Marcelo Mailland v. State

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

MARCELO MAILLAND, § No. 08-19-00063-CR

Appellant, § Appeal from the

v. § 41st Judicial District Court

STATE OF TEXAS, § of El Paso County, Texas

Appellee. § (TC# 20160D04232)

OPINION

After Christian Jorjorian was found shot on a street in El Paso, a Grand Jury indicted

Appellant, Marcelo Mailland, with capital murder. A jury found Appellant guilty of the lesser-

included offense of murder, assessing his punishment at 45 years’ imprisonment. On appeal,

Appellant argues that the trial court erred by (1) denying his motion to suppress an interview that

law enforcement obtained in violation of his Sixth Amendment right to counsel, (2) admitting a

portion of that interview which mentions the co-defendant’s claim that Appellant was the shooter,

and (3) denying his request for two jury instructions. Because we conclude that the issues do not

warrant relief, we affirm the trial court’s judgment. I. BACKGROUND

On Monday, August 15, 2016, Appellant was spending the night at his parents’ home in

El Paso before he traveled the next day to Tucson, Arizona, to attend college. Appellant’s “really

close” family friend and peer, Marco Nava, asked Appellant if they could hang out that afternoon.

Nava also began exchanging text messages with Christian Jorjorian at approximately 5:30 p.m.

that day to arrange the purchase of two syringes of liquid tetrahydrocannabinol (“THC”), or “wax,”

later that evening. Appellant, driving his gray 2015 Nissan Rogue, picked up Nava, who texted

Jorjorian as they approached a park on El Paso’s westside of town. Jorjorian texted Nava back, at

approximately 6:50 p.m. “get in [his] ride.”

A witness playing basketball at the park recalled that at about 7 p.m., he heard a car pull

up and yelling from within the car. Shortly thereafter, a car door opened, someone yelled, “I’m

going to shoot you, n___! I’m going to shoot you.” Then the car drove off.

A second witness driving in the area at approximately 6:30 p.m. recalled a small SUV roll

through a stop sign, leaving rather quickly. The young driver of the SUV looked back towards the

park as a passenger sat in the back seat. After this, the witness saw what looked like a mannequin

sprawled out on the pavement behind a vehicle. As he approached, the witness realized the figure

was a man who had blood on his shirt and was groaning. Two syringes filled with a greenish liquid

laid next to the body. Responding EMS technicians were unable to revive the victim, identified

as Christian Jorjorian. The coroner would later conclude that Jorjorian died from a gunshot wound

to the chest. The bullet entered the chest cavity, perforating his lungs and heart.

One of Appellant’s high school classmates had friends over that evening. Appellant arrived

at this gathering at approximately 8 p.m. and behaved normally. Appellant had a small cut above

2 his eye, which he explained occurred while he was just fighting. Appellant’s classmate understood

this to mean that Appellant cut his face while practicing boxing.

The next day (Tuesday, August 16th), Appellant travelled to Tucson where he planned to

attend the University of Arizona. On Thursday, August 18th, El Paso law enforcement arrested

Nava for capital murder. Appellant learned of Nava’s arrest that same day and called the El Paso

Police Department asking to speak to a detective. Crimes Against Persons Detective Adrian Garcia

returned the call, and Appellant told Detective Garcia that he wanted to speak to law enforcement,

because he knew that Nava was under arrest and he was with Nava that “specific day.” Appellant

explained that he dropped Nava off at a park, drove off, heard a shot, but “didn’t see nothing.”

When Detective Garcia proposed a meeting, Appellant indicated he was in Tucson, and agreed it

would be “fine” to speak to a local Arizona detective. Detective Garcia thereafter provided Tucson

Police Department Detective Orozco with Appellant’s contact information so that the Tucson

Police could set up a meeting.

Detective Orozco telephoned Appellant who agreed to meet. That same Thursday night,

Appellant met with Tucson Homicide Detectives Orozco and Cheek in a hotel parking lot.

Appellant arrived there with his aunt. Detective Cheek asked if Appellant wanted to relay

information about the case. Appellant stated that he did, and Detective Cheek recorded the

conversation. Appellant recited that on Monday Nava had called, asking if they could hang out on

the afternoon of the murder. While driving around, Nava asked if Appellant could drop him off at

a park because he needed to do something. Appellant asked Nava if he was going to buy drugs,

which Nava denied. Appellant claimed he dropped Nava off around 5 p.m. and heard nothing until

seeing on the news that there was a murder in the park around 8 p.m. that evening. Appellant met

with Nava and some other friends the next morning who said goodbye before he left for Arizona.

3 Appellant learned his house was broken into that same day, and he suspected Nava was involved.

The interview concluded with Appellant agreeing to speak with El Paso detectives if they came to

Tucson.

After the interview concluded, Detective Orozco learned that Texas had issued an arrest

warrant for Appellant. Tucson law enforcement thereafter arrested Appellant, impounded his

Nissan, searched the aunt’s vehicle and his dorm room. Detective Cheek discovered a handgun

holster wedged between the rear passenger seat and cargo area of the aunt’s car. In Appellant’s

dorm, law enforcement seized 14 unidentified prescription pills. While Tucson Police Department

officers were taking photographs of Appellant at the station, Appellant spontaneously told an

officer that the laceration on his forehead was caused by a car door. That same evening, the Tucson

Police were dispatched to a local bowling alley after an employee found a handgun, two

magazines, and a black cloth bag containing 99 rounds of ammunition in the women’s restroom.

Appellant appeared in an Arizona Superior Court in Pima County on Friday morning,

August 19th, for extradition proceedings related to a fugitive warrant. A bail issue was raised in

the same hearing. The State of Arizona charged Appellant with being a fugitive from justice, in

violation of an Arizona statute, and the Arizona Superior Court appointed the Legal Defender’s

Office to represent him during the extradition proceedings. Appellant ultimately waived

extradition on August 25, 2016.

Tucson Detective Orozco informed El Paso Detective Garcia of the Thursday evening

arrest and that Appellant wanted to speak to El Paso law enforcement. El Paso Detectives Garcia

and Camacho arrived in Tucson at approximately 5 p.m. on Friday, August 19, 2016. The El Paso

detectives met Appellant in a holding cell in the Pima County jail facility, introduced themselves

as El Paso Police Department Crimes Against Persons detectives, and asked Appellant if he wanted

4 to speak to them. Appellant responded that he did. Detective Garcia read Appellant his Miranda

rights, which Appellant waived, including his right to counsel. Detective Garcia later testified that

he did not know about the earlier extradition hearing or that the Arizona state court appointed the

Pima County Legal Defender’s Office to represent Appellant for the extradition proceedings.

