NUMBER 13-12-00603-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RICARDO MUÑOZ SANCHEZ A/K/A RICARDO ALONSO SANCHEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Ricardo Muñoz Sanchez, a/k/a Ricardo Alonso Sanchez,
guilty of capital murder. See TEX. PENAL CODE ANN. § 19.03 (West, Westlaw through 2013
3d C.S.). Appellant received a life sentence without the possibility of parole. By two issues, appellant contends that the evidence is insufficient and that the trial court
improperly admitted a video into evidence. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends that the evidence is insufficient to support his
conviction for capital murder. Specifically, appellant argues that the evidence is
insufficient “to show that [he] caused the death of [the victim]” and “to show that [he]
solicited, encouraged, directed, aided or attempted to aid or that [he] entered into any
agreement with anyone to commit the offense of robbery and/or burglary of a building.”
A. Standard of Review and Applicable Law
In a sufficiency review, we examine the evidence in the light most favorable to the
prosecution to determine whether any rational fact finder could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). The
fact finder is the exclusive judge of the facts, the credibility of witnesses, and the weight
to be given testimony. Brooks, 323 S.W.3d at 899. We must resolve any evidentiary
inconsistencies in favor of the judgment. Id.
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). As charged in this case, the offense of capital murder
occurred if the person “intentionally commit[ted] the murder in the course of committing
or attempting to commit . . . burglary [or] robbery. . . .” See TEX. PENAL CODE ANN. § 19.03.
A person commits murder if he “intentionally or knowingly causes the death of an
2 individual.” Id. § 19.02 (West, Westlaw through 2013 3d C.S.). A person commits the
offense of burglary of a habitation if, without the consent of the owner, the person enters
a habitation and commits or attempts to commit a felony, theft, or an assault. Id. §
30.02(a)(3); see Reyes v. State, 422 S.W.3d 18, 23–24 (Tex. App.—Waco 2013, pet.
ref’d). “A person commits [the offense of robbery] if, in the course of committing theft as
defined in Chapter 31 and with intent to obtain or maintain control of the property,
he . . . intentionally, knowingly, or recklessly causes bodily injury to another.” TEX. PENAL
CODE ANN. § 29.02 (West, Westlaw through 2013 3d C.S). A person commits a theft if
“he unlawfully appropriates property with intent to deprive the owner of property.” Id. §
31.03(a) (West, Westlaw through 2013 3d C.S.). Appropriation of property is unlawful if
it is without the owner’s effective consent. Id. § 31.03(b)(1).
“Each party to an offense may be charged and convicted with the commission of
the offense without alleging that he or she acted as the principal or accomplice.” Id. §
7.01(b), (c) (West, Westlaw through 3d C.S.); Hayes v. State, 265 S.W.3d 673, 678–79
(Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). Under the law of parties, “[a] person is
criminally responsible as a party to [capital murder] if the offense is committed by his own
conduct, by the conduct of another for which he is criminally responsible, or by both.”
TEX. PENAL CODE ANN. § 7.01(a) (West, Westlaw through 2013 3d C.S.). In addition, a
person is criminally responsible for the conduct of another for the offense of capital murder
if “acting with intent to promote or assist the commission of [capital murder], he solicits,
encourages, directs, aids, or attempts to aid the other person to commit [capital murder].”
Id. § 7.02(a)(2). When determining whether the evidence is sufficient to support that a
defendant participated as a party to a crime, we may consider “events occurring before,
3 during and after the commission of the offense, and may rely on actions of the defendant
which show an understanding and common design to do the prohibited act.” King v.
State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000) (quoting Ranson v. State, 920 S.W.2d
288, 302 (Tex. Crim. App. 1994)). Under the law of parties, the defendant does not need
to be physically present at the commission of the offense in order for the evidence to be
sufficient. See Guevara v. State, 152 S.W.3d 45, 52 (Tex. Crim. App. 2004) (observing
that the penal code “does not require that a party to the crime be physically present at the
commission of the offense”) (citing Morrison v. State, 608 S.W.2d 233, 234 (Tex. Crim.
App. [Panel Op.] 1980)).
In our sufficiency review, “direct evidence of the elements of the offense is not
required.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). Circumstantial
evidence is as probative as direct evidence, and juries are permitted to make reasonable
inferences from the evidence presented at trial and in establishing the defendant’s guilt.
Id. “Circumstantial evidence alone can be sufficient to establish guilt.” Id. “[T]he lack of
direct evidence is not dispositive of the issue of a defendant’s guilt.” Guevara, 152 S.W.3d
at 49. “Each fact need not point directly and independently to the guilt of the appellant,
as long as the cumulative force of all the incriminating circumstances is sufficient to
support the conviction.” Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014);
Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Ethridge v. State, 795
S.W.2d 281, 284–85 (Tex. App.—Houston 1990) pet. dism’d, 812 S.W.2d 600 (Tex. Crim.
App. 1990) (en banc).
B. Law of Parties
4 It is undisputed that Reyes Garcia, Jr. died as a result of a gunshot wound after
four masked men with guns entered his home on June 23, 2010 and took several of his
guns. The State presented evidence through eyewitness testimony that the four men
were involved in a home invasion, Garcia told the men that he did not have any more
money, the men beat Garcia, shot him, and when they left the men took four of Garcia’s
guns. From this evidence, the jury could have found that the four men committed the
offense of burglary by entering the home without the effective consent of the owner and
committed a theft by taking Garcia’s guns after shooting him. Moreover, the jury could
have concluded that because one of the men shot Garcia in the head, he had the specific
intent to kill Garcia. Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (en banc)
(explaining that “specific intent to kill may be inferred from the use of a deadly weapon,
unless in the manner of its use it is reasonably apparent that death or serious bodily injury
could not result”) (quoting Godsey v. State, 719 S.W.2d 578, 580–81 (Tex. Crim. App.
