing in the doorway of the house, “cussing back and forth” with someone outside. Cardenas

then went into the kitchen, got a knife, and went back outside, where she swung the knife but did

not hit anyone. M.D. next heard Aguilar place a telephone call to a friend, asking him to bring a gun.

Fifteen minutes later, Gabriel Wilkins arrived in a truck with a couple of other men.

                M.D. admitted that he left with Wilkins and Aguilar in the truck, knowing that they

were “going to find the guys” who had been “talking mess to” Cardenas. From the back seat of the

truck, M.D. saw what he thought was a shotgun, which Aguilar loaded. They drove around for about




       1
           The facts recited herein are taken from the testimony and exhibits presented at trial.

                                                   2
ten minutes, but “didn’t find anybody.” At this point, Aguilar called Cardenas to ask if she knew

where the men who had been to her house lived. After Aguilar hung up the phone, Wilkins started

driving to the east side of San Angelo.

               M.D. testified that they ultimately saw two men standing near a car parked outside

a house. Wilkins drove past the house as Aguilar attempted to pump the shotgun, which was sticking.

After they circled the block three times, Aguilar shot one of the two men outside. M.D. recalled that

when the shotgun recoiled, it hit Aguilar’s lip. Aguilar then shot the man again.

               According to M.D., they drove back to Wilkins’s house, where M.D. saw that Aguilar’s

lip was purple, swollen, and bleeding. About twenty minutes later, Cardenas and S.M. joined them.

While M.D. was talking with S.M., they heard an ambulance pass by, which frightened S.M., causing

her to cry and throw up. Later, Cardenas, S.M., and M.D. went back to Cardenas’s house for the

night. M.D. testified that he received juvenile probation stemming from this incident and was

required to move away to live with his biological father.


Testimony of S.M.

               S.M. also testified that she was at Cardenas’s house with Aguilar, Cardenas, and

M.D. that night. She told the jury that she and M.D. were in one of the front rooms of the house

when Aguilar knocked on the door and told M.D. to come outside because “someone pulled a knife

on” Cardenas. S.M. heard Aguilar make a phone call and tell someone to “load something” and

come pick up Aguilar and M.D. Shortly thereafter, “[Aguilar’s] friend came over in the truck and

picked up [Aguilar] and [M.D.],” who told S.M. to go with Cardenas. S.M. joined Cardenas in her

car, thinking that they were just going for a drive. According to S.M.,

                                                 3
       We drove by some houses and there was two guys outside. And [Cardenas] asked
       to use my phone . . . . So she texted them. And I guess she ended up showing
       [Aguilar] and [M.D.] and his friend where the house was that the guys were at. And
       she used my phone to text them, to call because she found them.


After texting Aguilar, Cardenas stopped the car at a stop sign and waited a few minutes until they

saw the headlights of a truck. S.M. said that she believed, but could not be sure, that this was the

truck in which M.D. and Aguilar were riding. On seeing the headlights, she and Cardenas left. They

returned to Cardenas’s home for a while and then, upon receiving another phone call from Aguilar,

went to Wilkins’s home. While there, S.M. saw that Aguilar had an injured lip. At one point, they

heard sirens from an ambulance arriving at a nearby hospital. Feeling nervous and afraid, S.M.

threw up in Wilkins’s backyard. Cardenas eventually brought her and M.D. back to Cardenas’s

house for the night.


Testimony of Virginia Cardenas

               Cardenas testified to much of the same sequence of events that evening. She claimed

she was at her house with Aguilar, M.D., and S.M., all using methamphetamine, when six men

including Joe Robles pulled up in a white car. An argument broke out, and one of the men with

Robles pulled a knife, so she did the same. Afterward, Cardenas heard Aguilar on the phone saying

he was going to get them, meaning Robles and the man who had pulled the knife on Cardenas.

               Cardenas testified that a truck pulled up and soon left with Aguilar and M.D., while

Cardenas left in her car with S.M. She decided at some point to drive toward the house where

she knew Robles’s mother lived, after which she asked S.M. to text Aguilar to ask where he was.



                                                 4
Instead of a return text, Cardenas got a phone call from Aguilar, asking where she was. She told

him, and he responded to go home once she saw his headlights. When Cardenas saw headlights in

her rear view mirror, she drove away.