During the recorded interview, Appellant relayed several versions of what occurred at the

time Jorjorian was killed. His initial versions minimized his involvement in the murder, but as he

was confronted with additional information, he finally admitted this much: Appellant drove Nava

to the park and that Nava shot Jorjorian. Appellant also ultimately admitted that he and Nava

planned to rob Jorjorian, both he and Nava hit Jorjorian, and Nava used Appellant’s firearm to

shoot Jorjorian. Appellant disposed of that gun in a Tucson bowling alley. At trial, the State

played a DVD recording of the interview for the jury over trial counsel’s objection. Also over trial

counsel’s objection, the State offered a transcript of the video.

The jury was charged on capital murder and three lesser included offenses: murder,

aggravated robbery, and robbery. The jury returned a general verdict finding Appellant guilty of

the lesser-included offense of murder. In the jury charge, the trial court instructed the jury that

capital murder and murder both meant (1) Appellant caused Jorjorian’s death by “shooting

Christian Jorjorian with a firearm” while committing or attempting to commit “robbery;” (2)

soliciting or attempting to aid Nava to commit robbery, and in the furtherance of the robbery, Nava

shot Jorjorian with a firearm causing his death; or (3) while attempting to carry out a conspiracy

to commit robbery with Nava, and in furtherance of that purpose, Nava shot Jorjorian, causing his

death. Under the charge, capital murder required a finding that the relevant actor “intentionally”

caused the death, while the lesser murder charge required a finding that the actor “committed an

act clearly dangerous to human life[.]”

5 II. ISSUES ON APPEAL

Appellant argues that the trial court erred by (1) failing to suppress the interview that law

enforcement obtained in violation of his Sixth Amendment right to counsel, (2) refusing to excise

out of the interview statements purportedly attributable to Nava, and denying his requests for jury

instructions on the (3) lesser included offense of manslaughter, and (4) corpus delicti. We address

each issue in turn.

III. NO SIXTH AMENDMENT ERROR

Appellant first argues that the trial court erred by denying his motion to suppress the

statement he provided to El Paso detectives while he was in an Arizona detention facility awaiting

extradition proceedings. Specifically, Appellant maintains his right to counsel on the Texas capital

murder charge attached when he appeared with counsel in Arizona state court on Friday morning,

and the El Paso detectives violated this Sixth Amendment right when they interviewed him without

his Arizona attorney’s consent on Friday afternoon.

A. Pretrial Motion to Suppress the Interview

Appellant moved to suppress the statement provided to El Paso detectives through a pretrial

motion. Appellant did not contest that El Paso detectives advised him of his Miranda rights at the

onset of the interview and that he waived his right to counsel. Rather, he maintained that the

waiver of rights was invalid, because he was already represented by Arizona counsel at the time

the waiver was obtained.

The State responded to the motion, arguing that the interview did not violate Appellant’s

Sixth Amendment rights because: (1) his formal prosecution for capital murder in Texas had not

commenced; (2) Arizona state court extradition proceedings did not trigger a Texas criminal

defendant’s Sixth Amendment right to counsel; (3) because the right to counsel is offense specific,

6 and Appellant’s Arizona counsel represented him only on fugitive complaint and extradition

proceedings; and (4) Appellant’s waiver of counsel at the onset of the interview was valid, whether

or not he had counsel at the time.

After a pretrial hearing, the trial court denied the motion to suppress, and later entered

findings of fact and conclusions of law. Neither party takes issue with those findings of fact, which

in relevant part conclude: (1) Appellant was arrested on a “Fugitive from Justice” complaint

stemming from an outstanding capital murder arrest warrant from El Paso, Texas; (2) on the

morning of August 19, Appellant made a preliminary appearance at a bond hearing, at which time

counsel was appointed; (3) there was no evidence that Appellant requested the appointment of

counsel; (4) later that day, El Paso Police detectives met with the Appellant in the Pima County

Jail; (5) at the time of that meeting, Appellant had not yet been formally charged by indictment in

the State of Texas; (6) the detectives did not request nor receive permission from Appellant’s

Pima County court-appointed attorney before they spoke to Appellant; and (7) the detective did

explain to Appellant before the interview began his constitutional rights pursuant to Miranda,

Appellant acknowledged that he understood those rights, and that he waived his right to remain

silent and his right to have an attorney present.

The trial court made also reached the following relevant conclusions of law:

1. Defendant voluntarily waived his 6th amendment constitutional right to counsel during his El Paso police interview on August 19, [2016]. ... 3. The State of Arizona, as the asylum state in the extradition proceedings, could not conduct a preliminary inquiry or determination regarding the guilt or non- guilt of the charges the Defendant could be facing in Texas.

4. The right to counsel did not attach at the Arizona extradition bond hearing because the Defendant had not been formally charged in Texas.

7 5. The El Paso detectives that interviewed the Defendant on August 19, 2016 were not required to request permission to approach the Defendant to interview him in the jail.

6. The El Paso detectives that interviewed the Defendant on August 19, 2016 did not violate the Defendant’s 6th amendment right to counsel.

B. Standard of Review

Appellate courts review a trial court’s ruling on a motion to suppress under a bifurcated

standard. See State v. Arellano, 600 S.W.3d 53, 57 (Tex.Crim.App. 2020). A trial court’s findings

of historical fact are afforded almost total deference if they are reasonably supported by the record.

See id., citing Sims v. State, 569 S.W.3d 634, 640 (Tex.Crim.App. 2019). A trial court’s

determination of legal questions and its application of law to facts that do not turn upon a question

of witness credibility are reviewed de novo. See id. An appellate court will sustain the trial court’s

ruling if it is correct under any applicable theory of law that the record reasonably supports. See

id., citing State v. Ruiz, 581 S.W.3d 782, 785 (Tex.Crim.App. 2019).

Appellant does not dispute the trial court’s factual findings. He argues only that the trial

court incorrectly concluded that his Sixth Amendment right to counsel for the Texas capital murder

charge did not attach when he appeared in the Arizona Superior Court in Pima County the morning

of August 19, 2016. He maintains that he was arrested on the Texas capital murder warrant, and

his extradition was not a separate “offense” for Sixth Amendment purposes.

C. Controlling Law

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST., amend VI. The

right to counsel “attaches” with the initiation of adversarial judicial proceedings, which may be by

way of formal charge, preliminary hearing, indictment, information, or arraignment. Brewer v.

Williams, 430 U.S. 387, 398 (1977). And once the adversarial judicial process has been initiated,

8 the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical”

stages of the criminal proceedings. Maine v. Moulton, 474 U.S. 159, 169 (1985); Green v. State,

872 S.W.2d 717, 719 (Tex.Crim.App. 1994).

The Supreme Court has repeatedly held that the Sixth Amendment right to counsel is

offense specific. See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Moulton, 474 U.S. at

180. In Moran v. Burbine, for instance, after the defendant was arrested on breaking and entering

charges, he refused to waive his Miranda rights or speak to law enforcement. 475 U.S. 412, 415-

16 (1986). Unknown to the defendant, a public defender was assigned to his case, who telephoned

the police station and stated that the defendant was “represented by [an] attorney” . . . “in the event

that the police intended to place him in a lineup or question him.” See id. at 415-16. The lawyer

was told that law enforcement would not question the defendant until the following day. See id.

at 416. But less than an hour later, law enforcement brought the defendant into an interrogation

room and conducted the first of three interviews concerning a different investigation--one for a

murder in a nearby community. See id. at 417. And for those interviews, the defendant waived

his Miranda rights and confessed to the murder. See id. at 417-18.

