Opinion
04-21-00195-CR
07-27-2022
Guillermo MORALES III, Appellant v. The STATE of Texas, Appellee
Do not publish
From the 451st Judicial District Court, Kendall County, Texas Trial Court No. 7388 Honorable Kirsten Cohoon, Judge Presiding.
Sitting: Rebeca C. Martinez, Chief Justice, Luz Elena D. Chapa, Justice, Lori I. Valenzuela, Justice.
MEMORANDUM OPINION
Lori I. Valenzuela, Justice.
A jury convicted appellant, Guillermo Morales, III, of the manufacture/delivery of a controlled substance and assessed punishment at twenty years' confinement. In two issues on appeal, Morales asserts the evidence is legally insufficient to support his conviction and he received ineffective assistance of counsel at trial. We affirm.
BACKGROUND
On July 26, 2019, Boerne Police Patrol Officer Randy Goudreau was in his patrol car sitting on the side of the highway when he saw Morales drive past him at about eighty-two miles-per- hour on a seventy-five-mile-per-hour highway. Goudreau initiated a traffic stop and approached the passenger side of the vehicle where he identified a male in the driver's seat, a female in the front passenger seat, and a three-year-old child in the backseat. Morales was identified as the driver. When Goudreau informed the couple about the traffic violation, Morales "seemed very nervous," his hands were shaking, and "he was kind of hesitant to talk to [Goudreau] initially."
Goudreau asked Morales to step out of his vehicle and began to question him about his nervousness and the female passenger. Goudreau said Morales immediately "began doing some very suspicious movements with his body," he was very tense, and he was concerned about why Goudreau was asking questions unrelated to the traffic violation. Morales identified the woman as his fiancé Destiny Lara, but he did not know her birth date, which Goudreau found suspicious. Morales told Goudreau the child was the woman's nephew. Goudreau conducted a pat-down search of Morales, which revealed nothing illegal.
Goudreau asked for and received Morales's consent to search the vehicle. When he spoke to the woman, she identified herself as Ciara Barrera. Goudreau described her as very nervous "and she was constantly talking, which is obviously a sign of nervousness." When asked if there was anything illegal in the car, she responded "absolutely not . . . [t]here's - my child is in the car." Goudreau then had her and the child exit the car. During his search of the car, Goudreau found Barrera's purse on the front passenger's seat, inside which was a "meth bong" containing the residue of methamphetamine, a digital weight scale, and three small plastic bags containing methamphetamine. In the car's center console, he found two cell phones that belonged to Morales. Barrera also had her own cell phone in her possession. Goudreau described the interior of the vehicle as extremely disheveled, appeared to be used by both adults, and the backseat contained children's toys and backpacks. In the trunk of the car, he found a duffle bag containing men's and women's clothing, women's makeup and hair products, and a plastic bag containing over 100 smaller plastic bags. Some of the smaller bags contained methamphetamine residue.
Goudreau said that before his conversation with Barrera, he had Barrera on possession with intent to distribute but had Morales only on driving with an invalid driver's license. No methamphetamine was found on Morales's person or in his wallet. However, after speaking with Barrera and considering other evidence, Goudreau formed the belief Morales was involved in the delivery and sale of narcotics. On cross-examination, Goudreau admitted that, after Barrera's child was taken away by another officer, he told Barrera he could "help" her. Barrera then told Goudreau that Morales was "involved." At this point, Morales's clothes were searched more extensively, but, again, nothing was found. Also, nothing was found in, under, or around the driver's seat.
Boerne Police Officer Brandon Rowe testified he arrived after Goudreau made the traffic stop. Rowe helped with some of the search and spoke to Barrera. He said that while he spoke to her, Barrera kept looking over to where Morales was detained "almost to the point where it was making [Rowe] uncomfortable," and he thought he should move her further away from where Morales was located. He thought Barrera was afraid of Morales. Rowe said it was common for a male to hand off contraband to a female because they think a female will not be searched as thoroughly as a male. He also said that when a couple worked together, it was not uncommon for one member of the couple to be the only one carrying the illegal substances. During his search of the car, he did not find any contraband or paraphernalia around the driver's seat.
