Siros, Stephen William

• Court: Texas Supreme Court
• Decided: September 25, 2015
• Docket: PD-0941-15
• Status: Published

Opinion

W-IS (ou r-i-

no. PP. <39V/-/r ORIGINAL IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN,TEXAS

- RECBVED m STEPHEN WILLIAM SIROS COURT OF CR!!» APRILS Petitioner V. SEP 25 2015 THE STATE OF TEXAS Respondent Abel Acosta, Clsr!* FROM THE COURT OF APPEAliS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON FILED IN NO. O1--U-00288-CR COURT OF CRIMINAL APPEALS "~~"~" ScP 2 5 2315 NO.1323111 IN THE 337th DISTRICT COURT OF HARRIS COUNTY.TEXAS Abel Acosta, Clerk

PETITION FOR DISCRETIONARY REVIEW

STEPHEN WIL'UIAM SIROS TDC3 #01934526/Eastham 2665 Prison Rd.#1 Lovelady.Texas 75851

Pro Se Petitioner

ORAL ARGUMENT WAIVED TABLE OF CONTENTS

TABLE OF CONTENTS: PAGES

INDEX OF AUTHORITIES ii ,iii

STATEMENT REGARDING ORAL ARGUMENT iv

STATEMENT OF THE CASE iv

STATEMENT OF PROCEDURAL1 HISTORY iv

QUESTIONS' FOR REVIEW 1 ,2.

1). WHETHER THE COURT OF APPEAL'S.-WAS CORRECT IN DECIDING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JUDGMENT OF CONVICTION

2). WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT THE GIVING OF PROPER DEFFERENCE TO THE JURY'S RESOLUATION OF THE FACTS,THE CUMULATION OF FACT FORCE OF THE NON-ACCOMPLICE EVIDENCE TENDS TO CONNECT APPELLANT TO THE COMPLAINANT'S MURDER

3). WHETHER THE COURT OF APPEALS WAS CORRECT IN IT'S HOLDING THAT THE TRIAL COURT DID NOT ABUSE IT'S DISCRETION WHEN IT DID NOT INSTRUCT THE JURY THAT FIGUEREDO WAS AN ACCOMPLICE AS A MATTER OF LAW

4). WHETHER THE COURT OF APPEALS WAS CORRECT.IN DECIDING THAT WHEN DEFENDANT OFFERS THE SAME EVIDENCE TO WHICH HE EARLIER OBJECTED,HE IS NOT IN A POSITION TO COMPLAIN ON APPEAL

5). WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT OVERRULING POINT OF ERROR BECAUSE ARGUMENTS AND AUTHORITIES PRESENTED WERE "DIFFERENT IN CHARACTER" FROM ERROR ALLEGED UNDER THE POINT

6). WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING TO NOT REVIEW THE PROPRIETY OF THE PROSECUTOR'S ARGUMENTS,WHEN APPELLANT FAILED TO OBJECT' TO THOSE ARGUMENTS AT TRIAL

7). WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT ANY ERROR IN INSTRUCTING THE JURY THAT APPELLANT COULD BE FOUND GUILTY AS THE PRINCIPAL ACTOR WAS HARMLESS ERROR

8) . WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT THE TRIAL COURT PROPERLY DENIED APPEALLANT'S MOTION TO SUPPRESS': PAGES

REASONS FOR REVIEW 2

ARGUMENTS 2-14

PRAYER FOR RELIEF 15 CERTIFICATE OF SERVICE 15 APPENDIX

INDEX OF AUTHORITIES

CITATIONS PAGES

Allen V.State,253 S.W.3d 260 (Tex.Crim.App 2008) 12 Almanza V.State, 6B6 S.W.2d 157 (Tex.Crim.App 1985) 11 Amado V.State, 221 S.W.3d'666 (Tex.Crim.App 2007) 13,14 Brooks V.State, 323 S.W.3d 893 (Tex.Crim.app 2010) 3 Delacerda V.State,425.S.W.3d 367 (Tex.App Houston 1st Dist 2011)' 6 Evins V.State, 331 S.W.3d. 49 (Tex.App-Houston 1st Dist 201Q) 3 Ex parte zapeda, 819 S.W.2d (.Tex.Crim. App 1 991 ) 4 Guzman V.State, 955 S.W.2d 85 (Tex.Crim.App 1997) 13 Hernandez V.State,939 S.W.2d 173 (Tex.Crim .App 1997) 5 Hill V.State, 451 S.W.3d 392 (Tex.App-Houston 1st Dlst 1 2014) 6 Huerta V.State, 933 S.W.2d 648:(Tex.App.A San.Ant 1996) 7 Jackson V.Virginia, 443 U.S. 307 (1979). • 3 Jensen V.state, 66 S.W.3d 528 (Tex.App-Houston 1st. Dist 2002) 7 Kirsch V.State, 357 S.W.3d 645 (Tex.Crim.App 2012) 6 Marron V.United States, 275 U.S. 192 (1927) 1^ Matthews, V.State, .431' S.W. 3d 596 (Tex.Crim.App 2014) 13 Mays V.State, 318 S.W.3d 36B (Tex.Crim.App 2010 10 McDonald V.State,.179 S.W.3d. 571 (Tex.Crim.App 2005) 8 Miller V.State, 741 S.W.2d 3B2 (Tex.Crim.App 1987) 10,11 Montgomery V.State, 810 S.W.2d 372 (Tex.Crim.App 1991) 8 Ngo-V.State, 175 S.W.3d 738 (Tex .Crim.App 2005) 6 Oursbourn V.State, 259 S.W.3d 159 (Tex.Crim.App 2008) 6 Prible V.State, 173 S.W.3d 724 (Tex.Creim.App .2005) 8 Richardson V.State, 865 S.W.2d 944 (Tex.Crim.App 1993) 13

li CITATIONS PAGES

Sakil V.State, 287 S.W.3d 23 (Tex.Crim.App 2009) 11 Sander V.State, 787 S.W.2d 435 (Tex.App-Houston 1st Dist 1990) 10 Sandoval V.State, 409 S.W.3d 259 (Tex.Crim.App 2013) 10 Savant V.State, 544 S.W.2d 408 (Tex.Crim.App 1976) 12 Singletary V.State, 509 S.W.2d 572 (Tex.Crim.App 1974) 5 Smith V.State, 332 S.W.3d 425 (Tex. Crim.App 2011) ^,5,6 State V.Betts, 397 S.W.3d 198 (Tex.Crim.App 2013) 13 Taylor V.State, 260 S.W.3d 571 (Tex.Crim.App 2008) 6 Taylor V.State, 332 S.W.3d 483 (Tex.Crim.App 2011) 9 Temple V.State, 390 S.W.3d 341 (Tex.Crim.App 2013) 3 Travino V.State, 100 S,.W.3d 232 (Tex.Crim.App 2003) 6 United States V.Johson, 709 U.S. 515 (1983) 14 Wilson V.State, 7 S.W.3d 136 (Tex.Crim.App),1999)) 7 Winfrey V.State, 393 S.W.3d 763 (Tex.Crim.App 2013) 3

CONSTITUTIONAL LAW PAGES

Const Ament 6, 2 Const Amend 14, 10,13

STATUTES PAGES

Rule 68 TEX RULE APPELLATE PROCEDURE ^ Rule 66.3(c) 2 Rule 33.1 7 Rule 3B.T(i) 7 Rule 44.2(b) 7 Rule 33.1 (a-) 10

Art. 38.14 TEX C0DE CRIMINAL PROCEDURE 4.5 Art. 36.14 6-9

111 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TexiR^App.P.68.4(c),Petitioner waives oral argument.

STATEMENT OF THE CASE

Petitioner uas charged by indictment uiith the offense of capitol

murder.(CR-6). After finding Petitioner guilty of the lesser offense

of murder,the jury assessed punishment at 36-years confinement.(CR-124)

STATEMENT OF PROCEDURAL HISTORY

The First Court of Appeals Affirmed the judgment and

sentnece in i t ' s opinion issued Dune 30,2015. No request

for Rehearing uas filed. The Texas Court of Criminal Appeals

extended time to file Petition For Discretionary Review

to Monday September 28,2015, in case PD-0941-15.This

Petition is timely filed.

iv TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Petitioner submits this Petition for Discretionary Review

pursuant to Tex.Rule.App.P 6B. In support of this petition,Petitioner

uill show this Honorable Court the following:

I.