1986)).
The State acknowledges that it is unknown who actually pulled the trigger and shot
Garcia but argues that the evidence is sufficient under the law of parties to show that
appellant is guilty of capital murder. Appellant claims that the evidence failed to show
that appellant caused Garcia’s death, that appellant “solicited, encouraged, directed,
aided, or attempted to aid” the men who committed the offense, or that appellant “entered
into any agreement with anyone to commit the offense of robbery and/or burglary of a
building.”
First, under the law of parties, the State was not required to prove that appellant
himself caused Garcia’s death. Instead, the evidence must have been sufficient to show
5 that although the offense was committed by the conduct of another person, appellant was
criminally responsible for that person’s conduct. TEX. PENAL CODE ANN. § 7.01(b), (c);
Hayes, 265 S.W.3d at 678–79. To have been criminally responsible for the other person’s
conduct, appellant must have acted with “intent to promote or assist the commission of”
the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other
person to commit the offense. See TEX. PENAL CODE ANN. § 7.02(a)(2).
C. Pertinent Facts
Ricardo Perez Jr., an investigator with the Mission Police Department, testified that
on June 23, 2010, he responded to a crime scene at a home that had been ransacked
and where the body of a shooting victim had been found. Investigator Perez stated that
on July 9, 2010, appellant and Roxane Hernandez were arrested for drug possession and
that he observed a police interview of appellant. According to Investigator Perez, as part
of his investigation, he viewed a surveillance video that had been taken on the night of
the incident of four masked men arriving at Garcia’s home in a black Expedition.
Investigator Perez explained that he tried to identify possible suspects who could have
been in the surveillance video through “recognition of [their] body posture,” the person’s
“demeanor” when he walked, and the relationship that each suspect had to the other
suspects. Based on these considerations and his experience, Investigator Perez became
suspicious that appellant was involved in the crime. Specifically, Investigator Perez said,
“I said this may be a possible suspect that we’re talking to because he’s associated with
that black Expedition and the arrest with Roxanne Hernandez, who is sister to Jeffrey
Juarez.” Evidence presented at trial shows that the police considered Juarez “a person
of interest” in the crime and eventually arrested him.
6 The trial court admitted into evidence the surveillance video reviewed by
Investigator Perez. The video showed four masked men carrying weapons exiting a black
Expedition on the night of the offense in the victim’s neighborhood. Investigator Perez
testified, without objection, that after viewing the video, he believed “it is [appellant] that’s
being the driver that exited the driver side of the Expedition” and that the passenger is
Angel Falcon. Evidence shows that Falcon had also been arrested. Investigator Perez
stated that the police could not identify the other two men. The prosecutor asked, “Okay.
How do you know that it’s [appellant] in the video?” Investigator Perez replied,
When I first came across him, when he was arrested in Pharr, he was brought to our police department. And looking at the surveillance video, when he’s walking out from the jail cell, in the video you see the driver as he walks like a cool walk, and he grabs his crotch area. [Appellant] had that cool walk, grabbing his crotch area. And that’s what got my attention right away. So, I started, you know, I started to build that he was a possible suspect and driver.
We also found that there was blood on inside the Expedition. And I noticed that he had a healing cut, a little small cut on his hand. I don’t remember if it’s the right or left. And I know we photographed it because it was of interest to me that he had a cut and that there was blood in the vehicle. . . .
....
Based on the observation, my observation of spending a little time with him, talking to him, looking at the video, knowing that there was blood in the Expedition, knowing that he had a cut, all these things, they’re building blocks for me. And the demeanor and posture. And even though he’s a masked individual, but you look at the structure, the body structure, and that led me to believe that he’s the driver. He’s in possession of that Expedition. Because he has borrowed it from the mother, the mother of the girlfriend. That’s what made me believe that it’s him. There’s no doubt to me it is him.
Those are the information that I have that leads me to believe it is him.
7 Evidence was presented that on July 11, 2011, before he was arrested for Garcia’s
murder, appellant called his girlfriend, Laurie Aleman, from jail on several occasions and
discussed the murder of Garcia.1 During these telephone calls, which were recorded and
admitted into evidence, appellant asked Aleman to make “three-way calls” to several
people to discuss Garcia’s murder.2 Transcripts of the phone calls were also admitted
into evidence. During one conversation with Aleman, appellant stated, “I need you to do
me some three-ways and I need a, uh—damn it, babe, I’m stressing over this f***ing
cause. [I]t’s going to be hard to beat it, babe.” Appellant said, “[I]t’s going to be hard to
beat it. They got my f***ing blood [unintelligible].” Laurie asked, “Is that the [unintelligible]
they used,” and appellant replied, “Yes.” While she was testifying, the prosecutor asked
Aleman if she could explain what was unintelligible in question she asked Aleman.
Aleman clarified that she had asked appellant “about the truck they used.” During the
call, appellant told Aleman that he anticipated receiving a one-year sentence for one
offense that he had committed, presumably the drug offense, but that he was stressed
out about another unnamed offense. The evidence established that prior to this call to
Aleman, appellant had recently been interviewed by police regarding Garcia’s murder.
