                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 RAYMOND JOE TAYLOR,                          §
                                                              No. 08-12-00143-CR
                   Appellant,                 §
                                                                Appeal from the
 v.                                           §
                                                          355th Judicial District Court
 THE STATE OF TEXAS,                          §
                                                              Hood County, Texas
                   Appellee.                  §
                                                              Cause No. CR11748
                                               §

                                        OPINION

       Raymond Joe Taylor appeals his conviction on three counts of Aggravated Assault with a

Deadly Weapon. The jury assessed a sentence of 80 years’ in prison, to run concurrently, and a

$10,000.00 fine.   In his sole issue on appeal, Taylor contends that there was insufficient

independent evidence to corroborate the inculpatory testimony of an accomplice witness. For the

following reasons, we affirm.

                                      BACKGROUND

                                       Factual History

       This case arises out of a shooting incident in Granbury, Texas. On August 3, 2010,

twenty-six-year-old Appellant and nineteen-year-old Caleb Fonseca stopped at a Shell gas

station on their way to visit Appellant’s wife at the Jalapeno Tree Restaurant. Fonseca and
Appellant were acquaintances. Fonseca would give Appellant rides and Appellant in turn would

give Fonseca gas money. While at the gas station, Fonseca got into a verbal altercation with

David Tarvin and Clint Morton, members of the Dynasty gang who had been harassing Fonseca

and sending him online death threats via Myspace messages. While the argument was going on,

another car carrying Dynasty member Christian Castillo, his girlfriend Teresa Rosenquist, and

Kristin White arrived at the gas station. Tensions continued to escalate before convenience store

employees informed everyone in the group that they were going to call the police.

       What happened next is in dispute. Although Appellant elected not to take the stand in his

own defense, the trial court admitted, without objection, a redacted video recording of

Appellant’s police interrogation the night of the shooting. In the video, Appellant said that he

told Fonseca that if he was going to get into a fight, then he should get the fight over with, but

that Appellant wanted no part in the fight and he wanted Fonseca to take him home. He also said

that Fonseca complied and drove him home, but that the group from the gas station followed the

car to the house. Appellant claims he asked Fonseca to not stop at the house because his children

were there, but that Fonseca drove there anyway.

       Once the car stopped, Appellant said, he gathered up his children and nephew and

ushered them into the back room. Fonseca and the Dynasty gang members continued arguing

outside. Appellant then exited the house and told everyone to get off his property. At that point,

he said, Fonseca fired one or two shots from a shotgun. The group of people from the gas station

and Fonseca all fled the scene. Fonseca returned five to ten minutes later, stating that he left his

gun at his sister’s house and claiming that he fired because he thought the group that had

followed them to Appellant’s house had a gun. Appellant said he then got back in Fonseca’s car

because he was afraid that his wife would be worried about him not showing up on time to meet



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her at her job, especially given that they had been fighting recently.

           Fonseca and other witnesses disputed Appellant’s account of events in their trial

testimony. Fonseca, White, and Rosenquist all testified that at the gas station, Appellant had

suggested that if the group really wanted to fight, they should go to his home in the Indian

Harbor subdivision because the police would not intervene there. Fonseca and Rosenquist

testified that everyone agreed to this arrangement, loaded into three separate cars, and then

departed for Appellant’s house. Fonseca further testified that prior to leaving for the gas station,

Fonseca had Appellant place Fonseca’s shotgun into Appellant’s house. Fonseca said that during

the car ride back to Appellant’s house from the gas station, Appellant asked Fonseca where he

kept the bullets for his shotgun. When Fonseca replied that they were in the trunk, Appellant

purportedly told him to “[p]op the trunk when we pull up” to the house.

           White testified that when she arrived at Appellant’s house, she witnessed Fonseca open

the trunk of his car at Appellant’s house, remove a bag, and hand the bag to Appellant.

Appellant then told White, “[d]on’t worry about it, little mama. I’m just taking my CDs inside,”1

before stepping into his house. Fonseca maintained that the bag actually contained shotgun

ammunition. White saw stray shotgun shells in the trunk, yelled out that Fonseca had shotgun

shells, and then ran to her car. Fonseca then walked toward the front door.