               At home, Cardenas got a phone call from Aguilar asking her to bring him his clothes

and pipe. She brought S.M. to Wilkins’s house, where Wilkins, Aguilar, and M.D. were waiting.

She testified that Aguilar had an injured lip, which he had not had earlier that night, and which he

explained by saying that the gun hit him in the mouth. They heard ambulances, and Aguilar stated,

“Listen, there they go to get him.” After everyone smoked some methamphetamine, Cardenas took

S.M. and M.D. back to her house. Cardenas testified that she had been charged with the same

offense as Aguilar, aggravated assault with a deadly weapon, and pled guilty in exchange for ten

years’ deferred probation.


Testimony of Gabriel Wilkins

               Also testifying to the events on the night of the shooting was Gabriel Wilkins.

Wilkins admitted that he, too, was using methamphetamine that night. He testified that Aguilar

called him to help with “somebody [who] was starting some stuff with him,” asking Wilkins to bring

a 12-gauge shotgun he owned. Wilkins drove to Cardenas’s house in his brother’s truck with his

brother and cousin inside.

               M.D. and Aguilar left Cardenas’s house in the truck with Wilkins. Aguilar said the

people they were looking for had been walking, so the group drove around until Cardenas called to

tell Aguilar where “they” were. Wilkins told the jury that he thought Aguilar would fight the men

who were walking, and if they “pulled something out,” then Wilkins and Aguilar would have the

                                                 5
shotgun. “But that didn’t happen,” Wilkins stated. Instead, after they drove around the block three

times, Aguilar “shot twice” out of the front passenger window at two men coming out of a white car.

While firing, Aguilar injured his lip.

               Wilkins said that Aguilar’s injured lip caused blood to get on the interior of the truck

door, and he was sure because he saw Aguilar trying to clean it out later. The group returned to

Wilkins’s house, where he put the gun in the garage and got the shells out of his truck. Cardenas

joined them with S.M., who was “tripping out.” Aguilar stayed the night, then came by after a

couple of days and picked up the shotgun. Wilkins testified that he had not heard from Aguilar since.


Testimony of Joe Robles

               Victim Joe Robles also testified at trial. He stated that he did not know Aguilar, but

he had known Cardenas since junior high school, and he was outside her home earlier on the same

night he was shot. Robles was with his first cousin, Jimmy Mendoza. Both men had been drinking,

and Robles admitted that his purpose in going to Cardenas’s home was to score some “ice.” With

them were four other men, one of whom began arguing with Mendoza. At some point, Cardenas

came outside to tell them to leave, and Mendoza and Cardenas both took out knives. In addition,

“another guy came out of nowhere” and “started swinging at” Robles. When Robles backed onto

a nearby empty lot, the man pursued him with a baseball bat he took from the trunk of a car,

swinging it at Robles and Mendoza but missing. It was too dark to see the man’s face, but as Robles

left the area on foot, he heard the man say, “I’ll be back.”

               Robles and Mendoza returned to Robles’s mother’s house, where they sat and talked

for a while in his car. As Robles stood up to go inside to sleep, he heard a loud pop and dropped to

                                                  6
the ground, realizing he was shot. He testified that he ran around to the back of the home and

jumped inside through a window, but could remember no more of that night.


Testimony as to the police investigation

               In addition to this evidence, the State presented an array of police testimony. This

included the testimony of patrol officer Steve Dophied, who responded to the shooting call on

July 12, 2009. On arriving, Dophied observed the victim, later identified as Joe Robles, lying bloody

on the floor. While other officers and emergency personnel attended to Robles, Dophied spoke with

Mendoza, who directed him outside to look for signs of a shooting. Dophied saw two vehicles with

what looked like shotgun pellet damage, two shotgun “wads” on the ground, and damage to a

neighbor’s window with a shotgun pellet on the inside ledge.

               Former Detective John Ford also testified that he responded to the scene. From

speaking to Mendoza, Ford narrowed in on the residence of Virginia Cardenas as the place where

events might have started that night. He soon proceeded there and found Cardenas, M.D., and S.M.

and spoke with them. According to Ford, he felt “they weren’t being completely truthful” and “their

stories didn’t really add up.” After interviewing S.M. again at the police station the next day, the

officers obtained a warrant to search Wilkins’s house.