After rejecting the defendant’s Fifth Amendment arguments, the Court held that the

officers did not violate his Sixth Amendment right to counsel because law enforcement

interrogated him before his right to counsel attached for the murder charge. See id. at 430. The

Court rejected the argument that the Sixth Amendment protects the integrity of the attorney-client

relationship regardless of whether prosecution has commenced through indictment. See id. The

Court also rejected the argument that custodial interrogations were of such great consequence that

they required a special rule. See id. at 432. In addition, the suggestion that the existence of an

attorney-client relationship, alone, triggered a Sixth Amendment right misconceived the purpose

9 of the right to counsel. See id. at 430. The Sixth Amendment’s function is not “to wrap a protective

cloak around the attorney-client relationship for its own sake” or to “protect a suspect from the

consequences of his own candor.” Id. The purpose of the right is to assure that in a criminal

prosecution, “the accused shall not be left to his own devices in facing the prosecutorial forces of

organized society,” and “to assure that the prosecution’s case encounters the crucible of

meaningful adversarial testing.” Id. (internal quotes omitted).

In the past, the Court had also held that once an accused requested the assistance of counsel

based on the Sixth Amendment, the police could not initiate any questioning or attempt to induce

a waiver of the right to counsel. Michigan v. Jackson, 475 U.S. 625, 635-636 (1986). Under that

bright line rule, “if police initiate interrogation after a defendant’s assertion, at an arraignment or

similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that

police-initiated interrogation is invalid.” Id. at 636. The Court abandoned this approach, however,

in Montejo v. Louisiana, 556 U.S. 778 (2009). Factually, the defendant in Montejo was appointed

counsel at a preliminary hearing. Id. at 780. The police, unaware that counsel had been appointed

for Montejo, and after reading him his Miranda rights, persuaded him to accompany them to help

locate the murder weapon. At that time, Montejo wrote an inculpatory letter of apology to the

victim's widow, which was admitted at trial. Id. at 782. On appeal, he claimed that under Jackson,

the appointment of counsel at an arraignment should be treated as an invocation of the Sixth

Amendment right to counsel at every subsequent critical stage in the prosecution.

The Court rejected that approach, however, noting that “it would be completely unjustified

to presume that a defendant’s consent to police-initiated interrogation was involuntary or coerced

simply because [the defendant] had previously been appointed a lawyer.” Id. at 792. Instead, once

the right to counsel has attached, “a defendant who does not want to speak to the police without

10 counsel present need only say as much when he is first approached and given the Miranda

warnings.” Id. at 794. “At that point, not only must the immediate contact end, but any ‘badgering’

by later requests is prohibited.” Id. at 787. The Court reached this conclusion based on the

marginal benefits of a Jackson bright-line rule, balanced against hindering “society’s compelling

interest in finding, convicting, and punishing those who violate the law.” Id. at 793. Additionally,

the Court noted the “substantial other, overlapping measures to exclude them.” Id. at 794, citing

Miranda v. Arizona, 384 U.S. 436, 473-74, (1966) (requirement to inform suspect of the right to

counsel); Edwards v. Arizona, 451 U.S. 477, 484-85, (1981) (once counsel is requested, suspect is

not subject to further interrogation unless he or she initiates the same); Minnick v. Mississippi, 498

U.S. 146, 153 (1990) (no subsequent interrogation may take place until counsel is present,

“whether or not the accused has consulted with his attorney.”).

Therefore, a court can no longer presume that a waiver of a right to counsel executed after

the right to counsel has attached is invalid. An accused must make a clear assertion of the right to

counsel when officers initiate interrogation and in that case no interrogation should take place. A

subsequent waiver would be invalid if it follows an unequivocal election of the right to counsel.

Montejo, 556 U.S. at 797; Pecina v. State, 361 S.W.3d 68, 78 (Tex.Crim.App. 2012) (“Distilled

to its essence, Montejo means that a defendant’s invocation of his right to counsel at his [Texas

Code of Criminal Procedure] Article 15.17 hearing says nothing about his possible invocation of

his right to counsel during later police-initiated custodial interrogation.”).

D. Application

From these cases, the parties first argue over whether the right to counsel attached at the

extradition proceeding, such that it would extend to Appellant’s questioning later that afternoon

on the murder investigation. The extradition proceeding is necessarily limited and would not turn

11 on Appellant’s guilt on the murder charge. See Rogers v. Boies, 478 P.2d 92, 93 (Ariz. 1970) (en

banc) (providing that “the sufficiency of the information charging the offense must be tested in the

demanding state”). Rather, Appellant’s extradition attorney could have civilly challenged only

whether (1) the extradition documents were in order; (2) Appellant was charged with a crime in

Texas; (3) Appellant was the person named in the request for extradition; and (4) Appellant was a

fugitive, meaning he left Texas for Arizona.1 See California v. Superior Court of California, San

Bernardino County, 482 U.S. 400, 409 (1987); Applications of Oppenheimer, 389 P.2d 696, 700

(Ariz. 1964) (en banc). And in Texas v. Cobb, the Supreme Court reiterated that it “meant what it

said” when it held that the Sixth Amendment right to counsel was offense specific and does not

extend to crimes “closely related factually” to the charged offense. 532 U.S. 162, 165 (2001),

citing McNeil, 501 U.S. 171.

But we need not reach the issue of whether the right to counsel for the Texas murder charge

attached at the time of the Arizona extradition proceeding, because even if the right to counsel

attached, Appellant freely and voluntarily spoke with the El Paso detectives, never mentioning his

extradition counsel, nor invoking the right to counsel. One of our own cases makes that point. In

Flores v. State, 299 S.W.3d 843 (Tex.App.--El Paso 2009, pet. ref’d), the defendant committed a

murder in El Paso and fled to Mexico. He was extradited from Mexico back to Texas and had

counsel for that extradition proceeding. Upon his return to Texas, detectives advised the defendant

of his Miranda rights, and after waving those rights, he gave a full confession of the crime.

As in this case, the defendant in Flores claimed the assignment of counsel at the extradition

proceeding automatically precluded any questioning by the police unless counsel was present. Id.

1 ARIZ.REV.STAT.ANN. § 13-3845 (2017) (indicating that a warrant of execution shall issue if the accused “fled from the state”). For instance, Appellant’s Arizona attorney could have filed a civil petition for writ of habeas corpus that argued the warrant of extradition did not comply with Arizona law because the fingerprints or photograph identifying Appellant in the Texas complaint were not made on a proper affidavit. See ARIZ.REV.STAT.ANN. § 13-3845(B) (2017).