Petitioner would assert that the Court of Appeals erred in it's

rulings on the issues on direct appeal.

PETITIONER'S QUESTIONS FOR REVIEW

[1] WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JUDGMENT OF CONVICTION?

[2] WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT THE GIVING OF PROPER DEFFERENCE TO THE JURY'S RESOLUTION OF THE FACTS,THE CUMULATION OF FACT FORCE OF THE NON-ACCOMPLICE EVIDENCE TENDS TO CONNECT APPELLANT TO THE COMPLAINANT'S MURDER?

[3] WHETHER THE COURT OF APPEALS WAS CORRECT IN IT'S HOLDING THAT THE TRIAL COURT DID .NOT ABUSE IT'S DISCRETION WHEN IT DID NOT INSTRUCT THE JURY THAT FIGUEREDO WAS AN ACCOMPLICE AS A MATTER OF LAW?

[4] Whether the court of appeals was correct in deciding THAT WHEN DEFENDANT OFFERS THE SAME EVIDENCE TO WHICH HE EARLIER OBJECTED,HE IS NOT IN A POSITION TO COMPLAIN ON APPEAL?

[5] WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT OVERRULING POINT OF ERROR BECAUSE ARGUMENTS AND AUTHORITIES PRESENTED WERE "DIFFERENT IN CHARACTER" FROM ERROR ALLEGED UNDER THE POINT?

[6] WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING TO NOT REVIEW THE PROPRIETY OF THE PROSECUTOR'S ARGUMENTS,WHEN APPELLANT FAILED TO OBJECT TO THOSE ARGUMENTS AT TRIAL?

1 . [7] WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT ANY ERROR IN INSTRUCTING THE JURY THAT APPELLANT COULD BE FOUND GUILTY AS THE PRINCIPAL ACTOR WAS HARMLESS ERROR?

[B] WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS?

REASON FOR REVIEW

Review is proper under Tex.Rule.App.P 66.3(c) Whether a Court

of Appeals has decided an important question of state or federal law

in a way that conflicts with the applicable decisions of the Court

of Criminal Appeals or the Supreme Court of the United States.

II.

QUESTION NUMBER ONE:

WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE JUDGMENT OF CONVICTION

Petitioner would assert that the Appeals Court applied the wrong

standard of review as follows:

In his first issue.Appellant asserts that the evidence was insufficient

to support the judgment of conviction for the offense of murder.

Specifically,Appellant asserts that the evidence was insufficient

to show that he was guilty of murder under the law of the parties.

The Appeals Court applied the fallowing standanrd of review; We

review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a

single standard of review,regardless of whether an appellant presents

2. the challenge as a legal or a factual sufficiency challenge.See,

Evins V.State,331 S.W.3d 49,53-54 (Tex.App-Houston [1st Dist]2010,

pet.ref'd)(construing majority holding of Brooks V.State,323 S.W.3d

893 (Tex.Crim.App.2010)).This standard of review is the standard

enunciated in Jackson V.Virginia,443 U.S.307,319,99 S.Ct 2781,27B9).

See,Winfrey V.State,393 S.W.3d 763,768 (tex.Crim.App 2013).

The United States Constitution requires that a criminal conviction

be supported by evidence "necessary to convince a trier of fact beyond

a reasonable doudt of the existence of every'element of the offense."

Jackson V.Virginia,443 U.S. 307 (1979).In Temple V.State,390 S.W.3d

341 (Tex.Crim.App 2013),the Court of Criminal Appeals ruled that there

is one standard :legal sufficiency,See,Brooks V.State,323 S.W.3d 893

(Tex.Crim.App 1 2010).Refusing to consider factual sufficiency of the

evidence in his trial deprives Siros of a protection afforded him under

Tex.Const.Art.V,Sec.6:"The decision of a Texas Court of Appeals shall

be conclusive on all questions of fact brought before them on appeal

or error." Therefore,review should be granted.

QUESTION NUMBER TWO:

WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT THE GIVING OF PROPER DEFFERENCE TO THE JURY'S RESOLUTION OF THE FACTS, THE CUMULATION OF FACT FORCE OF THE NON-ACCOMPLICE EVIDENCE TENDS TO CONNECT APPELLANT TO THE COMPLAINANT'S MURDER

Petitioner would assert that the Appeals Court applied the wrong

standard of review,when it applied no standard of review as follows:

In his second issue.Appellant asserts that there "is insufficient

evidence to corroborate the accomplice-witness testimony [of Figueredo],

3. implicating Appellant as a party to murder."

The Appeals Court applied the following standard of review:

The accomplice-witness statute states, A conviction cannot be had upon

the testimony of an accomplice unless corroborated by other evidence

tending to connect the defendant with the offense committed;and the

corroboration is not sufficient if it merely shows the commission of

the offense.Tex.Code.Crim.Proc.Ann.art 38.14 (Vernon 2005).When reviewing

the sufficiency of non-accomplice evidence under Art.38.14jWe decide

whether the inculpatory evidence tends to connect the accused to the

commission of the offense.Smith,332 S.W.3d at 442. The sufficiency of non-compl accomplice evidence is. judged according to the particular facts and circumstances of each case.Id. The direct or circumstantial

non-accomplice evidence is sufficient corroboration if it shows that

rational jurors could have found that it sufficiency tended to connect

the accused to the offense. Id. When there are conflicting views of the

evidence one that tends to connect the accused to the offense and one

that does not— we will make defer to the factfinder's resolution of

the evidence. Id. Therefore,it is not appropriate for appellate courts

to independently construe the non-accomplice evidence.Id.

A person is an accomplice if he,like the defendant,could be

prosecuted for the same or lesser included offense as defendant.

"Whether the person is actually charged and prosecuted for the

participation is irrelevant to the determination of accomplice

status-what matters is the evidence in the record."Ex parte Zapeda,

819 S.W.2d 874 (Tex.Crim.App 1991).There must exist sufficient evidence

to connect the accomplice to the criminal offense as a "blameworthy

4. participant," but whether the accomplice is actually charged or prosecuted

for his participation is irrelevant.Singletary V.State, 509 S.W.2d 572

(Tex.Crim.App 1974). The accomplice witness rule of Texas C.C.P,Art

38.14 reflects the legislative intent that accomplice testimony should

be viewed with great caution,because accomplices have great incentives

to lie,to avoid punishment or shift criminal blame to others. "A conviction

cannot be had upon the testimony of an accomplice unless corroborated

by other evidence tending to connect the defendant with the offense

committed;and the corroboration is not sufficient if it merely shows the 117- commission of the offense." Hernandez V.State, 939 S.W.2dA(Tex.Crim.App.

1997);Smith V.State,332 S.W.3d 425 (Tex.Crim.App 2011). Therefore,review

should be granted.

QUESTION FOR REVIEW NUMBER THREE:

WHETHER THE COURT OF APPEAIJS WAS CORRECT IN IT'S HOLDING THAT THE TRIAL COURT DID NOT ABUSE IT'S DISCRETION WHEN IT DID NOT INSTRUCT THE JURY THAT FIGUEREDO WAS AN ACCOMPLICE AS A MATTER OF LAW

Petitioner would assert that the Appeals Court applied the wrong

standard of review as follows;

In his third issue,Appellant asserts the trial court erred in instrcuting

the jury to determine whether Figueredo was an accomplise as a matter

of fact,rather than instructing the jury that Figueredo was an accomplice

as a matter of law.

The Appeals Court applied the following standard of review; A trial

court must submit to the jury the law applicable to the case.

5. Tex.Code.Criminal.Procedure.Ann.Art.36.14 (Vernon 2012); Hill V.State,

451 S.W.3d 392,395 (Tex.App-Houston .[1st Dist]2014,no pet). When a. statute

requires an instruction under the circumstances,that instruction is the

"law applicable to the case," and the trial court must instruct the jury

"whatever, the statute or rule requires." Oursbourn V.State,259 S.W.3d 159,

180 (Tex.Crim.App 2008). We e review a trial court's decision to deny a

requested accomplice-witness jury instruction for an abuse of discretion.