               While police were at Wilkins’s house, Wilkins’s brother pulled up in the type of pickup

truck they were looking for. After obtaining permission, Ford personally searched and inventoried

the truck, finding what appeared to be blood inside the passenger door. Crime scene technicians

obtained a sample of the substance for testing. Ford then prepared complaints against Cardenas and

Aguilar and obtained a search warrant for Aguilar’s blood. Forensic experts testified that the sample

from the truck tested positive for blood and that it matched the blood sample obtained from Aguilar.

                                                 7
               Ford testified that he originally thought S.M. might be subject to prosecution for her

involvement, because her phone was used to make the call to shoot the victim. However, when asked

at trial if he currently considered S.M. to be an accomplice, he answered, “Not really . . . . I don’t

believe she was fully aware of what was going on and what actually all was going to happen.” Ford

stated, “I’m not sure that she developed the . . . actual mental culpability to actually charge her with a

crime.”


Testimony of Juan Diego Aguilar, Jr.

               Finally, Aguilar testified in his own defense. He described the initial altercation with

Joe Robles, Robles’s cousin, and the four other men in the white car in essentially the same way

that Cardenas, M.D., and S.M. had. However, he denied all the subsequent events they recounted.

Aguilar claimed that after Robles and his group left Cardenas’s house, he also left on foot for the

residence of Viviana Rivas, where his girlfriend, Michelle Regino, was babysitting. Rivas and Regino

appeared as alibi witnesses, testifying that Aguilar was with Regino and Rivas’s children all night.

Aguilar also explained that the blood on the truck door was the result of an injury to his finger from a

fishing trip he had previously taken in Wilkins’s brother’s truck. He accused the other witnesses of

lying and criticized their accounts of the night’s events as inconsistent.2


Procedural background

               After the close of evidence, the jury was given the court’s charge, which included an

instruction defining “accomplice witness” and explaining that a jury cannot consider accomplice-


          2
           Primarily, Aguilar pointed out that the witnesses gave conflicting accounts of the color of
 the truck they saw on the night of the shooting. In the various witnesses’ testimony, the truck was
 described as white, silver, gold, and brown.

                                                    8
witness testimony unless it is corroborated by other evidence tending to connect the defendant to the

offense. The court further instructed the jury that Virginia Cardenas was an accomplice as a matter of

law. The jury returned with a verdict of guilty. Aguilar elected to have the jury assess punishment and

pleaded true to the enhancement of a previous second-degree felony conviction of robbery. After the

presentation of evidence, the jury assessed punishment at confinement for fifty years and a $10,000 fine.

                Aguilar appeals, claiming that insufficient evidence supported his conviction because

(1) no jury could rationally find S.M., Wilkins, and M.D. not to be accomplices as a matter of fact; (2)

the trial court should have instructed the jury that Wilkins and M.D. were accomplices as a matter of

law; and (3) there was insufficient evidence to corroborate the testimony of the accomplice witnesses.


                                     STANDARD OF REVIEW

                Under Article 38.14 of the Texas Code of Criminal Procedure, a conviction cannot be

had upon the testimony of an accomplice unless that testimony is corroborated by other non-accomplice

evidence tending to connect the defendant with the offense. Tex. Code Crim. Proc. Ann. art. 38.14.

The testimony of an accomplice witness is considered to be inherently untrustworthy and should be

received and acted on with caution because it is “evidence from a corrupt source.” Walker v. State,

615 S.W.2d 728, 731 (Tex. Crim. App. 1981); Wincott v. State, 59 S.W.3d 691, 698 (Tex. App.—Austin

2001, pet. ref’d).

                Although Aguilar brings this appeal as a challenge to the sufficiency of the evidence

supporting his conviction, the accomplice-witness rule creates a statutorily imposed review and is

not derived from federal or state constitutional principles that define the legal sufficiency standard.

Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); Cathey v. State, 992 S.W.2d 460, 462

                                                   9
(Tex. Crim. App. 1999) (“We decline appellant’s invitation to impose legal and factual sufficiency

standards upon a review of accomplice witness testimony under Article 38.14.”); see also Brown v.

Collins, 937 F.2d 175, 182 n.12 (5th Cir. 1991) (“[T]he Constitution imposes no requirement that the

testimony of an accomplice-witness be corroborated by independent evidence.”).