           Forensic analysis indicated that a gunman wielding a shotgun fired three shots from the

porch and driveway in front of Appellant’s house. The identity of the gunman was in dispute at

trial. Neighbors testified that they heard gunshots and found bullet holes on their property, but

only two witnesses actually identified the gunman at trial. White, who suffered facial injuries

from shotgun pellets and broken glass, admitted that she did not actually see who shot her, but

testified that she believed Appellant was the shooter. She also initially told police that Fonseca
1
    Kristin White was four months pregnant at the time of this shooting.

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had shot her, but later told police at the hospital that Appellant was the gunman. Megan

Bonham, the second eyewitness, testified that the gunman was a “tall” male standing on the

porch. Fonseca is 6’0” tall. Appellant is 5’4” tall.

       Fonseca maintained during trial testimony that Appellant was the shooter, and that when

he asked Appellant why he was shooting, Appellant replied, “I don’t give a damn. I’ll kill them

all.” Prior to Appellant’s trial, Fonseca pleaded guilty to one count of aggravated assault arising

out of this same incident.      Appellant admitted in the police interrogation video that he

encouraged Fonseca to fight the other people at the gas station, but denied firing the shotgun that

day. No fingerprints were collected from the shotgun, and no gunshot residue was found on

either Appellant or Fonseca.

                                        Procedural History

       Appellant was indicted on three counts of Aggravated Assault with a Deadly Weapon.

Appellant pleaded not guilty to all three charges. The jury found Appellant guilty on all three

counts, sentenced him to 80 years’ in prison, and assessed a $10,000.00 fine.

                                          DISCUSSION

       In his sole issue, Appellant argues that his conviction should be overturned under

TEX.CODE CRIM.PROC.ANN. art. 38.14 because biased testimony from Fonseca identifying

Appellant as the shooter is uncorroborated by other independent evidence in the record. We

disagree.

                                       Standard of Review

       The Texas Legislature has established that “[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[.]” TEX.CODE CRIM.PROC.ANN. art. 38.14 (West 2005).



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“The rule reflects a legislative determination that accomplice testimony implicating another

person should be viewed with a measure of caution,” since “accomplices often have incentives to

lie. . . [and] avoid punishment or shift blame to another person.” Blake v. State, 971 S.W.2d 451,

454 (Tex.Crim.App. 1998).

       Evidentiary sufficiency under the accomplice witness rule is a separate level of review

created by statute that is independent from legal and factual sufficiency reviews as defined by the

federal and state constitutions. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999).

In assessing an evidentiary challenge under the accomplice witness statute, we first eliminate the

accomplice’s live, sworn testimony at trial from consideration, Cockrum v. State, 758 S.W.2d

577, 581 (Tex.Crim.App. 1988); Torres v. State, 137 S.W.3d 191, 196 (Tex.App.--Houston [1st

Dist.] 2004, no pet.), and then review the remaining evidence in the light most favorable to the

verdict, Cantelon v. State, 85 S.W.3d 457, 461 (Tex.App.--Austin 2002, no pet.); Cathey, 992

S.W.2d at 463 n.4, to determine whether a rational juror would believe the evidence “tends to

connect the defendant” to the charged crime. Id. at 462. If not, the defendant is entitled to a

judgment of acquittal. Torres, 137 S.W.3d at 196; TEX.CODE CRIM.PROC.ANN. art. 38.17.