See Smith V.State,332 S.W.3d 425,439-40 (Tex.Crim.App 2011);Hill,451

S.W.3d at 395-96. A trial court abuses its discretion only if its

decision is "so clearly as to lie outside the zone within which reasonable

people might disagree." Taylor V.State, 268 S.W.3d 571,579 (Tex.Crim.App

2008).

A reviewing court considers - .-a court's decision to deny a requested

accomplice charge for an abuse of discretion. Delacerda V.State,425 S.W.3d

367,395 (Tex.App-Houston [1s Dist.]2011..). "The trial judge abuses

discretion if the decision.is so clearly wrong as to lie outside.the

zone within which reasonable people might disagree." Taylor V.State,268

S.W.3d 571,579 (Tex.Crim.App 2008). If charge error exist,the Court

determines if the error caused sufficient harm to warrant reversal.

Kirsch V.State, 357 S.W.3d 645 (Tex.Crim.App. 2012);Ngo V.State, 175

S.W.3d 73B (Tex.Crim.App 2005).When charge error is pressented by

objection,the error is reversible if it was calculated to injure the

defendant's rights by a showing of "some harm" Trevino V.State, 100

S.W.3d 232 (Tex.Crim.App 2003). Therefore,review should be granted.

6. QUESTION FOR REVIEW NUMBER FOUR:

WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT WHEN DEFENDANT OFFERS THE SAME EVIDENCE TO WHICH HE EARLIER OBJECTED, HE IS NOT IN A POSITION TO COMPLAIN ON APPEAL

Petitioner would assert that the Appeals Court applied the wrong

In his fourth issue,Appellant asserts•"the trial court erred by allowing

evidence of extraneuos offenses of (1) Appellant and (2) many instances

of other parties' illegal extraneous behavior into evidence."Appellant

asserts that "the jury heard" about these extraneous offenses "because

of the court's adverse ruling on the motion in limine and motion to

suppress." However,as discussed infra,the trial court properly denied

Appellant's motion to suppress. In addition, a ruling on a motion in

limine does not preserve error for review.See,Tex.R.App.P.33.1;

Wilson V.State, 7 S.W.3d 136,144 (Tex.Crim.app 1999). Appellant lists,

in bullet-point format,26 instances of when he claims the trial court

improperly admitted extraneous-offenses evidence. However,Appellant fails

to provide record references fore 25 of these instances. See,Tex.R.App.P

38.1(i) (providing appellant's brief must contain clear and concise

argument for contention made,with appropriate citations to authorities

and the record) . Courts have held that issues on appeal are waived if

an appellant fails to support his contentions by citations to the record.

See,Jensen V.State, 66 S.W.3d 528,545 (Tex.App-Houston [1s Dist]2002,

pet. ref'd) (holding appellant waived review of his complaint c because

section of his brief on that issue did not contain citations to the record) .

Also see,Huerta V.State,933 S.W.2d 648,650 (Tex.app.-San Antonio 1996,

no pet). A trial court's ruling on admissibility of extraneous evidence is

reviewed by an abuse of discretion standard,See.McDonald V.State, 179

S.W.3d 571 (Tex.Grim.App 20050. If the trial court's ruling is outside

a "zone of reasonable disagreement" and incorrect under a legal theory

applicable to the case,it is reversible.Montgomery'V.States, 810 S.W.2d

372 (Tex.Crim.App 1991); Prible V.State,173 S.W.3d 724 (Tex.Crim.App

2005). Therefore,review should be granted.

QUESTION FOR REVIEW NUMBER FIVE:

WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT OVERRULING POINT OF ERROR BECAUSE ARGUMENTS AND AUTHORITIES PRESENTED WERE "DIFFERENT IN CHARACTER" FROM ERROR ALLEGED UNDER THE POINT

Petitioner would assert that the Appeals Court applied the wrong

In his fifth issue,Appellant asserts that the trial court erred by

improperly charging the jury on extraneous offenses." With regard to

extraneous offenses,the trial court instructed the jury as follows;

You are further instructed that if there is any evidence before you in this case regarding the defendant's committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case,you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses,if any,the same in determining preparation,plan, knowledge,accident of the defendant,and even than you may only consider the motive,opportunity,intent,identity,or absence of mistake or if any,in connect with the offense,if any,alleged against him in the indictment and for no other purpose.

Appellant claims that,in addition to this instruction,the trial

court had a duty to instruct the jury sua sponte that "none of the

extraneous offenses" of Figueredo, Jonathan, Velasquez, or Garcia

8. "could be imputed to Appellant." Appellant asserts that the trial court

had duty to give this instruction even though he did not object to the

lack of such instruction at trial.

The charge should have included wording that Appellant could not

be connected to all the extraneous offenses introduced at trial and

that none of those acts,of Juan,Jonathon,Emmanuel and Chris,could

be imputed to him.Tex.R.App.P.Rule 44.2(b) determines if charge error

results in harm. An error affects a substantial right when it has a

substantial and injurious effect or influence in determining the jury's

verdict. Introduction of an extraneous murder and a barrage of evidence

of organized crime activities of parties weights heavily in favor of

harm. It is "inherently prejudicial,tends to confuse the issues,and forces

the accused to defend himslef against charges not part of the present

case against him." The "extraneous offenses' by Appellant were an

AR-15 "traced to him," which some may view as a bad act and regarding

Juan's answer that Stephen "didn't really, deal drugs much," as the State

artfully worded their question. The charge should have included wording

that none of those extraneous offenses of Juan,Jonathon,Emmanuel and

Chris could be imputed to Appellant. The court must deliver a jury

charge setting forth the law applicable,to the case, the duty exist

even when counsel fails to object to inclusions in the charge. See

Article 36.14 Tex.Code.Crim.Pro.; Taylor V.State,332 S.W.3d 483 (Tex.

Crim.App 2011). An instruction that instructs a jury to consider

inadmissable evidence for a limited purpose still instructs a jury

to consider inadmissable evidence. The extraneous conduct of all the

parties should not have been considered for any purpose.

9. (Sandoval V.State, 409 S.W.3d 259 (Tex.App-Austin 2013); reversed,improper

admission of character-conformity evidence and charge.)

QUESTION FOR REVIEW NUMBER SIX

WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING TO NOT REVIEW THE PROPRIETY OF THE PROSECUTOR'S ARGUMENTS,WHEN APPELLANT FAILED TO OBZJECT TO THOSE ARGUMENTS AT TRIAL

Petitioner'would assert that the Appeals Court applied the wrong

In his sixth issue,Appellant claims, "The State committed reversble error

[during the punishment phase] by arguing that Appellant is part of the

•drug wourld' of the accomplices and should be punished accrdingly."

Appellant did not,however,object to the State's remark during closing

argument. Thus,Appellant has failed to preserve this complaint for our

review. See.Tex,R. App.P.33.1(a); Mays V.State,318 S.W.3d 368,394 (Tex.

Crim.App 2010) ("We will not review the propriety of the prosecutor's

arguments [when] appellant failed to object to those arguments at trial.").

The State's argument presented a 14th amendment due process claim,

infecting the trial with unfairness that constituting a denial of

protection guaranteed him by the United States and Texas Constitutions

See,Miller V.State,741 S.W.2d 382 (Tex.Crim.App 1987). In Sanders V.State,

787 S.W.2d 435 (Tex.Crim.-Houston [1st Dist] 1990),the prosecutor improperly

argued,urging the jury to support the fight against illegal drugs,and

improperly urged the jury to "to stop these drugs..we back our policemen

in our crackdown on crack/. I ask you to do your part." The conviction

was reversed. Ms.Allen's improper argument so infected the trial with

unfairness that it constitues a denial of protection guaranteed by

10. the United States and Texas Constitutions.See,Miller V.State,741 S.W.2d

382 (Tex.Crim.App 1987). Appellant,eligible for probation,was sentenced

to 36 years in prison. Most of the trail testimony revolved around the

extraneous offenses,and little on Siros1 connection to murder.