               Consequently, to weigh the sufficiency of the corroborative evidence, we apply a

statutory standard by which we disregard the accomplice’s testimony and examine the remaining

portions of the record to ascertain whether there is any evidence tending to connect the accused

with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001);

Maynard v. State, 166 S.W.3d 403, 410 (Tex. App.—Austin 2005, pet. ref’d). Because the standard

is “tendency to connect,” the corroborating evidence need not be sufficient by itself to establish guilt

beyond a reasonable doubt. Maynard, 166 S.W.3d at 410. If the combined weight of the non-accomplice

evidence tends to connect the defendant to the offense, then the requirement of Article 38.14 has been

met. Cathey, 992 S.W.2d at 462. We review a claim that accomplice-witness testimony is insufficiently

corroborated in the light most favorable to the verdict. See Hernandez v. State, 939 S.W.2d 173, 176

(Tex. Crim. App. 1997). The non-accomplice evidence is sufficient corroboration if rational jurors

could find that it tends to connect the accused to the crime. Smith v. State, 332 S.W.3d 425, 442

(Tex. Crim. App. 2011).


                                            DISCUSSION

               In the present case, the trial court declared Cardenas to be an accomplice as a matter of

law while submitting the question of whether S.M., Wilkins, or M.D. were accomplices to the jury to

determine as a matter of fact. On appeal, Aguilar alleges that no rational jury could find that S.M.,

                                                  10
Wilkins, and M.D. were not accomplices and that the trial court should have included Wilkins and

M.D. in its jury instruction as accomplices as a matter of law. Outside of these accomplices’ testimony,

Aguilar claims, no evidence tends to connect him with the shooting of Joe Robles. We turn first to

Aguilar’s arguments with regard to the accomplice status of S.M., Wilkins, and M.D.


Determining accomplice status

               “An accomplice is an individual who participates with a defendant before, during, or

after the commission of a crime and acts with the requisite culpable mental state.” Cocke v. State,

201 S.W.3d 744, 748 (Tex. Crim. App. 2006). An accomplice witness’s participation must involve an

affirmative act that promotes the commission of the offense with which the defendant is charged.

Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). There must be sufficient evidence

to connect the alleged accomplice to the criminal offense as a “blameworthy participant.” Cocke,

201 S.W.3d at 748. “Mere presence at a crime scene does not make an individual an accomplice, nor

is an individual an accomplice merely because he has knowledge about a crime and fails to disclose

that knowledge.” Id.

               A witness may be an accomplice either as a matter of law or as a matter of fact. An

individual is an accomplice as a matter of law if he could be prosecuted for the same offense with

which the defendant is charged or with a lesser-included offense of that charge. Druery, 225 S.W.3d

at 498. If a trial court determines that a witness is an accomplice as a matter of law, the court is

required to provide an accomplice-witness instruction to the jury. Cocke, 201 S.W.3d at 748. Where

the evidence suggests that a witness is an accomplice but does not clearly show that the witness is an



                                                  11
accomplice as a matter of law, the question of accomplice status is properly left to the jury with an

instruction defining the term “accomplice.” Id. at 747–48.

               We begin with the question of whether a jury could rationally find that S.M. was not an

accomplice as a matter of fact.3 With regard to S.M.’s accomplice status, we treat Aguilar’s claim

as a challenge to the sufficiency of the jury’s implied finding that S.M. was not an accomplice. See

Korell v. State, 253 S.W.3d 405, 412 (Tex. App.—Austin 2008, pet. ref’d). Accordingly, we must review

all the relevant evidence in the light most favorable to the verdict and assume the trier of fact resolved

conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner supporting

the verdict. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).

               According to Aguilar, S.M. was an accomplice because in giving Cardenas her phone,

she committed an act in furtherance of the assault on Robles with the requisite culpable mental state.

The State counters that, because there was no testimony indicating that S.M. knew of Cardenas’s plan

to locate Robles for Aguilar, there was no evidence that S.M. acted with a culpable mental state. We

agree that S.M. could only have a culpable mental state in giving Cardenas the phone if she knew

that it would be used to help Aguilar find and assault Robles. Consequently, the question is whether

a jury could rationally conclude from the testimony presented that S.M. was unaware of any plans to

harm Robles.

               At trial, the jury heard Officer Ford testify that he did not consider S.M. an accomplice

because she lacked a culpable mental state and was never fully aware of what was happening on the


         3
          The evidence does not clearly demonstrate, nor does Aguilar argue, that S.M. is an
 accomplice as a matter of law. Thus, her status as an accomplice was properly submitted to the jury
 as a question of fact. See Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986).