12 at 852. Noting the change in the law following Montejo, this Court rejected that argument, instead

looking to voluntariness of the Sixth Amendment waiver. Id. Noting that there was no evidence

in the record that Flores was “coerced, badgered, or tricked” into waiving his right to counsel, we

upheld the denial of a suppression motion for the confession.

The record here reads similar to that in Flores. First the obvious. In both cases the police

interviewed the accused after counsel had been appointed for extradition proceedings. And as in

Flores, the interview here began with the detective advising Appellant of his Miranda rights,

including his right to counsel, and Appellant agreed that he understood and voluntarily waived his

rights. Similarly, Appellant does not contest the trial court’s finding that he voluntarily waived

his Miranda rights, including his Sixth Amendment right to counsel, during his interview with the

El Paso detectives. He did not tell the detectives he already had counsel, and it was Appellant who

first actively reached out to the detectives to initiate an interview (and then later confirmed with

the Tucson police that he would speak with the El Paso detectives). Under Montejo, even if a

Sixth Amendment right to counsel had attached to his Texas capital murder charge at the time of

the interview, Appellant validly waived the right. See Montejo, 556 U.S. at 792-94; Patterson v.

Illinois, 487 U.S. 285, 290 (1988) (concluding that law enforcement are not barred from initiating

a meeting with a post-indictment defendant who does not exercise his right to have counsel

present).

Appellant responds that the extradition in Flores was complete, and the detectives in that

case would not have any way to even learn of the identity of the Mexican counsel. While these

are distinctions, they are without a meaningful difference. The essence of Appellant’s argument

is that because the extradition in Arizona was still active, we must assume Appellant requested

counsel, which acts as a bar to any knowing waiver of the right to counsel. See Edwards, 451 U.S.

13 at 484-85 (once counsel is requested, suspect is not subject to further interrogation unless he or

she initiates the same). This claim, however, sounds much like the bright-line rule, or at least the

presumption, that the Court rejected in Montejo. Moreover, the trial court here expressly found

that there was no evidence that Appellant had ever requested the appointed counsel for the

extradition hearing. Finding no meaningful distinction between this case, and Flores, we overrule

Issue One.2

IV. NO BRUTON OR CONFRONTATION ERROR

Appellant next argues that the trial court erred by declining to redact that part of the

interview where the detectives confronted Appellant with Nava’s claim that Appellant was the

shooter. Appellant presented this as a Bruton3 error, that also implicated his Sixth Amendment

right to confrontation. The State responds that that Bruton was not implicated at Appellant’s trial,

and the trial court did not violate Appellant’s confrontation rights, because the statements were not

offered for their truth. We agree with the State and conclude that the issue does not warrant relief.

A. Appellant’s Interview with El Paso Detectives

During his interview with the El Paso detectives, Appellant provided several versions of

what occurred on the night that Jorjorian was killed that changed as the detective tested and

confronted his story. He first claimed that Nava asked Appellant to drop him off at the park on

Monday night. Appellant drove off after Nava exited the vehicle. Appellant heard a bang as he

drove away, but continued on to his friend’s house. Appellant stated that he did not “see anything,

but [he] heard the bang.”

2 Appellant correctly points out that the Flores court also buttressed its decision by concluding that any error in admitting that confession was harmless error. Nonetheless, the court did reach the merits of the violation itself. 3 Bruton v. United States, 391 U.S. 123 (1968)

14 But then the detectives began breaking down his story with a series of techniques, including

telling Appellant that “[w]e live in a world nowadays where nothing goes unseen,” that residences

in the neighborhood where the murder occurred likely had security cameras, that Appellant needed

to be honest, and that DNA evidence might indicate who struck who. Germane to Appellant’s

complaint here, the detectives also confronted Appellant with what Nava claimed:

Detective Garcia: We know the truth, Okay? And Marco [Nava] did get arrested.

Appellant: Okay.

Detective Garcia: Okay?

Appellant: (Nodding.)

Detective Garcia: Last night.

Detective Garcia: He told us everything.

Detective Garcia: All right?

Appellant: I’m telling you everything I know.

Detective Garcia: If you want to go down for this on your own, that’s your choice, okay? He’s saying it’s you.

Appellant: I did not shoot anyone.

Detective Garcia: I’m just --

Appellant: I know.

Detective Garcia: He’s saying it’s you.

Appellant: I’m sure. I’m sure.

Detective Garcia: You’re saying it’s him.

The interview continued:

15 Detective Garcia: He’s [Nava] saying he saw you.

Appellant: No. I did not kill anyone. I did not shoot anyone.

By the end of the interview, and after having offered different versions of what happened,

Appellant eventually admitted that he and Nava were at the park to steal drugs from Jorjorian.

After Jorjorian got into the front seat of Appellant’s parked car, Nava (who was seated in the rear

seat) and Appellant both hit Jorjorian. Jorjorian ducked and got out of the vehicle, and Nava

followed. Nava shot the gun and got back into Appellant’s car. Appellant drove Nava home, and

continued to his friend’s house. Nava kept the shell casing ejected from the gun. Appellant also

admitted that his gun--a black Glock .38--was used to shoot Jorjorian. Appellant informed the

detectives that he threw the firearm away by a bowling alley in Tucson.

B. Pretrial Hearings

Prior to trial, Appellant filed a motion in limine to preclude any reference to what he

El Paso detectives claimed that Nava told law enforcement about the murder. Appellant urged that

the trial court would violate his federal confrontation rights and cited to Bruton v. United States.

During a hearing on the motion, the State proposed that the trial court provide a limiting jury

instruction that law enforcement’s statements to Appellant concerning Nava were not presented

for their truth, but for evaluating Appellant’s response, and that officers may use deception during

interviews.4 The trial court deferred ruling on the motion.

Before the State played the video of Appellant’s interview at trial, it re-asserted that any

reference to a purported statement by Nava was offered to show: (1) why law enforcement

investigated Appellant (i.e. how Appellant became a suspect and was interviewed) and (2)

4 The State noted that law enforcement told Appellant during the interview that surveillance cameras captured the shooting, which was not true.

16 Appellant’s reaction after law enforcement revealed that they knew information about the murder.

Appellant’s counsel responded that she could not cross-examine Nava’s purported statement that

“Marcelo did it.” The trial court admitted the video without redaction, noting that the

Confrontation Clause does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter.

C. Trial Proceedings

The State’s theory of the case was not that Appellant necessarily shot Jorjorian. Rather,

the State based its case on the law of parties. In opening statement, the State admitted that the

evidence would not conclusively demonstrate that Appellant shot Jorjorian. Instead, the State said:

“We don’t know. We don’t know which one of them actually pulled the trigger that killed

Christian Jorjorian.” The State suggested that Nava arranged the robbery, while Appellant helped

plan the robbery and assisted through use of his car and loaded gun.5 After both Appellant and

Nava assaulted Jorjorian, “the defendants got a gun, pointed it at him, and shot him once in the

chest.”