QUESTION FOR REVIEW NUMBER SEVEN:

WHETHER THE COURT OF APPEALS WAS CORRECT IN DECIDING THAT ANY ERROR IN INSTRUCTING THE JURY THAT APPELLANT GOULD BE FOUND GUILTY AS THE PRINCIPAL ACTOR WAS HARMLESS ERROR

Petitioner would assert that the Appeals Court applied the wrong

In his seventh issue Appellant asserts that the trial court erred by

submitting a jury instruction permitting the jury to find him guilty of

the offense of murder as a principal actor . Appellant correctly points

out that the jury charge permitted the jury to find him guilty of the

complainant's murder as either a party to the offense or as the t.^ '.-, z §

principal actor. Appellant asserts that no evidence was offered to show

that he was guilty of the complainant's murder as the principal actor.

He points out that the evidence showed that Garcia shot the complainant;

no evidence was offered to showe that Appellant was the shooter.

Presuming without deciding that the submission of the primary-actor

instruction was error,we turn to the question of harm. When,as here,the

appellant did not object to the alleged error,we will, reverse only if

the error is "so egregious and created such harm" that the defendant did

not receive a fair and impartial trial. Sakil V.State,287 S.W.3d 23,26

(tex.Crim.App 2009)(quoting,Almanza V.State,686 S.W.2d 157,171 (Tex.Crim

App 1985)). 11 . We consider (1) the entire jury charge, (2) the state of the evidence,

including the contested, issues and the weight of probative evidence, (3)

the parties arguments,and (4) any other relevant,information found in

the record as a whole.Allen V.State,253 S.W.3d 260,264 (Tex.Crim.App

Egregious harm exist, when the record shows that the defendant

suffered actual,rather than theoretical harm from charge error. Because

as an AR-15 was admitted and the jury sent out notes about the AR-1 5

"belonging to Siros," the jur.y may have been mislead into believing

that they could convict of the lesser included offense of murder under

various theories,including that Stephen may have been a shooter,which

was unsupported by the evidence. The lesser-included murder tracks the

Capital Murder indictment,less the remuneration, portion. However, it was

error for the court to charge. Siros jury with alternative theories in

the lesser included,murder charge,allowing them to consider a theory

not presented at trial,namely,that Appellant himself was the shooter.

It is reversible error for the trial court to submit a charge on the

defendant non-shooter as a shooter when the evidence showed only that

this (so called) his parner shot the weapon. The charge permitted the

jury to non^unanimously convict, under different prosecution theories,

one of which was not charged or presented in trial. The harmful error

was reversible. See,Savant V.State, 544 S.W.2d 408 (Tex.Crim.App 1976).

Therefore, review should be granted.

QUESTION FOR REVIEW NUMBER EIGHT:-

12. WHETHER THE COURT OD APPEALS WAS CORRECT IN DECIDING THAT THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS

Petitioner would assert that the Appeals Court applied the wrong

In his eight issue,Appellant claims that the trial court, erred by denying

his motion to suppress evidence of the two AK-15 rifles seized during

the search of an apartment conducted pursuant to a search warrant.

During the suppression hearing,which was conducted during trial,

Appellant asserted that the polcie exceeded the scope of the search

warrant because it. was issued only for the seizure of narcotics. The Fourth

Amendment of the U.S.Constitution protects individuals from unreasonable

searches and seizures. State V.Betts,39.7 S.W.3d 198,203 (Tex.Crim.App

201 3);Richardson V..-.state,865 S..W.2d 944.94B (Tex.Crim.App 1993). The

rights secured by the Fourth Amendment are personaljaccodingly,an

accused has standing to challenge the admission of evidence obtained .by

an "unlawful" search or seizure only if he had a legitimate expectation

of privacy ,in the place invaded. See, Matthews V.State, 431.S.W.3d 596,

606 (Tex.Crim.App 201.4);Betts 397 S.W.3d at 203. The defendant who

challenges a search has the burden of proving facts demonstrating a

legitimate expectation of privacy. Betts 397 S.W.3d. at 203. He must

show that he had a subjective expectation of privacy in the place invaded

and that society is prepared to recognize that expectation of privacy

as objectively reasonable .Id..

Denial of a motion to suppress.is reviewed under a bifurcated

standard. Amador V.State,2-21 S.W.3d 666 (Tex.Crim.App 2007);Guzman V.

State, 955 S,W.2d 85 (Tex.Crim .App 1997).

13. Evidence is viewed in the light most favorable to the trial court's

rulings regarding fact and application of law-to-fact questions

turning on the evaluation of credibility. When application of law-to-fact

question do not hinge upon the credibility and demeanor of witnesses,

the appellate court reviews the ruling de novo.Amador at.673.

The U.S.Constitution provides that the "right of the people to

be secure in their persons,house ,papers,and effeets,against unreasonable

searches and seizures,shall not .be violated,and no warrant shall issue,

but upon probable cause,supported by oath or affirmation,and particularly

decribing the place to be searched,.and the presons or things to be seized."

The "particularity" reguirement ,is meant to prevent general searches

and seizure of .one thing under a warrant that describes another thing

to be seized. See-, Marron V.United States,275 U.S. 1.92>;(#9;27) .

In United States V.Johnson, 709 U.S. 515 (1983), while executing a search

warrant,plo police unlawfully seized a not-described-in-the-warrant locked,

floor safe,presuming that.it was connected to the offense of illegally

possessing weapons. The government argued.that because the warrant

authorized officers to search,it also authorized them to srize. "This

argument is a fundamental' misapprehension of Fourth Amendment law."

Police could hace obtained a second warr.ant„,subje,eted: to judicial review,

to seize the items, which they, failed to do so.,in Johnson and Mr.Siros'

case. Therefore,review should be granted.

14 PRAYER FOR RELIEF

WHEREFORE,PREMISES CONSIDERED, Petitioner prays the

Honorable Court will grant this petition for discretionary

review,reverse the Court of Appeals judgment and remand the

case for a new trial and grant any other relief to which

Petitioner may be entitled.

RESPECTFULLY SUBMITTED,

Stephen William Siros TDCJ# 01934526/Eastham 2665 Prison Rd.#1 Lovelady,Texas 75851

pro se

CERTIFICATE OF SERVICE

The Petitioner hereby certifies that a true and correct copy of the foregoing Petition for Discretionary Review have been served on the Harris County District Attorney Devon Anderson,and the State Prosecuting Attorney at P.0,.Box 1 2405_,Capitol Station ,Austin ,Texas 78711,on this Jl_day of c^fel^ ,2 0J 5.

SteprfenWilliamSiros

15 APPENDIX

COURT OF APPEALS FOR FIRST DISTRICT OF TEXAS OPINION 7

Opinion issued June 30, 2015

In The

Court of appeal* For The

$ tot Bisttict of %txn*

NO. 01-14-00288-CR

STEPHEN WILLIAM SIROS, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1323111

MEMORANDUM OPINION

Appellant Stephen William Siros was indicted for the offense of capital

murder.1 The jury found Appellant guilty of the lesser-included offense of

See TEX. PENAL CODE ANN. § 19.03(a)(3) (Vernon Supp. 2014). * v>

murder.2 It assessed his punishment at 36 years in prison. In eight issues,

Appellant claims the evidence was insufficient to support the judgment, asserts

jury-charge error, challenges evidentiary rulings made by the trial court, claims

improper jury argument by the State, and asserts the trial court erred by denying

his motion to suppress.

We affirm.

Background

Around 12:30 a.m. on July 17, 2009, the complainant, Isaias Valdez, was

driving his truck on 1-45 when someone in another vehicle on the freeway shothim

in the head, killing him. Detective C.E. Elliot, a homicide detective with the

Houston police department, investigated the shooting. On October 23, 2009,

Detective Elliot received information from Officer R. Bradley, an officer in the

narcotics division, relating to the complainant's murder.

Officer Bradley had been surveilling Appellant's brother, Jonathan Siros

(hereinafter "Jonathan"), as part of a narcotics investigation. Over time, Officer

Bradley had observed Jonathan in the company of (1) Appellant, (2) Christopher i

Garcia, and (3) Juan Figueredo. Officer Bradley obtained a search warrant for an

apartment at a location where he had observed Jonathan, Appellant, Garcia, and

Figueredo. The warrant was executed on October 23, 2009. Appellant was not at

See id. § 19.02(b)(1) (Vernon 2011). ' -4

the apartment at the time the warrant was executed, but Officer Bradley had seen

Appellant in the parking lot about an hour before the search. At the time of the

search, Jonathan and Garcia were in the apartment along with other men.