                                                   12
night in question. In addition, there was no indication from S.M.’s own testimony that she realized

before giving Cardenas her phone that Cardenas intended to inform Aguilar of Robles’s location.

Regarding the moment Cardenas asked for the phone, S.M. testified as follows:


       STATE:         What happened next?

       S.M.:          I thought me and [Cardenas] were just going for a drive. And she started
                      driving, like, around the neighborhoods and stuff. And she—we drove
                      by some houses and there was two guys outside. And she asked to use
                      my phone . . . . And it wouldn’t call [Aguilar’s] number, because I
                      thought it was a long distance number or something. So she texted them.
                      And I guess she ended up showing [Aguilar] and [M.D.] and his friend
                      where the house was that the guys were at. And she used my phone to
                      text them, to call because she found them.

       STATE:         So [Cardenas] drove you around the neighborhood, the different
                      neighborhoods?

       S.M.:          Yes, ma’am.

       STATE:         And at some point she used your—asked to use your phone?

       S.M.:          Yes, ma’am.


Viewing this testimony in the light most favorable to the verdict, we conclude that the jury could

reasonably have inferred that S.M. was unaware of why Cardenas wanted to use her phone.

               Likewise, Cardenas never testified that S.M. knew of Cardenas’s intent before handing

over the phone. Her cross-examination by the defense included this exchange:


       DEFENSE:       At what point did you go decide to find Joe Robles?

       CARDENAS: I would say after I went around the block a couple of times.

       DEFENSE:       Okay. Was [S.M.] aware of your intent to look for Joe Robles?


                                                 13
       CARDENAS: I was not actually looking for him, but no she was not.

       DEFENSE:        But at some point you just testified you did decide to look for Joe
                       Robles, correct?

       CARDENAS: Yes.

       DEFENSE:        Did [S.M.] become aware of your intent to look for Joe Robles?

       CARDENAS: No, not until we passed by his house.

       DEFENSE:        So the answer is: Yes, at the point you passed by his house, she
                       became aware of your intention to find Joe Robles, correct?

       CARDENAS: I would still say no, because we just passed by and I seen him. She
                 didn’t—she didn’t know, just like I didn’t know. It was just something
                 that happened.


This testimony does not establish that S.M. understood before giving Cardenas her phone that

Cardenas intended to locate Robles for Aguilar. Accordingly, nothing in Cardenas’s testimony

would prevent a rational jury from concluding that S.M. lacked a culpable mental state.

               Where an instruction on an accomplice as a matter of fact is raised by the evidence, a

jury may decide that a witness was not in fact an accomplice. See Gallardo v. State, 281 S.W.3d 462,

471 (Tex. App.—San Antonio 2007, no pet.) (citing Solomon, 49 S.W.3d at 362). Furthermore, as

an appellate court, we must afford almost complete deference to a fact finder’s decision when it is

based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

In light of the testimony from the police officer, S.M., and Cardenas, as well as the surrounding

circumstances, we find that a jury could rationally have found S.M. to be a non-accomplice.

               Having reached this conclusion, we need not determine the accomplice status of

Wilkins and M.D. as a matter of law or fact, because, as we conclude below, their testimony is

                                                 14
sufficiently corroborated in any event. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App.

2002) (“[N]on-accomplice evidence can render harmless a failure to submit an accomplice witness

instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.”); see

also Tex. R. App. P. 47.1 (court of appeals must hand down opinions that are as brief as possible

while addressing those issues necessary to final disposition of appeal).


Sufficiency of Corroborating Evidence

               Given that a jury could rationally have considered S.M. a non-accomplice, and

assuming without deciding that M.D. and Wilkins were accomplices, it was appropriate for the jury

to consider whether the testimony of S.M., the law enforcement officers, victim Joe Robles, and

Aguilar himself (collectively, “the non-accomplice evidence”) corroborated the accomplice-witness

testimony presented at trial. When reviewing the sufficiency of corroborating evidence under

Article 38.14, we decide whether a rational jury could have determined that the non-accomplice

evidence tends to connect the accused with the commission of the crime. Smith, 332 S.W.3d at 442;

see Cathey, 992 S.W.2d at 462 (noting that requirement of Article 38.14 is fulfilled if non-accomplice

evidence tends to connect defendant to the offense). We hold that the combined weight of the non-

accomplice evidence tends to connect Aguilar to the shooting of Robles.

