Brandan Alexander Munoz v. the State of Texas
Opinion
Affirmed and Opinion Filed December 28, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas No. 05-21-00791-CR
BRANDAN ALEXANDER MUNOZ, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F20-75470-T
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia Opinion by Justice Myers
Appellant Brandon Alexander Munoz was indicted for capital murder and a
jury convicted him of the lesser-included offense of murder. He was sentenced to forty years in prison. In two issues, he challenges the sufficiency of the non- accomplice evidence and argues the trial court erred in not granting a mistrial. We affirm.
DISCUSSION
I. Sufficiency of Non-Accomplice Evidence In his first issue, appellant argues that because there was no proper corroboration of accomplice witness Blayze Simpson, the evidence is insufficient to
establish his guilt beyond a reasonable doubt.
In reviewing the sufficiency of the corroborative evidence, we exclude the accomplice testimony from our consideration and examine the remaining portions of the record to ascertain whether there is evidence that tends to connect the accused to the offense. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008); Medrano v. State, 421 S.W.3d 869, 883 (Tex. App.—Dallas 2014, pet. ref’d). Thus, the question here is whether there is evidence tending to connect appellant with the offense without considering the testimony of Simpson.
A challenge of insufficient corroboration is not the same as a challenge of insufficient evidence to support the verdict as a whole. Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. Ap. 1999); Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.—Austin 2002, no pet.). Because the standard is “tendency to connect,” rather than a rational sufficiency standard, the corroborating evidence need not be sufficient by itself to establish guilt beyond a reasonable doubt. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). “[C]ircumstances that are apparently insignificant may constitute sufficient evidence of corroboration.” Malone, 253 S.W.3d at 257. Also, “[t]here need be only some non–accomplice evidence tending to connect the defendant to the crime, not to every element of the crime.” Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). Nor is the evidence required to link the defendant directly to the crime. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). If the combined weight of the non-accomplice evidence tends to
connect the defendant to the offense, article 38.14 is fulfilled. Cathey, 992 S.W.2d at 462.
Appellant was accused of intentionally causing the death of Emilio Paez by shooting him with a firearm while committing and attempting to commit the offense of robbery. The evidence showed Evelyn Banda was Paez’s girlfriend. At around 2:30 a.m. on the morning of March 6, 2020, she heard Paez scream “babe.” Still half asleep, she ran towards the kitchen of their apartment and saw Paez leaning on the counter. She asked him what happened, and he told her to call 911. She went to the bedroom to retrieve her phone, and when she returned to the kitchen Paez was on the floor having difficulty breathing. She saw that the door had been kicked in and the door handle was broken. She examined Paez to look for “spots” to put pressure on and noticed he was bleeding. She also saw Paez’s gun on the floor beside him. Banda acknowledged that Paez smoked “weed” but denied he sold drugs.
Banda knew of a man named James Davis who was a friend of Paez. She testified that Paez gave Davis money from time to time to help with Davis’s baby, and that when Paez died Davis “owed [him] for months already.”
Eric Cho, who was married to Paez’s sister, testified that Davis told him he was in the apartment with Paez when four guys (three black and one white) kicked in the door and started shooting. Davis told Cho he fled instead of calling 911. Cho knew that Paez sold “wax,” a concentrated form of marijuana, and Cho believed
Davis was there to buy wax.
Blayze Simpson was also indicted for capital murder, and he testified with his attorney present that he, appellant, Davis, and Michael (also called Truman) Gray were involved in the murder, and that he and appellant had gone to middle school together. Davis met on March 5, 2020 with Simpson, Gray, and appellant to discuss robbing someone who only Davis knew. They all agreed to commit the robbery, and they chose to rob Paez because Davis told them “[Paez] had wax that he was selling and had a lot of it or whatever.” Their intent was only to rob, not hurt anyone. However, they were all armed: Simpson had an AK-47 and the others carried pistols. They were all at the apartment door when appellant kicked it in, and as soon as that happened Simpson heard gunshots and ran. He did not see appellant or Gray shoot. Simpson and Gray ran to the car and drove off. Simpson did not see appellant or Davis leave.
The evidence included State’s exhibit 155, surveillance footage from Paez’s apartment parking lot. Simpson testified that Davis’s white vehicle could be seen on State’s Exhibit 155 entering the parking lot followed by the black Jeep carrying appellant, Simpson, and Gray. Simpson testified that Davis’s vehicle was backing into a parking space when they realized Paez was outside, so they staged a fake confrontation between Davis and Gray. Simpson testified that the recording showed himself and Gray running towards the Jeep and driving off, and then Davis running to and driving away in his vehicle, followed by appellant chasing after the cars.
Simpson testified that Davis drove back to pick up appellant. After that, they all returned to Simpson’s home, where appellant told them that upon kicking in the door, he was shot in the forearm. They removed a bullet fragment from appellant’s arm and wrapped it in bandages, then everyone left. The following day, Davis told everyone Paez had died.1 Dallas police took photographs of the crime scene and collected evidence, which included shell casings. There were sixteen fired cartridge casings at the scene from two different caliber weapons—fourteen 9 mm casings and two .40 caliber casings. The firearm found at the scene was a .40 caliber pistol. The shell casings suggested rapid fire in a specific area.
Affording proper deference to the jury’s fact resolution, we conclude the non-
accomplice evidence was sufficient to tend to connect appellant to the murder of Paez. The record includes video evidence showing four individuals arriving at and then fleeing the crime scene, and one of them can be seen holding his arm. Appellant argues that Dallas Police Homicide Detective Jeffrey Loeb, assigned to investigate Paez’s murder, could not identify appellant on the video. But the jurors had the opportunity to observe appellant and were free to determine if he could be seen on the video. Moreover, the crime scene analyst testified that there were two .40 caliber bullet casings found at the scene. The only “defect” (i.e., a possible bullet hole) in
1 Simpson was unaware Davis was already talking to the police.
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