Appellant’s counsel responded during her opening statement that: (1) law enforcement had

not properly investigated the murder at the time they interviewed Appellant; and (2) during the

interview, detectives psychologically manipulated Appellant into reciting the information they

wanted to hear. Counsel told the jury “you’ll get to see this video,” where law enforcement “push”

and “prod” Appellant until he provides a statement to “please them[.]” Counsel told the jury that

they “will see . . . that that interview is a study in how to manipulate a confession out of somebody,”

a “study in psychological manipulation.”

5 The State asked the jury to “keep this in mind, how does Marco Nava get [Appellant’s] gun before it happens? And how does Marco Nava return his gun to him before he goes to college?” The State followed in the next sentence by arguing that “[w]ithout a doubt, the evidence is going to prove to you that [Appellant] was an accomplice; that he was a party to capital murder.”

17 When the State played the DVD recording of Appellant’s interview with El Paso

detectives, the trial court overruled counsel’s renewed objections to the evidence.

D. Limiting Instruction

After the defense rested, the trial court instructed the jury:

During the presentation of evidence, references were made to statements made by Marco Nava. However, these statements were not admitted as evidence to show what he purportedly said was true. You are instructed that you may not rely or consider these statements as evidence of guilt of the [d]efendant.

During closing argument, Appellant’s counsel reminded the jury of the instruction that it may not

consider a statement that Nava may or may not have made as evidence of Appellant’s guilt.

Counsel cautioned that the jury may not speculate about what Nava might have told law

enforcement, and the only evidence presented in the DVD recording of Appellant’s interview were

Appellant’s words.

E. No Bruton Violation

In Bruton v. United States, the Supreme Court held that, at a joint trial of a defendant and

his co-defendant, a defendant’s confrontation rights are violated if the government presents a

statement made by the co-defendant implicating the other defendant when the co-defendant does

not testify (and therefore is not subject to cross-examination). 391 U.S. 123, 136 (1968) (also

holding that a limiting jury instruction does not cure the error). Strictly speaking, Bruton is not

applicable to this appeal. Appellant and Nava were not co-defendants tried jointly. We thus

overrule Appellant’s issue to the extent that he alleges a Bruton violation. Appellant, however,

clarifies that the phrase “Bruton violation” was used as a shorthand below for a Confrontation

Clause violation, which we address next.

18 F. No Violation of Confrontation Rights

Appellant separately argues that the trial court violated his general confrontation rights by

admitting the statement, when he had no opportunity to cross-examine Nava.

1. Controlling law

The Sixth Amendment’s Confrontation Clause provides the accused in criminal

prosecutions “the right . . . to be confronted with the witnesses against him.” U.S. CONST.

amend. VI. The Clause was included in our Constitution to address the practice in England of

reading in court in lieu of live testimony the pretrial examinations of suspects and statements of

government officials. See Crawford v. Washington, 541 U.S. 36, 43 (2004). “The principal evil

at which the [Confrontation] Clause was directed was the civil-law mode of criminal procedure,

[and] particularly the use of ex parte examinations as evidence against the accused.” Id. at 50.

The Confrontation Clause accordingly prohibits the introduction of testimonial statements of a

non-testifying witness unless the declarant is unavailable and the defendant had a prior opportunity

to cross-examine him. See id. at 59.

But only “testimonial statements” cause a declarant to be a “witness” under the

Confrontation Clause. Davis v. Washington, 547 U.S. 813, 820 (2006). “It is the testimonial

character of the statement that separates it from other hearsay that, while subject to traditional

limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id. To distinguish

testimonial statements from those that are not, courts look to the “primary purpose” of the

statement. So, for instance, when the State seeks to admit a 911 recording (which contains the out

of court statement of the person making the call), the primary purpose for many of the 911

operator’s questions is to respond to an “ongoing emergency,” and not to create a record for trial.

Id. at 822. Because those kind of questions and answers would not be testimonial, they do not

19 implicate the Confrontation Clause. Id. Similarly, a police officer might recount the dying

declaration of a victim if the statement was elicited to assist the police to meet an ongoing

emergency. Michigan v. Bryant, 562 U.S. 344, 358-59 (2011). But conversely, “[s]tatements

taken by police officers in the course of interrogations,” would always qualify as testimonial

statements. Crawford, 541 U.S. at 53 (a “recorded statement, knowingly given in response to

structured police questioning, qualifies under any conceivable definition.” ). To decide whether a

statement is testimonial, “standard rules of hearsay, designed to identify some statements as

reliable, will be relevant.” Bryant, 562 U.S. at 358-359. “In the end, the question is whether, in

light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was

to ‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v. Clark, 576 U.S. 237, 245

(2015), quoting Bryant, 562 U.S. at 358.

An appellate court determines de novo whether a statement is testimonial or non-

testimonial. See Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App. 2006), citing Lilly v. Virginia,

527 U.S. 116 (1999).

2. Application

The rub here is that the State used the supposed product of an interrogation of one defendant

to confront another defendant’s version of events. We conclude that the primary purpose of

repeating Nava’s supposed statement was not as an out-of-court substitute for trial testimony, but

rather it was part of the process of interrogation of Appellant to test his claimed version of events.

Appellant himself raised the issue of the propriety of the interview, claiming that he was

“psychologically manipulated” into repeating desired language during the interview. He also

challenged the adequacy of the detectives’ investigation at the time of the interview. Even

assuming that Nava provided a testimonial custodial statement, the trial court did not violate

20 Appellant’s confrontation rights because the statements were admitted not for the truth of the

matter asserted, but rather to show (1) why law enforcement investigated Appellant; and (2)

Appellant’s reaction after detectives revealed they knew information about the murder.

At least two prior decisions of higher courts tell us that a statement offered not for the truth

of the matter asserted does not implicate the Confrontation Clause. In Del Carmen Hernandez v.

State, the Court of Criminal Appeals concluded that testimonial statements from a co-defendant’s

custodial interrogation were properly admitted for impeachment purposes and not to prove the

truth that Appellant committed the crime. See 273 S.W.3d 685, 689 (Tex.Crim.App. 2008).

During a trial for capital murder, inmate witnesses testified that Appellant’s co-defendant talked

to them and took responsibility for the murder. See id. at 687. On rebuttal, the State called a

detective to read portions of the unavailable co-defendant’s custodial statement in which she

denied involvement in the homicide. See id. The trial court admitted the testimony over trial

counsel’s objection on confrontation grounds and provided a limiting instruction. See id.