       The precise level of evidence needed to corroborate an accomplice’s testimony and

sustain a conviction is undefined and largely hinges on the underlying facts and circumstances of

each case. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996). “All the facts and

circumstances in evidence may be looked to as furnishing the corroboration necessary[.]” Gandy

v. State, 835 S.W.2d 238, 241 (Tex.App.--Houston [1st Dist.] 1992, pet. ref’d). “Corroboration

may rest on direct or circumstantial evidence.” Gaston v. State, 324 S.W.3d 905, 909 (Tex.App.-

-Houston [14th Dist.] 2010, pet. ref’d); see also Gosch v. State, 829 S.W.2d 775, 777

(Tex.Crim.App. 1991). Corroborating evidence “tending to connect the defendant with the



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offense committed” under Article 38.14 does not need to “directly connect the defendant to the

crime” or “be sufficient by itself to establish guilt . . . .” Cathey, 992 S.W.2d at 462. Instead, a

showing of some evidence beyond the mere commission of an offense or beyond the defendant’s

presence before, during, or after its commission is sufficient to establish the nexus.          See

Dowthitt, 931 S.W.2d at 249; Colella v. State, 915 S.W.2d 834, 838-39 (Tex.Crim.App. 1995).

“[P]resence combined with other suspicious circumstances . . . [or] evidence the defendant was

in the presence of the accomplice at or near the time or place of the offense is proper

corroborating evidence.” Barrera v. State, 321 S.W.3d 137, 148 (Tex.App.--San Antonio 2010,

pet. ref’d). Likewise, evidence of motive, opportunity, and demeanor, when taken in concert

with other evidence, may be enough to corroborate accomplice testimony. See Smith v. State,

332 S.W.3d 425, 442 (Tex.Crim.App. 2011). “Any independent evidence tending to verify an

accomplice witness’s version rather than the defendant’s version is deemed to be corroborative,

even if it goes only to a mere detail versus a substantive connection between the defendant and

the offense.”    Nethery v. State, 29 S.W.3d 178, 185-86 (Tex.App.--Dallas 2000, pet.

ref’d)[internal citation and quotation marks omitted].

       The State concedes at the outset of its brief that “Caleb Fonseca was an accomplice as a

matter of law because Fonseca was charged with—and pled guilty to—the same offense as

Appellant.” See also Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App 2006). As such, the

accomplice witness rule applies, and we review the record as a whole—minus Fonseca’s trial

testimony—to determine if there is sufficient evidence linking Appellant to the shooting.

                                 Application of Law to the Facts

       Appellant argues that absent Fonseca’s testimony, the State has failed to adduce any

evidence at trial credibly establishing anything beyond Appellant’s mere presence at the scene of



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the shooting, which is in and of itself insufficient to support his conviction. See Dowthitt, 931

S.W.2d at 249. He notes that of the eleven witnesses the State presented in addition to Fonseca,

only two—Kristen White and Megan Bonham—identified the shooter in court.                  Appellant

contends that neither of those eyewitnesses can credibly establish that Appellant was the shooter.

He points to the fact that White initially identified Fonseca as the shooter as proof that she is not

a credible witness. He also argues that the fact that Bonham stated that the shooter was “tall”

when Fonseca stands at 6’0” tall and Appellant is only 5’4” is proof that Fonseca and not

Appellant actually fired the shotgun. The State responds that the witness testimony and forensic

evidence sufficiently corroborate Fonseca’s testimony under the accomplice witness rule. We

agree.

         We acknowledge that the timeline of events, the vantage point of eyewitnesses, and

testimonial inconsistencies may not conclusively establish the shooter’s identity absent

Fonseca’s testimony. However, the standard for reversal under the accomplice witness rule is

not pegged to proof beyond a reasonable doubt. Cathey, 992 S.W.2d at 462. Instead, the statute

provides the remedy of acquittal only where there is little to no evidence independently

corroborating an accomplice’s testimony connecting the defendant to a crime. Id. at 463. Here,

the State has offered some evidence that could plausibly corroborate Fonseca’s testimony and

show that Appellant was connected to the shooting.