Aleman asked appellant, “You are—you really think that’s the only thing you’re
gonna get,” and appellant responded, “But Torch is gonna take it. He’s gonna take the
blame, you know, so I’ll be clean. . . . The only thing is right now they’re not charging me
for that other thing, but I know tomorrow, hopefully I don’t—but I know they’re gonna come
1 As previously mentioned, appellant was in jail after police arrested him with Hernandez for the
drug offense. 2 During the conversations, the speakers used explicit language. We are unable to remove many
of the explicit language because doing so may affect the context of some of the conversations.
8 charge me.” During the call, appellant told Aleman that “it’s a big ass charge, and then if
I get guilty babe, forget it, they’re going to give me life,” and Aleman replied, “But it wasn’t
you.” Appellant said, “I know but because it has my blood, I’ve been in situations like this
[unintelligible] I didn’t do shit babe, but because it has my blood, I don’t know what the
f*** this bitch did.”
In these recorded calls, appellant asked Aleman to call a man referred to as “Coco”
and another man referred to as “Edward.” Aleman called Edward with appellant on the
line. Appellant informed Edward that he was in jail. During the discussion, Edward
indicated to appellant that “it got all f***ed, bro” and “you are gonna beat them.” Appellant
responded, “I know, I’m gonna beat them bro, it’s just that it’s the, the G ride, they’re
getting DNA from it and I have—.” Again, appellant is referencing the DNA evidence
found in the truck used in Garcia’s murder. Appellant told Edward that “since [he] had
gotten into a fight, [he] had blood in the truck and now they are going to try to f*** me.”
Appellant said, “F***ing Coco I don’t know what, I’m calling him and he doesn’t answer,
bro. Look buddy, my, my time is running out, I’ll probably give you a—.” Edward asked,
“What do you want me to do, bro,” and appellant replied:
Look, I need you to call Coco, bro tell him to answer the f***ing phone, look, the toys I had already told Coco to bury them, bro, to get one for him—the John Wayne and suddenly [unintelligible] one, one shotty, bro, and the rest to bury them, bro, because, uh, and have them take the serial numbers off of them, buddy. . . . Buddy, if they catch someone with those serial numbers, bro, they’re gonna let them have it, bro. . . . I’m telling you. And the Baretta, bro, you have to tear it apart. . . . The Baretta you have to melt it down, bro.
Edward then called Coco on his three-way line with appellant on the other line.
Appellant informed Coco that his phone time was running out and instructed him to
answer his phone when appellant’s girlfriend called him. Appellant said, “Hey, my, my
9 chick is going to call you in a while, bro, to, to give you stuff, to see where you can get rid
of it.” Coco stated, “Yes, I know, I want her to know that.” Appellant said, “—all right, I
need you. Tuerca is getting out in a week. In [a] while my chick is going to call you to
give you stuff bro, and get rid of it wherever you can, bro, all right. . . . You know how to
do it, bro. Point three, everything bro, everything, everything for, pure profit. I love you
bro, take care. Hey, the toys, don’t give those to the bros. Take the serial numbers off
of them and stash them.” Coco stated that he would follow appellant’s directions.
Appellant asked Aleman to call a friend named “Jasmine,” later identified as a
witness for the State, Jasmine Pauline Gonzalez. 3 Aleman complied. Jasmine informed
appellant that Jasmine’s mother, later identified as Jessica Gonzalez, had been arrested.
Jasmine informed appellant that “[e]verybody’s taking a lot of shit in here, blaming it on
me.” She stated that she had already given her statement to the Mission Police
Department. Appellant told Jasmine that he “needed her” help and asked her to make
another statement to the police. Jasmine replied, “Yeah, but I already let—I already did
my statement. How can I renew my statement and lie about my statement?” Appellant
replied, “Why did you f***ing do a statement? You already knew not to do a statement.”
Jasmine said, “They—[appellant], the first day that they came ‘cause of the truck, they
were gonna arrest my mom, my grandma for that shit.” Appellant reiterated that he
“needed” Jasmine’s help, and told her that he was not “gonna come out.” Jasmine
responded, “Well, what do I do now? Now I go have to go back and lie?” The following
colloquy occurred:
[Appellant]: No, just tell them that it was—you were just with him for like two—you were just with him for two weeks.
3 For purposes of reader ease, we will refer to her by her first name, Jasmine.
10 Jasmine: Well, you too. Why the hell do you have to also f*** around, [appellant].
[Appellant]: Jasmine, don’t do it like that. It wasn’t even me, it wasn’t even me, hell with that, don’t be saying shit like that.
Jasmine: Oh.
[Appellant]: I didn’t do that f***ing shit.
Jasmine: I know you didn’t.
[Appellant]: Don’t do me like that, Jasmine, you know that if I’m f***ing found guilty for that shit, I’m not gonna f***ing come out, never. Hey.
Jasmine: What?
[Appellant]: I need you Jasmine, man, you know that I don’t f***ing—man, you know I need you. I need you, I need you to be strong.
[Appellant]: Everything’s gonna be all right. Everything’s gonna be all right, but you have to tell them the truth. Jasmine—
Jasmine: I know.
[Appellant]: You need to tell them that your guy, would use the truck too.
Jasmine: I know, I already know, and he did use it.
[Appellant]: Jasmine, damn it, Jasmine, I need you more than ever. I know that your mom is in this shit, but you know that if I get out, Jasmine, I get out and man, I’ll, I’ll, I’ll owe you my . . . life, I’ll do anything—
Jasmine: No [unintelligible] you don’t need to give me nothing, I already see how it is, I already see how you are, but I’ll try to do something, I’ll—
[Appellant]: What do you mean how I am?
Jasmine: Yes, taking other f***ing [women] in my truck. No it’s cool—
11 [Appellant] Who the f*** had other [women]?
Jasmine: —everything is cool [unintelligible].”