The Court of Criminal Appeals explained the testimonial custodial interrogation of a co-

accused was used for a non-hearsay purpose--impeaching credibility. See id. at 688. The

defendant placed the credibility of her co-defendant at issue when she called inmate witnesses to

testify to prior statements the co-defendant made. See id. at 689. The court noted that the trial

court provided a limiting instruction, and the State did not refer to the statement as substantive

evidence during argument. See id. The Del Carmen Hernandez decision relied upon Supreme

Court authority indicating that “[t]he [Confrontation] Clause . . . does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.” See id., citing

Crawford, 541 U.S. at 59 n.9.

21 Specifically, in Tennessee v. Street, the defendant in a murder trial claimed that his

confession was coerced, because law enforcement read him an accomplice’s statements and

directed him to “say the same thing.”6 471 U.S. 409, 411 (1985). The State called the sheriff to

read the accomplice’s statement to rebut Street’s claim and demonstrate the inconsistencies

between the statements. See id. at 411-412. The trial court admitted the statement and provided a

limiting instruction. See id. at 412. The Court determined that the State did not introduce the

confession to prove the truth of its content, but rather to rebut Street’s testimony that his confession

was coerced, and the evidence was not hearsay. See id. at 413 (noting the case was “significantly”

different than the Court’s prior confrontation cases where the trial court admitted hearsay as

substantive evidence against the defendant). The non-hearsay aspect of the confession--the

admission to prove what happened when respondent confessed--raised no Confrontation Clause

concerns. See id. at 414. The Court emphasized that the State’s most important piece of

substantive evidence was respondent’s confession. See id. at 415. After respondent testified that

his confession was a coerced imitation, the focus turned to the State to rebut the claim. See id. If

the State was denied the opportunity to present the accomplice’s testimony in rebuttal, the jury

would have been impeded in evaluating the truth and “handicapped in weighing the reliability of

the confession.” Id. The Court found this result at odds with the mission of the Confrontation

Clause--“to advance the accuracy of the truth-determining process in criminal trials.” See id.,

citing Dutton v. Evans, 400 U.S. 74, 89 (1970).

As in Street, during Appellant’s trial, the State needed to address Appellant’s claim to the

jury that El Paso detectives “had their minds made up before they ever spoke to” Appellant, so

they “manipulate[ed] a confession” out of him. Thus, the trial court properly admitted the evidence

6 Although Tennessee v. Street pre-dates Crawford v. Washington, the decision was cited with approval in Crawford. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004), citing Tennessee v. Street, 471 U.S. 409, 414 (1985).

22 to show how law enforcement came to suspect and interview Appellant. See id. at 414. The State

also needed to show how Appellant’s story of events morphed from he did not “see anything” to

the point of confessing to most details of the crime. The several challenges that the detectives used

to break down Appellant’s story form a part the fabric of that process.7

We also find additional factors significant here. The State’s case never hinged on who shot

Jorjorian. Accordingly, the instruction that the jury should consider the truth of Nava’s statement

fit hand-in-glove with the State’s theory of the case that Appellant could be guilty even if Nava

pulled the trigger. Nor did the State cite to this portion of the interview during opening statement

or closing argument, and the trial court provided a limited instruction that trial counsel emphasized

during closing argument. See Luquis v. State, 72 S.W.3d 355, 366-67 (Tex.Crim.App. 2002)

(noting that appellate courts presume the jury followed instructions and will not find constitutional

error unless a reviewing court concludes that a reasonable jury was actually confused by the

charge). Moreover, cross-examination of Nava would be ineffective to undermine how the State

was using the statement. See Street, 471 U.S. at 414 (noting that confrontation rights were not

implicated, in part, because cross-examination of respondent’s accomplice would be ineffective to

undermine the limited purpose of demonstrating that Appellant’s confession was not coerced).

As such, we conclude that the trial court did not err by denying Appellant’s motion to

preclude the portion of the interview containing Nava’s purported statements. We overrule Issue

Two.

7 The State’s ability to rebut trial counsel’s allegations of “psychological manipulation” was a focus of trial because the jury was instructed that it could only consider Appellant’s confession if each juror agreed that the State proved, beyond a reasonable doubt, that Appellant made the statement freely and voluntarily.

23 V. NO ERROR FOR FAILING TO PROVIDE MANSLAUGHTER INSTRUCTION

In his third issue, Appellant argues that the trial court erred when it failed to instruct the

jury on the lesser included crime of manslaughter. Appellant maintains that a jury could have

found him guilty of manslaughter based on the evidence that he had a gun in his back seat that was

accessible to Nava. The State responds that the record would not support a finding that Appellant

committed reckless conduct that caused the actual shooting of the firearm that killed Jorjorian. We

agree and conclude that the issue does not warrant relief.

A. Controlling Law

Texas employs a two-part analysis to determine whether a defendant is entitled to an

instruction on a lesser-included offense. See Roy v. State, 509 S.W.3d 315, 317 (Tex.Crim.App.

2017). The court first determines whether the offense in the requested instruction is a lesser-

included offense of that charged in the indictment. See id. If so, the court decides whether a jury

could rationally find that, if the defendant is guilty, he is guilty of only the lesser-included offense,

based on the admitted evidence. See id.

We do not address the first prong of the analysis here, because the State and Appellant

agree that the first prong is satisfied. As to the second element, an instruction on a lesser-included

offense is required only if more than a scintilla of evidence establishes that “the lesser-included

offense is a valid, rational alternative to the charged offense.” Id. at 317, quoting Goad v. State,

354 S.W.3d 443, 446 (Tex.Crim.App. 2011). Although little evidence is needed to warrant an

instruction, the relevant evidence must affirmatively “raise[ ] the lesser included offense and

rebut[ ] or negate[ ] an element of the greater offense.” Roy, 509 S.W.3d at 317, quoting Cavazos

v. State, 382 S.W.3d 377, 385 (Tex.Crim.App. 2012).

24 A person commits the offense of manslaughter by recklessly causing the death of an

individual. TEX.PENAL CODE ANN. § 19.04(a). A person acts recklessly, or is reckless, with

respect to circumstances surrounding his conduct or the result of his conduct when he is aware of

but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the

result will occur. TEX.PENAL CODE ANN. § 6.03(c). Even assuming that manslaughter is a lesser

included offense of capital murder as charged in Appellant’s indictment, we perceive two problems

with Appellant’s claim. First, the conduct that he claims shows recklessness is not the same

conduct that caused the death of Jorjorian. Second, the record is lacking in the evidence of

recklessness upon which Appellant’s argument is based.

B. The Claimed Recklessness was not the Conduct that Caused the Death

The culpable mental states for both murder and manslaughter relate to the result of the

conduct--the causing of the death. See Schroeder v. State, 123 S.W.3d 398, 399 (Tex.Crim.App.

2003) (en banc). To commit manslaughter, a person must recklessly cause the death of another.