Although the warrant had been for illegal narcotics, no drugs were found.

Before the search, a confidential informant had stated the weapon used to

kill the complainant may be at the apartment. Officer Bradley had learned from

the homicide division that a weapon similar to an AR-15 rifle had been used to kill

the complainant. Duringthe search of the apartment, the officers found two AR-15

semiautomatic rifles. One of the rifles had been purchased by Appellant.

In addition to Jonathan and Garcia, another man detained at the apartment

was Matthew Roy. Officer Bradley and another officer, Detective E. Cisneros,

interviewed Roy. From Roy, the police obtained information regarding the

shooting of the complainant. Based on this information, the officers obtained an

arrest warrant for Garcia, charging him with the complainant's murder.

On December 1, 2009, one of the other men that had been in the apartment,

Figueredo, was arrested and charged by federal authorities with narcotics

trafficking. Due to the significant amount of narcotics involved, Figueredo was

facing a federal sentence of 292 to 365 months in prison. To obtain a reduction in

his sentence, Figueredo agreed to talk to police about the murder of a confidential

informant. In the course of these discussions, Figueredo also talked to police about the complainant's murder. Based on the information learned from the interviews,

the police obtained an arrest warrant for Appellant.

The police conducted a videotaped interview of Appellant in which he

discussed the complainant's murder. Appellant stated that, on the night of the

murder, he was staying at his father's home. Garcia was a neighbor of Appellant's

father. Garcia came to the father's home and asked Appellant if Appellant wanted

to go for a ride. Appellant agreed, and they left in Garcia's van.

With Garcia driving the van, they went to a club called El Huracan and

parked in the parking lot. Appellant got out of the van and went to buy some tacos

from a vendor in the parking lot. When he returned to the van, Garcia was in the

passenger seat. Appellant got in the driver's seat, and Garcia told Appellant,

"Let's go." Appellant got on the freeway to head back to his father's home. He

claimed that, as they were driving down the freeway, Garcia suddenly pulled out a

rifle and shot the complainant, who was in a truck on the freeway. Appellant

stated that he did not know that Garcia had a weapon or that Garcia had planned to

shoot the complainant.

Initially, Appellant was charged with the offense of murder with respect to

the complainant's death. Appellant was later re-indicted for the offense of capital

murder. Figueredo testified at Appellant's trial. He explained that, in 2008 and 2009,

he had trafficked large amounts of narcotics, between 35 and 100 kilograms of

cocaine per week, into the United States from Mexico. He sold the illegal drugs to

"mid-level people" who in turn sold it to others for sale on the streets. Figueredo

became acquainted with Appellant's brother, Jonathan, when Jonathan bought a

quantity of cocaine for street sale. The two became friends and would at times

deal narcotics together.

Figueredo had known the complainant, Isias Valdez, for a number of years

and considered him to be a "close acquaintance." In May 2009, the complainant

obtained five kilograms of cocaine from Figueredo and Jonathan to sell on the

street. The complainant paid for four kilograms, but he did not have the money to

pay for the fifth kilogram. Figueredo and Jonathan agreed that the complainant

could pay them the $19,000 he owed for the fifth kilogram after he sold it. The

complainant owed half of the $19,000 to Figueredo and half to Jonathan.

Figueredo testified that the complainant did not pay him and Jonathan for

the fifth kilogram. Figueredo testified that he had not been bothered by the

complainant's non-payment and nonetheless had still considered the complainant

to be his friend. He thought that the complainant would make an effort "to make

up for anything he lost." Figueredo testified that the complainant's non-payment of the debt meant

more to Jonathan because Jonathon had much less money than Figueredo.

Jonathan asked Figueredo for his assistance in locating the complainant. On July

17, 2009, Figueredo received a call from a cocaine distributor, informing

Figueredo that the complainant was at El Huracan. Figueredo passed the

information along to Jonathan.

Figueredo drove his car to El Huracan and parked in the parking lot.

Figueredo men saw Jonathan, Garcia, and Appellant arrive at the club in a van.

They parked next to Figueredo's car. Figueredo could not see who was driving the

van because it was parked close to his car, and it was dark.

Jonathan got out of the van and got into the passenger seat of Figueredo's

car. Jonathan told Figueredo that Appellant and Garcia were in the van. The men

knew that the complainant was in the club because they saw his truck in the

parking lot. The men sat in the parking lot, waiting for the complainant, but they

did not go into the club. After about 20 minutes, the complainant still had not

come out of the club. Figueredo and Jonathan left in Figueredo's car to go to a

different club called Pleasures, which was about 20 minutes away from El

Huracan. As they drove to Pleasures, Jonathan received a call from Appellant.

During the call, Appellant said something to Jonathan about a shooting. Figueredo

heard Jonathan laugh at a comment Appellant made to Jonathan during the call. Appellant and Garcia arrived at Pleasures about 10 minutes after Figueredo

and Jonathan had arrived there. The four men sat down at a table inside the club.

Appellant and Garcia began talking about what had happened at El Huracan after

Figueredo and Jonathan had left that location.

At trial, Figueredo testified that Garcia boasted, "I took one shot and domed

him," meaning "a headshot." Figueredo then heard Appellant brag that it was his

good driving skills that allowed Garcia to make the shot. From what he had heard

being said that night, Figueredo inferredthat Garcia had shot the complainant

while Appellant was driving.

Three months later, Figueredo met Jonathan in the parking garage of an

apartment complex to pick up money Jonathan was "turning in" to Figueredo.

Garcia and Appellant were also present. Jonathan gave Figueredo the money but

then stated to Figueredo that he needed some of the money back to give to

Appellant. Figueredo testified that Jonathan told him that Appellant was asking for

money "for doing the killing [of the complainant] for [Jonathan]." Figueredo

further testified that he gave $5,000 back to Jonathan to give to Appellant.

As stated, Appellant was charged with the offense of capital murder. The

indictment alleged that Appellant had "unlawfully, . . . intentionally and

knowingly" caused the death of the complainant "for the promise of remuneration"

from Jonathan. In addition to capital murder, the court's jury charge also instructed the jury

on the lesser-included offense of murder. The trial court further instructed the jury

on the law of parties and on accomplice-witness testimony. The jury found

Appellant guilty of the offense of murder and assessed Appellant's punishment at

36 years in prison.

This appeal followed. Appellant raises eight issues.

Sufficiency of the Evidence

In his first issue, Appellant asserts that the evidence was insufficient to

support the judgment of conviction for the offense of murder. Specifically,

Appellant asserts that the evidence was insufficient to show that he was guilty of

murder under the law of the parties.

A. Standard of Review

We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review, regardless of whether an appellant presents the challenge as a

legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 53-54

(Tex. App.—Houston [1st Dist.] 2010, pet. ref d) (construing majority holding of

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This standard of review

is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App.

2013).

Pursuant to the Jackson standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, AA?> U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a "modicum" of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.ll; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326,99 S. Ct. at 2793.

In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Clayton, 235 S.W.3d at 778. Finally, "[e]ach 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."

Hooper v. State, 214 S.W.3d 9,13 (Tex. Crim. App. 2007).

B. Legal Principles

A person commits murder if he intentionally or knowingly causes the death

of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2011); Temple v.

State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013); Nelson v. State, 405 S.W.3d

113, 123 (Tex. App.—Houston [1st Dist.] 2013, pet. refd). A person may be

convicted as a party to an offense if the offense is committed by his own conduct,

by the conduct of another for whichhe is criminally responsible, or both. See TEX.

Penal Code Ann. § 7.01(a) (Vernon 2011). As relevant under the instant

circumstances, a person is criminally responsible for the conduct of another if,

acting with intent to promote or assist the commission of the offense, he solicits,

10 encourages, directs, aids, or attempts to aid the other person to commit the offense.

Id § 7.02(a).