               In this case, the non-accomplice evidence includes the following:


       1.      According to Aguilar and S.M., Aguilar was in the company of Virginia
               Cardenas, whom the jury was instructed was an accomplice as a matter of
               law, earlier in the same evening as the shooting.

       2.      As Robles and Aguilar testified, there was an altercation between Robles and
               Cardenas outside Cardenas’s home. Immediately afterward, according to
               S.M., Aguilar called a friend to ask him to “load something” and come over.

                                                 15
       3.      According to S.M., Aguilar left with his friend and M.D. in a truck. Cardenas
               drove around with S.M., ultimately borrowing S.M.’s cell phone to tell
               Aguilar that she was “where the house was that the guys were at.” Cardenas
               drove off after a truck pulled up that S.M. believed was carrying Aguilar.

       4.      Later that evening, S.M. saw Aguilar with an injured lip at Wilkins’s house.
               Cardenas and Wilkins were present there as well.

       5.      Police officers stated that Robles was later found severely injured, apparently
               by shotgun pellets, and a man at the scene directed the officers to Cardenas’s
               home.

       6.      The officers who met M.D., S.M., and Cardenas at her home testified that
               their stories seemed less than truthful and did not add up.

       7.      Also according to the officers, further questioning of S.M. led police to
               Wilkins’s home, where a pickup truck arrived that they felt resembled the
               one described as involved in the shooting.

       8.      According to the forensic experts, there was blood found inside the truck’s
               door that DNA testing revealed to match a blood sample from Aguilar.


This non-accomplice evidence suggests that Aguilar had a motive to harm Robles in retaliation

for his altercation with Cardenas. While motive evidence is insufficient on its own to corroborate

accomplice-witness testimony, it may be considered in connection with other evidence that tends

to connect the accused to the crime. Smith, 332 S.W.3d at 442. In addition, the non-accomplice

evidence demonstrates that Aguilar was near the scene of the shooting or, at the very least, in the

company of accomplices to the shooting shortly before and after it was committed. Proof that the

accused was at or near the scene of the crime around the time of its commission, coupled with other

circumstances such as the accused being present with an accomplice shortly before the commission

of the offense, may furnish sufficient corroboration to support a conviction. Brown v. State, 672

S.W.2d 487, 489 (Tex. Crim. App. 1984).

                                                 16
               Finally, the non-accomplice evidence indicates that there were other suspicious

circumstances relating to Aguilar. For instance, after Aguilar asked his friend to “load something”

and come over, the victim was assaulted with a loaded shotgun. Likewise, after Aguilar injured his

lip on the night in question, his blood was found inside a truck at the home of Wilkins, whom police

were investigating for a shooting involving a truck. Suspicious circumstances, in combination with

evidence that the accused was present with an accomplice or had a motive to commit the offense,

may be used to corroborate accomplice-witness testimony. See Smith, 332 S.W.3d at 442; Cherb

v. State, 472 S.W.2d 273, 280 (Tex. Crim. App. 1971) (non-accomplice evidence of defendant

carrying and counting large bag of coins, in addition to being with accomplice near time of burglary,

was sufficient corroboration). These circumstances, together with the evidence of Aguilar’s motive

and the fact that he was with accomplices near the time of the offense, all point to Aguilar as the

perpetrator in this case. Consequently, giving proper deference to the jury’s resolution of the facts,

we conclude that the non-accomplice testimony of S.M., Robles, the police officers, the forensic

experts, and Aguilar himself more than tends to connect Aguilar with the crime of shooting Robles.

               Because a jury could rationally find that the above non-accomplice evidence tends

to connect Aguilar to the shooting of Joe Robles, there is sufficient corroboration of the accomplice

testimony in this case. We overrule Aguilar’s sole issue on appeal.


                                          CONCLUSION

               Because the accomplice-witness testimony against Aguilar is sufficiently corroborated

under Article 38.14 of the Texas Code of Criminal Procedure, we affirm the judgment of conviction.



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                                           __________________________________________

                                           Diane M. Henson, Justice



Before Chief Justice Jones, Justices Pemberton and Henson

Affirmed

Filed: February 17, 2012

Do Not Publish




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