[Appellant]: Hey, they didn’t stop me with another chick.
Jasmine: I’m down with you, I’m down with you, I’ll do anything [unintelligible]
Jasmine: I’m trying to do my . . . best, [appellant]. I’m trying. I’m trying. I want to go over there, and I’m scared that they’re gonna take me in ‘cause I’m lying. I’m you know—I don’t know what to do.
[Appellant]: No, Jasmine. You’re not lying. You’re just telling them the truth. Just, look Jasmine, Jasmine, you’re mom has— Jasmine you know how to run this shit, all right.
You know. You just say it crying, start crying, that hey, that you were with this guy, but you never thought nothing of him, the guy was, you know from Mexico, and all—all of a sudden he just came back and he gave you the truck [unintelligible] clean and whatever the f*** and he left.
Jasmine: And why, and why, why they’re giving you that for?
[Appellant]: Because, Jasmine, ‘cause my DNA is on the f***ing truck.
Jasmine: On the truck, but it’s like maybe you were—you punched [Aleman] or something.
[Appellant]: I know, it did, remember, but I don’t know why they’re doing it to me.
Jasmine: Your hand was bleeding when the—
[Appellant]: Yes, but do they know that? They do not know that, Jasmine.
Jasmine: That’s why I said, to my . . . statement, that’s what I was trying to say, I mentioned [Aleman], I thought that it was that—that
12 you punched her and you—you had a cut and you bleed, and I don’t know what. I said that.
[Appellant]: But they told me that you guys said that only I drove the truck.
[Appellant]: Jasmine I need you, Jas—that’s why I gave you—I knew well that you shouldn’t give a . . . statement.
Jasmine: No, I didn’t know that. For real, I didn’t even know what was happening, they were coming to arrest my grandma. We were at the bar, they came over here, and they were arresting my grandma for—for attempted murder, capital murder, whatever. And my mom, grandma was all scared like they— they already wanted to arrest her. She was all scared—she was like—No, this is my daughter’s truck. So, I came over here, and then they wanted—oh well we need to go in— they—they had—I had to go in that day, if not they were going to arrest me.
[Appellant]: I just need you to help me out on this on Jasmine. Please, you know if I’m found guilty on this shit, I’m never gonna come out you know, and I don’t deserve this shit Jasmine—
Jasmine: I ain’t gonna be weak, yo, I’m not being sad, ‘cause I’m just going to go back over there and I’m gonna say whatever I gotta . . . say. I know, okay.
[Appellant]: Jasmine, you know that I wouldn’t, I would never . . . do shit like that.
[Appellant]: But are you going to help me out?
Jasmine: I’m trying, [appellant], I want to go back—
[Appellant]: Jasmine, are you going to help me out? Tell me the truth, ‘cause you don’t sound too . . . confident.
13 Jasmine: Yes, I am [appellant].
[Appellant]: You’re gonna let me . . . stay in here or what?
Jasmine: No.
[Appellant]: You don’t sound too confident, Jasmine.
Jasmine: [Appellant], I’m gonna try, I’m gonna try [unintelligible] it’s ‘cause I don’t know how to say it, I don’t know how to say it but—
[Appellant]: Look—look Jasmine, this is what you’re—Jasmine, this is what you’re going to say, like start crying—
Jasmine: I already know—
[Appellant]: Start crying—
Jasmine: That’s my boyfriend Felix, I don’t know what—
[Appellant]: There you go, start, start, you know, just tell ‘em the truth you know, tell ‘em like, that you—you were with him, but you—it was nothing serious you know that, you would lend it to him, and that your mom didn’t know, and whatever the f***.
Jasmine: See that’s why I’m . . . mad—
[Appellant]: It was around—
Jasmine: I needed this, I needed this shit . . . from the beginning to know this shit. It’s—that’s why if you knew something was up, why don’t you tell me anything—
[Appellant]: Baby, I was . . . locked up, they wouldn’t let me use the phone.
Jasmine: No, I know, but like before like—
[Appellant]: Nothing was—
Jasmine: Why don’t you tell me this before like, so I could know, you know what I mean? If anything happens, I know what to say in the beginning. You know—
[Appellant]: I’m sorry. I’m sorry—
14 Jasmine: I didn’t know nothing about this, babe—
[Appellant]: I’m sorry.
Jasmine: —I don’t nothing
[Appellant]: Hey.
Jasmine: You know, I didn’t know what to go, what the f***ing statement. You know how . . . stupid I am. I didn’t even know what the f*** that shit was.
[Appellant]: You’re not gonna let me stay in here, right?
Jasmine: No, I’m not.
[Appellant]: All right. Hey, Jasmine, you know when I come out, man, I’ll owe you guys whatever man, I’ll . . . do whatever for you guys, you know that I will, I’m good, I’m worth it, all right?
[Appellant]: Wait, wait. Let me talk to you, let me talk to you. Hey, Jasmine, look, they don’t know shit, babe, they don’t—
[Appellant]: You know how the . . . show runs. They don’t know anything. They don’t know shit, and, there’s not—we—there’s nothing in—there’s no way we can help them, why? ‘Cause we didn’t do shit, all right?
Jasmine: All right.
[Appellant]: But you, Jasmine, if you can help out, just tell them that stuff, what Mitzi told you, but you need to get the story straight. You need to talk to Mitzi, make every—make everything—
Jasmine: That’s why I told her, I told her, I’m—come over here and let me talk to you. Let me talk to you in person.
15 [Appellant]: And what did she say?
Jasmine: ‘Cause I can’t be doing—
[Appellant]: She said she could do it. She’ll go over there.