See id., citing TEX.PENAL CODE ANN. § 19.04 (indicating that, pursuant to Texas Penal Code

Section 6.03(c), a person acts recklessly when he is “aware of, but consciously disregards a

substantial and unjustifiable risk” that the result will occur). The “reckless” conduct relied upon

in support of the requested manslaughter offense must still be part of the conduct in the greater,

charged offense--here murder. Our Court made that point in Apilado v. State, No. 08-16-00358-

CR, 2018 WL 3629371 (Tex.App.--El Paso July 31, 2018, pet. ref’d) (not designated for

publication).

In Apilado, the defendant shot and killed his father. He claimed he did so while

sleepwalking. After being convicted of murder, he complained on appeal that the trial court erred

in omitting a lesser included charge for manslaughter. He argued that the evidence supported

25 recklessness in that he was aware: (1) of his propensity to sleepwalk and act violently while

sleepwalking, (2) he had not slept for four days before the shooting, and (3) he had obtained a rifle

and kept it in his home after police had previously confiscated a pistol that Appellant had used to

strike his father. 2018 WL 3629371, at *7. This Court concluded that evidence did not, however,

support submission of the lesser included offense:

Of [Apilado’s] itemized evidence, only [his] possession of the rifle within the home constitutes conduct on his part. However, that conduct, even if deemed reckless, is not the same conduct that caused the victim’s death. The victim’s death was caused by [Apilado] shooting him in the head with the rifle. Consequently, [Apilado’s] alleged reckless conduct (keeping a rifle in the home) is not the same as the conduct that caused his father’s death (using a rifle to shoot his father in the head), nor was the alleged reckless conduct included within the facts necessary to prove the conduct and offense charged in the indictment, murder. 2018 WL 3629371, at *7; see also Roy, 509 S.W.3d at 319 (“But a defendant need not be aware

at the moment the result occurs if he can show that he consciously disregarded the risk of the result

and the result came from the same conduct.”).

For much the same reason, we conclude the conduct that Appellant points to (having a gun

in the vehicle) is too removed from the conduct that caused the death. Jorjorian died either because

Nava or Appellant shot him. Appellant’s argument under this point assumes that Nava pulled the

trigger. But that conduct is distinct and different from how Nava might have come to have a gun

in his possession. And given the jury was charged on the law of parties--where Appellant can be

liable for the conduct of Nava--the critical inquiry would be Nava’s mens rea at the time of the

shooting. And there is no evidence that Nava acted recklessly when he shot Jorjorian. For

instance, Appellant did not explain that Nava pointed a gun at Jorjorian and it went off accidentally

during a struggle. See Ross v. State, 861 S.W.2d 870, 875 (Tex.Crim.App. 1992) (en banc)

(holding that a defendant who held a loaded, cocked gun at a victim’s head when it accidentally

discharged acted recklessly). Rather, the evidence pointed to the use of a deadly weapon fired at

26 close range which presumes an intent to kill. See Apilado, 2018 WL 3629371, at *4 (collecting

cases). A statement overheard at the scene (“I’m going to shoot you n____! I’m going to shoot

you”) supports that presumption. Measured by the act that caused the death, the murder was

intentional and not the result of recklessness.

C. There was no Evidence of Recklessness in Storing the Gun

Moreover, we also conclude that there was no evidence presented at trial that Appellant

acted recklessly in allowing Nava to obtain the gun. There was no evidence of where and how

Appellant stored the weapon in the vehicle. That is, there was no evidence as to whether he had it

safely stowed in the glove compartment, or in open view to his passengers. In fact, Appellant did

not state during the interview that he kept a firearm in his vehicle. Nor is there any detail about

how Nava came to know of or obtain the gun. Appellant never told law enforcement how Nava

came to be in possession of the firearm that shot Jorjorian, other than to respond “yes,” when

Detective Garcia questioned, “But it’s your gun.”8 Without any of these critical details, there is

no inference of recklessness that a jury could have gleaned from only the fact that Nava had the

gun in his possession, and apparently returned it to Appellant after the shooting.

We thus conclude that the trial court did not err by denying Appellant’s request for a

manslaughter instruction, and we overrule the issue.

8 For instance, Nava could have taken the firearm from Appellant’s residence earlier in the day--or any point earlier in time--and had the firearm in his pants’ pocket the entire day of the murder. Appellant told Detective Garcia that Nava was a “little brother” and the two were “really close,” so a jury could infer that Nava spent time at Appellant’s home and could have accessed the weapon there.

27 VI. NO ERROR BY DENYING REQUEST FOR CORPUS DELICTI INSTRUCTION

In his final issue, Appellant maintains that the trial court should have provided a corpus

delicti instruction because the State presented no evidence of a robbery aside from his interview.9

The State responds that Appellant has not shown that the trial court erred by denying his request,

because some independent evidence tended to show that a robbery was committed. We agree and

conclude that Appellant has not shown that he is entitled to relief.

A. Corpus Delicti

The corpus delicti rule requires some evidence aside from an accused’s confession,

considered in the light most favorable to the jury’s verdict, showing that a crime actually occurred.

See Salazar v. State, 86 S.W.3d 640, 645 (Tex.Crim.App. 2002); McDuff v. State, 939 S.W.2d

607, 614 (Tex.Crim.App. 1997) (en banc). Historically, the corpus delicti rule guarded against the

spectacle created when a murder victim suddenly reappears after a self-confessed-murder-

defendant was convicted and executed. Salazar, 86 S.W.3d at 644, citing ROLLIN M. PERKINS &

RONALD M. BOYCE, CRIMINAL LAW 142-150 (3d ed. 1982). In our current era, the rule protects

mentally infirm individuals who confess to an imaginary crime and people who give an

extrajudicial confession because of official coercion. See Bible v. State, 162 S.W.3d 234, 247

(Tex.Crim.App. 2005).

9 After the trial court entered judgment, Appellant filed the following proposed corpus delicti jury instruction:

Additionally, a person cannot be convicted of a crime based only on his uncorroborated, out-of- court statements. You may only rely on the defendant’s out-of-court statements if you find there is other evidence which, considered alone or with these statements, shows that the crime charged occurred. This other evidence does not have to show that the defendant was the one who committed the offense. But if you do not believe that any evidence other than the defendant’s out-of-court statements shows that a capital murder, murder, or robbery occurred, you will find the defendant “not guilty.”

28 The corpus delecti rule was not intended to ensure that confessions are corroborated in

specific detail or to ensure that the defendant does not falsely confess to a crime that actually

occurred. Salazar, 86 S.W.3d at 644 (noting that other constitutional rules and statutes concerning

the voluntariness of a confession guard against an innocent person confessing to a crime he did

not commit), citing Self v. State, 513 S.W.2d 832, 836-37 (Tex.Crim.App. 1974). “This other

evidence need not be sufficient by itself to prove the offense: ‘all that is required is that there be

some evidence which renders the commission of the offense more probable than it would be

without the evidence.’” Rocha v. State, 16 S.W.3d 1, 4 (Tex.Crim.App. 2000), quoting Williams

v. State, 958 S.W.2d 186, 190 (Tex.Crim.App. 1997) (en banc).