Barrera testified she and Morales started dating in May 2019, she was pregnant with his child, and they were arrested in July 2019. She said she had never been arrested for or convicted of a crime. She said that on the day of the arrest, she and Morales had packed up their belongings in Kerrville and were moving to San Antonio. Her son was in the backseat of the car. According to Barrera, the methamphetamine found in her purse belonged to both her and Morales, and they got the drugs earlier in the day from one of her dealers. They paid for the methamphetamine with the money they earned from selling the drug. After getting the methamphetamine, they delivered it to their customers. Several text messages, dating from early May 2019 through the date of the arrest on July 26, 2019, between Barrera and a friend ("Brandi") were introduced into evidence. The text messages showed both Barrera and Morales involved in the sale of methamphetamine to Brandi. The arranged sale of methamphetamine to Brandi on July 26 was never completed because Barrera and Morales were both arrested prior to completing the sale. Text messages, dating from mid-June 2019 through mid-July, between Barrera and another customer, also showed both Barrera and Morales involved in the sale of methamphetamine. Finally, text messages between Barrera's cell phone and Morales's cell phone, from late May through late June, showed the two of them involved in the sale of methamphetamine. Barrera said she and Morales sold methamphetamine to get "back on [their] feet and do things the right way and get a place" for the two of them. She said they both wanted to end their involvement with drugs.
On the day of the arrest, Barrera put the methamphetamine in her purse to keep it away from her son. She told the two officers at the scene of the arrest the methamphetamine belonged to both her and Morales. She said she was told that if she gave them information "they would make sure about [her] son with CPS." However, she admitted that after the arrest, when she spoke to a narcotics detective, she changed her story and tried to recant her statements because she "didn't want anything to happen." At trial, her story again changed, with her again implicating Morales.
Barrera pled guilty to the first-degree felony of possession of a controlled substance with intent to deliver with punishment assessed at ten years probated to six years.
The jury found Morales guilty, and this appeal ensued.
In a single sentence on appeal, Morales asserts the trial court erred by denying his motion for new trial, which was based on factual insufficiency of the evidence, without a hearing. An appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(i). Morales's brief fails to comply with this requirement as to this issue; therefore, the issue is waived by inadequate briefing.
Morales asserts the evidence is insufficient because the State did not corroborate Barrera's accomplice-witness testimony and, aside from her testimony, the State focused only on his demeanor and criminal history. Thus, Morales's first issue on appeal raises two separate issues: (1) whether Barrera's accomplice-witness testimony is sufficiently corroborated under Texas Code of Criminal Procedure article 38.14, and (2) whether the evidence is legally sufficient to support his conviction under the Jackson v. Virginia legal-sufficiency standard. See Martinez v. State, 749 S.W.2d 556, 558 (Tex. App.-San Antonio 1988, no pet.) ("Thus, where a sufficiency of the evidence complaint is broad enough to attack the conviction both in general and on non-compliance with article 38.14, the reviewing court must, in fact, adopt a two-prong standard of review. The reviewing court must 1) determine whether the corroborating evidence alone meets the requirements of article 38.14; and if so, 2) whether the corroborating evidence together with the accomplice testimony meets the general sufficiency of evidence standard."). Therefore, we first consider the accomplice-witness rule and then whether the evidence is legally sufficient to support the conviction.
A. Accomplice-Witness Rule
Article 38.14 provides that "[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. art. 38.14. "The purpose behind the rule is to ensure courts consider such testimony with a measure of caution, since accomplices may lie to shift blame or avoid punishment." Negrete v. State, No. 04-20-00212-CR, 2021 WL 3173917, at *3 (Tex. App.-San Antonio July 28, 2021, no pet.) (mem. op., not designated for publication); see also Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998) (footnotes omitted) ("The rule reflects a legislative determination that accomplice testimony implicating another person should be viewed with a measure of caution, because accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person."). "The corroboration requirement applies only when the accomplice witness is called by the state." Blake, 971 S.W.2d at 454. The rule is statutorily imposed "and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards." Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (citation omitted).
"In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime." Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). "'Tendency to connect' rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt." Id.; see also Barnes v. State, No. 04-13-00346-CR, 2014 WL 6979529, at *3 (Tex. App.-San Antonio Dec. 10, 2014, pet. ref'd) (mem. op., not designated for publication) ("The 'tends-to-connect' standard does not present a high threshold."). "[T]here simply needs to be 'other' evidence tending to connect the defendant to the offense." Solomon, 49 S.W.3d at 361. "To meet the requirements of the rule, the corroborating evidence need not prove the defendant's guilt beyond a reasonable doubt by itself." Malone, 253 S.W.3d at 257. "Rather, the evidence must simply link the accused in some way to the commission of the crime and show that 'rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to the offense.'" Id. (citation omitted). "There is no set amount of non-accomplice corroboration evidence that is required for sufficiency purposes; '[e]ach case must be judged on its own facts.'" Id. (citation omitted). "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 tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction." Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984). However, a defendant's mere presence at the scene of a crime is insufficient to corroborate accomplice testimony. Malone, 253 S.W.3d at 257.