Jasmine: Yeah I know, but right now I’m going to the Mission P.D.
[Appellant]: What’s more tell . . . Mitzi to take you. Tell Mitzi if she could take you.
[Appellant]: You already, get everything straight, get the address, around, it was around June 20th, June 15th, June 20th that you were with this guy, you were with him for two weeks, one day he arrived, he came back with the truck real clean and, and he left, he bought you the new clothes, all right? He had a lot of money. Jasmine.
Jasmine: All right, I’m listening.
[Appellant]: Don’t let them break you. Jasmine. Don’t let them break you.
[Appellant]: They’re trying to scare you. Why are they—why are they going to take you, they don’t got no reason to, but they’re gonna. They’re gonna, you know. They’re gonna scare you like, oh, we this, we know this, we know that, bullshit Jasmine. Stick to the mother ****ing plan, all right?
[Appellant]: Hey, I got a family too, all right? Please make your story straight. Talk to Mitzi, get everything straight, all right?
[Appellant]: Hey, get everything straight, but please, Jasmine, don’t let me down, please, Jasmine.
16 In a subsequent conversation with Aleman, appellant said, “[B]abe, if my blood
wouldn’t have gotten there, I might have made, but they’re going to do lab work all over
it, they’re gonna—” Appellant also stated that he believed that Jasmine and her mother
would testify against him. Appellant instructed Aleman to call “Mitzy” and to tell Mitzy “to
give [Aleman] information about Jasmine.” Appellant said, “tell Mitzy to keep telling
Jasmine to please help me, to please help me, to please help me, to keep calling her and
telling her please help me for, for them not to bullshit her, that I need her, all right?”
Appellant told Aleman to talk to Jasmine and to tell her that when appellant got out of jail,
“we’ll give her a lot of money, and we’ll help her out in whatever, tell her please that I have
a family that if I get charged with this, I’m never going to come out.” Appellant said,
Right now I’m going to write to you. Hey, and tell Mitzy that, to, if Jasmine already has a name and where he’s from. Tell Jasmine to get her . . . story straight babe, I need Jasmine, baby, I need her babe, you know she’s the only one that can help me out. Her and her mom, her mom is down for me babe. Just tell her not to . . . for them to be strong, not to let them bullshit her, not to sign no papers—.
At trial, Jasmine testified that she, her mother, and appellant were the only people
who drove the vehicle used in Garcia’s murder. According to Jasmine, she dated
appellant in June of 2010. Jasmine stated during that time, that she lent the vehicle to
one other man on one occasion, but she was present in the vehicle at the time. At no
time did Jasmine lend the vehicle to someone other than appellant without being present
in the vehicle. Jasmine stated that “sometimes” she lent the vehicle to appellant and did
not accompany him. Jasmine could not recall how many times she loaned the vehicle to
appellant while she was not also in the vehicle. Jasmine testified that on July 9, 2010,
appellant was in possession of the vehicle. Jasmine explained that although appellant
was being held by the Pharr Police Department, she “went looking for him” on that date
17 and found the vehicle at appellant’s mother’s house. According to Jasmine, she observed
many police officers at that location.
Jasmine testified that when she spoke to appellant on the phone, he asked her to
lie “about a guy using her truck.” Jasmine acknowledged that she told appellant she
would tell the police what appellant asked her to say; however, Jasmine never told police
what appellant asked her to say because she “had already left a statement.” On cross-
examination, Jasmine stated that the vehicle belonged to her mother, Jessica Gonzalez.
On July 12, 2010, Alejandro Madrigal Jr., a forensic scientist with the Department
of Public Safety Crime Laboratory, assisted the Mission Police Department in collecting
evidence from the vehicle used by the suspects during the commission of the offense.
The vehicle was a black 2000 Ford Expedition. Madrigal took swabs of what appeared
to be blood located on the driver’s side area of the vehicle for DNA testing. Madrigal then
compared appellant’s DNA with that found in the vehicle. Madrigal explained, “The items
that we went over and we compared was AM6-A, which was jeans, the Guess jeans, AM-
7, which were the Dristan jeans, AM-10, which was the swabbing from the steering wheel.
And AM-14, which was the driver’s side center console.” Madrigal stated that “[t]he
findings were that the DNA recovered from the items were consistent with the DNA profile
of [appellant]” and appellant “cannot be excluded as a contributor of these profiles.”
According to Madrigal, “the probability of selecting an unrelated person as a random who
could be the source of these profiles [found in the vehicle] is approximately 1 in 36.28
quintillion for Caucasians. 1 in 4.230 quintillion for Blacks. And 1 in 2.163 quintillion for
Hispanics.” Madrigal concluded “[t]hat to a reasonable degree of scientific certainty,
[appellant] is the source of those [blood] stains” found in the vehicle.
18 Rolando Mendoza, a Mission Police Department crime scene technician, testified
that he executed a search warrant of a residence located at 207 Camino Real, Apartment
6 on July 13, 2010. Mendoza recovered, among other things, a black tactical shotgun
“Remington 870” with serial number “[A]B796139[M].”4 The prosecutor showed Mendoza
State’s Exhibit No. 15 and asked, “Can you verify if it is, or is not the same serial number?
Mendoza replied, “It is the same one, ma’am.” State’s Exhibit No. 15 is a receipt of
Garcia’s purchase of a weapon “REM 870” with serial number AB796139M. In addition,
regarding the gun found by police, Adrian Garcia, the victim’s brother, stated, “I’m certain
one hundred percent that’s my brother’s weapon.” Adrian Garcia explained that the
victim’s gun was unique because it was custom-made and “it is very rare to see” a gun
with the “features” that this particular gun had. Guadalupe Garcia, the victim’s other
brother, stated that the gun belong to the victim.