         Although Appellant’s presence at the crime scene, his association with a party that pled

guilty to the offense, his self-professed disdain for the gang members, and his desire to see a

fight could be insufficient to corroborate Fonseca’s testimony when taken individually, we must

not take a divide-and-conquer approach, but instead view the record as a whole and consider

them as relevant corroborating factors when taken together. See Ex parte Martinez, 330 S.W.3d



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891, 894 n.4 (Tex.Crim.App. 2011)(“accused’s presence in the accomplice’s company before,

during, and after the commission of the offense” may corroborate when linked to other

evidence); Dowthitt, 931 S.W.2d at 249 (presence at scene of the crime may corroborate

contingent upon linkage); Smith, 332 S.W.3d at 442 (motive evidence may corroborate

accomplice where taken with other evidence).         Likewise, the fact that Appellant had the

opportunity to enter his home and retrieve a firearm prior to the shooting, although insufficient to

corroborate Fonseca’s testimony alone, becomes significant when viewed in light of the fact that

Fonseca testified he had left his shotgun at Appellant’s home and no eyewitness testified to

seeing a gun prior to Appellant’s entry into the home. Id. (opportunity evidence may be linked

with other evidence for corroboration); Gaston, 324 S.W.3d at 909 (circumstantial evidence is

proper corroborating evidence).

       Apart from the inferential evidence of presence, motive, and opportunity, other witnesses

explicitly corroborated Fonseca’s version of events. White corroborated Fonseca’s claim that

Appellant set the shooting into motion when she testified that Appellant told the group at the gas

station to “[f]ollow me to my house” because “[t]here will be no law[,]” which she understood to

mean “no police.” White’s testimony also directly contradicted Appellant’s video recorded

statement in which he claimed he wanted no part in the fight, told Fonseca to drive him home,

and maintained the group from the gas station followed them to Appellant’s home on their own.

The jury, as finder of fact, was free to believe that the inconsistencies between Appellant’s police

statement and other eyewitness testimony tended to independently corroborate Fonseca’s version

of events and resolve those inconsistencies against Appellant. See Nethery, 29 S.W.3d at 185-86

(holding that “[a]ny independent evidence tending to verify an accomplice[’s]” story over a

defendant’s story is corroborative).



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           White further corroborated Fonseca’s assertion that Appellant removed a bag from the

trunk and took it with him into his house prior to the start of the shooting, thereby also

contradicting Appellant’s statement to police in which he claimed that as soon as he returned to

his house, he immediately exited the car and shepherded his children to the room. White’s

testimony that the trunk from which the bag came contained shotguns shells constituted

circumstantial evidence corroborating Fonseca’s testimony that the bag Appellant carried into

the house contained shotgun shells. Id. (evidence may be corroborative even if it “goes only to a

mere detail” and not a “substantive connection between the defendant and the offense”).

Additionally, her testimony that only a short time elapsed between Fonseca walking to the front

door while she attempted to start her car and her being shot is circumstantial evidence

corroborating Fonseca’s claim that Appellant was the gunman. Forensic testing showed that

shots were fired from the porch near the front of the house, and given the time frame, it would

have been easier for Appellant to obtain the gun from inside the house and begin shooting from

that position than for Fonseca to do the same.

           Finally, evidence gathered during the course of the police investigation corroborates

Fonseca’s version of events. After the shooting, Fonseca stated he placed the loose shotgun

shells in the console of his vehicle and that he and Appellant went to Fonseca’s house and hid the

gun in Fonseca’s closet. Fonseca further testified that Appellant asked to use the restroom after

the shooting. When Appellant came out of the bathroom, “[h]e was drying off his hands on his

pants.” Fonseca and Appellant were arrested a short time later.2 Police later found the gun in

Fonseca’s closet and unspent shotgun shells in the car’s console. Forensic testing showed no

gunshot residue on either Appellant’s or Fonseca’s hands. In viewing the evidence in the light

most favorable to the verdict, we find that the State has met its burden in connecting Appellant to
2
    Fourteen minutes elapsed from the time of the first 911 call until Appellant and Fonseca were arrested.

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the aggravated assault under TEX.CODE CRIM.PROC.ANN. art. 38.14. As such, reversal of the

verdict and rendition of an acquittal judgment under the accomplice witness statute is

unwarranted.

       Issue One is overruled. We affirm Appellant’s conviction.



February 26, 2014
                                           YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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