Corroborating evidence may be both direct and circumstantial, and no set amount of evidence is required to satisfy the accomplice-witness rule. See Hernandez v. State, 585 S.W.3d 537, 549 (Tex. App.-San Antonio 2019, pet. ref'd). "[C]ircumstances that are apparently insignificant may constitute sufficient evidence of corroboration." Malone, 253 S.W.3d at 257. Though each piece of corroborating evidence may not satisfy Article 38.14 in isolation, the rule may still be satisfied if, when taken as a whole, the great weight of the corroborating evidence tends to connect the defendant to the crime committed. See Smith v. State, 332 S.W.3d 425, 447 (Tex. Crim. App. 2011).
We review evidence corroborating accomplice-witness testimony in the light most favorable to the jury's verdict. Negrete, 2021 WL 3173917, at *3. "[W]hen 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." Smith, 332 S.W.3d at 442. "Therefore, it is not appropriate for appellate courts to independently construe the non-accomplice evidence." Id. The accused is entitled to acquittal if there is insufficient corroboration of the accomplice-witness testimony. Tex. Code Crim. Proc. art. 38.17 ("In all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction."); see also Taylor v. State, 10 S.W.3d 673, 685 (Tex. Crim. App. 2000) (stating prosecution's failure to produce any non-accomplice evidence requires acquittal).
B. Evaluation of Evidence Under Accomplice-Witness Rule
We conclude the non-accomplice testimony is sufficient to corroborate Barrera's testimony. The non-accomplice testimony places Morales as the driver of the vehicle in which the methamphetamine and other paraphernalia were found. "Proof that [Morales] was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect [Morales] to the crime so as to furnish sufficient corroboration to support a conviction." Brown, 672 S.W.2d at 489. The suspicious circumstances here include the following: (1) Goudreau testified Morales had very suspicious body movements, was very tense, and was concerned about why he was being asked questions unrelated to the traffic stop; (2) Morales told Goudreau the child was the female passenger's nephew and the female passenger's name was Destiny Lara, but the passenger's name was Ciara Barrera and the child was her son; (3) Morales was the driver of the vehicle, in which Goudreau found a duffle bag containing, among other things, men's clothing and small plastic container bags, some of which contained methamphetamine residue; (4) a purse belonging to Barrera contained a "meth bong," a digital weight scale, and three small plastic bags containing methamphetamine; and (5) multiple text messages, on cell phones belonging to both Barrera and Morales, showed the two of them involved in the sale of methamphetamine.
On this record, the jury could have determined the non-accomplice evidence tended to connect Morales to the crime. Therefore, we next consider Morales's legal sufficiency challenge.
C. Legal Sufficiency of the Evidence
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. "The consideration of all evidence under a legal-sufficiency review necessarily includes accomplice-witness testimony when the accomplice-witness rule has been satisfied." Negrete, 2021 WL 3173917, at *4.
After considering all the evidence presented to the jury in the light most favorable to the conviction, we hold the non-accomplice evidence combined with Barrera's testimony is legally sufficient evidence from which the trier of fact could find the essential elements of the crime beyond a reasonable doubt.
INEFFECTIVE ASSISTANCE OF COUNSEL
A defendant is entitled to effective assistance of counsel under the United States Constitution and the Texas Constitution. U.S. Const. amend. VI; Tex. Const. art. I, § 10. To establish ineffective assistance of counsel, the appellant must show: (1) trial counsel's assistance fell below an objective professional standard of reasonableness and (2) counsel's actions prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Vega v. State, 610 S.W.3d 79, 82 (Tex. App.-San Antonio 2020, no pet.). An appellant "bears the burden of proving by a preponderance of the evidence that counsel was ineffective." Thompson, 9 S.W.3d at 813.
To establish deficient performance, "[a]n appellant must overcome the 'strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.'" Vega, 610 S.W.3d at 82 (quoting Thompson, 9 S.W.3d at 813). "[T]hat is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011). "To defeat the presumption of reasonable professional assistance, 'any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Thompson, 9 S.W.3d at 814 (citation omitted). "However, few cases demonstrate such deficiency on direct appeal because the record is unlikely to include any explanation by trial counsel, and 'we can [frequently] conceive of potential reasonable trial strategies that counsel could have been pursuing.'" Vega, 610 S.W.3d at 82-83 (citation omitted).
"Once an appellant establishes deficient performance, the appellant must then establish prejudice." Id. at 83. An appellant "must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Morales contends his trial counsel was ineffective for failing to (1) object to testimony and/or evidence throughout the trial, (2) put on a case or call any witnesses during the guilt-innocence phase of trial, and (3) present mitigating evidence during the punishment phase.
Here, the record is silent as to all these allegations and provides no explanation for counsel's actions or inactions. Because Morales's allegations of ineffective assistance of counsel are not firmly founded in the record, he has not overcome the presumption that trial counsel provided reasonable, professional assistance.
CONCLUSION
We overrule Morales's issues on appeal and affirm the trial court's judgment.