Mere presence of a person at the scene of a crime either before, during or

after the offense, or even flight from the scene, without more, is insufficient to

sustain a conviction as a party to the offense; however, combined with other

incriminating evidence it may be sufficient to sustain a conviction. Thompson v.

State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985). In determining whether a

defendant participated as a party in the commission of an offense, the jury may

consider events that occurred before, during or after the offense, and may rely on

acts that show an understanding and common design. Ransom v. State, 920

S.W.2d 288, 302 (Tex. Crim. App. 1996).

C. Analysis

Appellant does not dispute that Garcia shot the complainant or that

Appellant was driving the vehicle from which Garcia fired the shot. Rather,

Appellant asserts that the evidence was not sufficient to show that he is guilty

under the law of the parties because he was unaware of Garcia's plan to shoot the

complainant.

In his videotaped statement, which was admitted into evidence, Appellant

claimed that he was completely surprised when Garcia pulled out a rifle and shot

11 the complainant. He stated that he did not know that there was a weapon in

Garcia's van or that Garcia planned to shoot the complainant.

In contrast, Figueredo testified that, shortly after the murder, he heard

Appellant boasting and bragging that Garcia had only been able to shoot the

complainant because Appellant had driven so well. Figueredo testified that

Appellant bragged that Garcia could not have made the shot if Appellant had not

"drove straight." Figueredo further testified that he heard Appellant boast that

Garcia "wouldn't have been able to get the shot off if [Appellant] wouldn't have

drove."

Here, the jury, as the trier of fact, was the sole judge of the credibility of the

witnesses and of the weight to be given their testimony. See TEX. CODE. CRIM.

PROC. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). Accordingly, the

jury was entitled to believe Figueredo's testimony and disbelieve Appellant's

statement that he was surprised when Garcia shot the complainant. See Lancon v.

State, 253 S.W.3d 699,707 (Tex. Crim. App. 2008).

Appellant's statements made at the club, Pleasures, on the night of the

murder show that he intentionally assisted Garcia in the commission of offense.

Appellant's statement indicated that he maneuvered the van into position so that

Garcia could aim accurately and shoot the complainant, who was in a vehicle

travelling on the freeway. Appellant not only admitted that it was his driving that

12 enabled Garcia to shoot the complainant but boasted that it was his driving that

facilitated the fetal shot.

We conclude that a rational jury could have found beyond a reasonable

doubt that Appellant, acting with the intent to promote or to assist the commission

of the offense, aided or attempted to aid Garcia to commit the offense of murder.

See TEX. PENAL CODE Ann. § 7.02(a)(2); see also Hoang v. State, 263 S.W.3d 18,

22 (Tex. App.—Houston [1st Dist.] 2006, pet. refd) (concluding that evidence was

sufficient to support murder conviction as a party when accused maneuvered his

vehicle in way to facilitate shooter's ability to hit complainant's vehicle). We hold

that the evidence was sufficient to support the judgment of conviction.

We overrule Appellant's first issue.

Accomplice-Witness Instruction

In his third issue, Appellant asserts the trial court erred in instructing the jury

to determine whether Figueredo was an accomplice as a matter of fact, rather than

instructing the jury that Figueredo was an accomplice as a matter of law.

A trial court must submit to the jury "the law applicable to the case." TEX.

CODE CRIM. PROC. Ann. art. 36.14 (Vernon 2012); Hill v. State, 451 S.W.3d 392,

395 (Tex. App.—Houston [1st Dist.] 2014, no pet.). When a statute requires an r

instruction under the circumstances, that instruction is the "law applicable to the

13 case," and the trial court must instruct the jury "whatever the statute or rule

requires." Oursbourn v. State, 259 S.W.3d 159,180 (Tex. Crim. App. 2008).

We review a trial court's decision to deny a requested accomplice-witness

jury instruction for an abuse of discretion. See Smith v. State, 332 S.W.3d 425,

439-40 (Tex. Crim. App. 2011); Hill, 451 S.W.3d at 395-96. A trial court abuses

its discretion only if its decision is "so clearly wrong as to lie outside the zone

within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571,

579 (Tex. Crim. App. 2008).

An accomplice is someone "who participates with a defendant before,

during, or after the commission of the crime and acts with the requisite culpable

mental state." Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). An

accomplice is also someone who is charged, or under the evidence could have been

charged, with the same offense as the defendant or a lesser-included offense.

Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013). To be considered

an accomplice, the witness "must have engaged in an affirmative act that

promotefd] the commission of the offense that the accused committed." Smith v.

State, 332 S.W.3d at 439 (citing Drueryv. State, 225 S.W.3d 491, 498 (Tex. Crim.

App. 2007)). Evidence must exist connecting the alleged accomplice to the

offense as a "blameworthy participant," but "whether the alleged accomplice-

14 witness is actually charged or prosecuted for his participation is irrelevant."

Cocke, 201 S.W.3d at 748 (citing Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim.

App. 1998)).

The evidence at trial dictates whether an accomplice as a matter of law or

fact instruction is required. Smith, 332 S.W.3d at 439 (citing Cocke, 201 S.W.3d at

747). A witness is an accomplice as a matter of law if he has been indicted for the

same offense or a lesser included offense, or when the evidence clearly shows that

the witness could have been so charged. Cocke, 201 S.W.3d at 748; Druery, 225

S.W.3d at 498. The trial court is required to give the jury an accomplice-witness

instruction if a witness is an accomplice as a matter of law. Cocke, 201 S.W.3d at

748. However, "the evidence must leave no doubt that a witness is indeed an

accomplice as a matter of law." Smith, 332 S.W.3d at 441. If the evidence does

not clearly show the witness is an accomplice as a matter of law, or if the parties

present conflicting evidence as to whether the witness is an accomplice, the trial

court should allow the jury to decide whether the witness is an accomplice as a

matter of fact with an instruction defining the term "accomplice." Druery, 225

S.W.3d at 498-99; Cocke, 201 S.W.3d at 747-48.

Appellant asserts that the trial court should have instructed the jury that

Figueredo was an accomplice as a matter of law because he could have been

15 charged with the offense of murder with respect to the complainant. Appellant

points out that the evidence showed Figueredo was an admitted "drug kingpin" to

whom the complainant owed over $9,000 for a kilogram of cocaine. He also

points out that the evidence showed that Figueredo called Jonathan and told him

that the complainant was at the El Huracan club. Appellant further points out that,

three months later, Figueredo gave money to Appellant for the murder of the

complainant. However, when this evidence is read in the context of the entire

record, there were fact issues with respect to whether Figueredo was an

accomplice.

Figueredo's testimony indicated that Jonathan was upset with the

complainant with respect to the unpaid debt. However, Figueredo testified that he

had not been concerned about the money the complainant owed him. Figueredo

stated that he "was never bothered about it." He testified that he still considered

the complainant to be his friend even though he owed him money. Although he

testified that he helped Jonathan locate the complainant on the night of the murder,

no evidence indicates that Figueredo assisted in locating the complainant for the

purpose of murdering him rather than for the purpose of collecting the money from

him.

With respect to the money that was paid to Appellant several months after

the murder, Figueredo testified that he met with Jonathan to collect money that

16 Jonathan owed him. After Jonathan handed Figueredo the money, Jonathan asked

for money back, stating that he needed to give some of it to Appellant. Figueredo

testified Jonathan told him that he needed to give Appellant "for doing the killing

for [Jonathan]."

In short, the record shows that conflicting evidence was presented at trial

with regard to whether Figueredo was an accomplice with respect to the

complainant's murder. We conclude that the evidence does not clearly show that

Figueredo was an accomplice as a matter of law. Thus, we hold that the trial court

did not abuse its discretion when it did not instruct the jury that Figueredo was an

accomplice as a matter of law.

We overrule Appellant's third issue.

Corroborating Testimony

In his second issue, Appellant asserts that there "is insufficient evidence to

corroborate the accomplice-witness testimony [of Figueredo], implicating

Appellant as a party to murder."

A. Legal Principles

The accomplice-witness statute states,

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission ofthe offense.

