Case Information
*0 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 9/18/2015 9:58:12 AM DORIAN E. RAMIREZ Clerk *1 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 FOR THE THIRTEENTH SUPREME JUDICIAL DISTRICT AT CORPUS CHRISTI-EDINBURG, TEXAS ----------------------------------------------------------------------------------------------------
RAUL LARA, APPELLANT v.
THE STATE OF TEXAS, APPELLEE ----------------------------------------------------------------------------------------------------
APPEAL OF TRIAL COURT CAUSE NO. CR-4394-12-E FROM THE 275 TH DISTRICT COURT HIDALGO COUNTY, TEXAS The Honorable Juan Partida, Presiding ----------------------------------------------------------------------------------------------------
BRIEF OF THE STATE OF TEXAS/APPELLEE ---------------------------------------------------------------------------------------------------- Rene Guerra
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 *2
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: 120 S. 12 th Ave., Edinburg TX 78539
Judith Pena-Morales, Esq.
E. Omar Maldonado, Esq. [1] 100 N. Closner, Edinburg TX 78539 1308 S. 10 th St., Edinburg TX 78539
O. Rene Flores, Esq.
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, 3 rd 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, 3 rd floor, Edinburg TX 78539
by his Assistant Criminal District Attorney Glenn W. Devino
*3 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.
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.
*4 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
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
*6 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
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 5 th 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
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.
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.
STATEMENT OF FACTS [4] 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.
*11 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
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.
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.
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
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 read ,he did understand what was going on, he did understand *16 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
penitentiary” in addition to segments involving information from codefendants
who could assert the 5 th 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
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.
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’ motion , 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. *20 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.
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
male. 19RR41. Vehicles in the vicinity included “Steve’s black GTO, Joe B’s
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.
*23 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 door [11] , 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
*24 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. *25 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
car [16] …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
*26 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,
Lucinda Tijerina, and their mother were present. 18, 19 19RR186. Julissa and
*27 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 8 th . 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 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.
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
Negro 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
*29 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.
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:
*30 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. 20RR183, 192; 28RR State’s Exhibit 84. Pena did not
*31 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
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.
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,
*33 then avers that, from the rear seat of the van, he was able to open the driver-side
passenger door. 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
*34 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,
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.
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.
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.
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 ).
*39 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
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. 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
*41 S.W.2d 435, 441 (Tex. Crim. App. 1986, cert. denied ). 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? Answer: *42 No.
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);
s ee, 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
*43 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 witnesses [32] 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 applied [33] , let alone
*44 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. 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).
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).
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. The Texas Court of
*46 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)
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-
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
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 witnesses 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.
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, 4 th 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, 4 th floor Edinburg TX 78539 Telephone 956-318-2300 Facsimile 956-380-0407 State bar no. 24012525 *51 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 19 th day of September, 2015.
_____/s/______Glenn W. Devino Glenn W. Devino
Assistant Criminal District Attorney Hidalgo County, Texas 100 N. Closner, 4 th floor Edinburg TX 78539 Telephone 956-318-2300 Facsimile 956-380-0407 glenn.devino@da.co.hidalgo.tx.us State bar no. 24012525
[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.
[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.
[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.
[6] Which assumption is directly contradicted by the video itself, which portrays Appellant reading certain documents albeit with slight difficulty.
[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.
[8] A reference to Joe Brandon. 21RR10.
[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.
[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.
[15] Juan Pablo Sosa. 21RR214.
[16] Another vehicle in the area was also struck by gunfire. 19RR100-103.
[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.
[21] This is a reference to Eric Atwood. 22RR38 lines 1-2.
[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.
[23] The copy thereof which was admitted into evidence for consideration of the jury was partially redacted. 28RR State’s Exhibit 84.
[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.
[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.
[28] The instant trial was conducted in December, 2013; Lucinda testified before the grand jury “back in November of last year.” 22RR82-83.
[29] The trial court so instructed the jury. CR254-255.
[30] It is noteworthy that the defense did not question Julissa about this claimed conversation during her testimony.
[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.
[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.
[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.