Sergeant Jody Allen Tittle, a police investigator with the City of Mission police
department, testified that he confirmed that the serial number of the black shotgun found
at the Camino Real apartment matched a gun purchased by Garcia. Sergeant Title also
testified that the vehicle in appellant’s possession was the same vehicle used in Garcia’s
murder. In addition, Sergeant Tittle described State’s Exhibit Number 35-B as a size
“large” dark brown glove recovered at the crime scene. The prosecutor then asked
Sergeant Tittle to observe State’s Exhibit Number 70-A, another size large dark brown
glove that Sergeant Tittle stated matched the glove found at the crime scene. Sergeant
Tittle did not know where State’s Exhibit 70-A was discovered. However, Madrigal
4 The reporter’s record indicates that Mendoza testified that the serial number was “8B796139N.” However, Mendoza also testified that the serial number was identical to the serial number listed on State’s Exhibit Number 15, which shows the serial number as being AB796139M.
19 testified that he found the brown glove identified as State’s Exhibit 70-A in the glove
compartment of the Expedition.
Vicente Ochoa Jr., an investigator with the Mission Police Department, testified
that he had been assigned to work on this case on June 25, 2010 and that on July 12,
2010, he began his investigation concerning appellant’s recorded phone calls from the
county jail. Investigator Ochoa stated that he listened to nine phone calls and attempted
to determine who the phones were registered to and to get “pings” on the GPS location
of the phones from the phone service providers. Investigator Ochoa clarified these
“pings” would help “locate . . . where these people were at in regards to, since they were
possibly getting rid of evidence.” According to Investigator Ochoa, they received a “hit”
to one of the numbers at the location of “Camino Real, 200 block in San Juan,” Texas.
Investigator Ochoa clarified that two numbers pinged to the 200 Camino Real area, which
included the phone number used by a man referred to as Coco.
Based on this information, the police set up a surveillance of the Camino Real
area. Investigator Ochoa stated, “In the early morning we see a male subject come out
of the area side of the apartment. We make contact with him. He identifies himself as
Coco. And we get his correct name as being Juan Briones.” Investigator Ochoa testified
that they made “the link that the same person on the phone calls [with appellant] from the
jail that we got mentioned is a Coco. . . . We realize that it’s the same person from there.”
According to Investigator Ochoa, the police then transported Coco to the police
department, and Investigator Ochoa assisted in the execution of a search warrant at 207
Camino Real. Investigator Ochoa testified that they found several weapons at this
location, which included a “distinctive shotgun” that was located under the bed.
20 Investigator Ochoa stated, “One of the weapons was recovered, which was a tactical
shotgun, through the investigation we discovered was a weapon that was purchased by
the victim at the Armory store in McAllen[, Texas]. Serial number did match up to the
weapon that [the victim] purchased.”
Investigator Ochoa observed a body search of appellant that was taken after blood
was found in the vehicle used in the crime. Evidence was presented that appellant
resisted the body search and that he “put up a pretty good struggle.” During this body
search, the police photographed a “healing cut” that appellant had on his hand.
Regarding the investigation of appellant’s connection with the offense, Investigator Ochoa
said,
We’re able to determine that there is some items at the crime scene that match up to [appellant], as far as his right hand, a figurine that was broken when the suspects crossed over the fence in order to gain entry into the property, the vehicle being driven by [appellant], and blood found inside the vehicle.
On cross-examination by appellant’s trial counsel, Investigator Ochoa explained
that the victim had a “rod iron fence” with a decorative figurine welded on top, which the
police found next to the fence. Investigator Ochoa stated that the vehicle used by the
suspects was linked to appellant because “[h]e’s the person supposed to be driving it, the
vehicle” and that “[i]n the video [appellant] matches the description of the driver.”
Investigator Ochoa stated that he believed the video showed that the driver of the vehicle
matches appellant “[b]y his body build.” Investigator Ochoa testified that from what he
“gathered from [Jasmine’s mother Jessica], she says that [appellant] had the vehicle”
when the crime occurred and that Jessica “told” Investigator Ochoa that appellant “was
the one using it.”
21 D. Analysis
Appellant argues that the evidence is insufficient to support the jury’s finding that
he committed the charged offense. However, we disagree with appellant, and we agree
with the State that the evidence, as set out below, supports the jury’s verdict.
During his phone conversations, appellant did not explicitly state that he was
discussing Garcia’s murder. However, throughout these conversations, appellant alluded
to facts that the evidence at trial established were connected to Garcia’s murder. These
facts included appellant’s concern: (1) about DNA from his blood that police discovered
in the vehicle used by the suspects the day after appellant talked to Aleman; (2) about
weapons that were in the possession of a man referred to as “Coco”; and (3) that he
would receive a life sentence for the “other thing” that he had not been charged with that
was “a big ass charge.”5 From this evidence, the jury could have reasonably found that
appellant had knowledge of details of Garcia’s murder because he was somehow
involved especially given appellant’s concern that he would receive a life sentence for
Garcia’s murder and his concern that his DNA was located in the vehicle used by the
assailants and the fact that the police located one of the stolen weapons in Coco’s
possession based on appellant’s phone call to Coco. See Ethridge, 795 S.W.2d at 285
(explaining that attempts to conceal or destroy contraband is sufficient evidence of “guilty
knowledge”). The jury could have also taken into consideration appellant’s prediction that
the police would find his blood in the vehicle to use against him as an indication that
5 We must view the evidence in the light most favorable to the jury’s verdict; thus, to convict appellant, the jury must have determined that the vehicle appellant used was the same vehicle used to commit the offense, which is supported by evidence that the vehicle used during the commission of the offense had the same damage to the side step as the vehicle found in appellant’s possession. See Jackson, 443 U.S. at 319; see also Brooks, 323 S.W.3d at 898–99.