17 Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). When reviewing the

sufficiency of non-accomplice evidence under Article 38.14, we decide whether

the inculpatory evidence tends to connect the accused to the commission of the

offense. Smith, 332 S.W.3d at 442. The sufficiency of non-accomplice evidence is

judged according to the particular facts and circumstances of each case. Id. The

direct or circumstantial non-accomplice evidence is sufficient corroboration if it

shows that rational jurors could have found that it sufficiently tended to connect

the accused to the offense. Id. When there are conflicting views of the evidence—

one that tends to connect the accused to the offense and one that does not—we will

defer to the factfinder's resolution of the evidence. Id. Therefore, it is not

appropriate for appellate courts to independently construe the non-accomplice

evidence. Id.

B. Analysis

Under Article 38.14, it is not necessary for the corroborating evidence to

directly link the accused to the crime. Richardson v. State, 879 S.W.2d 874, 880

(Tex. Crim. App. 1993). The corroborating evidence also does not need to be

sufficient by itself to establish guilt beyond a reasonable doubt. Id. "Were the law

otherwise, the testimony of the accomplice would be valueless." Id.

"'Proof that the accused was at or near the scene of the crime at or about the

time of its commission, when coupled with other suspicious circumstances, may

18 tend to connect the accused to the crime so as to furnish sufficient corroboration to

support a conviction.'" Id. (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex.

Crim. App. 1984)). Although Appellant claimed that he did not know that Garcia

had the AR-15 rifle in the van or that Garcia planned to shoot the complainant,

Appellant admitted that he was driving the vehicle from which Garcia shot the

complainant. In other words, Appellant was not just passively at the scene of the

crime; rather, he was controlling the vehicle on the freeway from which Garcia

was able to shoot the complainant in the head, while the complainant was in

another vehicle traveling down the freeway. The jury could have found it unlikely

that Appellant unwittingly drove in a manner that would have allowed Garcia to

make an accurate shot into another moving vehicle on the freeway.

In addition, before executing the search warrant for the apartment at which

the police had surveilled Jonathan, the police learned from an informant that the

weapon involved in the complainant's murder may be in the apartment. During the

search, they recovered two AR-15 rifles. The evidence showed that one of the

rifles had been purchased by Appellant. Although the exact type of firearm used in

the murder was not determined, the police were able to determine that a high-

powered rifle had been used. Officer Bradley testified at trial that the homicide

division believed the weapon used had been "something like an AR-15 [rifle]"

19 We hold that, giving proper deference to the jury's resolution of the facts,

the cumulative force of the non-accomplice evidence tends to connect Appellant to

the complainant's murder. We overrule Appellant's second issue.

Extraneous-Offense Evidence

In his fourth issue, Appellant asserts "[t]he trial court erred by allowing

evidence of extraneous offenses of (1) Appellant and (2) many instances of other

parties' illegal extraneous behavior into evidence." Appellant asserts that "the jury

heard" about these extraneous offenses "[b]ecause of the court's adverse rulings on

the motion in limine and motion to suppress." However, as discussed infra, the

trial court properly denied Appellant's motion to suppress. In addition, a ruling on

a motion in limine does not preserve error for review. See Tex. R. App. P. 33.1;

Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999).

Appellant lists, in bullet-point format, 26 instances of when he claims the

trial court improperly admitted extraneous-offense evidence. However, Appellant

fails to provide record references for 25 of these instances.3 See Tex. R. App. P.

The only evidence for which Appellant offers a record citation is evidence related to the execution of the search warrant, which resulted in the discovery of two AR- 15 rifles, the same type of weapon believed to have been used to kill the complainant. While he asserted the rifles were outside the scope of the search warrant, Appellant does not point to where in the record he lodged an extraneous- offense objection to this evidence. A point of error on appeal must comport with the objection made at trial. Appellant did not preserve his extraneous-offense complaint for review with respect to the evidence related to the search warrant because he did not object to this evidence on such basis at trial. See Tex. R. APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

20 38.1(i) (providing appellant's brief must contain clear and concise argument for

contentions made, with appropriate citations to authorities and the record). Courts

have held that issues on appeal are waived if an appellant fails to support his

contentions by citations to the record. See Jensen v. State, 66 S.W.3d 528, 545

(Tex. App.—Houston [14th Dist.] 2002, pet. refd) (holding appellant waived

review of his complaint because section of his brief on that issue did not contain )

citations to the record); Huerta v. State, 933 S.W.2d 648, 650 (Tex. App.—San

Antonio 1996, no pet.) (relying on rule that appellant must direct court to specific

portion of record supporting complained of error in concluding issue waived).

Given the absence of citations to the record, it follows that Appellant has not

pointed us to an instance in which he objected during trial to the extraneous-

offense evidence of which he complains. To preserve a complaint for appellate

review, an appellant must have presented to the trial court a timely request,

objection, or motion stating the specific grounds for the ruling desired. Tex. R.

App. P. 33.1(a)(1)(A).

In any event, much of the evidence Appellant cites pertains to the narcotics

trafficking operation engaged in by Figueredo and Appellant's brother, Jonathan.

Relatedly, Appellant complains of evidence pertaining to the extraneous murder of

a narcotics informant, Enrique Velasquez. Appellant asserts that, in admitting the

complained-of evidence, the State characterized Appellant to be "of the same

21 character as [Figueredo]: a violent drug dealer, possibly involved in multiple

murders, possessing an AR-15 found with other weapons, and involved in

organized crime involving tens of millions of dollars."

As the State points out, there were instances at trial in which evidence of

Figueredo's and Jonathan's drug trafficking and evidence of Velasquez's murder

were admitted without objection by Appellant. Even though he raised extraneous-

offense and relevancy objections at trial on occasion to this type evidence,

Appellant did not object each time it was offered nor did he request a running

objection. "[A]n objection must be made each time inadmissible evidence is

offered unless the complaining party obtains a running objection or obtains a ruling

on his complaint in a hearing outside the presence of the jury." Lopez v. State, 253

S.W.3d 680, 684 (Tex. Crim. App. 2008). Thus, Appellant's complaints regarding

the evidence were not preserved. See id.

In addition, as the State further points out, Appellant also offered evidence

regarding the narcotics-trafficking operation and regarding Velasquez's murder.

The erroneous admission of evidence is harmless if the same evidence is offered by

a defendant in another part of the trial. See Saldano v. State, 232 S.W.3d 77, 102

(Tex. Crim. App. 2007); see also Amunson v. State, 928 S.W.2d 601, 608 (Tex.

App.—San Antonio 1996, pet. ref d) ("When the defendant offers the same

22 evidence to which he earlier objected, he is not in a position to complain on

appeal.").

We overrule Appellant's fourth issue.

Extraneous-Offense Instruction

In his fifth issue, Appellant asserts that "[t]he trial court erred by improperly

charging the jury on extraneous offenses." With regard to extraneous offenses, the

trial court instructed the jury as follows:

You are further instructed that if there is any evidence before you in this case regarding the defendant's committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, the same in determining preparation, plan, knowledge, accident of the defendant, and even then you may only consider the motive, opportunity, intent, identity, or absence of mistake or if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.

Appellant claims that, in addition to this instruction, the trial court had a

duty to instruct the jury sua sponte that "none of the extraneous offenses" of

Figueredo, Jonathan, Velasquez, or Garcia "could be imputed to Appellant."

Appellant asserts that the trial court had duty to give this instruction even though

he did not object to the lack of such instruction at trial.

In support of his assertion, Appellant cites Rule of Appellate Procedure

44.2(b), which governs harm analysis relating to non-constitutional error.

23 Appellant also cites authority for the general proposition that the trial court must

instruct the jury regarding the law applicable to the case. However, as the State

points out, Appellant has failed to cite any authority to support his assertion that

the trial court was required to instruct the jury that the extraneous offenses of

Figueredo, Jonathan, Velasquez, or Garcia could not be imputed to Appellant.

Thus, Appellant has inadequately briefed this issue by neglecting to present

argument and authorities as required by Texas Rule of Appellant Procedure

38.1(h). See TEX. R. APP. P. 38.1(h); see also Cardenas v. State, 30 S.W.3d 384,

393-94 (Tex. Crim. App. 2000) (deciding in capital murder case that defendant's

points complaining of lack of jury instruction on voluntariness of defendant's

statements to police were inadequately briefed when no authority or accompanying

argument provided to support claim); Smith v. State, 907 S.W.2d 522, 532 (Tex.