A person commits robbery when, in the course of committing theft and “with intent to

obtain or maintain control of the property,” he “(1) intentionally, knowingly, or recklessly causes

bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of

imminent bodily injury or death.” TEX.PENAL CODE ANN. § 29.02(a). A person commits theft

when he “unlawfully appropriates property with the intent to deprive the owner of property.”

TEX.PENAL CODE ANN. § 31.03(a). Appellant’s claim here is that there was no corroborating

evidence of a robbery (a component of the felony murder charge), and thus the jury should have

been instructed on the corpus delecti rule which would have allowed it to not consider the

confession.

B. Jury Charge Error

A reviewing court’s first duty in analyzing a jury-charge issue is to determine whether error

exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005) (en banc). If the court finds

error, it analyzes the error for harm. See id. Jury charge error requires reversal when the defendant

properly objected to the charge and the error resulted in “some harm” to his rights. See id., citing

29 Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (en banc) (op. on reh’g). When a

defendant did not object to a charge, reversal is not warranted unless the record shows egregious

harm to the defendant. See Ngo, 175 S.W.3d at 743, citing Almanza, 686 S.W.2d at 171.

Although Appellant objected to the exclusion of this instruction, we need not reach the

issue of harm, because we conclude the trial court did not err in refusing the instruction. See

Baldree v. State, 784 S.W.2d 676, 686 (Tex.Crim.App. 1989) (en banc) (indicating that “a trial

judge need not instruct the jury on corroboration when the corpus delicti is established by the

evidence”). As explained below, independent evidence apart from Appellant’s interview renders

the corpus delicti of robbery more probable than it would be without the evidence. Rocha, 16

S.W.3d at 4.

C. Is Corroboration of the Murder Enough?

Appellant’s argument focuses on whether the record contains any corroboration of the

robbery component of the felony murder charge, agreeing that there is certainly corroborating

evidence of a murder. The State responds that in a murder case, it need only corroborate a murder,

here by evidence that Jorjorian died from a gunshot wound to the chest. See Nisbett v. State, 552

S.W.3d 244, 264 (Tex.Crim.App. 2018) (“[T]he corpus delicti of murder is established if the

evidence shows the death of a human being caused by the criminal act of another, and the State is

not required to produce and identify the body or remains of the decedent.”) (internal quotes

omitted). The question of whether the evidence had to corroborate the murder or both the robbery

and murder is potentially answered by Miller v. State, 457 S.W.3d 919, 927 (Tex.Crim.App.

2015). In Miller, the defendant confessed to four instances of aggravated sexual assault, but the

State had corroborating evidence only for one of the counts. The court of appeals reversed guilty

verdicts on three counts, based on the corpus delecti rule. The Texas Court of Criminal Appeals

30 refused the State’s argument to drop the corpus delecti rule altogether, but it did create an exception

--“Texas criminal law does recognize a closely related crimes exception to the corpus delicti rule

in cases with an extrajudicial confession, and it is implicated when the temporal connection

between the offenses confessed to is sufficiently close that introduction of the confession does not

violate the purposes of the corpus delicti rule.” Id. at 929.

The robbery and murder were closely related in time and circumstance. But we need not

decide if that exception applies here, however, because we conclude there is sufficient

corroborating evidence of the robbery, if corroboration of that aspect of the crime is required.

D. Independent Evidence of Robbery

The record contains evidence corroborating Appellant’s statement that he and Nava were

intending to steal Jorjorian’s drugs, and that in the process Jorjorian was killed. Nava’s text

messages corroborated that there was to be a drug sale transaction in the park that night. Hours

before he was murdered, Jorjorian and Nava exchanged text messages concerning Nava purchasing

two syringes of liquified THC, or wax, from Jorjorian. But the evidence suggested something more

than a simple purchase transaction. A witness heard a car pull up and yelling from within the

vehicle. The witness next heard a car door open and a person shout, “I’m going to shoot you

n____! I’m going to shoot you.” The car then drove away. Another witness saw a small SUV

with an occupant and a young driver who proceeded oddly fast and failed to stop at a stop sign in

the neighborhood. Witnesses found Jorjorian lying on the pavement, shot in the chest, with two

syringes next to him filled with greenish liquid.

The record therefore contained evidence of an intended drug transaction that went awry.

The circumstances of it going wrong were consistent with a robbery. Both Appellant and Jorjorian

had body marks consistent with a fight. Autopsy photographs detailed abrasions and bruising to

31 Appellant’s left earlobe, bruising to his right hand and a cut to his finger. Although evidence may

have supported other explanations for the injuries to Jorjorian’s face and extremities, the jury was

free to believe and give weight to the testimony that they were caused by assault. See Sharp v.

State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (en banc). Appellant gave inconsistent

statements as to how he suffered his injuries. And the injuries to both Appellant and Jorjorian

would be consistent with a forceful attempt to steal the drugs. The record also contains

corroboration of the gun that Appellant described as being used by Nava. Use of the gun itself is

consistent with an attempt to commit robbery instead of a simple drug-sale transaction.

A defendant does not have to complete the theft to be guilty of robbery. In Wolfe v. State,

a defendant convicted of capital murder argued that the evidence was insufficient to support his

underlying felony of robbery when the victim was found with a coin in her purse and coins on the

floor of her home. See 917 S.W.2d 270, 275 (Tex.Crim.App. 1996). Finding the evidence

sufficient, the Court of Criminal Appeals noted that “[p]roof of a completed theft is not required

to establish a robbery,” and the intent to steal may be inferred from circumstantial evidence. Id.,

citing Demouchette v. State, 731 S.W.2d 75, 78 (Tex.Crim.App. 1986) (en banc). Moreover, the

court concluded that a rational jury could believe that appellant’s cut fingers, blood on an unlatched

coin purse, and scattered coins on the floor met the threshold of sufficient evidence to support

robbery underlying capital murder. See Wolfe, 917 S.W.3d at 275 (noting that intent can be

inferred from circumstantial evidence). As in Wolfe, the corpus delicti for the robbery of Jorjorian

could be established by the cumulative force of the direct and circumstantial evidence when viewed

separate and apart from Appellant’s statement to law enforcement. See id.; see also Gribble v.

State, 808 S.W.2d 65, 72 (Tex.Crim.App. 1990) (en banc) (indicating that, while there was little

evidence apart from Appellant’s confession to suggest the victim was kidnapped, corpus delicti

32 was satisfied because the record was not “utterly devoid of evidence” to the effect). As such, the

trial court was not required to give the instruction, and we overrule Issue Four.

VII. CONCLUSION

Having overruled Appellant’s issues, we affirm the trial court’s judgment adjudicating

guilt.

JEFF ALLEY, Chief Justice

December 15, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)