22 appellant was involved because the police would discover his DNA and link him to crime
scene. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.) (“A
‘consciousness of guilt’ is perhaps one of the strongest kinds of evidence of guilt. It is
consequently a well[-]accepted principle that any conduct on the part of a person accused
of a crime subsequent to its commission, which indicates a ‘consciousness of guilt’ may
be received as a circumstance tending to prove that he committed the act with which he
is charged.”) (internal quotations omitted) (citing Ray, TEXAS PRACTICE VOL. 2, LAW OF
EVIDENCE, § 1538, at 242 (1980)). In addition, appellant told Aleman “****, babe, if my
blood wouldn’t have gotten there, I might have made, but they’re going to do lab work all
over if they’re gonna.” From this evidence the jury may have found that appellant felt that
without the blood evidence the police would not be able to link him to the crime. Moreover,
from this, the jury may have inferred that appellant believed that the blood in the vehicle
would somehow inculpate him in Garcia’s murder. Thus, viewing the evidence in the light
most favorable to the jury’s findings, we conclude that the combined force of the above-
citied evidence leads to a reasonable inference that appellant left the blood in the vehicle
at the time that the crime occurred. See Hooper, 214 S.W.3d at 15 (noting that, although
the fact-finder is not permitted to reach conclusions based on mere speculation, “direct
evidence of the elements of the offense is not required,” the fact-finder is “permitted to
make reasonable inferences from the evidence presented at trial,” and circumstantial
evidence “is as probative as direct evidence” in establishing guilt and stating, “[u]nder the
Jackson test, we permit juries to draw multiple reasonable inferences as long as each
inference is supported by the evidence presented at trial”).
23 The evidence shows that when appellant called Coco, he asked him to dispose of
some “toys” and to ensure that these “toys” lacked serial numbers. The evidence
presented at trial established that Coco had possession of one of Garcia’s customized
rifles. From this evidence, the jury could have reasonably inferred that when appellant
mentioned “toys,” he was discussing the guns that had been stolen from Garcia’s home
and that appellant had authority to tell Coco what to do with the weapons. The jury could
also have reasonably inferred that appellant wanted Coco to dispose of the weapons
because appellant feared that the weapons would be linked to him, and he wanted to
destroy any evidence that may have been on those weapons, such as fingerprints, to hide
his involvement. In addition, the jury may have reasonably inferred that appellant wanted
to either destroy or conceal the guns because he was involved in Garcia’s murder. See
Ethridge, 795 S.W.2d at 285; Gordon v. State, 735 S.W.2d 510, 517 (Tex. App.—Houston
[1st Dist.] 1987), aff’d, 784 S.W.2d 410 (Tex. Crim. App. 1990) (providing “that appellant
demonstrated a guilty mind by attempting to destroy incriminating evidence”); see also
Cueva v. State, 339 S.W.3d 839, 881–82 (Tex. App.—Corpus Christi 2011, pet. ref’d)
(“Any conduct on the part of a person accused of a crime subsequent to its commission,
which indicates a consciousness of guilt may be received as a circumstance tending to
prove that he committed the act with which he is charged.”) (citations omitted).
Moreover, the jury could have reasonably found from this evidence that appellant
had authority to determine how the men dealt with the guns and infer that because
appellant took a leadership role in the destruction of the evidence, he must have
participated in the execution of the home invasion by soliciting, encouraging, directing,
aiding, or attempting to aid another person in committing the crime in this case. See TEX.
24 PENAL CODE ANN. § 7.02(a)(2). The jury could have reasonably found from the evidence
that Coco had already disposed of some of the guns taken from Garcia’s residence
because appellant stated, “I already told Coco to bury [the guns]” and although four guns
were missing from Garcia’s home, Coco only had one gun at the Camino Real property.
During his conversation with Jasmine, appellant asked her to change her
statement to police. And, Jasmine testified that he wanted her to lie about lending her
car to someone else. During the conversation, appellant instructed Jasmine to “just say
it crying, start crying” and to tell the police that the man is from Mexico and “that all of a
sudden he just came back and he gave you the truck . . . clean and whatever the f*** and
he left.” Appellant told Jasmine that the police indicated that she said in her statement
that she only lent her truck to him and that she needed to go back to the police and tell
them that she had lent her truck to another man around the date of Garcia’s murder and
to tell the police that her mom did not know that she had lent the truck to someone other
than appellant. Jasmine responded that she was angry because she needed this
information “from the beginning to know this shit” and asked why appellant had not told
this earlier so that she knew “what to say in the beginning.”
Appellant claimed that if Jasmine changed her statement that he would not be kept
in jail and stated, “look, they don’t know shit. . . .” Appellant advised Jasmine to “get
everything straight” and that she needs to “get the address, around, it was around, June
20th, June 15th, June 20th that you were with this guy, you were with him for two weeks,
one day he arrived, he came back with the truck real clean and, and he left, he bought
you the new clothes, all right?” From the foregoing evidence the jury could have found
that appellant had a consciousness of guilt due to his involvement in the murder. See
25 Lozano v. State, 359 S.W.3d 790, 814 (Tex. App.—Fort Worth 2012, pet. ref’d) (“Attempts
to conceal incriminating evidence, inconsistent statements, and implausible explanations
are also probative of wrongful conduct and are circumstances of guilt.”) (citing Gear v.