Crim. App. 1995) (overruling point of error because arguments and authorities

presented were "different in character" from error alleged under the point).

We overrule Appellant's fifth issue.

Improper Jury Argument

In his sixth issue, Appellant claims, "The State committed reversible error

[during the punishment phase] by arguing that Appellant is part of the 'drug world'

of the accomplices and should be punished accordingly." Appellant did not,

however, object to the State's remark during closing argument. Thus, Appellant

24 has failed to preserve this complaint for our review. See Tex. R. App. P. 33.1(a);

Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) ("[W]e will not

review the propriety of the prosecutor's arguments, [when] appellant failed to

object to those arguments at trial.").

We overrule Appellant's sixth issue.

Principal-Actor Instruction

In his seventh issue, Appellant asserts that the trial court erred by submitting

a jury instruction permitting the jury to find him guilty of the offense of murder as

a principal actor. Appellant correctly points out that the jury charge permitted the

jury to find him guilty of the complainant's murder as either a party to the offense

or as the principal actor.

Appellant asserts that no evidence was offered to show that he was guilty of

the complainant's murder as the principal actor. He points out that the evidence

showed that Garcia shot the complainant; no evidence was offered to show that

Appellant was the shooter.

Presuming without deciding that the submission of the primary-actor

instruction was error, we turn to the question of harm. When, as here, the appellant

did not object to the alleged error, we will reverse only if the error is '"so

egregious and created such harm"1 that the defendant did not receive a fair and

impartial trial. Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009) (quoting

25 Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). We consider (1)

the entire jury charge, (2) the state of the evidence, including contested issues and

the weight of probative evidence, (3) the parties' arguments, and (4) any other

relevant information found in the record as a whole. Allen v. State, 253 S.W.3d

260, 264 (Tex. Crim. App. 2008).

During closing argument, the State argued only that Appellant was guilty as

a party to the offense. In this regard, the prosecutor stated, "[T]he evidence that

has been presented to you over these last two days shows beyond a reasonable

doubt that [Appellant] assisted Christopher Garcia when Christopher Garcia used

this gun or the other gun that was purchased by [Appellant] to murder Isaias

Valdez."

To show the principal-actor instruction was harmful, Appellant points to a

note sent out by the jury during deliberations that refers to the AR-15 rifle as

"belonging to" the Appellant. He asserts that this indicates the jury may have been

misled into believing that Appellant was the shooter and that it could convict him

as the principal actor. However, simply because the jury may have considered the

weapon to belong to Appellant does not necessarily mean that the jury thought he

was the shooter. The jury may have thought that Appellant furnished the weapon

to Garcia to use to commit the offense.

26 In any event, if, as Appellant claims, guilt as the principal actor would be7an

irrational finding under the evidence, then it is highly unlikely that a rational jury

would base its verdict on the principal-actor theory. Cf Cathey v. State, 992

S.W.2d 460, 466 (Tex. Crim. App. 1999) (applying same reasoning in case in

which appellant argued that he was harmed by parties instruction when it would

have been irrational for jury to find him guilty as a party). As discussed under the

first issue, the evidence was sufficient to support Appellant's conviction for the

offense of murder as a party. "When a charge authorizes a jury to convict a

defendant as a principal or a party and the evidence establishes the defendant's

guilt only as a party, error in submitting the defendant's guilt as a principal is

harmless under the Almanza standard." Payne v. State, 194 S.W.3d 689, 698 (Tex.

App.—Houston [14th Dist.] 2006, pet. refd); see also Washington v. State, 449

S.W.3d 555, 567-68 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding

defendant not harmed by submission of principal-actor instruction when evidence

showed he was guilty as a party). We conclude that any error in instructing the

jury that Appellant could be found guilty as the principal actor was harmless error.

Having failed to show harm, Appellant also has failed to show egregious harm.

See Cathey, 992 S.W.2d at 466.

We overrule Appellant's seventh issue.

27 Motion to Suppress

In his eighth issue, Appellant claims that the trial court erred by denying his

motion to suppress evidence of the two AK-15 rifles seized during the search of an

apartment conducted pursuant to a search warrant. During the suppression hearing,

which was conducted during trial, Appellant asserted that the police exceeded the

scope of the search warrant because it was issued only for the seizure of narcotics.

The State responds that the trial court properly denied the motion to suppress

because Appellant did not show that he had standing to challenge the search of the

apartment.

A. Standard of Review and Applicable Legal Principles

The Fourth Amendment of the U.S. Constitution protects individuals from

unreasonable searches and seizures. State v. Betts, 397 S.W.3d 198, 203 (Tex.

Crim. App. 2013); Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App.

1993). The rights secured by the Fourth Amendment are personal; accordingly, an

accused has standing to challenge the admission of evidence obtained by an

"unlawful" search or seizure only if he had a legitimate expectation of privacy in

the place invaded. See Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App.

2014); Betts, 397 S.W.3d at 203. The defendant who challenges a search has the

burden of proving facts demonstrating a legitimate expectation of privacy. Betts,

397 S.W.3d at 203. He must show that he had a subjective expectation of privacy

28 in the place invaded and that society is prepared to recognize that expectation of

privacy as objectively reasonable. Id.

When determining whether a defendant has demonstrated an objectively

reasonable expectation of privacy, we examine the totality of the circumstances

surrounding the search, including (1) whether the accused had a property or

possessory interest in the place invaded; (2) whether he was legitimately in the

place invaded; (3) whether he had complete dominion or control and the right to

exclude others; (4) whether, before the intrusion, he had taken normal precautions

customarily taken by those seeking privacy; (5) whether he put the place to some

private use; and (6) whether his claim of privacy is consistent with historical

notions of privacy. Id. at 203-04; Granados v. State, 85 S.W.3d 217, 223 (Tex.

Crim. App. 2002). This is a non-exhaustive list of factors, and no one factor is

dispositive. See Granados, 85 S.W.3d at 223. '"Although we defer to the trial

court's factual findings and view them in the light most favorable to the prevailing

party, we review the legal issue of standing de novo.'" Betts, 397 S.W.3d at 204

(quotingKothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004)).

Appellant did not testify at the suppression hearing. We agree with the State

that no evidence was offered to satisfy the factors for determining whether

Appellant had standing to challenge the search of the apartment. Appellant offered

29 * * • *

no evidence to show that (1) he had a property or possessory interest in the place

invaded; (2) whether he was legitimately in the place invaded; (3) whether he had

complete dominion or control and the right to exclude others; (4) whether, before

the intrusion, he took normal precautions customarily taken by those seeking

privacy; (5) whether he put the place to some private use; or (6) whether his claim

ofprivacy is consistent with historical notions of privacy.

During trial, Officer Bradley testified that he had surveilled Appellant's

brother Jonathan at the apartment. The officer testified that he had seen Appellant

as well as Garcia, Jonathan, and Figueredo at the "location" of the apartment.

Without further explanation, Officer Bradley stated that these men were

"connected" with the apartment. Officer Bradly testified that, less than an hour

before the search, he had seen Appellant in the parking lot of the apartment

complex looking at a truck with other people. The officer stated that Appellant left

before the search warrant was executed. No evidence was presented that Appellant

had any possessory interest in the apartment, any right to control the apartment, or

used the apartment for any purpose. In fact, no evidence was presented that

Appellant had ever been inside the apartment.

Furthermore, the search-warrant affidavit, admitted into evidence, statedthat

Emmanuel Valdez lived at the apartment. The affidavit also stated that the

30 »• • * vS-n f/

apartment was "in the charge of and controlled by" Jonathan, Garcia, and

Figueredo. No mention was made of Appellant in the affidavit.

On this record, we conclude that Appellant has not met his burden to

establish a legitimate expectation of privacy such that he would have standing to

contest the search of the apartment in which the AR-15 rifles were seized. We

hold that the trial court properly denied Appellant's motion to suppress.

We overrule Appellant's eighth issue.

Conclusion

We affirm the judgment ofthe trial court.

Laura Carter Higley Justice

Panel consists of Justices Jennings, Higley, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).