State, 340 S.W.3d 743, 747 (Tex. Crim. App. 2011) (“In addition, this Court has recently
recognized that a fact finder can consider a defendant's untruthful statement (in this case
two “implausible” and inconsistent statements by appellant) as affirmative evidence of
guilt.”)); Cueva, 339 S.W.3d at, 882 (“[A]ttempts to tamper with a witness, and any criminal
act designed to reduce the likelihood of prosecution, constitutes evidence of
‘consciousness of guilt’ on the part of the defendant.”) (citations omitted); see also Garza
v. State, 172 Tex. Crim. 468, 358 S.W.2d 622, 623 (Tex. Crim. App. 1962) (explaining
that the efforts of an accused to induce a witness to testify falsely may be shown as
indicating a consciousness of guilt).
Finally, Investigator Perez gave his opinion that the driver in the video was
appellant and the jury observed that video. Investigator Perez based his opinion on the
distinctive way that appellant moved and walked. He also testified that all of the
circumstantial evidence pointed to appellant’s involvement in the crime.
Although the majority of the evidence in this case is circumstantial, viewing the
evidence in the light most favorable to the jury’s verdict, we conclude that the cumulative
force of all of the surrounding facts and incriminating circumstances is sufficient to support
the jury’s conclusion that appellant, acting with intent to promote or assist the commission
of the capital murder of Garcia, solicited, encouraged, directed, aided, or attempted to aid
the other person to commit the capital murder. See TEX. PENAL CODE ANN. § 7.02(a)(2);
Thomas, 444 S.W.3d at 8; Winfrey, 393 S.W.3d at 768; Ethridge, 795 S.W.2d at 284–85;
26 Torres v. State, 141 S.W.3d 645, 662 (Tex. App.—El Paso 2004, pet. ref’d) (holding, in a
circumstantial-evidence case, that the cumulative force of all the surrounding facts and
incriminating circumstances was sufficient to support the jury’s conclusion of guilt);
Mashburn v. State, 272 S.W.3d 1, 14 (Tex. App.—Fort Worth 2008, pet. ref’d) (explaining
that the trier of fact may infer a culpable mental state from the acts, words, and conduct
of the accused and may also infer intent from acts that indicate a consciousness of guilt.).
Therefore, we conclude that under the law of parties, the evidence is sufficient to support
appellant’s conviction. We overrule appellant’s first issue.
II. ADMISSION OF VIDEO
By his second issue, appellant contends that the trial court erred by admitting the
surveillance video of the perpetrators entering Garcia’s home. Specifically, appellant
argues that pursuant to rule of evidence 403, the video “‘is highly prejudicial’ in that it
plays to the prejudices of the jury by using fear as a tactic to confuse the jury” and that
any probative value in this evidence was slight at best.” Appellant points out that the men
in the video wore masks and claims that “no evidence was adduced that ANY of the
persons in the video were identified.”
We review the trial court’s decision to admit evidence for a clear abuse of
discretion, and we will not reverse the judgment if the decision lies within the zone of
reasonable disagreement. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App.
2008). Texas Rule of Evidence 403 permits a trial court to exclude relevant and otherwise
admissible evidence “if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403 (1998,
27 superseded 2015).6 Admissibility of the evidence is favored under a rule 403 analysis,
and “the presumption is that relevant evidence will be more probative than prejudicial.”
Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (en banc). “[T]he
plain language of Rule 403 does not allow a trial court to exclude otherwise relevant
evidence when that evidence is merely prejudicial.” Pawlak v. State, 420 S.W.3d 807,
811 (Tex. Crim. App. 2013). Under rule 403, the trial court must only exclude evidence
that causes “unfair” prejudice, which refers “to relevant evidence’s tendency to tempt the
jury into finding guilt on grounds apart from proof of the offense charged.” State v.
Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).
The video’s probative value was that it showed the jury the vehicle that was used
by the suspects during the commission of the crime to aid the jury in its evaluation of
whether the State proved that it was the same vehicle that appellant possessed. At trial,
evidence was presented that the vehicle appellant possessed and that Jasmine had
loaned him had damage to the side step that matched damage to the vehicle used in the
commission of the crime. Thus, the trial court could have determined that the jury needed
to view the video in order to make this determination.
Appellant argues that the video was prejudicial because it was used as a “scare
tactic” and no evidence was presented that he was present during the commission of the
offense. However, to find unfair prejudice the video must have had a tendency to tempt
the jury into finding guilt on grounds apart from proof of the offense charged. Mechler,
6 The Texas Supreme Court and Texas Court of Criminal Appeals amended rule 403 to become effective on April 1, 2015. It now states, “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403.
28 153 S.W.3d at 440. And, although the men in the video wore masks, evidence was
presented that the driver of the vehicle had appellant’s body type, demeanor, and walk.
Moreover, at trial, the victim’s son testified in detail about what occurred that night in his
home. Those details were likely much more disturbing to the jury than the video which
merely shows the vehicle parked in the street and that four masked men, some with guns,
exited the vehicle. The video also shows that there was damage to the passenger side
step which matched damage to the side step on the vehicle appellant possessed. Thus,
we cannot conclude that the video had the tendency to tempt the jury into finding guilt on
grounds apart from proof of the offense charged. See Mechler, 153 S.W.3d at 440.
Accordingly, the trial court did not abuse its discretion in admitting the video over
appellant’s rule 403 objection. We overrule appellant’s second issue.
III. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez Rogelio Valdez Chief Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 14th day of May, 2015.